As filed with the Securities and Exchange Commission on April 1, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Bionano Genomics, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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3826
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26-1756290
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(State or other jurisdiction of incorporation or
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(Primary Standard Industrial
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(I.R.S. Employer
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organization)
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Classification Code Number)
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Identification No.)
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9540 Towne Centre Drive, Suite 100
San Diego, CA 92121
San Diego, CA 92121
(858) 888-7600
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
R. Erik Holmlin, Ph.D.
President and Chief Executive Officer
Bionano Genomics, Inc.
9540 Towne Centre Drive, Suite 100
San Diego, CA 92121
San Diego, CA 92121
(858) 888-7600
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Thomas A. Coll, Esq.
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R. Erik Holmlin, Ph.D.
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Ivan K. Blumenthal, Esq.
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James C. Pennington, Esq.
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President and Chief Executive Officer
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Cliff M. Silverman, Esq.
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Cooley LLP
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Bionano Genomics, Inc.
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Mintz, Levin, Cohn, Ferris, Glovsky
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4401 Eastgate Mall
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9540 Towne Centre Drive, Suite 100
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and Popeo, P.C.
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San Diego, California 92121
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San Diego, California 92121
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Chrysler Center
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(858) 550-6000
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(858) 888-7600
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666 Third Avenue
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New York, NY 10017
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(212) 935-3000
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Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes
effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the
following box. ⌧
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ⌧ (333-237074)
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. □
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☒
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. □
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered
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Proposed Maximum
Aggregate
Offering Price(1)(4)
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Amount of Registration Fee(1)
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Common Stock, par value $0.0001 per share(2)(3)
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$
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2,999,200
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Pre-funded warrants to purchase shares of common stock and common stock issuable upon exercise thereof(2)(3)
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$
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2,999,200
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Warrants to purchase Common Stock and shares of Common Stock issuable upon exercise thereof(2)
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$
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2,999,200
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Total
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$
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5,998,400
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$
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779
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Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended (the
“Securities Act”).
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Pursuant to Rule 416 under the Securities Act of 1933, as amended, the securities being registered hereunder include such indeterminate number of additional
securities as may be issuable to prevent dilution resulting from stock splits, dividends or similar transactions.
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The proposed maximum aggregate offering price of the common stock proposed to be sold in the offering will be reduced on a dollar-for-dollar basis based on the
aggregate offering price of the pre-funded warrants offered and sold in the offering (plus the aggregate exercise price of the common stock issuable upon exercise of the pre-funded warrants), and as such the proposed aggregate maximum
offering price of the common stock and pre-funded warrants (including the common stock issuable upon exercise of the pre-funded warrants), if any, is $2,999,200.
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The securities being registered pursuant to this Registration Statement are in addition to the $15,000,980 of common stock, $15,000,980 of pre-funded warrants to
purchase shares of common stock and common stock issuable upon exercise thereof and $15,000,980 warrants to purchase common stock and shares of common stock issuable upon exercise thereof, registered pursuant to the Registrant’s
Registration Statement on Form S-1 (Registration No. 333-237074).
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The Registration Statement shall become effective upon filing in accordance with Rule 462(b) promulgated under the Securities Act of 1933, as amended.
EXPLANATORY NOTE AND
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement (the “Registration Statement”) is being filed with the Securities and Exchange Commission (the “Commission”) with respect to
the registration of additional shares of common stock, par value $0.0001 per share (“Common Stock”) of Bionano Genomics, Inc. (the “Registrant”) (or pre-funded warrants (the “Pre-Funded Warrants”) to purchase shares of the Registrant’s Common Stock
in lieu thereof) and common warrants to purchase shares of the Registrant’s Common Stock (the “Common Warrants”), pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”). This Registration Statement incorporates by
reference the contents of, including all amendments and exhibits thereto, the Registration Statement on Form S-1, as amended (File No. 333-237074) (the “Prior Registration Statement”), which the Commission declared effective on April 1, 2020, and is
being filed solely for the purpose of increasing the aggregate offering price of (i) the Common Stock to be offered in the public offering by $2,999,200, (ii) the Pre-Funded Warrants to be offered in lieu of Common Stock in the public offering by
$2,999,200 and (iii) the Common Warrants to be offered in the public offering by $2,999,200. The additional Common Stock or Pre-Funded Warrants and Common Warrants that are being registered for sale are in an amount and at a price that together
represent no more than 20% of the maximum aggregate offering price set forth in the Calculation of Registration Fee table contained in the Prior Registration Statement.
The required opinion and consents are listed on the Exhibit Index attached hereto and filed herewith.
EXHIBIT INDEX
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Exhibit
Number
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Description
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Opinion of Cooley LLP.
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Consent of Deloitte & Touche LLP, an Independent Registered Public Accounting Firm.
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Consent of Cooley LLP (included in Exhibit 5.1).
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Power of Attorney (included on the signature page of the Registration Statement on Form S-1, as amended (File No. 333-237074), filed with the Securities and Exchange Commission on March
11, 2020 and incorporated herein by reference).
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of San Diego, State of California, on the 1st day of April, 2020.
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BIONANO GENOMICS, INC.
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By:
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/s/ R. Erik Holmlin, Ph.D.
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R. Erik Holmlin, Ph.D.
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President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ R. Erik Holmlin, Ph.D.
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Chief Executive Officer and Director
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April 1, 2020
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R. Erik Holmlin, Ph.D.
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(Principal Executive and Financial Officer)
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/s/ Mark Adamchak
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Controller
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April 1, 2020
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Mark Adamchak
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(Principal Accounting Officer)
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/s/ David L. Barker, Ph.D.*
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David L. Barker, Ph.D.
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Director
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April 1, 2020
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/s/ Albert A. Luderer, Ph.D.*
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Albert A. Luderer, Ph.D.
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Director
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April 1, 2020
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/s/ Junfeng Wang*
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Junfeng Wang
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Director
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April 1, 2020
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/s/ Christopher Twomey*
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Director |
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Christopher Twomey
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April 1, 2020
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/s/ Kristina Vuori, M.D., Ph.D.*
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Director | |||
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Kristiina Vuori, M.D., Ph.D.
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April 1, 2020
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*
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Pursuant to Power of Attorney | |
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By:
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/s/ R. Erik Holmlin, Ph.D.
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R. Erik Holmlin, Ph.D.
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Attorney-in-Fact
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Exhibit 5.1
Thomas A. Coll
+1 858 550 6013
collta@cooley.com
April 1, 2020
Bionano Genomics, Inc.
9540 Towne Centre Drive, Suite 100
San Diego, CA 92121
Ladies and Gentlemen:
We have acted as counsel to Bionano Genomics, Inc., a Delaware corporation (the “Company”), in connection with
the filing by the Company of a Registration Statement (No. 333-237074) on Form S-1 with the Securities and Exchange Commission, as well as a registration statement related thereto and to be filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the “Act”), together covering an underwritten public offering of (i) up to an aggregate of 54,546,000 shares (the “Shares”)
of Common Stock of the Company, par value $0.0001 per share (the “Common Stock”), or pre-funded warrants to purchase shares of Common Stock (the “Pre-Funded Warrants”), (ii) warrants to purchase up to 54,546,000 shares of Common Stock (the “Common Warrants” and, together with the Pre-Funded Warrants,
the “Warrants”), and (iii) up to 109,092,000 shares of Common Stock issuable upon exercise of the Warrants (the “Warrant Shares”;
together with the Shares and the Warrants, the “Securities”). Such Registration Statement on Form S-1 (No. 333-237074), as amended, which was declared effective on April 1, 2020, including the prospectus which forms a part of such Registration Statement (the “Prospectus”), and including the registration statement related thereto and to be filed pursuant to Rule 462(b) under the
Act, is herein referred to as the “Registration Statement.” The Securities are to be sold by the
Company as described in the Registration Statement and the Prospectus.
In connection with this opinion, we have examined and relied upon the Registration Statement, the Prospectus, the form of Common Warrant, the form of Pre-Funded Warrant,
the Company’s amended and restated certificate of incorporation and amended and restated bylaws, each as currently in effect, and originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other
instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, and the conformity to originals of all
documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due execution and delivery of all documents by all persons other than the Company where due execution and delivery are a
prerequisite to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently sought to verify such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware and, as to the Warrants constituting valid and binding obligations of
the Company, with respect to the laws of the State of New York. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or
state securities law, rule or regulation.
Cooley LLP 4401 Eastgate Mall San Diego, CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com
t: (858) 550-6000 f: (858) 550-6420 cooley.com
Ladies and Gentlemen:
April 1, 2020
Page Two
With regard to our opinion concerning the Warrants constituting valid and binding obligations of the Company:
(i) Our opinion is subject to, and may be limited by, (a)
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, debtor and creditor, and similar laws which relate to or affect creditors’ rights generally, and (b) general principles of equity (including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing) regardless of whether considered in a proceeding in equity or at law.
(ii) Our opinion is subject to the qualification that the
availability of specific performance, an injunction or other equitable remedies is subject to the discretion of the court before which the request is brought.
(iii) We express no opinion as to any provision of the
Warrants that: (a) provides for liquidated damages, buy-in damages, monetary penalties, prepayment or make-whole payments or other economic remedies to the extent such provisions may constitute unlawful penalties, (b) relates to advance waivers
of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitations, trial by jury, or procedural rights, (c) restricts non-written modifications and waivers, (d) provides for the
payment of legal and other professional fees where such payment is contrary to law or public policy, (e) relates to exclusivity, election or accumulation of rights or remedies, (f) authorizes or validates conclusive or discretionary
determinations, or (g) provides that provisions of the Warrants are severable to the extent an essential part of the agreed exchange is determined to be invalid and unenforceable.
(iv) We express no opinion as to whether a state court
outside of the State of New York or a federal court of the United States would give effect to the choice of New York law or jurisdiction provided for in the Warrants.
With respect to our opinion regarding the Warrant Shares, we express no opinion to the extent that, notwithstanding the Company’s current reservation of the maximum
number of Warrant Shares as of the date hereof, future issuances of securities of the Company, including the Warrant Shares, and/or antidilution adjustments to outstanding securities of the Company, including the Warrants, may cause the Warrants to
be exercisable for more shares of Common Stock than the number that then remain authorized but unissued. Further, we have assumed the Exercise Price (as defined in the Warrants) will not be adjusted to an amount below the par value per share of the
Warrant Shares.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that (i) the Shares, when sold and issued in accordance with the Registration Statement and
the Prospectus, will be validly issued, fully paid and nonassessable, (ii) provided that the Warrants have been duly executed and delivered by the Company to the purchasers thereof against payment therefor as provided in the Registration Statement
and the Prospectus, the Warrants will be valid and binding obligations of the Company and (iii) the Warrant Shares, when issued and paid for in accordance with the terms of the Warrants, will be validly issued, fully paid and non-assessable.
We consent to the reference to our firm under the caption “Legal Matters” in the Prospectus and to the filing of this opinion as an exhibit to the Registration Statement.
Sincerely,
Cooley LLP
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/s/ Thomas A. Coll |
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Thomas A. Coll | |
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Cooley LLP 4401 Eastgate Mall San Diego, CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com
t: (858) 550-6000 f: (858) 550-6420 cooley.com
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement No. 333-237074 on Form S-1 of our report dated March 10, 2020, relating to the financial statements of Bionano
Genomics, Inc. appearing in the Annual Report on Form 10-K of Bionano Genomics, Inc. for the year ended December 31, 2019.
/s/ DELOITTE & TOUCHE LLP
San Diego, California
April 1, 2020