As filed with the Securities and Exchange Commission on July 1, 2020
Registration No. 333-239360
Delaware | | | 3826 | | | 26-1756290 |
(State or Other Jurisdiction of Incorporation or Organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) |
R. Erik Holmlin, Ph.D. President and Chief Executive Officer Bionano Genomics, Inc. 9540 Towne Centre Drive, Suite 100 San Diego, California 92121 (858) 888-7600 | | | Thomas A. Coll, Esq. James C. Pennington, Esq. Cooley LLP 4401 Eastgate Mall San Diego, California 92121 (858) 550-6000 |
Large accelerated filer | | | ☐ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☒ | | | Smaller reporting company | | | ☒ |
| | | | Emerging growth company | | | ☒ |
Title of Each Class of Securities to be Registered | | | Amount to be Registered(1) | | | Proposed Maximum Offering Price per Share(2) | | | Proposed Maximum Aggregate Offering Price(2) | | | Amount of Registration Fee |
Common stock, par value $0.0001 per share | | | 872,601 | | | $0.49 | | | $427,575 | | | $56(3) |
(1) | Consists of shares of the registrant’s common stock held by the selling stockholders named herein, which were acquired in a private transaction. Pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares of common stock being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares of common stock being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
(2) | Pursuant to Rule 457(c), calculated on the basis of the average of the high and low prices per share of common stock reported on The Nasdaq Capital Market on June 29, 2020. |
(3) | Previously paid. |
• | the size and growth potential of the markets for our products, and our ability to serve those markets; |
• | the impact of the COVID-19 pandemic on our business and operations; |
• | the rate and degree of market acceptance of our products; |
• | ability to expand our sales organization to address effectively existing and new markets that we intend to target; |
• | impact from future regulatory, judicial, and legislative changes or developments in the U.S. and foreign countries; |
• | ability to compete effectively in a competitive industry; |
• | the success of competing technologies that are or may become available; |
• | the performance of our third-party contract sales organizations, suppliers and manufacturers; |
• | our ability to attract and retain key scientific or management personnel; |
• | the accuracy of our estimates regarding expenses, future revenues, reimbursement rates, capital requirements and needs for additional financing; |
• | our ability to comply with the covenants and satisfy certain conditions of our debt facility; |
• | our ability to obtain funding for our operations; and |
• | our ability to attract collaborators and strategic partnerships. |
• | Get the Service. Customers can submit samples to Bionano Data Services and receive an appropriately filtered set of structural variant calls. Structural variation data is then presented using the Bionano Access visualization software, and files can be exported in the format of choice. Pricing for this service is $650 per genome for standard samples and $750 per genome for mosaic and cancer samples. |
• | Get the Consumables. For customers who commit to purchase at least 120 genomes every six months, the Bionano Support team will install the Saphyr System on the customer’s premises and provide training on sample preparation, instrument operation and data analysis. Pricing for this service is $550 per genome, with installation and training included at no cost, and the Saphyr instrument made available at no charge for the duration of the customer’s project. |
• | Get the Saphyr System. For customers who purchase the Saphyr System, the Bionano Support team will install the Saphyr System and provide training on sample preparation, instrument operation and data analysis. Pricing begins at $150,000 for the Saphyr instrument, $550 per genome or $450 per genome with a 240 genome bundle, with installation and training included at no cost. |
| | Before Offering | | | | | After Offering | ||||||||
Name and Address(1) | | | Number of Shares Beneficially Owned | | | Percentage of Shares Beneficially Owned | | | Number of Shares to be Registered | | | Number of Shares Beneficially Owned | | | Percentage of Shares Beneficially Owned |
Innovatus Capital Partners LLC and Related Parties(2) | | | 2,764,009(3) | | | 3.3% | | | 872,601(4) | | | 1,891,408(3) | | | 2.2% |
(1) | If required, information about other selling stockholders, except for any future transferees, pledgees, donees or successors of the selling stockholders named in the table above, will be set forth in a prospectus supplement or amendment to the registration statement of which this prospectus is a part. Additionally, post-effective amendments to the registration statement will be filed to disclose any material changes to the plan of distribution from the description contained in this prospectus. |
(2) | Innovatus Capital Partners LLC, or Innovatus Manager, serves as investment manager to each of Innovatus and Innovatus Life Sciences Offshore Fund I-A, LP, or Innovatus Offshore. Innovatus Life Sciences GP, LP, or Innovatus GP, is the general partner of Innovatus. Innovatus Life Sciences Offshore GP, LP, or Innovatus Offshore GP, is the general partner of Innovatus Offshore. Each of Innovatus Manager, Innovatus, Innovatus GP, Innovatus Offshore and Innovatus Offshore GP are collectively referred to as the Innovatus Entities. Innovatus Flagship Parent GP, LLC, or Innovatus Holdings, is the parent company of Innovatus GP and Innovatus Offshore Parent GP, LLC, or Innovatus Offshore Holdings. David Schiff, a citizen of the United States, is the principal shareholder of each of Innovatus Holdings and Innovatus Offshore Holdings, collectively referred to as the Parent Entities, and could be deemed to exercise voting and investment power over the Parent Entities and the Innovatus Entities. The address of the principal place of business for each of the Innovatus Entities, the Parent Entities and David Schiff is 777 Third Avenue, 25th Floor, New York, NY 10017. |
(3) | As of the date of this prospectus, includes an aggregate of (i) 341,856 shares of common stock issuable upon the exercise of outstanding warrants held by Innovatus and (ii) 195,131 shares of common stock issuable upon exercise of outstanding warrants held by Innovatus Offshore. |
(4) | As of the date of this prospectus, consists of (i) 579,246 shares of common stock held by Innovatus Offshore and (ii) 293,355 shares of common stock held by Innovatus, which shares may be sold by any selling stockholder named in footnote (2) above, as future transferees, pledgees, donees or successors of such shares. |
• | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
• | block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; |
• | purchases by a broker-dealer as principal and resale by the broker-dealer for its own account; |
• | an exchange distribution in accordance with the rules of the applicable exchange; |
• | privately negotiated transactions; |
• | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
• | through agreements between broker-dealers and the selling stockholders to sell a specified number of such shares at a stipulated price per share; |
• | a combination of any such methods of sale; and |
• | any other method permitted by applicable law. |
• | our Annual Report on Form 10-K for the year ended December 31, 2019 filed with the SEC on March 10, 2020; |
• | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 filed with the SEC on June 18, 2020; |
• | our Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC on January 30, 2020, March 2, 2020, April 6, 2020, April 20, 2020, April 24, 2020, May 5, 2020, May 14, 2020 and June 19, 2020; and |
• | the description of our common stock which is registered under Section 12 of the Exchange Act, in our registration statement on Form 8-A, filed on August 17, 2018, including any amendment or reports filed for the purposes of updating this description. |
Item 14. | Other Expenses of Issuance and Distribution. |
Securities and Exchange Commission Registration Fee | | | $56 |
Legal Fees and Expenses | | | $25,000 |
Accounting Fees and Expenses | | | $15,000 |
Miscellaneous | | | $9,944 |
Total | | | $50,000 |
Item 15. | Indemnification of Directors and Officers. |
• | transaction from which the director derives an improper personal benefit; |
• | act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
• | unlawful payment of dividends or redemption of shares; or |
• | breach of a director’s duty of loyalty to the corporation or its stockholders. |
• | indemnification beyond that permitted by the Delaware General Corporation Law; |
• | indemnification for any proceeding with respect to the unlawful payment of remuneration to the director or officer; |
• | indemnification for certain proceedings involving a final judgment that the director or officer is required to disgorge profits from the purchase or sale of our stock; |
• | indemnification for proceedings involving a final judgment that the director’s or officer’s conduct was in bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct or a breach of his or her duty of loyalty, but only to the extent of such specific determination; |
• | indemnification for proceedings or claims brought by an officer or director against us or any of our directors, officers, employees or agents, except for (1) claims to establish a right of indemnification or proceedings, (2) claims approved by our board of directors, (3) claims required by law, (4) when there has been a change of control as defined in the indemnification agreement with each director or officer, or (5) by us in our sole discretion pursuant to the powers vested to us under the Delaware General Corporate Law; |
• | indemnification for settlements the director or officer enters into without our consent; or |
• | indemnification in violation of any undertaking required by the Securities Act of 1933, as amended, or the Securities Act, or in any registration statement we file. |
Item 16. | Exhibit Index. |
Exhibit Number | | | Description |
3.1(1) | | | Amended and Restated Certificate of Incorporation. |
3.2(1) | | | Amended and Restated Bylaws. |
4.1 | | | |
4.2(2) | | | Form of Common Stock Certificate. |
4.3(2) | | | Form of Warrant to Purchase Series B-1 Preferred Stock issued to Square 1 Bank. |
4.4(2) | | | Form of Warrant to Purchase Series D Preferred Stock issued to Western Alliance Bank. |
4.5(2) | | | Warrant to Purchase Series D-1 Preferred Stock issued to Western Alliance Bank. |
4.6(2) | | | Form of Warrant to Purchase Series D-1 Preferred Stock issued to MidCap Financial Trust. |
4.7(2) | | | Form of Warrant to Purchase Common Stock issued to Underwriters in Initial Public Offering. |
4.8(2) | | | Form of Warrant Certificate (included in Exhibit 4.9). |
4.9(2) | | | Form of Warrant Agent Agreement by and between the Registrant and American Stock Transfer & Trust |
4.10(3) | | | Form of Warrant to Purchase Common Stock for Service Providers. |
4.11(4) | | | Form of Warrant to Purchase Common Stock for Innovatus, as amended. |
4.12(4) | | | Registration Rights Agreement, dated March 14, 2019, between the Company and Aspire Capital Fund, LLC. |
4.13(4) | | | Registration Rights Agreement, as amended, dated March 14, 2019, by and among the Company, Innovatus and Innovatus Offshore. |
4.14(5) | | | Form of Warrant to Purchase Common Stock issued in October 2019 Public Offering. |
4.15(5) | | | Form of Pre-Funded Warrant issued in October 2019 Public Offering. |
4.16(2) | | | Fifth Amended and Restated Investors’ Rights Agreement, dated August 5, 2016 as amended. |
4.17(6) | | | Form of Inducement Warrant. |
4.18(7) | | | Form of Warrant to Purchase Common Stock issued in April 2020 Public Offering. |
4.19(7) | | | Form of Pre-Funded Warrant issued in April 2020 Public Offering. |
| | Opinion of Cooley LLP. | |
| | Consent of Deloitte & Touche LLP, independent registered public accounting firm. | |
| | Consent of Cooley LLP (included in Exhibit 5.1). | |
| | Power of Attorney (reference is made to the signature page of the registration statement filed by the Registrant on June 22, 2020). |
# | Previously filed. |
(1) | Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 24, 2018. |
(2) | Incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-225970), as amended. |
(3) | Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 21, 2018. |
(4) | Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 14, 2019. |
(5) | Incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-233828), as amended. |
(6) | Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 2, 2020. |
(7) | Incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-237074), as amended. |
Item 17. | Undertakings. |
(a)(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission, or the SEC, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
(iii) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
(i) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale |
(b) | The undersigned registrant undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person of the registrant in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
| | Bionano Genomics, Inc. | ||||
| | | | |||
| | By: | | | /s/ R. Erik Holmlin, Ph.D. | |
| | | | R. Erik Holmlin, Ph.D. | ||
| | | | President and Chief Executive Officer |
Signature | | | Title | | | Date |
| | | | |||
/s/ R. Erik Holmlin, Ph.D. | | | Chief Executive Officer and Director (Principal Executive and Financial Officer) | | | July 1, 2020 |
R. Erik Holmlin, Ph.D. | | | ||||
| | | | |||
/s/ Mark Adamchak | | | Controller (Principal Accounting Officer) | | | July 1, 2020 |
Mark Adamchak | | | ||||
| | | | |||
/s/ David L. Barker, Ph.D.* | | | Director | | | July 1, 2020 |
David L. Barker, Ph.D. | | | | | ||
| | | | |||
/s/ Yvonne Linney, Ph.D.* | | | Director | | | July 1, 2020 |
Yvonne Linney, Ph.D. | | | | | ||
| | | | |||
/s/ Albert A. Luderer, Ph.D.* | | | Director | | | July 1, 2020 |
Albert A. Luderer, Ph.D. | | | | | ||
| | | | |||
/s/ Hannah Mamuszka* | | | Director | | | July 1, 2020 |
Hannah Mamuszka | | | | | ||
| | | | |||
/s/ Christopher Twomey* | | | Director | | | July 1, 2020 |
Christopher Twomey | | | | | ||
| | | | |||
/s/ Kristiina Vuori, M.D., Ph.D.* | | | Director | | | July 1, 2020 |
Kristiina Vuori, M.D., Ph.D. | | | | |
* | Pursuant to power of attorney |
By: | | | /s/ R. Erik Holmlin, Ph.D. | | | |
| | R. Erik Holmlin, Ph.D. | | | ||
| | Attorney-in-Fact | | |