As filed with the Securities and Exchange Commission on May 2, 2014
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
(Full Title of the Plans)
Terrance H. Gregg
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.
Michael A. Brown, 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 reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated Filer | x | Accelerated Filer | ¨ | |||
Non-accelerated Filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per Share |
Proposed
Maximum
Offering Price |
Amount of
Registration Fee |
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Common Stock, $0.001 par value(2) |
2,175,140(3) | $33.01(4) | $71,801,371.40(4) | $9,248.02 | ||||
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(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (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 (the EIP ) 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) | 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). |
(3) | Shares to be registered and available for grant under the EIP resulting from the automatic annual 3% increase in the number of authorized shares available for issuance under the EIP. |
(4) | Estimated pursuant to Rule 457(c) and (h) of the Securities Act, solely for purposes of calculating the registration fee, based on the average of the high and low sales price reported on The NASDAQ Global Select Market on April 28, 2014. |
STATEMENT PURSUANT TO GENERAL INSTRUCTION E TO FORM S-8
REGISTRATION OF ADDITIONAL SECURITIES
This registration statement (the Registration Statement ) hereby incorporates by reference the contents of DexComs earlier registration statements on Form S-8 (registration numbers 333-188305 and 333-180421) filed with the Commission on May 2, 2013 and March 28, 2012, respectively.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. | Exhibits. |
The following exhibits are filed herewith:
Incorporated by Reference |
||||||||||||
Exhibit
|
Exhibit Document |
Form |
File No. |
Date of
|
Exhibit
|
Provided
|
||||||
4.01 | Registrants Restated Certificate of Incorporation. | S-1/A | 333-122454 | March 3, 2005 | 3.03 | |||||||
4.02 | Registrants Amended and Restated Bylaws. | 8-K | 000-51222 | March 23, 2011 | 99.01 | |||||||
4.03 | Form of Specimen Certificate for Registrants common stock. | S-1/A | 333-122454 | March 24, 2005 | 4.01 | |||||||
4.04 | 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 Exhibit A, B and C, respectively. | S-1/A | 000-51222 | March 24, 2005 | 4.03 | |||||||
4.05 | 2005 Equity Incentive Plan, as amended, and forms of stock option agreement and stock option exercise agreements. | 10-Q | 000-51222 | May 3, 2011 | 10.25 | |||||||
4.06 | Form of Restricted Stock Unit Award Agreement. | 10-Q | 000-51222 | May 5, 2010 | 10.26 | |||||||
5.01 | Opinion of Fenwick & West LLP regarding legality of the securities being registered. | X | ||||||||||
23.01
|
Consent of Independent Registered Public Accounting Firm. |
X | ||||||||||
23.02 |
Consent of Fenwick & West LLP (included in Exhibit 5.01). |
X | ||||||||||
24.01 | Power of Attorney (see page II-5 of this registration statement). | X |
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 2 nd day of May, 2014.
DEXCOM, INC. | ||
By: |
/ S / T ERRANCE H. G REGG |
|
Terrance H. Gregg 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 and in his 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his 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 / T ERRANCE H. G REGG |
Chief Executive Officer and Director ( Principal Executive Officer ) |
May 2, 2014 | ||
Terrance H. Gregg | ||||
Principal Financial Officer and Principal Accounting Officer: | ||||
/ S / J ESS R OPER |
Chief Financial Officer ( Principal Financial and Accounting Officer ) |
May 2, 2014 | ||
Jess Roper | ||||
Additional Directors: | ||||
/ S / J ONATHAN L ORD , M.D. |
Chairman of the Board of Directors |
May 2, 2014 | ||
Jonathan Lord, M.D. | ||||
/ S / K EVIN S AYER |
President, Chief Operating Officer and Director |
May 2, 2014 | ||
Kevin Sayer | ||||
/ S / J AY S KYLER , M.D. |
Director |
May 2, 2014 | ||
Jay Skyler, M.D. | ||||
/ S / E RIC T OPOL , M.D. |
Director |
May 2, 2014 | ||
Eric Topol, M.D. |
/ S / N ICHOLAS A UGUSTINOS |
Director |
May 2, 2014 | ||
Nicholas Augustinos | ||||
/s/ S TEVE A LTMAN |
Director |
May 2, 2014 | ||
Steve Altman | ||||
/s/ B ARBARA K AHN |
Director |
May 2, 2014 | ||
Barbara Kahn |
Exhibit Index
Incorporated by Reference |
||||||||||||
Exhibit
|
Exhibit Document |
Form |
File No. |
Date of First Filing |
Exhibit
|
Provided
|
||||||
4.01 | Registrants Restated Certificate of Incorporation. | S-1/A | 333-122454 | March 3, 2005 | 3.03 | |||||||
4.02 | Registrants Amended and Restated Bylaws. | 8-K | 000-51222 | March 23, 2011 | 99.01 | |||||||
4.03 | Form of Specimen Certificate for Registrants common stock. | S-1/A | 333-122454 | March 24, 2005 | 4.01 | |||||||
4.04 | 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 Exhibit A, B and C, respectively. | S-1/A | 000-51222 | March 24, 2005 | 4.03 | |||||||
4.05 | 2005 Equity Incentive Plan, as amended, and forms of stock option agreement and stock option exercise agreements. | 10-Q | 000-51222 | May 3, 2011 | 10.25 | |||||||
4.06 | Form of Restricted Stock Unit Award Agreement. | 10-Q | 000-51222 | May 5, 2010 | 10.26 | |||||||
5.01 | Opinion of Fenwick & West LLP regarding legality of the securities being registered. | X | ||||||||||
23.01
|
Consent of Independent Registered Public Accounting Firm. |
X | ||||||||||
23.02
|
Consent of Fenwick & West LLP (included in Exhibit 5.01). |
X | ||||||||||
24.01 | Power of Attorney (see page II-5 of this registration statement). | X |
Exhibit 5.01
May 2, 2014
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 2, 2014, in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 2,175,140 additional shares of the Companys Common Stock (the Stock ) reserved for issuance under the Companys 2005 Equity Incentive Plan, as amended (the 2005 Plan ). The Stock is subject to issuance by the Company upon the exercise of stock options, restricted stock units or purchase rights to be granted under the 2005 Plan. 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 (the Charter ); |
(2) | the Companys Amended and Restated Bylaws, as certified by the Companys Secretary on May 10, 2011 (the Bylaws ); |
(3) | the Companys Form 8-A specifying the terms of the Series A Junior Participating Preferred Stock filed with the Commission on March 25, 2005; |
(4) | the Registration Statement, together with the exhibits filed as a part thereof or incorporated therein by reference; |
(5) | the prospectuses prepared in connection with the Registration Statement (the Prospectuses ); |
(6) | the 2005 Plan and forms of stock option agreement, stock option exercise agreement and restricted stock unit award agreement; |
(7) | verification by the Companys transfer agent as to the number of the Companys issued and outstanding shares of capital stock as of April 29, 2014 and a list of all outstanding options, warrants and other rights to purchase shares of the Companys capital stock prepared by the Company and dated April 30, 2014 (the Stock Records ); |
(8) | the following minutes of meetings and actions by written consent of the Companys Board of Directors (the Board ) and stockholders (the Stockholders ) at which, or pursuant to which, the Charter and Bylaws were approved: (i) the minutes of a meeting of the Board held on March 11, 2005, at which resolutions were adopted by the Board adopting and approving the Charter; (ii) the minutes of a meeting of the Board held on February 9, 2005, at which resolutions were adopted by the Board adopting and approving the Bylaws; (iii) the minutes of a meeting of the Board held on March 17, 2011, at which resolutions were most recently adopted by the Board approving an amendment to the Bylaws; (iv) the minutes of a meeting of the Stockholders held on March 21, 2005, at which resolutions were adopted by the Stockholders adopting and approving the Charter; and (v) the minutes of a meeting of the Stockholders held on March 21, 2005, at which resolutions were adopted by the Stockholders originally adopting and approving the Bylaws; |
(9) | the following minutes of meetings and actions by written consent of the Board and Stockholders at which, or pursuant to which, the 2005 Plan was adopted and approved: (i) the minutes of a meeting of the Board held on February 9, 2005, at which resolutions were adopted by the Board originally adopting and approving the 2005 Plan; (ii) the minutes of a meeting of the Board held on March 17, 2011, at which resolutions were most recently adopted by the Board approving an amendment to the 2005 Plan; (iii) the minutes of a meeting of the Stockholders held on March 21, 2005, at which resolutions were adopted by the Stockholders originally adopting and approving the 2005 Plan; and (v) the minutes of a meeting of the Stockholders held on May 19, 2008, at which resolutions were most recently adopted by the Stockholders approving the amendment of the 2005 Plan; |
(10) | a Certificate of Good Standing issued by the Secretary of State of the State of Delaware dated April 29, 2014, stating that the Company is qualified to do business in good standing under the laws of the State of Delaware (the Certificate of Good Standing ); and |
(11) | a Management Certificate addressed to us and dated of even date herewith and 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 genuineness of all signatures on original documents, 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, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites to the effectiveness thereof. 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 the 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 of such information or to determine the existence or non-existence of any other factual matters.
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 (a) the existing laws of the United States of America, (b) the laws of the State of California, and (c) the Delaware General Corporation Law and reported judicial decisions relating thereto.
In accordance with Section 95 of the American Law Institutes Restatement (Third) of the Law Governing Lawyers (2000), this opinion letter is to be interpreted in accordance with customary practices of lawyers rendering opinions in connection with the filing of a registration statement of the type described herein.
We have assumed that the members of the Board have acted in a manner consistent with their fiduciary duties as required under applicable law in adopting the Rights Agreement filed as Exhibit 4.03 to Amendment No. 4 to the Registration Statement on Form S-1, dated March 24, 2005 (the Rights Agreement ). Further, the opinion below does not address the determination a court of competent jurisdiction may make regarding whether the Board would be required to redeem or terminate, or take other action with respect to, the rights under the Rights Agreement (the Rights ) at some future time based on the facts and circumstances existing at that time. It should be understood that our opinion addresses the Rights and the Rights Agreement in their entirety and not any particular provision of the Rights or the Rights Agreement and that it is not settled whether the invalidity of any particular provision of a rights agreement or of rights issued thereunder would result in invalidating in their entirety such rights.
Based upon the foregoing, we are of the following opinion:
(1) the Company is a corporation validly existing, in good standing, under the laws of the State of Delaware; and
(2) (a) the Stock that may be issued and sold by the Company upon the exercise of stock options, restricted stock units or purchase rights to be granted under the 2005 Plan, when issued, sold and delivered in accordance with the 2005 Plan and option, restricted stock unit 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 and (b) the associated Rights have been duly authorized by all necessary corporate action on the part of the Company and, upon issuance, delivery and payment therefor in the manner contemplated by the Rights Agreement, the associated Rights will be validly issued.
* * * * *
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 the issuance and sale of the Stock subject to the Registration Statement and is not to be relied upon for any other purpose. This opinion is rendered as of the date first written above and based solely on our understanding of facts in existence as of such date after the aforementioned examination. 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, |
FENWICK & WEST LLP |
/s/ Fenwick & West LLP |
Exhibit 23.01
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2005 Equity Incentive Plan of DexCom, Inc. of our reports dated February 20, 2014, with respect to the consolidated financial statements and schedule of DexCom, Inc. and the effectiveness of internal control over financial reporting of DexCom, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2013, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP |
San Diego, California
May 2, 2014