As filed with the Securities and Exchange Commission on February
28, 2023
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT Under The Securities Act of
1933
Pacific Biosciences of California, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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16-1590339 |
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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1305 O’Brien Drive
Menlo Park, CA 94025
(Address of Principal Executive Offices) (Zip Code)
Pacific Biosciences of California, Inc. 2010 Employee Stock
Purchase Plan
(Full title of the plan)
Christian O. Henry
Chief Executive Officer and President
1305 O’Brien Drive
Menlo Park, CA 94025
(Name and address of agent for service)
(650) 521-8000
(Telephone number, including area code, of agent for
service)
Copies to:
Andrew D. Hoffman
Zachary B. Myers
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
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Large
accelerated filer |
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x |
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Accelerated
filer |
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¨ |
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| Non-accelerated
filer |
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¨ |
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Smaller
reporting company |
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¨ |
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Emerging
growth company |
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¨ |
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act. ¨
EXPLANATORY NOTE
This Registration Statement is being filed for the purpose of
registering an additional 4,000,000 shares of common stock that
were reserved for issuance under the Company’s 2010 Employee Stock
Purchase Plan (the “2010 ESPP”). The Registrant previously filed
with the Securities and Exchange Commission (the “Commission”)
registration statements on Form S-8 on October 29, 2010 (SEC File
No. 333-170211), March 1, 2012 (SEC File No. 333-179810), January
17, 2013 (SEC File No. 333-186065), January 21, 2014 (SEC File No.
333-193437), January 23, 2015 (SEC File No. 333-201678), January
28, 2016 (SEC File No. 333-209157), January 26, 2017 (SEC File No.
333-215746), January 25, 2018 (SEC File No. 333-222696), January
25, 2019 (SEC File No. 333-229368), January 24, 2020 (SEC File No.
333-236061), March 1, 2021 (SEC File No. 333-253669), and February
28, 2022 (SEC File No. 333-263101) (the “Prior Registration
Statements”) registering shares of Common Stock issuable under the
2010 ESPP. This Registration Statement relates to securities of the
same class as those to which the Prior Registration Statements
relate and is submitted in accordance with General Instruction E of
Form S-8 regarding Registration of Additional Securities. Pursuant
to General Instruction E of Form S-8, the contents of the Prior
Registration Statements are incorporated herein by reference and
made part of this Registration Statement, except for Items 3 and 8,
which are being updated by this Registration Statement.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The documents containing the information specified in Item 1 and
Item 2 of this Registration Statement on Form S-8 (the
“Registration Statement”) will be sent or given to employees,
officers, directors or others as specified by Rule 428(b)(1) under
the Securities Act of 1933, as amended (the “Securities Act”). In
accordance with the rules and regulations of the Commission and the
instructions to the Registration Statement, such documents are not
being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
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Item 3. |
Incorporation
of Documents by Reference. |
Pacific Biosciences of California, Inc. (the “Registrant”) hereby
incorporates by reference into this Registration Statement the
following documents previously filed with the Commission:
(1) The Registrant’s Annual Report on
Form 10-K for its fiscal year ended December 31, 2022, filed
with the Commission on February 28, 2023 pursuant to Section 13(a)
of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”);
(2) All other reports filed with the Commission pursuant to
Sections 13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the Registrant’s Annual Report referred to
in (1) above (other than the portions of these documents not deemed
to be filed); and
(3) The description of the Registrant’s Common Stock contained in
the Registrant’s Registration Statement on
Form 8-A (File No.
001-34899) filed with the Commission on October 6, 2010, pursuant
to Section 12(b) of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act on or after the date of
this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement that
indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold shall be deemed to
be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents;
provided, however, that documents or information deemed to
have been furnished and not filed in accordance with the rules of
the Commission 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 subsequently
filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this
Registration Statement.
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Item 4. |
Description
of Securities. |
Not applicable.
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Item 5. |
Interests
of Named Experts and Counsel. |
Not applicable.
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Item 6. |
Indemnification
of Directors and Officers. |
Section 145 of the Delaware General Corporation Law authorizes a
corporation’s board of directors to grant, and authorizes a court
to award, indemnity to officers, directors and other corporate
agents.
The Registrant’s certificate of incorporation contains provisions
that limit the liability of its directors for monetary damages to
the fullest extent permitted by the Delaware General Corporation
Law. Consequently, the Registrant’s directors will not be
personally liable to the Registrant or its stockholders for
monetary damages for any breach of fiduciary duties as directors,
except liability for the following:
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any breach of their duty of loyalty to us or our
stockholders; |
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any act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law; |
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· |
unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General
Corporation Law; or |
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· |
any transaction from which they derived an improper personal
benefit. |
Any amendment, repeal or elimination of these provisions will not
eliminate or reduce the effect of these provisions in respect of
any act, omission or claim that occurred or arose prior to that
amendment, repeal or elimination. If the Delaware General
Corporation Law is amended to provide for further limitations on
the personal liability of directors of corporations, then the
personal liability of the Registrant’s directors will be further
limited to the greatest extent permitted by the Delaware General
Corporation Law.
In addition, the Registrant’s bylaws provide that the Registrant
will indemnify its directors and officers, and may indemnify its
employees, agents and any other persons, to the fullest extent
permitted by the Delaware General Corporation Law. The Registrant’s
bylaws also provide that it must advance expenses incurred by a
director or officer in advance of the final disposition of any
threatened, pending or completed action, suit or proceeding,
subject to limited exceptions.
Further, the Registrant has entered into indemnification agreements
with each of its directors and executive officers that may be
broader than the specific indemnification provisions contained in
the Delaware General Corporation Law. These indemnification
agreements require the Registrant to, among other things, indemnify
its directors and executive officers against liabilities that may
arise by reason of their status or service. These indemnification
agreements also generally require the Registrant to advance all
expenses reasonably and actually incurred by its directors and
executive officers in investigating or defending any such action,
suit or proceeding. The Registrant believes that these agreements
are necessary to attract and retain qualified individuals to serve
as directors and executive officers.
The limitation of liability and indemnification provisions in the
Registrant’s certificate of incorporation, bylaws and
indemnification agreements may discourage stockholders from
bringing a lawsuit against its directors and officers for breach of
their fiduciary duties. They may also reduce the likelihood of
derivative litigation against the Registrant’s directors and
officers, even though an action, if successful, might benefit the
Registrant and other stockholders. Further, a stockholder’s
investment may be adversely affected to the extent that the
Registrant pays the costs of settlement and damage awards against
its directors and officers as required by these indemnification
provisions.
The Registrant has obtained insurance policies under which, subject
to the limitations of the policies, coverage is provided to its
directors and officers against loss arising from claims made by
reason of breach of fiduciary duty or other wrongful acts as a
director or officer, including claims relating to public securities
matters, and to the Registrant with respect to payments that may be
made by the Registrant to its directors and officers pursuant to
the Registrant’s indemnification obligations or otherwise as a
matter of law.
| Item
7. |
Exemption
from Registration Claimed. |
Not applicable.
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+ |
Indicates management contract or compensatory plan, contract or
arrangement. |
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* Filed herewith.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in 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 Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii)
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 of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Menlo Park, State of California, on February 28, 2023.
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PACIFIC
BIOSCIENCES OF CALIFORNIA, INC. |
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By: |
/s/
Susan G. Kim |
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Susan
G. Kim |
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Chief
Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Christian
O. Henry, Susan G. Kim, Brett Atkins and Michele Farmer, and each
of them, as his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for each
individual in any and all capacities, to sign any and all
amendments to this Registration Statement on Form S-8 of Pacific
Biosciences of California, Inc., 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 for all
intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or the individual’s substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, this report has been signed by the following
persons on behalf of the Registrant in the capacities and on the
dates indicated.
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Signature |
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Title |
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Date |
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/s/
Christian O. Henry |
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Director,
President and Chief Executive Officer |
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February
28, 2023 |
| Christian
O. Henry |
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(Principal
Executive Officer) |
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/s/
Susan G. Kim |
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Chief
Financial Officer |
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February
28, 2023 |
| Susan
G. Kim |
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(Principal
Financial Officer) |
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/s/
Michele Farmer |
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Vice
President and Chief Accounting Officer |
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February
28, 2023 |
| Michele
Farmer |
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(Principal
Accounting Officer) |
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/s/
John F. Milligan |
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Chairman
of the Board of Directors |
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February
28, 2023 |
| John
F. Milligan |
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/s/
David Botstein |
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Director |
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February
28, 2023 |
| David
Botstein |
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/s/
William W. Ericson |
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Director |
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February
28, 2023 |
| William
W. Ericson |
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/s/
Hannah A. Valantine |
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Director |
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February
28, 2023 |
| Hannah
A. Valantine |
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/s/
Randall S. Livingston |
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Director |
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February
28, 2023 |
| Randall
S. Livingston |
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/s/
Marshall L. Mohr |
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Director |
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February
28, 2023 |
| Marshall
L. Mohr |
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/s/
Kathy Ordoñez |
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Director |
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February
28, 2023 |
| Kathy
Ordoñez |
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/s/
Lucy Shapiro |
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Director |
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February
28, 2023 |
| Lucy
Shapiro |
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