As filed with the Securities and Exchange Commission on February 22, 2017
Registration
No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
bluebird bio, Inc.
(Exact name of Registrant as specified in its charter)
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Delaware
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13-3680878
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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150 Second Street
Third Floor
Cambridge,
MA 02141
(Address of principal executive offices)
(339)
499-9300
(Registrant’s telephone number, including area code)
Nick Leschly
President
and Chief Executive Officer
bluebird bio, Inc.
150 Second Street
Third
Floor
Cambridge, MA 02141
(339)
499-9300
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
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Jason F. Cole, Esq.
Chief Legal Officer and Secretary
bluebird bio, Inc.
150
Second Street
Third Floor
Cambridge, MA 02141
(339)
499-9300
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Michael H. Bison, Esq.
Gregg L. Katz, Esq.
Goodwin Procter LLP
100
Northern Avenue
Boston, MA 02210
(617) 570-1000
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment
plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, or the Securities Act, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box:
☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a
registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
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 Securities
Exchange Act, as amended or the Exchange Act. (Check one):
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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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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities To Be Registered
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Amount
to be
Registered(1)(2)
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Proposed
Maximum
Offering
Price
Per Unit(1)(2)
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Proposed
Maximum
Aggregate
Offering Price(1)(2)
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Amount of
Registration Fee(3)
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Common Stock, $0.01 par value per share(4)
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Preferred Stock, $0.01 par value per share
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Warrants
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Units
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Debt Securities
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Total(5)
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(1)
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An indeterminate number of or aggregate principal amount of the securities of each identified class is being registered as may at various times be issued at indeterminate prices.
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(2)
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Not applicable pursuant to General Instruction II.E of Form
S-3
under the Securities Act of 1933, as amended, or the Securities Act.
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(3)
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In accordance with Rules 456(b) and 457(r) under the Securities Act, the registrant is deferring payment of all of the registration fee. Any registration fees will be paid subsequently on a
pay-as-you-go
basis in accordance with Rule 457(r).
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(4)
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In addition to any securities that may be registered hereunder, we are also registering an indeterminate number of shares of common stock as may be issued upon conversion or exercise of the securities issued directly
hereunder. No separate consideration will be received for any shares of common stock so issued upon conversion or exercise.
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(5)
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The securities registered hereunder may be sold separately or in a combination with other securities registered hereby.
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PROSPECTUS
bluebird bio, Inc.
Common Stock
Preferred
Stock
Warrants
Units
Debt Securities
By this prospectus, we or any selling stockholder may offer and sell from time to time, in one or more offerings, common stock, preferred stock, warrants,
debt securities or any combination thereof as described in this prospectus. The warrants may be convertible into or exercisable or exchangeable for common stock or preferred stock, the preferred stock may be convertible into or exchangeable for
common stock and the debt securities may be convertible into or exchangeable for common stock or preferred stock. You should carefully read this prospectus, any prospectus supplement and any free writing prospectus, as well as any documents
incorporated in any of the foregoing by reference, before you invest in our securities. This prospectus may not be used to sell our securities unless accompanied by a prospectus supplement. The prospectus supplement or any related free writing
prospectus may also add to, update, supplement or clarify information contained in this prospectus.
Our common stock is traded on the NASDAQ Global
Select Market under the symbol “BLUE.”
We or any selling stockholder may offer and sell our securities to or through one or more agents,
underwriters, dealers or other third parties or directly to one or more purchasers on a continuous or delayed basis. If agents, underwriters or dealers are used to sell our securities, we or any selling stockholder will name them and describe their
compensation in a prospectus supplement. The price to the public of our securities and the net proceeds we expect to receive from the sale of such securities will also be set forth in a prospectus supplement. We will not receive any proceeds from
the sale of securities by selling stockholders.
INVESTING IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES REFERENCED UNDER THE HEADING
“
RISK FACTORS
” ON PAGE 4 OF THIS PROSPECTUS AS WELL AS THOSE CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND ANY RELATED FREE WRITING PROSPECTUS, AND IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS
PROSPECTUS OR THE APPLICABLE PROSPECTUS SUPPLEMENT.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved
of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this
prospectus is February 22, 2017.
TABLE OF CONTENTS
We are responsible for the information contained and incorporated by reference in this prospectus, in any accompanying prospectus supplement, and in any
related free writing prospectus we prepare or authorize. We have not authorized anyone to give you any other information, and we take no responsibility for any other information that others may give you. If you are in a jurisdiction where offers to
sell, or solicitations of offers to purchase, the securities offered by this documentation are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer presented in this document does not extend to
you. The information contained in this document speaks only as of the date of this document, unless the information specifically indicates that another date applies. Our business, financial condition, results of operations and prospectus may have
changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus is part of an automatic shelf registration statement that we filed with the Securities and Exchange Commission, or the SEC, as a
“well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended, or the Securities Act. Under this shelf registration, we and/or selling stockholders may offer shares of our common stock and preferred
stock, various series of warrants to purchase common stock or preferred stock, debt securities or any combination thereof, from time to time in one or more offerings. This prospectus only provides you with a general description of the securities we
and/or selling stockholders may offer. Each time we and/or selling stockholders offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the specific terms
of the offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. This prospectus may not be used to sell our securities unless accompanied by a
prospectus supplement. Each such prospectus supplement and any free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in documents incorporated by reference into
this prospectus. We urge you to carefully read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the headings “Where
You Can Find Additional Information” and “Incorporation of Certain Information by Reference” before you invest in our securities.
Neither
we nor any selling stockholder have authorized anyone to provide you with information in addition to or different from that contained in this prospectus, any applicable prospectus supplement and any related free writing prospectus. We take no
responsibility for, and can provide no assurances as to the reliability of, any information not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus that we or a selling stockholder may authorize
to be provided to you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus, any applicable
prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of a security.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents
for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find Additional Information.”
Unless otherwise mentioned or unless the context requires otherwise, throughout this prospectus, any applicable prospectus supplement and any related free
writing prospectus, the words “bluebird bio,” “we,” “us,” “our,” the “company” or similar references refer to bluebird bio, Inc. and its subsidiaries; and the term “securities” refers
collectively to our common stock, preferred stock, warrants to purchase common stock or preferred stock, debt securities, or any combination of the foregoing securities.
We use “Lenti-D” and the bluebird bio logo as trademarks in the United States and other countries. We use and have registered
“LentiGlobin” and “bluebird bio” in the United States. This prospectus and the information incorporated herein by reference contains references to trademarks, service marks and trade names owned by us or other companies.
Solely for convenience, trademarks, service marks and trade names referred to in this prospectus and the information incorporated herein, including logos, artwork, and other visual displays, may appear without the
®
or ™ symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable
licensor to these trademarks, service marks and trade names. We do not intend our use or display of other companies’ trade names, service marks or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other
companies. All trademarks, service marks and trade names included or incorporated by reference into this prospectus, any applicable prospectus supplement or any related free writing prospectus are the property of their respective owners.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
This prospectus is part of a registration statement that we have filed with the SEC. Certain information in the registration statement has been omitted from
this prospectus in accordance with the rules of the SEC. We are subject to the information requirements of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”), and, in accordance therewith, file annual, quarterly and
special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may call the SEC at
1-800-SEC-0330
for further information on the operation of the Public Reference Room. These documents also may be accessed through the
SEC’s Electronic Data Gathering, Analysis and Retrieval system, or EDGAR, via electronic means, including the SEC’s home page on the Internet (
www.sec.gov
).
We have the authority to designate and issue more than one class or series of stock having various preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption. See “Description of Securities.” We will furnish a full statement of the relative rights and preferences of each class or series of our
stock which has been so designated and any restrictions on the ownership or transfer of our stock to any stockholder upon request and without charge. Written requests for such copies should be directed to bluebird bio, Inc., 150 Second Street, Third
Floor, Cambridge, Massachusetts 02141, Attention: Secretary, or by telephone request to
(339) 499-9300.
Our website is located at
http://www.bluebirdbio.com
. Information contained on our website is
not incorporated by reference into this prospectus and, therefore, is not part of this prospectus or any accompanying prospectus supplement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference much of the information we file with the SEC, which means that we can disclose important information to you by
referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this
prospectus supplement is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by
reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below (File
No. 001-35966)
and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to
be filed) between the date of this prospectus and the termination of this offering:
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Annual Report on Form
10-K
for the year ended December 31, 2016, as filed with the SEC on February 22, 2017;
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Current Reports on Form
8-K,
as filed with the SEC on February 3, 2017 and February 13, 2017; and
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The description of our common stock contained in our registration statement on Form
8-A,
which was filed with the SEC on June 14, 2013, including any amendment or report
filed for the purpose of updating such description.
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You may request a copy of these filings, at no cost, by contacting us, either orally or
in writing, at:
bluebird bio, Inc.
150 Second Street, Third Floor
Cambridge, Massachusetts 02141
Phone:
(617) 245-2107
investor@bluebirdbio.com
Attn:
Investor Relations
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You may also access these documents, free of charge on the SEC’s website at
www.sec.gov
or on our
website at
www.bluebirdbio.com
. The information contained in, or that can be accessed through, our website is not part of this prospectus.
This
prospectus is part of a registration statement we filed with the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions that may be important to you.
Neither we nor any selling stockholder have authorized anyone to provide you with information other than what is incorporated by reference or provided in this
prospectus or any prospectus supplement. Neither we nor any selling stockholder are making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or in the documents
incorporated by reference is accurate as of any date other than the date on the front of this prospectus or those documents.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated herein by reference herein and therein contain
statements that are not historical facts and are considered forward-looking within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These forward-looking statements contain projections of our future
results of operations or of our financial position or state other forward-looking information. In some cases, you can identify these statements by forward-looking words such as “may,” “will,” “could,”
“should,” “would,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “project,” “potential,”
“continue,” or the negative of such words or other similar words or phrases. We believe that it is important to communicate our future expectations to our investors. However, there may be events in the future that we are not able to
accurately predict or control and that may cause our actual results to differ materially from the expectations we describe in our forward-looking statements.
Investors are cautioned not to unduly rely on forward-looking statements because they relate to future events or our future financial performance and involve
known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed
or implied by these forward-looking statements. Forward-looking statements include, but are not limited to, statements about:
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the initiation, timing, progress and results of our preclinical and clinical studies, and our research and development programs;
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our ability to advance product candidates into, and successfully complete, clinical studies;
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our ability to advance our viral vector and drug product manufacturing capabilities;
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the timing or likelihood of regulatory filings and approvals for our product candidates;
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the timing or success of commercialization of our product candidates, if approved;
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the pricing and reimbursement of our product candidates, if approved;
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the implementation of our business model, strategic plans for our business, product candidates and technology;
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the scope of protection we are able to establish and maintain for intellectual property rights covering our product candidates and technology;
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estimates of our expenses, future revenues, capital requirements and our needs for additional financing;
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the potential benefits of strategic collaboration agreements and our ability to enter into strategic arrangements;
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our ability to maintain and establish collaborations and licenses;
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our financial performance;
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developments relating to our competitors and our industry; and
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other risks and uncertainties, including those listed under the caption “Risk Factors” below and in any documents incorporated by reference herein.
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Given these uncertainties, you should not place undue reliance on these forward-looking statements. These forward-looking statements speak only as of the date
on which the statements were made and are not guarantees of future performance. Except as may be required by applicable law, we do not undertake or intend to update any forward-looking statements after the date of this prospectus or the respective
dates of documents incorporated by reference herein that include forward-looking statements.
RISK FACTORS
You should carefully consider the risks described in the documents incorporated by reference in this prospectus and any prospectus supplement, as
well as other information we include or incorporate by reference into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be materially
adversely affected by the materialization of any of these risks. The trading price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents
incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors,
including the risks described in the documents incorporated herein by reference, including our most recent annual report on
Form 10-K
which is on file with the SEC and is incorporated herein by reference,
and other documents we file with the SEC that are deemed incorporated by reference into this prospectus.
ABOUT THE COMPANY
We are a clinical-stage biotechnology company committed to developing potentially transformative gene therapies for severe genetic diseases and cancer. With
our lentiviral-based gene therapy and gene editing capabilities, we have built an integrated product platform with broad potential application in these areas. We believe that gene therapy for severe genetic diseases has the potential to change the
way these patients are treated by correcting the underlying genetic defect that is the cause of their disease, rather than offering treatments that only address their symptoms. Our clinical programs in severe genetic diseases include our LentiGlobin
®
product candidate to treat transfusion-dependent ß-thalassemia, or TDT, and to treat severe sickle cell disease, or severe SCD, and our
Lenti-D
™
product candidate to treat cerebral adrenoleukodystrophy, or CALD. Our programs in oncology are built upon our leadership in lentiviral gene delivery and T cell engineering, with a
focus on developing novel T cell-based immunotherapies, including chimeric antigen receptor (CAR) and T cell receptor (TCR) T cell therapies. bb2121, our lead product candidate in oncology, is a CAR T cell product candidate for the treatment of
multiple myeloma. We also have discovery research programs utilizing megaTALs/homing endonuclease gene editing technologies with the potential for use across our pipeline.
We are conducting four clinical studies of our LentiGlobin product candidate: a Phase I/II study in the United States, Australia, and Thailand for the
treatment of subjects with TDT, called the Northstar Study
(HGB-204);
a multi-site, international, Phase III study for the treatment of subjects with TDT and
non-ß°/ß
° genotypes, called the
Northstar-2
Study
(HGB-207);
a single-center Phase I/II study in France for the treatment of subjects who with TDT or with severe SCD
(HGB-205);
and a multi-site Phase I study in the
United States for the treatment of subjects with severe SCD
(HGB-206).
Both TDT and severe SCD are rare, hereditary blood disorders that often lead to severe anemia and shortened lifespans. Our LentiGlobin
product candidate has been granted Orphan Drug status by the U.S. Food and Drug Administration, or FDA, and the European Medicines Agency, or EMA, for both ß-thalassemia and SCD. Our LentiGlobin product candidate was granted Fast-Track
designation by the FDA for the treatment of ß-thalassemia major and for the treatment of certain patients with severe SCD. The FDA has granted Breakthrough Therapy designation to our LentiGlobin product candidate for the treatment of
transfusion-dependent patients with ß-thalassemia major. The EMA has granted access to its Priority Medicines (PRIME) scheme for our LentiGlobin product candidate for the treatment of TDT.
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We are conducting a multi-site, international, Phase II/III clinical study of our Lenti-D
™
product candidate, called the Starbeam Study
(ALD-102),
for the treatment of subjects with CALD, a rare, hereditary neurological disorder that is often
fatal. Our Lenti-D product candidate has been granted Orphan Drug status by the FDA and the EMA for the treatment of adrenoleukodystrophy.
We are
conducting a multi-site Phase I clinical study in the United States of our bb2121 product candidate for the treatment of subjects with relapsed/refractory multiple myeloma
(CRB-401).
bb2121 is the lead product
candidate arising from our multi-year collaboration with Celgene Corporation, or Celgene, for the discovery, development and commercialization of CAR T cell therapies targeting
B-cell
maturation antigen, or
BCMA. We have exclusively licensed to Celgene the right to develop and commercialize our bb2121 product candidate, and we may exercise our option to
co-develop
and
co-promote
this product candidate in the United States. The FDA has granted Orphan Drug status to bb2121 for the treatment of patients with relapsed/refractory multiple myeloma.
Our gene therapy platform is based on viral vectors that utilize a modified,
non-replicating
version of the Human
Immunodeficiency Virus Type 1, or
HIV-1,
that has been stripped of all of the components required for it to self-replicate and infect additional cells.
HIV-1
is part of
the lentivirus family of viruses, and we refer to our vectors as lentiviral vectors. Our lentiviral vectors are used to introduce a functional copy of a gene to the patient’s own isolated hematopoietic stem cells, or HSCs, in the case of our
LentiGlobin and Lenti-D product candidates, or the patient’s own isolated white blood cells which include T cells, in the case of our bb2121 product candidate. Additionally, we have developed a proprietary cell-based vector manufacturing
process that is both reproducible and scalable. We believe our innovations in viral vector design and related manufacturing processes are important steps towards advancing the field of gene therapy and in realizing its full potential on a commercial
scale.
Utilizing our gene therapy platform, we are developing product candidates comprising the patient’s own gene-modified HSCs and T cells.
Clinical
proof-of-concept
already exists for allogeneic hematopoietic stem cell transplant, or HSCT, an approach of treating a patient with HSCs contributed by a donor
other than the patient that contain the properly functioning copy of the gene whose mutation has caused the underlying disease. However, this approach has significant limitations, including difficulties in finding appropriate genetically-matched
donors and the risk of transplant-related rejection, graft-versus-host disease, or GVHD, and mortality, and is therefore typically only available on a limited basis. Our approach is intended to address the significant limitations of allogeneic HSCT
while utilizing existing stem cell transplant infrastructure and processes. Also, because our approach has the potential to drive sustained expression of the functional protein encoded by the gene insert after potentially a single-administration, we
believe the value proposition offered by our product candidates for patients, families, health care providers and payors would be significant.
Although
our initial focus for HSCs is in TDT, severe SCD and CALD, and for T cells is in oncology, we believe our gene therapy platform has broad therapeutic potential in a variety of indications. We believe that our vectors can be used to introduce
virtually any gene into a cell and have the potential to be manufactured on a commercial scale reproducibly and reliably, as each new vector is produced using substantially the same process. We also take advantage of lentivirus’ ability to
transduce HSCs more efficiently than other vectors, such as those derived from another virus used in gene therapy approaches, called adeno-associated virus, or AAV, which gives us the potential to address diseases in a variety of cell lineages that
are derived from HSCs, such as microglia (useful for CALD), red blood cells (useful for TDT and SCD), T cells (useful for cancer and immunology) and others.
We also have discovery research programs utilizing our cell signaling technology and gene editing technology platform across our pipeline. For instance, we
are exploring applications of our CAR and TCR T cell technologies in combination with novel proteins based on synthetic biology. These technologies may potentially allow our future T cell-based product candidates to detect the tumor microenvironment
or, in the case of future CAR T cell product candidates, to be regulated by small molecules. In addition, we are focused on utilizing homing endonuclease and megaTAL gene editing technologies in a variety of potential applications and disease areas,
including for oncology and hematology. Homing endonucleases and MegaTALs are novel enzymes that provide a highly specific and efficient way to modify DNA sequences to silence, edit or insert genetic components to potentially treat a variety of
diseases.
We were incorporated in Delaware in April 1992 under the name Genetix Pharmaceuticals, Inc., and subsequently changed our name to bluebird bio,
Inc. in September 2010. Our mailing address and executive offices are located at
5
150 Second Street, Third Floor, Cambridge, Massachusetts and our telephone number at that address is (339)
499-9300.
We maintain an Internet website at the
following address: www.bluebirdbio.com. The information on, or that can be accessed through, our website does not constitute part of this prospectus, and you should not rely on any such information in making the decision whether to purchase our
common stock. Our common stock trades on the NASDAQ Global Select Market under the symbol “BLUE.”
DESCRIPTION OF SECURITIES
We and/or any selling stockholder may offer shares of our common stock and preferred stock, various series of warrants to purchase common stock or preferred
stock, debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt, or any combination thereof from time to time in one or more offerings under this prospectus at prices and on terms to
be determined at the time of any offering. This prospectus provides you with a general description of the securities we and/or any selling stockholder may offer. Each time we and/or any selling stockholder offer a type or series of securities under
this prospectus, we will provide a prospectus supplement and/or free writing prospectus that will describe the specific amounts, prices and other important terms of the securities.
Common Stock.
We and/or any selling stockholder may issue and/or sell, as applicable, shares of our common stock from time to time. Holders of shares
of our common stock are entitled to one vote for each share held of record on all matters to be voted on by stockholders and do not have cumulative voting rights. Subject to the preferences that may be applicable to any then outstanding preferred
stock, the holders of our outstanding shares of common stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. In the event of our liquidation, dissolution or
winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any
liquidation preference granted to the holders of any outstanding shares of preferred stock.
Preferred Stock.
We may issue shares of our preferred
stock from time to time, in one or more series. Our board of directors will determine the rights, preferences and privileges of the shares of each wholly unissued series, and any qualifications, limitations or restrictions thereon, including
dividend rights, conversion rights, preemptive rights, terms of redemption or repurchase, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of any series. Convertible preferred stock will
be convertible into our common stock or exchangeable for other securities. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates.
If we sell any series of preferred stock under this prospectus, we will fix the rights, preferences and privileges of the preferred stock of such series, as
well as any qualifications, limitations or restrictions thereon, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering before the issuance of that series of preferred stock. We urge you to read the applicable
prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable
series of preferred stock.
Warrants.
We may issue warrants for the purchase of common stock and/or preferred stock in one or more series. We may
issue warrants independently or together with common stock and/or preferred stock, and the warrants may be attached to or separate from these securities. We urge you to read the applicable prospectus supplement and any free writing prospectus that
we may authorize to be provided to you related to the particular series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants. Forms of the warrant agreements and forms
of warrant certificates containing the terms of the warrants being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
We will evidence each series of warrants by warrant certificates that we will issue. Warrants may be issued under an applicable warrant agreement that we
enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of warrants being offered.
6
Units.
We may issue, in one or more series, units consisting of common stock, preferred stock,
and/or warrants for the purchase of common stock and/or preferred stock in any combination. We urge you to read the applicable prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of
units being offered, as well as the complete unit agreement that contains the terms of the units. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file
with the SEC, the form of unit agreement and any supplemental agreements that describe the terms of the series of units we are offering before the issuance of the related series of units.
We will evidence each series of units by unit certificates that we will issue. Units may be issued under a unit agreement that we enter into with a unit
agent. We will indicate the name and address of the unit agent, if applicable, in the prospectus supplement relating to the particular series of units being offered.
Debt Securities.
We may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. In this prospectus, we have summarized certain general features of the debt securities. We urge you, however, to read the applicable prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to
the particular series of debt securities being offered, as well as the complete indenture that contains the terms of the debt securities. We will file as exhibits to the registration statement of which this prospectus is a part, the form of
indenture and any supplemental agreements that describe the terms of the series of debt securities we are offering before the issuance of the related series of debt securities.
We may evidence each series of debt securities we will issue by an indenture that we enter into with a trustee. We will indicate the name and address of the
trustee, if applicable, in the prospectus supplement relating to the particular series of debt securities being offered.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for recently completed fiscal years and any required interim periods
will be specified in a prospectus supplement or in a document that we file with the SEC and incorporate by reference in the future.
USE OF PROCEEDS
Except as described in any prospectus supplement or in any related free writing prospectus that we may authorize to be provided
to you, the net proceeds received by us from our sale of the securities described in this prospectus will be added to our general funds and will be used for our general corporate purposes. From time to time, we may engage in additional public or
private financings of a character and amount which we may deem appropriate. Unless otherwise set forth in a prospectus supplement, we will not receive any proceeds from the sale of securities by any selling stockholder.
SELLING STOCKHOLDERS
Selling stockholders are persons or entities that, directly or indirectly, have acquired or will from time to time acquire from us, our securities. Such
selling stockholders may be parties to registration rights agreements with us, or we otherwise may have agreed or will agree to register their securities for resale. The initial purchasers of our securities, as well as their transferees, pledges,
donees or successors, all of whom we refer to as “selling stockholders,” may from time to time offer and sell our securities pursuant to this prospectus and any applicable prospectus supplement.
The applicable prospectus supplement will set forth the name of each of the selling stockholders and the number of securities beneficially owned by such
selling stockholder that are covered by such prospectus supplement. The applicable prospectus supplement will also disclose whether any of the selling stockholders has held any position or office with, has been employed by or otherwise has had a
material relationship with us during the three years prior to the date of the applicable prospectus supplement.
7
PLAN OF DISTRIBUTION
We and/or any selling stockholder may sell our securities from time to time in one or more transactions. We and/or any selling stockholder may sell our
securities to or through agents, underwriters, dealers, remarketing firms or other third parties or directly to one or more purchasers or through a combination of any of these methods. In some cases, we and/or any selling stockholder or dealers
acting with us and/or any selling stockholder or on behalf of us and/or any selling stockholder may also purchase our securities and reoffer them to the public. We and/or any selling stockholder may also offer and sell, or agree to deliver, our
securities pursuant to, or in connection with, any option agreement or other contractual arrangement.
Agents whom we designate may solicit offers to
purchase our securities.
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We and/or any selling stockholder will name any agent involved in offering or selling our securities, and disclose any commissions that we will pay to the agent, in the applicable prospectus supplement.
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•
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Unless we and/or any selling stockholder indicate otherwise in the applicable prospectus supplement, agents will act on a best efforts basis for the period of their appointment.
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•
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Agents may be deemed to be underwriters under the Securities Act, of any of our securities that they offer or sell.
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We and/or any selling stockholder may use an underwriter or underwriters in the offer or sale of our securities.
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•
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If we and/or any selling stockholder use an underwriter or underwriters, we will execute an underwriting agreement with the underwriter or underwriters at the time that we reach an agreement for the sale of our
securities.
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•
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We and/or any selling stockholder will include the names of the specific managing underwriter or underwriters, as well as the names of any other underwriters, and the terms of the transactions, including the
compensation the underwriters and dealers will receive, in the applicable prospectus supplement.
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•
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The underwriters will use the applicable prospectus supplement, together with the prospectus, to sell our securities.
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We may use a dealer to sell our securities.
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•
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If we and/or any selling stockholder use a dealer, we will sell our securities to the dealer, as principal.
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•
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The dealer will then sell our securities to the public at varying prices that the dealer will determine at the time it sells our securities.
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•
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We and/or any selling stockholder will include the name of the dealer and the terms of the transactions with the dealer in the applicable prospectus supplement.
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We and/or any selling stockholder may solicit directly offers to purchase our securities, and we may directly sell our securities to institutional or other
investors. We and/or any selling stockholder will describe the terms of direct sales in the applicable prospectus supplement.
We and/or any selling
stockholder may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) of the Securities Act.
We and/or
any selling stockholder will indemnify agents, underwriters and dealers against certain liabilities, including liabilities under the Securities Act. Agents, underwriters and dealers, or their affiliates, may be customers of, engage in transactions
with or perform services for us or our respective affiliates, in the ordinary course of business.
We and/or any selling stockholder may authorize agents
and underwriters to solicit offers by certain institutions to purchase our securities at the public offering price under delayed delivery contracts.
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•
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If we and/or any selling stockholder use delayed delivery contracts, we will disclose that we are using them in the prospectus supplement and will tell you when we will demand payment and when delivery of our securities
will be made under the delayed delivery contracts.
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•
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These delayed delivery contracts will be subject only to the conditions that we describe in the prospectus supplement.
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•
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We and/or any selling stockholder will describe in the applicable prospectus supplement the commission that underwriters and agents soliciting purchases of our securities under delayed delivery contracts will be
entitled to receive.
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Unless otherwise specified in connection with a particular underwritten offering of our securities, the underwriters
will not be obligated to purchase offered securities unless specified conditions are satisfied, and if the underwriters do purchase any offered securities, they will purchase all offered securities.
In connection with underwritten offerings of the offered securities and in accordance with applicable law and industry practice, the underwriters in certain
circumstances are permitted to engage in certain transactions that stabilize the price of our securities. Such transactions consist of bids or purchases for the purpose of pegging, fixing or maintaining the price of our securities. If the
underwriters create a short position in our securities in connection with the offering (
i.e.,
if they sell more securities than are set forth on the cover page of the applicable prospectus supplement), the underwriters may reduce that short
position by purchasing our securities in the open market or as otherwise provided in the applicable prospectus supplement. The underwriters may also impose a penalty bid, whereby selling concessions allowed to dealers participating in the offering
may be reclaimed if the securities sold by them are repurchased in connection with stabilization transactions. In general, purchases of a security for the purpose of stabilization or to reduce a short position could cause the price of the security
to be higher than it might be in the absence of such purchases. The imposition of a penalty bid might also have an effect on the price of our securities to the extent that it were to discourage resales of our securities. The underwriters are not
required to engage in these activities and may end any of these activities at any time.
We and/or any selling stockholder may effect sales of securities
in connection with forward sale, option or other types of agreements with third parties. Any distribution of securities pursuant to any forward sale agreement may be effected from time to time in one or more transactions that may take place through
a stock exchange, including block trades or ordinary broker’s transactions, or through broker-dealers acting either as principal or agent, or through privately-negotiated transactions, or through an underwritten public offering, or through a
combination of any such methods of ale, at market prices prevailing at the time of sale, prices relating to such prevailing market prices or at negotiated or fixed prices.
The specific terms of the
lock-up
provisions, if any, in respect of any given offering will be described in the
applicable prospectus supplement.
In compliance with the guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration
or discount to be received by any FINRA member or independent broker dealer may not exceed 8.0% of the aggregate amount of the securities offered by this prospectus.
LEGAL MATTERS
The validity of the securities being offered by this prospectus will be passed upon by Goodwin Procter LLP, Boston, Massachusetts.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on
Form
10-K
for the year ended December 31, 2016, and the effectiveness of our internal control over financial reporting as of December 31, 2016, as set forth in their reports, which are incorporated
by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP’s reports, given on their authority as experts in accounting and
auditing.
9
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, in connection with the issuance and
distribution of the securities registered hereby. The registrant is deferring payment of the registration fee in reliance on Rule 456(b) and Rule 457(r) under the Securities Act. All the amounts shown are estimates.
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Amount
to be
Paid
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SEC registration fee
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$
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(1
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)
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NASDAQ listing fee
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(2
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)
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Accounting fees and expenses
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(2
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)
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Legal fees and expenses
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(2
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)
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Trustee and Transfer Agent fees and expenses
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(2
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)
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Printing fees
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(2
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)
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Miscellaneous
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(2
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Total
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$
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(2
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)
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(1)
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Omitted because the registration fee is being deferred pursuant to Rule 456(b) and Rule 457(r) under the Securities Act.
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(2)
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These fees and expenses depend on the securities offered and the number of issuances, and accordingly cannot be estimated at this time and will be reflected in the applicable prospectus supplement.
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Item 15. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that
no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court
determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other adjudicating court shall deem
proper.
Section 145(g) of the Delaware General Corporation Law provides, in general, that a corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation,
II-1
partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power to indemnify the person against such liability under Section 145 of the Delaware General Corporation Law.
Article VII of our amended and restated certificate of incorporation (the “Charter”), provides that no director of our company shall be personally
liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to us or our stockholders, (2) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of law, (3) in respect of unlawful dividend payments or stock redemptions or repurchases, or (4) for any transaction from which the director derived an improper
personal benefit. In addition, our Charter provides that if the Delaware General Corporation Law is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of our company shall be
eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Article VII of the Charter further provides
that any repeal or modification of such article by our stockholders or amendment to the Delaware General Corporation Law will not adversely affect any right or protection existing at the time of such repeal or modification with respect to any acts
or omissions occurring before such repeal or modification of a director serving at the time of such repeal or modification.
Article V of our amended and
restated
by-laws
(the
“By-Laws”),
provides that we will indemnify each of our directors and officers and, in the discretion of our board of directors, certain
employees, to the fullest extent permitted by the Delaware General Corporation Law as the same may be amended (except that in the case of amendment, only to the extent that the amendment permits us to provide broader indemnification rights than the
Delaware General Corporation Law permitted us to provide prior to such the amendment) against any and all expenses, judgments, penalties, fines and amounts reasonably paid in settlement that are incurred by the director, officer or such employee or
on the director’s, officer’s or employee’s behalf in connection with any threatened, pending or completed proceeding or any claim, issue or matter therein, to which he or she is or is threatened to be made a party because he or she is
or was serving as a director, officer or employee of our company, or at our request as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, if
he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of our company and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. Article V of the
By-Laws
further provides for the advancement of expenses to each of our directors and, in the discretion of the board of directors, to certain officers and employees.
In addition, Article V of the
By-Laws
provides that the right of each of our directors and officers to indemnification
and advancement of expenses shall be a contract right and shall not be exclusive of any other right now possessed or hereafter acquired under any statute, provision of the Charter or
By-Laws,
agreement, vote
of stockholders or otherwise. Furthermore, Article V of the
By-Laws
authorizes us to provide insurance for our directors, officers and employees, against any liability, whether or not we would have the power
to indemnify such person against such liability under the Delaware General Corporation Law or the provisions of Article V of the
By-Laws.
We have entered into indemnification agreements with each of our directors and executive officers. These agreements provide that we will indemnify each of our
directors and executive officers to the fullest extent permitted by law and the Charter and
By-Laws.
We also
maintain a general liability insurance policy which covers certain liabilities of directors and officers of our company arising out of claims based on acts or omissions in their capacities as directors or officers.
II-2
Item 16. Exhibits.
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Exhibit
No.
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Description
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1.1*
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Form of Underwriting Agreement
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3.1
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Amended and Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 of the Company’s Current Report on
Form 8-K
filed on June 24,
2013 (File
No. 001-35966))
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3.2
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Amended and Restated
By-Laws
of the Company (Incorporated by reference to Exhibit 3.2 of the Company’s Current Report on
Form 8-K
filed
on June 24, 2013 (File
No. 001-35966))
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3.3
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Amendment No. 1 to Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.1 to the registrant’s Current Report on Form
8-K
filed February 11, 2016 (File
No. 001-35966))
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4.1
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Specimen Common Stock Certificate (Incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on
Form S-1,
as amended (File
No. 333-188605))
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4.2
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Amended and Restated Investors’ Rights Agreement dated as of July 23, 2012 by and among the Company and the investors listed therein (Incorporated by reference to Exhibit 4.5 of the Company’s Registration
Statement on
Form S-1,
as amended (File
No. 333-188605))
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4.3*
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Specimen Preferred Stock Certificate and Form of Certificate of Designations of Preferred Stock
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4.4*
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Form of Common Stock Warrant Agreement and Warrant Certificate
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4.5*
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Form of Preferred Stock Warrant Agreement and Warrant Certificate
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4.6*
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Form of Unit Agreement
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4.7
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Form of Indenture
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4.8*
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Form of Debt Security
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5.1
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Opinion of Goodwin Procter LLP
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12.1*
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Computation of Ratio of Earnings to Fixed Charges
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23.1
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Consent of Ernst & Young LLP
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24.1
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Power of Attorney (included on signature page)
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25.1*
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Form
T-1
Statement of Eligibility of Trustee for Indenture under the Trust Indenture Act of 1939
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*
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To be filed, if necessary, subsequent to the effectiveness of this registration statement by incorporation by reference pursuant to a Current Report on Form
8-K
in connection with
an offering of securities.
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Item 17. Undertakings.
The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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
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II-3
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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 or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and
Exchange Commission, or the Commission, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement; and
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(iii)
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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;
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provided, however,
that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2)
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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.
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(3)
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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.
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(4)
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That, for the purpose of determining liability under the Securities Act to any purchaser:
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(A)
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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
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(B)
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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.
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(5)
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That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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II-4
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(6)
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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 the securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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(7)
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That, for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
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(8)
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That, for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.
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(9)
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To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
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Insofar as indemnification for liabilities
arising under the Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities 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.
II-5
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-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cambridge, Commonwealth of
Massachusetts, on this 22nd day of February, 2017.
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bluebird bio, Inc.
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By:
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/s/ Nick Leschly
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Nick Leschly
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President, Chief Executive Officer and
Director
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and
appoints Nick Leschly and Jeffrey Walsh, and each of them singly, as such person’s true and lawful attorneys in fact and agents, with full power of substitution and resubstitution, for such person and in such persons’s name, place, and
stead, in any and all capacities, to sign any and all amendments (including post effective amendments or any abbreviated or subsequent registration statement and any amendments thereto filed pursuant to Rule 462(b) and any supplement to any
prospectus included in this registration statement or any such amendment or any abbreviated or subsequent registration statement filed pursuant to Rule 462(b)), 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 such person 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 substitute or substitutes, 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 dates indicated.
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Name
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Title
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Date
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/s/ Nick Leschly
Nick Leschly
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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February 22, 2017
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/s/ Jeffrey Walsh
Jeffrey Walsh
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Chief Financial and Strategy Officer
(Principal Financial Officer)
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February 22, 2017
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/s/ Eric Sullivan
Eric Sullivan
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Vice President, Finance and Treasurer
(Principal Accounting Officer)
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February 22, 2017
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/s/ Daniel S. Lynch
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Director
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February 22, 2017
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Daniel S. Lynch
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/s/ Mark Vachon
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Director
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February 22, 2017
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Mark Vachon
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/s/ James Mandell
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Director
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February 22, 2017
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James Mandell, M.D.
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II-6
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/s/ John M. Maraganore
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Director
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February 22, 2017
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John M. Maraganore, Ph.D.
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/s/ Wendy L. Dixon
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Director
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February 22, 2017
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Wendy L. Dixon, Ph.D.
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/s/ David P. Schenkein
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Director
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February 22, 2017
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David P. Schenkein, M.D.
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II-7
EXHIBIT INDEX
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Exhibit
No.
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Description
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1.1*
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Form of Underwriting Agreement
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3.1
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Amended and Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 of the Company’s Current Report on
Form 8-K
filed on June 24,
2013 (File
No. 001-35966))
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3.2
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Amended and Restated
By-Laws
of the Company (Incorporated by reference to Exhibit 3.2 of the Company’s Current Report on
Form 8-K
filed
on June 24, 2013 (File
No. 001-35966))
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3.3
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Amendment No. 1 to Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.1 to the registrant’s Current Report on Form
8-K
filed February 11, 2016 (File
No. 001-35966))
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4.1
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Specimen Common Stock Certificate (Incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on
Form S-1,
as amended (File
No. 333-188605))
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4.2
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Amended and Restated Investors’ Rights Agreement dated as of July 23, 2012 by and among the Company and the investors listed therein (Incorporated by reference to Exhibit 4.5 of the Company’s Registration
Statement on
Form S-1,
as amended (File
No. 333-188605))
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4.3*
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Specimen Preferred Stock Certificate and Form of Certificate of Designations of Preferred Stock
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4.4*
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Form of Common Stock Warrant Agreement and Warrant Certificate
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4.5*
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Form of Preferred Stock Warrant Agreement and Warrant Certificate
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4.6*
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Form of Unit Agreement
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4.7
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Form of Indenture
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4.8*
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Form of Debt Security
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5.1
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Opinion of Goodwin Procter LLP
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12.1*
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Computation of Ratio of Earnings to Fixed Charges
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23.1
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Consent of Ernst & Young LLP
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24.1
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Power of Attorney (included on signature page)
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25.1*
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Form
T-1
Statement of Eligibility of Trustee for Indenture under the Trust Indenture Act of 1939
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*
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To be filed, if necessary, subsequent to the effectiveness of this registration statement by incorporation by reference pursuant to a Current Report on Form
8-K
in connection with
an offering of securities.
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II-8
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