Delaware | | 3826 | | | 26-1756290 | |
(State or Other Jurisdiction of Incorporation or Organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) |
Milson Yu, Esq. Su Lian Lu, Esq. Cooley LLP 10265 Science Center Drive San Diego, California 92121 (858) 550-6000 |
Large accelerated filer | | | ☐ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☒ | | | Smaller reporting company | | | ☒ |
| | | | Emerging growth company | | | ☐ |
PRELIMINARY PROSPECTUS | | | SUBJECT TO COMPLETION, DATED OCTOBER 26, 2023 |
○ | commences a voluntary case or proceeding; |
○ | consents to the entry of an order for relief against us or it in an involuntary case or proceeding; |
○ | consents to the appointment of a custodian of us or it or for any substantial part of our or its property; |
○ | makes a general assignment for the benefit of our creditors; |
○ | takes any comparable action under any foreign Bankruptcy Law; or |
○ | generally is not paying its debts as they become due; |
○ | is for relief against us or any of our significant subsidiaries in an involuntary case or proceeding; |
○ | appoints a custodian of us or any of our significant subsidiaries, or for any substantial part of our property or any of our significant subsidiaries; |
○ | orders the winding up or liquidation of us or any of our significant subsidiaries; or |
○ | grants any similar relief with respect to us or any of its Significant Subsidiaries under any foreign Bankruptcy Law; |
| | Notes | | | Shares of Common Stock | |||||||||||||||||||
Name | | | Principal Amount of Notes Beneficially Owned Prior to the Offering(1) | | | Maximum Principal Amount at Maturity of Notes Registered Hereunder for Sale | | | Principal Amount of Notes Beneficially Upon Completion of the Offering | | | Number of Shares of Common Stock Beneficially Owned Prior to the Offering(2) | | | Maximum Number of Shares of Common Registered Hereunder for Sale(4) | | | Common Stock Beneficially Owned Upon Completion of the Offering | ||||||
| | | | | | Principal Amount of Notes(1) | | | Percentage | | | | | | | Number of Shares | | | Percentage | |||||
High Trail Special Situations LLC(3) | | | $35,000,000 | | | $35,000,000 | | | $35,000,000 | | | 100% | | | 49,596,051 | | | 12,221,738 | | | 49,596,051 | | | 4.99% |
(1) | Figures in this column do not include the $45.0 million aggregate principal amount of Registered Notes. |
(2) | Figures in this column include the shares of common stock issuable upon exercise of the Warrants, the shares of common stock issuable upon conversion of the Registered Notes, and the shares of common stock issuable upon Notes listed in column four, in each case, without taking account of any limitation on conversion and exercise pursuant to the terms of the Notes and the Warrants, as applicable. |
(3) | Hudson Bay Capital Management LP, the investment manager of High Trail Special Situations LLC, has voting and investment power over these securities. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of High Trail Special Situations LLC and Sander Gerber disclaims beneficial ownership over these securities. The address of each Selling Stockholder is c/o Hudson Bay Capital Management LP, 28 Havemeyer Place, 2nd Place, Greenwich, CT 06830. |
(4) | Figures in this column do not include the additional shares of common stock that may be issued upon the conversion of the Notes in connection with the occurrence of a fundamental change. See “Description of Notes—Repurchase of the Notes upon a Fundamental Change.” |
• | our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 9, 2023; |
• | our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 28, 2023 (to the extent incorporated by reference into Part III of our Annual Report on Form 10-K for the fiscal year ended December 31, 2022); |
• | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023 and June 30, 2023 filed with the SEC on May 9, 2023 and August 9, 2023, respectively; |
• | our Current Reports on Form 8-K filed with the SEC on February 3, 2023 (with respect to Item 8.01 only), March 13, 2023, April 14, 2023, June 2, 2023, June 16, 2023, July 19, 2023, August 4, 2023, August 14, 2023 (with respect to Items 5.02 and 9.01 only) and October 11, 2023 (with respect to Items 1.01, 2.03, 2.05, 3.02 and 9.01 only); 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 amendments or reports filed for the purposes of updating this description. |
Item 14. | Other Expenses of Issuance and Distribution. |
SEC registration fee | $ | 11,594 | |
FINRA filing fee | * | ||
Accounting fees and expenses | * | ||
Legal fees and expenses | * | ||
Transfer agent and registrar fees and expenses | * | ||
Trustee fees and expenses | * | ||
Printing and miscellaneous expenses | * | ||
Total | $ | 11,594 |
SEC registration fee | | | |
Accounting fees and | | | 45,000 |
Legal fees and | | | $150,000 |
Printing and | | | 4,834 |
Total | | | $205,000 |
Item 15. | Indemnification of Directors and Officers. |
Item 16. | Exhibits. |
Exhibit Number | | ||
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| | Opinion of Morris, Nichols, Arsht & Tunnell LLP. | |
| | Securities Purchase Agreement, dated | |
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* |
(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 |
(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 that 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 prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) | 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 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. |
(b) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 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 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. | | | President, Chief Executive Officer and Director (Principal Executive Officer) | | October 26, 2023 | |
R. Erik Holmlin, Ph.D. | | |||||
| | | | |||
/s/ Gülsen Kama | | | Chief Financial Officer (Principal Financial and Accounting Officer) | | | October 26, 2023 |
Gülsen Kama | | |||||
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/s/ David L. Barker, Ph.D. | | | Director | | | October 26, 2023 |
David L. Barker, Ph.D. | | |||||
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/s/ Yvonne Linney, Ph.D. | | | Director | | | October 26, 2023 |
Yvonne Linney, Ph.D. | | |||||
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/s/ Albert A. Luderer, Ph.D. | | | Director | | | October 26, 2023 |
Albert A. Luderer, Ph.D. | | |||||
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/s/ Hannah Mamuszka | | | Director | | | October 26, 2023 |
Hannah Mamuszka | | |||||
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/s/ Aleksandar Rajkovic, M.D., Ph.D. | | | Director | | | October 26, 2023 |
Aleksandar Rajkovic, M.D., Ph.D. | | |||||
| | | | |||
/s/ Christopher Twomey | | | Director | | | October 26, 2023 |
Christopher Twomey | | |||||
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/s/ Kristiina Vuori, M.D., Ph.D. | | | Director | | | October 26, 2023 |
Kristiina Vuori, M.D., Ph.D. | | |||||
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/s/ Vincent Wong, J.D., M.B.A. | | | Director | | | October 26, 2023 |
Vincent Wong, J.D., M.B.A. | |