As filed with the Securities and Exchange Commission on June 29, 2018
Registration
No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CareDx, Inc.
(Exact
name of Registrant as specified in its charter)
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Delaware
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94-3316839
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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3260 Bayshore Boulevard
Brisbane, California 94005
(Address of principal executive offices, including zip code)
2014 Equity Incentive Plan, as amended
2014 Employee Stock Purchase Plan
(Full titles of the plans)
Peter Maag, Ph.D.
President and Chief Executive Officer
CareDx, Inc.
3260
Bayshore Boulevard
Brisbane, California 94005
(415)
287-2300
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Jeffrey T. Hartlin, Esq.
Paul Hastings LLP
1117
S. California Avenue
Palo Alto, California 94304
(650)
320-1800
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, a 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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☐ (Do not check if a smaller reporting company)
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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 Securities to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, $0.001 par value per share, reserved for
issuance pursuant to the 2014 Equity Incentive Plan, as amended
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1,957,075
(2)
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$12.05
(3)
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$23,582,753.75
(3)
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$2,936.06
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Common Stock, $0.001 par value per share, reserved for
issuance pursuant to the 2014 Employee Stock Purchase Plan
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133,900
(4)
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$12.05
(5)
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$1,613,495.00
(5)
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$200.89
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TOTAL:
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2,090,975
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—
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$25,196,248.75
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$3,136.95
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form
S-8
(the “Registration
Statement”) shall also cover any additional shares of common stock, $0.001 par value per share (the “Common Stock”), of the Registrant (defined below) that become issuable under the CareDx, Inc. 2014 Equity Incentive Plan, as amended
(the “2014 Plan”), and the CareDx, Inc. 2014 Employee Stock Purchase Plan (the “2014 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration
that increases the number of the Registrant’s outstanding shares of Common Stock.
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(2)
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Represents: (1) 357,075 shares of Common Stock that were automatically added to the shares reserved for issuance under the 2014 Plan on January 1, 2018 pursuant to an “evergreen” provision contained in
the 2014 Plan, and (2) 1,600,000 shares of Common Stock that were added to the shares reserved for issuance under the 2014 Plan on June 20, 2018. The 2014 Plan provides that an additional number of shares will automatically be added annually to
the shares authorized under the 2014 Plan on January 1st of each calendar year. Prior to June 20, 2018, the number of shares of Common Stock added each year was equal to the least of: (a) 357,075 shares of Common Stock (subject to adjustment
for stock splits, dividends, recapitalizations and the like); (b) four percent (4.0%) of the total number of shares of Common Stock outstanding on the last day of the immediately preceding fiscal year; or (c) such number of shares of Common
Stock that may be determined each year by the Registrant’s board of directors provided that such determination is made no later than the last day of the immediately preceding fiscal year. Effective June 20, 2018, the number of shares of
Common Stock added each year will be equal to the least of: (a) four percent (4.0%) of the total number of shares of Common Stock outstanding on the last day of the immediately preceding fiscal year; or (b) such number of shares of Common
Stock that may be determined each year by the Registrant’s board of directors provided that such determination is made no later than the last day of the immediately preceding fiscal year.
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(3)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act. The proposed maximum aggregate offering price per share and the proposed
maximum aggregate offering price with respect to these shares are calculated based on the average of the high and low prices of the Common Stock as reported on the Nasdaq Global Market on June 25, 2018, a date within five business days prior to
the filing of this Registration Statement.
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(4)
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Represents shares of Common Stock that were automatically added to the shares reserved for issuance under the 2014 ESPP on January 1, 2018 pursuant to an “evergreen” provision contained in the 2014 ESPP.
The 2014 ESPP provides that an additional number of shares will automatically be added annually to the shares authorized for issuance under the 2014 Plan on January 1 of each calendar year. The number of shares of Common Stock added each year
will be equal to the least of: (a) 133,900 shares of Common Stock (subject to adjustment for stock splits, dividends, recapitalizations and the like); (b) one and
one-half
percent (1
1
/
2
%) of the total number of shares of Common Stock outstanding on the last day
of the immediately preceding fiscal year; or (c) such number of shares of Common Stock that may be determined each year by the Registrant’s board of directors.
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(5)
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Estimated solely for the purposes of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act. The proposed maximum aggregate offering price per share and the proposed maximum aggregate
offering price with respect to these shares are calculated based on 85% of the average of the high and low prices of the Common Stock as reported on the Nasdaq Global Market on June 25, 2018, a date within five business days prior to the filing
of this Registration Statement. Pursuant to the 2014 ESPP, the purchase price of the shares of Common Stock reserved for issuance thereunder will be 85% of the lower of the fair market value of the Common Stock on (a) the first trading day of
the offering period, or (b) the exercise date.
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REGISTRATION OF ADDITIONAL SECURITIES
EXPLANATORY NOTE
The
Registrant has prepared this registration statement (this “Registration Statement”) in accordance with the requirements of Form
S-8
under the Securities Act of 1933, as amended, to register: (1)
1,957,075 additional shares of Common Stock issuable pursuant to the 2014 Plan, and (2) 133,900 additional shares of Common Stock issuable pursuant to the 2014 ESPP. The Registrant’s stockholders have previously approved the 2014 Plan and the
2014 ESPP, including the shares of Common Stock available for issuance pursuant thereto and, on June 20, 2018, approved an amendment to the 2014 Plan to, among other things, increase the number of shares of Common Stock available for issuance
pursuant the 2014 Plan by 1,600,000 shares.
Pursuant to the Registration Statements on Form
S-8
(File Nos.
333-197493
and
333-203128)
filed by the Registrant with the Securities and Exchange Commission (the “SEC”) on July 18, 2014, May 31, 2015
and April 26, 2017 (the “Prior Registration Statements”), the Registrant previously registered an aggregate of 1,909,920 shares of Common Stock under the 2014 Plan and an aggregate of 490,969 shares of Common Stock under the 2014
ESPP.
In accordance with General Instruction E to Form
S-8,
the contents of the Prior
Registration Statements are hereby incorporated by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the SEC are hereby incorporated by reference into this Registration Statement:
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(a)
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The Registrant’s Annual Report on Form
10-K
for the fiscal year ended December 31, 2017, filed with the SEC on March 22, 2018;
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(b)
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The Registrant’s Quarterly Report on Form
10-Q
for the quarter ended March 31, 2018, filed with the SEC on May 10, 2018;
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(c)
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The Registrant’s Current Reports on Form
8-K
filed with the SEC on (i) March 1, 2018, (ii) April 16, 2018, (iii) April 18, 2018, (iv) May 8, 2018,
and (v) June 26, 2018; and
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(d)
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The description of the Common Stock set forth in the Registrant’s Registration Statement on Form
8-A
(File
No. 001-36536),
filed
with the SEC on July 11, 2014, including any amendments or reports filed for the purpose of updating such description.
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All other reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 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 into this Registration
Statement and to be a part of this Registration Statement from the date of the filing of such reports and documents, except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under
Items 2.02 or 7.01 of Form
8-K
that is not deemed filed under such provisions.
For the purposes
of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
You should rely only on the information provided or incorporated by reference in this
Registration Statement or any related prospectus. The Registrant has not authorized anyone to provide you with different information. You should not assume that the information in this Registration Statement or any related prospectus is accurate as
of any date other than the date on the front of the document.
You may contact the Registrant in writing or orally to request copies of
the above-referenced filings, without charge (excluding exhibits to such documents unless such exhibits are specifically incorporated by reference into the information incorporated into this Registration Statement). Requests for such information
should be directed to:
CareDx, Inc.
3260 Bayshore Boulevard
Brisbane,
CA 94005
(415)
287-2300
Attn: President and Chief Executive Officer
Item 8. Exhibits.
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Exhibit
Number
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Description
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3.1
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Amended and Restated Certificate of Incorporation (previously filed as Exhibit 3.1 to the Registrant’s Quarterly Report on Form
10-Q
filed on August
28, 2014 and incorporated herein by reference).
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3.2
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Amended and Restated Bylaws (previously filed as Exhibit 3.4 to the Registrant’s Quarterly Report on Form
10-Q
filed on August
28, 2014 and incorporated herein by reference).
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4.1
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Form of Registrant’s Common Stock Certificate (previously filed as Exhibit 4.1 to the Registrant’s Annual Report on Form
10-K
on March
31, 2015 and incorporated herein by reference).
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4.2
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Sixth Amended and Restated Investors Rights Agreement, dated July
1, 2009, as amended on March
29, 2012, June
10, 2014, and July
14, 2014, between the Registrant and certain holders of the Registrant’s capital stock named therein (previously filed on June
3, 2014 as Exhibit
4.2 to the Registrant’s Registration Statement on Form
S-1
(File No.
333-196494)
and incorporated herein by reference).
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4.3
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2014 Equity Incentive Plan, as amended (previously filed as Exhibit 10.1 to the Registrant’s Current Report on Form
8-K
filed on June
26, 2018 and incorporated herein by reference).
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4.4
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2014 Employee Stock Purchase Plan (previously filed on July
18, 2014 as Exhibit 4.5 to the Registrant’s Registration Statement on Form
S-8
(File No.
333-197493)
and incorporated herein by reference).
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5.1
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Opinion of Paul Hastings LLP.
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23.1
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Consent of Independent Registered Public Accounting Firm.
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23.2
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Consent of Paul Hastings LLP is contained in Exhibit 5.1 to this Registration Statement.
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24.1
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Power of Attorney is contained on the signature page.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Brisbane,
California, on June 29, 2018.
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CAREDX, INC.
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By:
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/s/ Peter Maag
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Peter Maag
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
, that each person whose signature appears below constitutes and appoints Peter Maag and Michael
Bell, and each or any one of them, his true and lawful
attorney-in-fact
and agent, with full power of substitution and resubstitution, 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, and to file the same, with all exhibits thereto, and other 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 in connection therewith, 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 their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, 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/ Peter Maag
Peter Maag
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President, Chief Executive Officer and Director
(
Principal Executive Officer
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June 29, 2018
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/s/ Michael Bell
Michael Bell
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Chief Financial Officer
(
Principal Financial and Accounting Officer
)
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June 29, 2018
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/s/ George W. Bickerstaff
George W. Bickerstaff
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Director
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June 29, 2018
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/s/ Fred E. Cohen
Fred E. Cohen
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Director
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June 29, 2018
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/s/ Michael
Goldberg
Michael Goldberg
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Director
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June 29, 2018
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/s/ William Hagstrom
William Hagstrom
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Director
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June 29, 2018
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/s/ Ralph
Snyderman
Ralph Snyderman
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Director
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June 29, 2018
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Exhibit 5.1
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June 29, 2018
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94656.00001
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CareDx, Inc.
3260 Bayshore Boulevard
Brisbane, CA 94005
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Re:
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Registration Statement on Form S-8
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Ladies and Gentlemen:
We have acted as counsel to CareDx, Inc., a Delaware corporation (the “
Company
”), in connection with the registration statement on Form
S-8 to be filed by the Company with the U.S. Securities and Exchange Commission (the “
Commission
”) on or about the date hereof (the “
Registration Statement
”) to effect registration under the
Securities Act of 1933, as amended (the “
Securities Act
”), of an aggregate of 2,090,975 shares (the “
Shares
”) of the Company’s common stock, $0.0001 par value per share (“
Common
Stock
”), comprised of: (i) 1,957,075 shares of Common Stock issuable upon the vesting and exercise of awards to be granted by the Company pursuant to the Company’s 2014 Equity Incentive Plan (the “
Equity
Plan
”); and (ii) 133,900 shares of Common Stock issuable upon the exercise of purchase rights to be granted by the Company pursuant to the Company’s 2014 Employee Stock Purchase Plan, and, together with the Equity Plan, the
“
Plans
”).
As such counsel and for purposes of our opinion set forth below, we have examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction, of such documents, resolutions, certificates and instruments of the Company and corporate records furnished to us by the Company, and have reviewed certificates of public officials, statutes,
records and such other instruments and documents as we have deemed necessary or appropriate as a basis for the opinion set forth below, including, without limitation:
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(i)
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the Registration Statement;
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(ii)
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the Amended and Restated Certificate of Incorporation of the Company, as certified by the Office of the Secretary of State of the State of Delaware on June 29, 2018;
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(iii)
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the Amended and Restated Bylaws of the Company as presently in effect, as certified by an officer of the Company on June 29, 2018;
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(iv)
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the Equity Plan and the forms of award agreements related thereto;
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(vi)
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a certificate, dated as of June 29, 2018, from the Office of the Secretary of State of the State of Delaware, as to the existence and good standing of the Company in the State of Delaware (the “
Good
Standing Certificate
”); and
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(vii)
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the resolutions adopted by the board of directors of the Company and by the stockholders of the Company regarding the Plans and other matters related thereto, as certified by an officer of the Company on June 29,
2018.
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CareDx, Inc.
June 29, 2018
Page
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In addition to the foregoing, we have made such investigations of law as we have deemed necessary or
appropriate as a basis for the opinion set forth in this opinion letter.
In such examination and in rendering the opinion expressed below, we have
assumed, without independent investigation or verification: (i) the genuineness of all signatures on all agreements, instruments, corporate records, certificates and other documents submitted to us; (ii) the authenticity and completeness
of all agreements, instruments, corporate records, certificates and other documents submitted to us as originals; (iii) that all agreements, instruments, corporate records, certificates and other documents submitted to us as certified,
electronic, facsimile, conformed, photostatic or other copies conform to originals thereof, and that such originals are authentic and complete; (iv) the legal capacity and authority of all persons or entities (other than the Company) executing
all agreements, instruments, corporate records, certificates and other documents submitted to us; (v) the due authorization, execution and delivery of all agreements, instruments, corporate records, certificates and other documents by all
parties thereto (other than the Company); (vi) that no documents submitted to us have been amended or terminated orally or in writing except as has been disclosed to us in writing; (vii) that the statements contained in the certificates
and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for the purposes of this opinion letter are true and correct; (viii) that there has not been any change in the
good standing status of the Company from that reported in the Good Standing Certificate; and (ix) that each of the officers and directors of the Company has properly exercised his or her fiduciary duties. As to all questions of fact material to
this opinion letter, and as to the materiality of any fact or other matter referred to herein, we have relied (without independent investigation or verification) upon representations and certificates or comparable documents of officers and
representatives of the Company. Our knowledge of the Company and its legal and other affairs is limited by the scope of our engagement, which scope includes the delivery of this opinion letter. We do not represent the Company with respect to all
legal matters or issues. The Company may employ other independent counsel and, to our knowledge, handles certain legal matters and issues without the assistance of independent counsel. We have also assumed that the individual issuances, grants,
awards or grants of purchase rights under the Plans will be duly authorized by all necessary corporate action of the Company and duly issued, granted or awarded and exercised in accordance with the requirements of law, the Plans and the agreements,
forms of instrument, awards and grants duly adopted thereunder.
Based upon the foregoing, and in reliance thereon, and subject to the assumptions,
limitations, qualifications and exceptions set forth herein, we are of the opinion that the Shares are duly authorized and, when issued and sold as described in the Registration Statement and in accordance with the Plans and the applicable award
agreements or forms of instrument evidencing purchase rights thereunder (including the receipt by the Company of the full consideration therefor), will be validly issued, fully paid and nonassessable.
Without limiting any of the other limitations, exceptions and qualifications stated elsewhere herein, we express no opinion with regard to the applicability
or effect of the laws of any jurisdiction other than the General Corporation Law of the State of Delaware, as in effect on the date of this opinion letter.
This opinion letter deals only with the specified legal issues expressly addressed herein, and you should not infer any opinion that is not explicitly stated
herein from any matter addressed in this opinion letter.
This opinion letter is rendered solely in connection with the issuance and delivery of the
Shares as described in the Registration Statement and in accordance with the terms of the Plans and the applicable
CareDx, Inc.
June 29, 2018
Page
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award agreement or form of instrument evidencing purchase rights thereunder. This opinion letter is rendered as of the date hereof, and we assume no obligation to advise you or any other person
with regard to any change after the date hereof in the circumstances or the law that may bear on the matters set forth herein even if the change may affect the legal analysis or a legal conclusion or other matters in this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we
are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the Commission thereunder.
Very truly yours,
/s/ Paul Hastings LLP