Berkeley Lights, Inc. (Form: S-8, Received: 03/03/2022 06:07:08)

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

Emerging growth company

As filed with the Securities and Exchange Commission on March 2, 2022

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

Berkeley Lights, Inc.

(Exact name of Registrant as specified in its charter)

Delaware

35-2415390

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

5858 Horton Street, Suite 320

Emeryville, California 94608

94608

(Address of Principal Executive Offices)

(Zip Code)

2020 Incentive Award Plan

2020 Employee Stock Purchase Plan

(Full Title of the Plan)

Eric D. Hobbs, Ph.D.

Chief Executive Officer

Berkeley Lights, Inc.

5858 Horton Street, Suite 320

Emeryville, California 94608

(Name and address of agent for service)

(510) 858-2855

(Telephone number, including area code, of agent for service)

Copies to:

Brian J. Cuneo, Esq.

Latham & Watkins LLP

140 Scott Drive

Menlo Park, California 94025

Telephone: (650) 328-4600

Stuart Merkadeau

General Counsel

Berkeley Lights, Inc.

5858 Horton Street, Suite 320

Emeryville, California 94608

Telephone: (510) 858-2855

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.

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. ☐

REGISTRATION OF ADDITIONAL SECURITIES PURSUANT TO GENERAL INSTRUCTION E

This Registration Statement on Form S-8 is being filed by Berkeley Lights, Inc. (the “Registrant”) to register 2,703,821 additional shares of common stock, par value $0.00005 per share, reserved for issuance under the Registrant’s 2020 Incentive Award Plan and 675,955 additional shares of common stock, par value $0.00005 per share, reserved for issuance under the Registrant’s 2020 Employee Stock Purchase Plan.

Pursuant to General Instruction E of Form S-8 regarding Registration of Additional Securities, the contents of the Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on July 22, 2020 (File No. 333-239987) and March 17, 2021 (File No. 333-254399) are hereby incorporated by reference in this Registration Statement to the extent not replaced hereby.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the SEC. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.

Incorporation of Documents by Reference.

The following documents filed with the Commission by the Registrant are incorporated by reference into this Registration Statement:

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission on February 28, 2022 pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-39388) filed with the Commission on July 14, 2020 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.

The Registrant’s Current Reports on Form 8-K, as filed with the Commission on February 24, 2022.

All documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment to the Registration Statement which indicates that all of the shares registered hereunder have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into 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 for purposes of this Registration Statement 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 earlier 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.

Item 8.

Exhibits.

Incorporated by Reference

Filed
Herewith

Exhibit
Number

Exhibit Description

Form

Date

Number

4.1

Amended and Restated Certificate of Incorporation of Berkeley Lights, Inc.

8-K

7-21-20

3.1

4.2

Amended and Restated Bylaws of Berkeley Lights, Inc.

8-K

7-21-20

3.2

4.3

Form of Common Stock Certificate.

S-1/A

7-13-20

4.2

4.4

Fifth Amended and Restated Investors’ Rights Agreement, dated March 28, 2018, by and between Berkeley Lights, Inc. and the investors listed therein.

S-1

6-26-20

4.3

4.5

Plain English Warrant Agreement, dated August 24, 2016, by and between Berkeley Lights, Inc. and TriplePoint Capital LLC.

S-1

6-26-20

4.4

5.1

Opinion of Latham & Watkins LLP.

23.1

Consent of KPMG LLP, Independent Registered Public Accounting Firm.

23.2

Consent of Latham & Watkins LLP (included in Exhibit 5.1).

24.1

Power of Attorney. Reference is made to the signature page to the Registration Statement.

99.1(a)#

Berkeley Lights, Inc. 2020 Incentive Award Plan.

S-1/A

7-13-20

10.2

(a)

99.1(b)#

Form of Stock Option Grant Notice and Stock Option Agreement under the 2020 Incentive Award Plan.

S-1/A

7-13-20

10.2

(b)

99.1(c)#

Form of Restricted Stock Award Agreement under the 2020 Incentive Award Plan.

S-1/A

7-13-20

10.2

(c)

99.1(d)#

Form of Restricted Stock Unit Award Grant Notice under the 2020 Incentive Award Plan.

S-1/A

7-13-20

10.2

(d)

99.2#

2020 Employee Stock Purchase Plan.

S-1/A

7-13-20

10.3

107

Calculation of Filing Fee Table.

#	Indicates management contract or compensatory plan.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 Emeryville, State of California, on this 2nd day of March, 2022.


Berkeley Lights, Inc.

By:		/s/ Eric Hobbs, Ph.D.
		Eric Hobbs, Ph.D.
		Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Eric Hobbs, Ph.D., Kurt Wood and Stuart Merkadeau, and each of them, with full power of substitution and full power to act without the other, his or her true and lawful attorney-in-fact and agent to act for him or her 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, and to file this registration statement, 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 order to effectuate the same as fully, to all intents and purposes, as they or 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, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the date indicated.


Signature	Title	Date

/s/ Eric Hobbs, Ph.D. Eric Hobbs, Ph.D.	Chief Executive Officer and Director (Principal Executive Officer)	March 2, 2022

/s/ Kurt Wood Kurt Wood	Chief Financial Officer (Principal Financial and Accounting Officer)	March 2, 2022

/s/ Gregory Lucier Gregory Lucier	Chairman of the Board	March 2, 2022

/s/ Sarah Boyce Sarah Boyce	Director	March 2, 2022

/s/ John Chiminski John Chiminski	Director	March 2, 2022

/s/ Jessica Hopfield, Ph.D. Jessica Hopfield, Ph.D.	Director	March 2, 2022

/s/ Siddhartha Kadia, Ph.D. Siddhartha Kadia, Ph.D.	Director	March 2, 2022


/s/ Igor Khandros, Ph.D.	Director	March 2, 2022
Igor Khandros, Ph.D.

/s/ Michael Moritz	Director	March 2, 2022
Michael Moritz

/s/ Elizabeth Nelson	Director	March 2, 2022
Elizabeth Nelson

/s/ James Rothman, Ph.D. James Rothman, Ph.D.	Director	March 2, 2022

Exhibit 5.1


	140 Scott Drive
	Menlo Park, California 94025
	Tel: +1.650.328.4600 Fax: +1.650.463.2600
	www.lw.com
	FIRM / AFFILIATE OFFICES
	Austin	Moscow
	Beijing	Munich
	Boston	New York
	Brussels	Orange County
March 2, 2022	Century City	Paris
	Chicago	Riyadh
	Dubai	San Diego
	Düsseldorf	San Francisco
	Frankfurt	Seoul
	Hamburg	Shanghai
	Hong Kong	Silicon Valley
	Houston	Singapore
	London	Tel Aviv
	Los Angeles	Tokyo
	Madrid	Washington, D.C.
	Milan

Berkeley Lights, Inc.

5858 Horton Street, Suite 320

Emeryville, California 94608

Re:

Registration Statement on Form S-8; 3,379,776 shares of Common Stock of Berkeley Lights, Inc., par value $0.00005 per share

To the addressee set forth above:

We have acted as special counsel to Berkeley Lights, Inc., a Delaware corporation (the “Company”), in connection with the registration by the Company of an aggregate of 3,379,776 shares of common stock of the Company, par value $0.00005 per share (the “Shares”), issuable under the Company’s 2020 Incentive Award Plan (the “2020 Plan”) and 2020 Employee Stock Purchase Plan (the “ESPP” and together with the 2020 Plan, the “Plans”).

The Shares are included in a registration statement on Form S-8 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on March 2, 2022 (the “Registration Statement”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the related prospectuses, other than as expressly stated herein with respect to the issuance of the Shares.

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware (the “DGCL”), and we express no opinion with respect to any other laws.

March 2, 2022

Page 2

LOGO

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the Plans, assuming in each case that the individual issuances, grants or awards under the Plans are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the applicable Plans (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Sincerely,

/s/ Latham & Watkins LLP

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the use of our report dated February 28, 2022, with respect to the consolidated financial statements of Berkeley Lights, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.

/s/ KPMG LLP

San Francisco, California

February 28, 2022

Exhibit 107.1

Calculation of Filing Fee Tables

Form S-8

(Form Type)

Berkeley Lights, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1—Newly Registered Securities

Security Type

Security
Class
Title

Fee
Calculation
Rule

Amount

to be

Registered⁽¹⁾

Proposed

Maximum

Offering Price

Per Unit

Maximum

Aggregate

Offering Price

Fee
Rate

Amount of

Registration
Fee

Equity

Common stock,
$0.00005 par
value per share

Rule 457(c)
and Rule
457(h)

2,703,821⁽²⁾

$7.55⁽⁴⁾

$20,413,848.55

$0.0000927

$1,892.36

Equity

Common stock,
$0.00005 par
value per share

Rule 457(c)
and Rule
457(h)

675,955⁽³⁾

$7.55⁽⁴⁾

$5,103,460.25

$0.0000927

$473.09

Total Offering Amounts

$25,517,308.80

$2,365.45

Total Fee Offsets⁽⁵⁾

$ —

Net Fee Due

$2,365.45

(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 Registrant’s common stock that become issuable under the 2020 Incentive Award Plan (the “2020 Plan”) and the 2020 Employee Stock Purchase Plan (the “ESPP”) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without the Registrant’s receipt of consideration which would increase the number of outstanding shares of common stock.

(2)	Represents the additional shares of the Registrant’s common stock available for issuance under the 2020 Plan resulting from an annual increase as of January 1, 2022.

(3)	Represents the additional shares of the Registrant’s common stock available for issuance under the ESPP resulting from an annual increase as of January 1, 2022.

(4)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price for shares reserved for future issuance under the 2020 Plan and the ESPP are based on the average of the high and the low price of Registrant’s Common Stock as reported on the Nasdaq Global Select Market on February 28, 2022.

(5)	The Registrant does not have any fee offsets.