UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
(Exact name of Registrant as Specified in Its Charter)
Delaware | 000-51222 | 33-0857544 |
(State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification Number) |
6340 Sequence Drive, San Diego, CA | 92121 | ||
(Address of principal executive offices) | (Zip Code) | ||
(858) 200-0200 | ||
(Registrant’s telephone number, including area code) | ||
Amended and Restated 2015 Equity Incentive Plan | ||
(Full Title of the Plans) | ||
Chairman, President and Chief Executive Officer
c/o DexCom, Inc.
6340 Sequence Drive
San Diego, California 92121
(858) 200-0200
(Name, Address and Telephone Number of Agent For Service)
Copies to:
Robert A. Freedman, Esq. Michael A. Brown, Esq. Fenwick & West LLP 801 California Street Mountain View, CA 94041 (650) 988-8500 | Patrick Murphy General Counsel and Chief Compliance Officer c/o DexCom, Inc. 6340 Sequence Drive San Diego, California 92121 (858) 200-0200 |
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.
Large accelerated Filer | x | Accelerated Filer | ☐ | |||
Non-accelerated Filer | ☐ | Smaller reporting company | ☐ | |||
Emerging growth company | ☐ | |||||
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 7(a)(2)(b) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE | |||||||||
Title of Each Class of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee | |||||
Common Stock, $0.001 par value | 2,200,000(2) | $154.76(3) | $340,472,000(3) | $44,193 | |||||
Total | 2,200,000 | $340,472,000 | $44,193 | ||||||
(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the Amended and Restated 2015 Equity Incentive Plan, as amended to date (the “2015 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock. | ||||||||
(2) | Represents 2,200,000 additional shares of common reserved for issuance upon the exercise of stock options and the settlement of restricted stock unit awards under the 2015 Plan to be granted by the Registrant. Shares available for issuance under the 2015 Plan were previously registered on a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on June 3, 2015 (File No. 333-204699) and on a Registration Statement on Form S-8 filed with the Commission on June 7, 2017 (File No. 333-218562). |
(3) | Estimated pursuant to Rule 457(c) and (h) of the Securities Act, solely for purposes of calculating the registration fee, based on the average of the high and low sales price reported on the Nasdaq Global Select Market on November 6, 2019. |
STATEMENT PURSUANT TO GENERAL INSTRUCTION E TO FORM S-8
REGISTRATION OF ADDITIONAL SECURITIES
Pursuant to General Instruction E of Form S-8, DexCom, Inc. (the “Registrant”) is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register 2,200,000 additional shares of common reserved for issuance upon the exercise of stock options and the settlement of restricted stock unit awards under the 2015 Plan to be granted by the Registrant.
This registration statement (the “Registration Statement”) hereby incorporates by reference the contents of Registrant’s earlier registration statements on Form S-8 filed with the Commission on June 3, 2015 (Registration No. 333-204699) and on June 7, 2017 (Registration No. 333-218562). In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.
Item 8. Exhibits.
The following exhibits are filed herewith:
Incorporated by Reference | ||||||||||||
Exhibit Number | Exhibit Document | Form | File No. | Date of First Filing | Exhibit Number | Provided Herewith | ||||||
X | ||||||||||||
X | ||||||||||||
23.02 | Consent of Fenwick & West LLP (included in Exhibit 5.01). | X | ||||||||||
24.01 | Power of Attorney (see signature page). | X | ||||||||||
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on this 13th day of November, 2019.
DEXCOM, INC. | ||
By: | /s/ Kevin Sayer | |
Kevin Sayer Chairman, President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Kevin Sayer and Quentin Blackford, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done with respect to this Registration Statement, including post-effective amendments, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his substitute or substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature | Capacity | Date | |||||
/S/ KEVIN R. SAYER | Chairman of the Board of Directors, President and Chief Executive Officer (Principal Executive Officer) | November 13, 2019 | |||||
Kevin R. Sayer | |||||||
/S/ QUENTIN S. BLACKFORD | Chief Operating Officer and Chief Financial Officer (Principal Financial and Accounting Officer) | November 13, 2019 | |||||
Quentin S. Blackford | |||||||
/S/ MARK FOLETTA | Lead Independent Director | November 13, 2019 | |||||
Mark Foletta | |||||||
/S/ STEVE ALTMAN | Director | November 13, 2019 | |||||
Steve Altman | |||||||
Director | |||||||
Nicholas Augustinos | |||||||
/S/ RICHARD COLLINS | Director | November 13, 2019 | |||||
Richard Collins | |||||||
/S/ BRIDGETTE HELLER | Director | November 13, 2019 | |||||
Bridgette Heller | |||||||
/S/ BARBARA KAHN | Director | November 13, 2019 | |||||
Barbara Kahn | |||||||
/S/ JAY SKYLER | Director | November 13, 2019 | |||||
Jay Skyler, M.D. | |||||||
/S/ ERIC TOPOL | Director | November 13, 2019 | |||||
Eric Topol, M.D. | |||||||
Exhibit 5.01
November 13, 2019
DexCom, Inc.
6340 Sequence Drive
San Diego, California 92121
Ladies and Gentlemen:
As counsel to DexCom, Inc., a Delaware corporation (the “Company”), we have examined the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission (the “Commission”) on or about November 13, 2019 (the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 2,200,000 shares (the “Shares”) of the Company’s Common Stock, $0.001 par value per share (the “Common Stock”), subject to issuance by the Company upon the exercise of stock options, the settlement of restricted stock units and other equity awards granted or to be granted under the Company’s Amended and Restated 2015 Equity Incentive Plan, as amended to date (the “2015 Plan”). At your request we are providing this letter to express our opinion on the matters set forth below in this letter (“our opinion”).
In connection with our opinion expressed below, we have examined originals or copies of the Company’s current certificate of incorporation and bylaws, the 2015 Plan, certain corporate proceedings of the Company’s board of directors and stockholders relating to the Registration Statement and the 2015 Plan, and such other agreements, documents, certificates and statements of the Company and public or governmental officials, as we have deemed advisable, and have examined such questions of law as we have considered necessary. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures on documents submitted to us, the conformity to originals of all documents submitted to us as copies, and the absence of any undisclosed termination, waiver or amendment to any document reviewed by us. In giving our opinion, we have also relied upon a good standing certificate regarding the Company issued by the Delaware Secretary of State and representations made to us by the Company, including representations that the Company has available a sufficient number of authorized shares of Common Stock that are not currently outstanding or reserved for issuance under other outstanding securities, equity incentive plans, agreements, obligations or commitments of the Company, to enable the Company to issue and deliver all of the Shares as of the date of this letter without violation of law or of any other agreement, obligation or commitment of the Company.
We render this opinion only with respect to, and we express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing Delaware General Corporation Law.
Based upon, and subject to, the foregoing, it is our opinion that when the 2,200,000 shares of Common Stock that may be issued and sold by the Company upon the exercise of stock options, the settlement of restricted stock units and other equity awards granted or to be granted under the 2015 Plan, have been issued and sold by the Company against the Company’s receipt of payment therefor (in an amount and type of lawful consideration of not less than the par value per Share as determined by the Company’s board of directors) in accordance with the terms (including payment provisions) of the 2015 Plan, and
have been duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, such Shares will be validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the prospectus constituting a part thereof and any amendments thereto. We do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. This opinion is intended solely for use in connection with issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose. In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion shall be inferred as to any other matter or matters. This opinion is rendered on, and speaks only as of, the date of this letter first written above, and does not address any potential change in facts or law that may occur after the date of this opinion letter. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention, whether or not such occurrence would affect or modify the opinion expressed herein.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Michael Brown
Michael Brown, a Partner
Exhibit 23.01
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Amended and Restated 2015 Equity Incentive Plan of DexCom, Inc. of our reports dated February 21, 2019, with respect to the consolidated financial statements of DexCom, Inc. and the effectiveness of internal control over financial reporting of DexCom, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2018, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP |
San Diego, California
November 13, 2019