As filed with the Securities and Exchange Commission on May 5, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DexCom, Inc.
(Exact name of Registrant as Specified in Its Charter)
Delaware | 33-0857544 | |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification Number) |
6340 Sequence Drive
San Diego, California 92121
(Address, including zip code, of Registrants principal executive offices)
2005 Equity Incentive Plan
2005 Employee Stock Purchase Plan
(Full Title of the Plans)
Terrance H. Gregg
President and Chief Executive Officer
c/o DexCom, Inc.
6340 Sequence Drive
San Diego, California 92121
(858) 200-0200
(Name, Address and Telephone Number of Agent For Service)
Copies to:
Robert A. Freedman, Esq.
Gaelen Gates, Esq.
Fenwick & West LLP
801 California Street
Mountain View, CA 94041
(650) 988-8500
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller
12b-2 of the Exchange Act. (Check one):
Large accelerated Filer ¨ | Accelerated Filer x |
Non-accelerated Filer ¨ (Do not check if a smaller reporting company) |
Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities
to be Registered |
Amount to be
Registered(1) |
Proposed Maximum
Offering Price Per Share |
Proposed Maximum
Aggregate Offering Price |
Amount of
Registration Fee |
||||
Common Stock, $0.001 par value(4) |
1,192,945 (2) | $4.32 (3) | $5,153,523(3) | $287.56 | ||||
(1) | Pursuant to Rule 416(a) under the Securities Act, this Registration Statement shall also cover any additional shares of the Registrants common stock that become issuable under the 2005 Equity Incentive Plan and 2005 Employee Stock Purchase Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the Registrants outstanding shares of common stock. |
(2) | Shares to be registered and available for grant, but not yet granted as of the date of this registration statement, under the 2005 Equity Incentive Plan and 2005 Employee Stock Purchase Plan. |
(3) | Estimated pursuant to Rule 457(c) and (h) of the Securities Act of 1933, as amended, solely for purposes of calculating the registration fee, based on the average of the high and low sales price reported on the NASDAQ Global Market on May 1, 2009. |
(4) | Each share of common stock includes one stockholder right as described under Description of Capital Stock in the Registrants registration statement on Form S-1, as amended (File No. 333-122454). |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. | Incorporation of Documents by Reference. |
The following documents filed by the Registrant with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act), are incorporated herein by reference:
1. | The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2008 filed with the Commission on March 5, 2009, pursuant to Section 13 of the Exchange Act. |
2. | The description of the Registrants common stock and rights to purchase Series A Junior Participating Preferred Stock contained in the Registrants registration statement on Form 8-A filed on March 25, 2005 under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
3. | Reports on Form 8-K filed pursuant to Section 13(a) or 15(d) of the Exchange Act on January 9, 2009, January 13, 2009, January 30, 2009 and March 20, 2009, and two reports on Form 8-K/A, each filed on January 28, 2009. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents.
Item 4. | Description of Securities. |
Not applicable.
Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
Item 6. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporations board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the Securities Act).
As permitted by the Delaware General Corporation Law, the Registrants restated certificate of incorporation includes a provision that eliminates the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except for liability:
|
for any breach of the directors duty of loyalty to the Registrant or its stockholders, |
|
for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, |
|
under section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases), or |
|
for any transaction from which the director derived an improper personal benefit. |
As permitted by the Delaware General Corporation Law, the Registrants restated bylaws provide that:
|
the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions, |
|
the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law, |
|
the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions, and |
|
the rights conferred in the bylaws are not exclusive. |
The Registrant has entered into Indemnification Agreements with its directors and officers to provide such directors and officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrants restated certificate of incorporation and restated bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director, officer or employee of the Registrant regarding which indemnification is sought.
The Registrant has directors and officers liability insurance for securities matters.
See also the undertakings set out in response to Item 9 hereof.
Reference is made to the following documents filed as exhibits (under the exhibit number set forth below) to the Registrants Registration Statement on Form S-1 (File No. 333-122454) (the Form S-1) regarding relevant indemnification provisions described above and elsewhere in the Registration Statement on Form S-1:
Exhibit Document |
Number | |
Registrants Restated Certificate of Incorporation |
3.03 | |
Registrants Restated Bylaws |
3.05 | |
Second Amended and Restated Investors Rights Agreement dated December 30, 2004 |
4.02 | |
Form of Indemnification Agreement |
10.01 |
Item 7. | Exemption From Registration Claimed. |
Not applicable.
Item 8. | Exhibits. |
(a) | The following exhibits are filed herewith: |
Number |
Exhibit Title |
|
4.01* | Registrants Restated Certificate of Incorporation (Exhibit 3.03 of Form S-1). | |
4.02* | Registrants Restated Bylaws (Exhibit 3.05 of Form S-1). | |
4.03* | Form of Specimen Certificate for Registrants common stock (Exhibit 4.01 of Form S-1). | |
4.04* | Second Amended and Restated Investors Rights Agreement, dated December 30, 2004 (Exhibit 4.02 of Form S-1). |
4.05* | Form of Rights Agreement, between DexCom, Inc. and American Stock Transfer & Trust Company, including the Certificate of Designations of Series A Junior Participating Preferred Stock, Summary of Stock Purchase Rights and Forms of Right Certificate attached thereto as Exhibits A, B and C, respectively (Exhibit 4.03 of Form S-1). | |
4.06** | Indenture, dated as of March 9, 2007, between DexCom, Inc. and Wells Fargo Bank, National Association as trustee (including form of 4.75% Convertible Senior Note due 2027) (Exhibit 4.01 of Form 8-K filed on March 12, 2007). | |
4.07*** | 2005 Equity Incentive Plan, as amended, and forms of stock option agreement and stock option exercise agreements (Annex A of the Registrants Definitive Proxy Statement on Schedule 14A filed with the Commission on April 17, 2008). | |
4.08* | 2005 Employee Stock Purchase Plan and form of subscription agreement (Exhibit 10.04 of Form S-1). | |
5.01 | Opinion of Fenwick & West LLP regarding legality of the securities being registered. | |
23.01 | Consent of Fenwick & West LLP (included in Exhibit 5.01). | |
23.02 | Consent of Independent Registered Public Accounting Firm. | |
24.01 | Power of Attorney (see page 6 of this registration statement). |
* | Incorporated herein by reference to the indicated exhibit to Registrants Registration Statement on Form S-1, as amended (File No. 333-122454). |
** | Incorporated herein by reference to Exhibit 4.01 to Registrants Form 8-K filed on March 12, 2007. |
*** | Incorporated herein by reference to Annex A of Registrants Proxy Statement filed on April 13, 2009. |
Item 9. | Undertakings. |
a. The undersigned Registrant hereby undertakes:
(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 of 1933;
(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 the 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 and high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent 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;
provided , however , that paragraphs (1)(i) and (1)(ii) above do not apply if the Registration Statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
b. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act of 1934) 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 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 hereby, 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and 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 this 5 th day of May, 2009.
DEXCOM, INC. | ||
By: | /s/ Terrance H. Gregg | |
Terrance H. Gregg | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Terrance H. Gregg and Jess Roper, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post- effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done with respect to this Registration Statement, including post-effective amendments, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Name |
Title |
Date |
||
Principal Executive Officer and Director: |
||||
/s/ Terrance H. Gregg Terrance H. Gregg |
President, Chief Executive Officer and Director | May 5, 2009 | ||
Principal Financial Officer and Principal Accounting Officer: |
||||
/s/ Jess Roper Jess Roper |
Chief Financial Officer | May 5, 2009 |
Additional Directors:
/s/ Donald L. Lucas Donald L. Lucas |
Chairman of the Board of Directors | May 5, 2009 | ||
/s/ Jonathan Lord, M.D. Jonathan Lord, M.D. |
Director | May 5, 2009 | ||
/s/ Donald A. Lucas Donald A. Lucas |
Director | May 5, 2009 | ||
Kevin Sayer |
Director | |||
/s/ Jay Skyler, M.D. Jay Skyler, M.D. |
Director | May 5, 2009 |
Exhibit Index
Number |
Exhibit Title |
|
4.01* | Registrants Restated Certificate of Incorporation (Exhibit 3.03 of Form S-1). | |
4.02* | Registrants Restated Bylaws (Exhibit 3.05 of Form S-1). | |
4.03* | Form of Specimen Certificate for Registrants common stock (Exhibit 4.01 of Form S-1). | |
4.04* | Second Amended and Restated Investors Rights Agreement, dated December 30, 2004 (Exhibit 4.02 of Form S-1). | |
4.05* | Form of Rights Agreement, between DexCom, Inc. and American Stock Transfer & Trust Company, including the Certificate of Designations of Series A Junior Participating Preferred Stock, Summary of Stock Purchase Rights and Forms of Right Certificate attached thereto as Exhibits A, B and C, respectively (Exhibit 4.03 of Form S-1). | |
4.06** | Indenture, dated as of March 9, 2007, between DexCom, Inc. and Wells Fargo Bank, National Association as trustee (including form of 4.75% Convertible Senior Note due 2027) (Exhibit 4.01 of Form 8-K filed on March 12, 2007). | |
4.07*** | 2005 Equity Incentive Plan, as amended, and forms of stock option agreement and stock option exercise agreements (Annex A of the Registrants Definitive Proxy Statement on Schedule 14A filed with the Commission on April 17, 2008). | |
4.08* | 2005 Employee Stock Purchase Plan and form of subscription agreement (Exhibit 10.04 of Form S-1). | |
5.01 | Opinion of Fenwick & West LLP regarding legality of the securities being registered. | |
23.01 | Consent of Fenwick & West LLP (included in Exhibit 5.01). | |
23.02 | Consent of Independent Registered Public Accounting Firm. | |
24.01 | Power of Attorney (see page 6 of this registration statement). |
* | Incorporated herein by reference to the indicated exhibit to Registrants Registration Statement on Form S-1, as amended (File No. 333-122454). |
** | Incorporated herein by reference to Exhibit 4.01 to Registrants Form 8-K filed on March 12, 2007. |
*** | Incorporated herein by reference to Annex A of Registrants Proxy Statement filed on April 13, 2009. |
Exhibit 5.01
May 5, 2009
DexCom, Inc.
6340 Sequence Drive
San Diego, California 92121
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8 (the Registration Statement ) to be filed by DexCom, Inc., a Delaware corporation (the Company ), with the Securities and Exchange Commission (the Commission ) on or about May 5, 2009, in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of an additional 1,192,945 shares of the Companys Common Stock (the Stock ) reserved by the Company pursuant to Section 2.1 of the 2005 Equity Incentive Plan, as amended, (the 2005 Plan ) and Section 1 of the Companys 2005 Employee Stock Purchase Plan (the Purchase Plan ). Such stock is subject to issuance by the Company upon the exercise of (a) stock options or purchase rights to be granted under the Companys 2005 Plan or (b) purchase rights to be granted under the Companys Purchase Plan. The plans referred to above are collectively referred to in this letter as the Plans . In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinion set forth herein, which included examination of the following:
(1) | the Companys Restated Certificate of Incorporation filed with the Delaware Secretary of State on April 19, 2005 as certified by the Delaware Secretary of State on May 2, 2006. |
(2) | the Companys Bylaws, certified by the Companys Secretary on August 2, 2007. |
(3) | the Registration Statement, together with the Exhibits filed as a part thereof or incorporated therein by reference. |
(4) | the prospectuses prepared in connection with the Registration Statement (the Prospectuses ). |
(5) | the minutes of meetings and actions by written consent of the stockholders and Board of Directors that are contained in the Companys minute books that are in our possession (the Minute Book Contents ). |
(6) | the letter from the Companys Transfer Agent dated May 4, 2009, stating that 45,907,410 shares of the Companys Common Stock were issued and outstanding and a list of all outstanding options, warrants and other rights to purchase shares of the Companys capital stock (the Stock Records ). |
(7) | a Management Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual representations (the Management Certificate ). |
In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same and the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us. We have also assumed that the certificates representing the Stock have been, or will be when issued, properly signed by authorized officers of the Company or their agents.
As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Management Certificate. We have made no independent investigation or other attempt to verify the accuracy of any such information or to determine the existence or non-existence of any other factual matters.
We are admitted to practice law in the State of California, and we render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than the existing laws of the United States of America, of the State of California and of the Delaware General Corporation Law, the Delaware Constitution and reported judicial decisions relating thereto.
Based upon the foregoing, it is our opinion that the 1,192,945 shares of Stock that may be issued and sold by the Company upon the exercise of (a) stock options or purchase rights to be granted under the 2005 Plan and (b) purchase rights to be granted under the Purchase Plan, when issued, sold and delivered in accordance with the applicable plan and option or purchase agreements to be entered into thereunder and in the manner and for the consideration stated in the Registration Statement and the relevant Prospectus will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the Prospectuses constituting a part thereof and any amendments thereto. This opinion is intended solely for use in connection with issuance and sale of shares subject to the Registration Statement and is not to be relied upon for any other purpose. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein.
Very truly yours, |
/s/ Fenwick & West LLP |
FENWICK & WEST LLP |
Exhibit 23.02
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) to be filed on or about May 5, 2009 pertaining to the 2005 Equity Incentive Plan and the 2005 Employee Stock Purchase Plan, of Dexcom, Inc. of our reports dated March 3, 2009 with respect to the consolidated financial statements and schedule of Dexcom included in its Annual Report (Form 10-K) for the year ended December 31, 2008, and the effectiveness of internal control over financial reporting of Dexcom, Inc. filed with the Securities and Exchange Commission.
/s/ Ernst & Young, LLP
San Diego, California
May 5, 2009