Exhibit 5.1
[ Letterhead of Snell & Wilmer L.L.P. ]
November 5, 2020
Everspin Technologies, Inc.
5670 W. Chandler Boulevard, Suite 100
Chandler, Arizona 85226
Dear Ladies and Gentlemen:
We have acted as counsel to Everspin Technologies, Inc., a Delaware corporation (the “Company”), and in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Act”), relating to the registration and the proposed issuance and sale from time to time pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Act, as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”) and the supplements to the prospectus referred to therein (each a “Prospectus Supplement”), together or separately and in one or more series (if applicable) of:
| · | shares of the Company’s common stock, $0.0001 par value per share (the “Common Stock”); |
| · | shares of the Company’s preferred stock, $0.0001 par value per share (the “Preferred Stock”); |
| · | debt securities, in one or more series (the “Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Debt Securities thereunder, by and between a trustee to be selected by the Company (the “Trustee”) and the Company, in the form filed as an exhibit to the Registration Statement (the “Base Indenture”); and |
| · | warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”), which may be issued under one or more warrant agreements, to be dated on or about the date of the first issuance of the Warrants thereunder, by and between a warrant agent to be selected by the Company (the “Warrant Agent”) and the Company, in the forms filed as exhibits to the Registration Statement, respectively (each, a “Warrant Agreement”). |
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
| Snell & Wilmer |
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| Everspin Technologies, Inc. |
| November 5, 2020 |
| Page 2 |
The Common Stock, the Preferred Stock, the Debt Securities, and the Warrants are collectively referred to herein as the “Securities.” The Securities are to be sold from time to time as set forth in the Registration Statement, the Prospectus contained therein and the Prospectus Supplements. The Securities are to be sold pursuant to a purchase, underwriting, subscription, placement agent or similar agreement in substantially the form to be filed under a Current Report on Form 8-K. The Base Indenture may be supplemented, as applicable, in connection with the issuance of each series of Debt Securities, by one or more board resolutions, a supplemental indenture thereto or an officer’s certificate thereunder.
In rendering the opinions stated herein, we have examined and relied upon the following:
| (a) | the Registration Statement, together with the exhibits filed as a part thereof or incorporated therein by reference; |
| (b) | the Prospectus prepared in connection with the Registration Statement; |
| (c) | an executed copy of a certificate of Daniel Berenbaum, Chief Financial Officer of the Company, dated as of a recent date (the “Officer’s Certificate”); |
| (d) | the Company’s Amended and Restated Certificate of Incorporation, as amended to date, as certified by the Secretary of State of the State of Delaware as of a recent date; |
| (e) | the Company’s Amended and Restated Bylaws, as currently in effect and as certified pursuant to the Officer’s Certificate; |
| (f) | the form of Base Indenture; |
| (g) | the form of Warrant Agreements; |
| (h) | a specimen certificate representing the Common Stock; and |
| (i) | a copy of the resolutions of the Board of Directors of the Company, adopted on November 5, 2020, relating to the registration of the Securities and related matters, as certified pursuant to the Officer’s Certificate. |
| Snell & Wilmer |
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| Everspin Technologies, Inc. |
| November 5, 2020 |
| Page 3 |
We have also examined instruments, documents, certificates and records that we have deemed relevant and necessary for the basis of our opinions hereinafter expressed. In such examination, we have assumed: (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the instruments, documents, certificates and records we have reviewed; (iv) at the time any Securities are sold pursuant to the Registration Statement (the “Relevant Time”), the Registration Statement and any supplements and amendments thereto (including post-effective amendments) will be effective under the Act and will comply with all applicable laws; (v) at the Relevant Time, a Prospectus Supplement will have been prepared and filed with the Commission describing the Securities offered thereby and all related documentation and will comply with all applicable laws; (vi) that the Securities will be issued and sold in compliance with applicable U.S. federal and state securities laws and in the manner stated in the Registration Statement and the applicable Prospectus Supplement; (vii) that a definitive purchase, underwriting, subscription, placement agent or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; (viii) that any Securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered (a “Convertible Security”) will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise; (ix) with respect to shares of Common Stock or Preferred Stock offered, that there will be sufficient shares of Common Stock or Preferred Stock authorized under the Company’s organizational documents that are not otherwise reserved for issuance; and (x) the legal capacity of all natural persons. As to any facts material to the opinions expressed herein that were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company.
Based on such examination, we are of the opinion that:
1) With respect to shares of the Common Stock to be sold by the Company, when both: (a) the Board of Directors of the Company or a duly constituted and acting committee thereof (such Board of Directors or committee being hereinafter referred to as the “Board”) has taken all necessary corporate action to approve the issuance and the terms of the offering of the shares of Common Stock and related matters; and (b) certificates representing the shares of the Common Stock have been duly executed, countersigned, registered and delivered or, if issued in book entry form, an appropriate account statement evidencing shares of Common Stock credited to the purchaser’s account maintained with the Company’s transfer agent for Common Stock has been issued by said transfer agent, either (i) in accordance with the applicable definitive purchase, underwriting, subscription, placement agent or similar agreement approved by the Board or (ii) upon the conversion or exercise of any Convertible Security to purchase Common Stock, in accordance with the terms of such Convertible Security or the instrument governing such Convertible Security providing for such conversion or exercise as approved by the Board, in each case upon payment of the consideration therefor provided for therein (not less than the par value of the Common Stock), then the shares of Common Stock will be validly issued, fully paid and nonassessable.
2) With respect to any particular series of shares of Preferred Stock, when both: (a) the Board has taken all necessary corporate action to approve the issuance and terms of the shares of Preferred Stock, the terms of the offering thereof, including the adoption of a certificate of designations relating to such Preferred Stock as required by applicable law (a “Certificate of Designations”) and the filing of the Certificate of Designations as required by applicable law, and related matters; and (b) certificates representing the shares of the Preferred Stock have been duly executed, countersigned, registered and delivered either (i) in accordance with the applicable definitive purchase, underwriting, subscription, placement agent or similar agreement approved by the Board or (ii) upon the conversion or exercise of any Convertible Security to purchase Preferred Stock, in accordance with the terms of such Convertible Security or the instrument governing such Convertible Security providing for such conversion or exercise as approved by the Board, in each case upon payment of the consideration therefor provided for therein (not less than the par value of the Preferred Stock), then the shares of Preferred Stock will be validly issued, fully paid and nonassessable.
| Snell & Wilmer |
| ------------- L.L.P. ------------- |
| Everspin Technologies, Inc. |
| November 5, 2020 |
| Page 4 |
3) With respect to Debt Securities to be issued under the Base Indenture, when: (a) the Trustee is qualified to act as Trustee under the Base Indenture and the Company has filed a Form T-1 for the Trustee with the Commission; (b) the Trustee has duly executed and delivered the Base Indenture; (c) the Base Indenture has been duly authorized and validly executed and delivered by the Company to the Trustee; (d) the Base Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended; (e) the Board has taken all necessary corporate action to approve the issuance and terms of such Debt Securities, the terms of the offering thereof and related matters; (f) the terms and conditions of such Debt Securities have been duly established by a supplemental indenture, board resolution or officer’s certificate in accordance with the terms and conditions of the Base Indenture and any such supplemental indenture, board resolution or officer’s certificate has been duly executed and delivered by the Company and the Trustee (together with the Base Indenture, the “Indenture”); and (g) such Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture and the applicable definitive purchase, underwriting, subscription, placement agent or similar agreement approved by the Board, or upon the exercise of Convertible Securities to purchase Debt Securities, upon payment of the consideration therefor provided for therein, then such Debt Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and entitled to the benefits of the Indenture.
4) With respect to the Warrants issued under the Warrant Agreements, when: (a) the Board has taken all necessary corporate action to approve the issuance and terms of the Warrants and related matters, including the applicable Warrant Agreement; (b) the Warrant Agreement has been duly executed and delivered by the Company and the Warrant Agent; and (c) the Warrants have been duly executed and authenticated by the Warrant Agent and delivered upon payment of the consideration therefor in accordance with the Warrant Agreement and pursuant to the applicable definitive purchase, underwriting, subscription, placement agent or similar agreement approved by the Board, then the Warrants will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
Our opinion that any document is legal, valid and binding is qualified as to:
| A. | limitations imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or other laws relating to or affecting the rights of creditors generally; |
| B. | rights to indemnification, exculpation and contribution, which may be limited by applicable law or equitable principles; |
| C. | general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief and limitation of rights of acceleration, regardless of whether such enforceability is considered in a proceeding in equity or at law; |
| D. | any waiver of stay, extension or usury laws or of unknown future rights; and |
| E. | any purported fraudulent transfer “savings” clause. |
Attorneys at our firm are admitted to the practice of law in the State of Arizona, and we express no opinion as to the laws of any other jurisdiction, other than the Federal laws of the United States of America, the General Corporation Law of the State of Delaware and, solely with respect to the Debt Securities and Warrants, the State of New York.
| Snell & Wilmer |
| ------------- L.L.P. ------------- |
| Everspin Technologies, Inc. |
| November 5, 2020 |
| Page 5 |
You have informed us that you intend to issue Securities from time to time on a delayed or continuous basis, and this opinion is limited to the laws referred to above as in effect on the date hereof. We understand that prior to issuing any Securities pursuant to the Registration Statement (i) you will advise us in writing of the terms thereof and (ii) you will afford us an opportunity to (y) review the operative documents pursuant to which such Securities are to be issued or sold and (z) file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate.
We hereby consent to the filing of this opinion letter as an exhibit to the above-referenced Registration Statement and to the use of our name wherever it appears in the Registration Statement, the Prospectus, any Prospectus Supplement, and in any amendment or supplement thereto. In giving such consent, we do not believe that we are “experts” within the meaning of such term as used in the Act or the rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this opinion letter as an exhibit. In giving such consent, we do not thereby concede that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
This opinion letter is given as of the date hereof, and we express no opinion as to the effect of subsequent events or changes in law occurring or becoming effective after the date hereof. We assume no obligation to update this opinion letter or otherwise advise you with respect to any facts or circumstances or changes in law that may hereafter occur or come to our attention (even though the change may affect the legal conclusions stated in this opinion letter).
| Very truly yours, | |
| /s/ Snell & Wilmer L.L.P. |
