SEC Form 424B3 filed by Bionano Genomics Inc.
• | our ability to finance our operations and business initiatives, including our ability to successfully implement our strategic restructuring plan and other cost-reduction activities; |
• | the size and growth potential of the markets for our products, and our ability to serve those markets; |
• | the rate and degree of market acceptance of our products; |
• | our ability to manage the growth of our business and integrate acquired businesses; |
• | our ability to expand our commercial organization to address effectively existing and new markets that we intend to target; |
• | the impact from future regulatory, judicial, and legislative changes or developments in the U.S. and foreign countries; |
• | our ability to successfully execute our strategy and meet anticipated goals and milestones; |
• | our ability to compete effectively in a competitive industry; |
• | the introduction of competitive technologies or improvements in existing technologies and the success of any such technologies; |
• | the performance of our third-party contract sales organizations, suppliers and manufacturers; |
• | our ability to attract and retain key scientific or management personnel; |
• | the accuracy of our estimates regarding expenses, future revenues, reimbursement rates, capital requirements and needs for additional financing; |
• | the impact of geopolitical and macroeconomic developments, such as the ongoing conflict between Ukraine and Russia, the Israel-Hamas war, related sanctions and global pandemics on our business and operations, as well as the business or operations of our suppliers, customers, manufacturers, research partners and other third parties with whom we conduct business and our expectations with respect to the duration of such impacts and the resulting effects on our business; |
• | our ability to realize the anticipated benefits and synergies of our recent and any future acquisitions or other strategic transactions; |
• | our anticipated cash runway, our ability to continue as a going concern and our ability to obtain funding for our operations; |
• | our ability to attract collaborators and strategic partnerships; and |
• | other uncertainties affecting us including those described in the sections titled “Risk Factors” in this prospectus, in our most recent Annual Report on Form 10-K, in our Quarterly Reports on Form 10-Q and in our Current Reports on Form 8-K filed with the SEC. |
• | prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
• | upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the commencement of the transaction, excluding for purposes of determining the number of shares outstanding (but not the outstanding voting stock owned by the interested stockholder) (a) shares owned by persons who are directors and also officers and (b) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
• | on or subsequent to the consummation of the transaction, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. |
• | any merger or consolidation involving the corporation and the interested stockholder; |
• | any sale, lease, exchange, mortgage, pledge, transfer or other disposition involving the interested stockholder of 10% or more of the assets of the corporation; |
• | subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; |
• | subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; and |
• | the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation. |
• | do not provide stockholders with cumulative voting rights such that stockholders holding a majority of the voting power of our shares of common stock may be able to elect all of our directors; |
• | provide for stockholder actions to be taken at a duly called meeting of stockholders and not by written consent; |
• | provide that a special meeting of stockholders may only be called by a majority of our board of directors, the chair of our board of directors or our chief executive officer; |
• | establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of our stockholders, including proposed nominations of persons for election to our board of directors; |
• | divide our board of directors into three classes with staggered three-year terms; |
• | provide that the authorized number of directors may be changed only by resolution adopted by a majority of the authorized number of directors constituting the board of directors; |
• | provide that the board of directors or any individual director may only be removed with cause and the affirmative vote of the holders of at least 66 2/3% of the voting power of all of our then outstanding common stock; |
• | provide that all vacancies, including newly created directorships, may, except as otherwise required by law or subject to the rights of holders of preferred stock as designated from time to time, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum; |
• | provide that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors or officers to us or our stockholders, (iii) any action asserting a claim against us arising pursuant to any provision of the General Corporation Law of the State of Delaware or our certificate of incorporation or bylaws, or (iv) any action asserting a claim against us governed by the internal affairs doctrine (these choice of forum provisions do not apply to suits brought to enforce a duty or liability created by the Securities Act, the Exchange Act, or any other claim for which the federal courts have exclusive jurisdiction). |
• | U.S. holders that may be subject to special tax treatment, including brokers or dealers in securities or currencies, banks, financial institutions, regulated investment companies, real estate investment trusts, tax-exempt entities, insurance companies, pension or retirement plans, or traders in securities that elect to use a mark-to-market method of tax accounting for their securities; |
• | U.S. holders holding the Shares as a part of a hedging, integrated, or conversion transaction or a straddle or persons deemed to sell the Shares under the constructive sale provisions of the Code; |
• | U.S. holders whose “functional currency” is not the U.S. dollar; |
• | corporations that accumulate earnings to avoid U.S. federal income tax; |
• | certain former citizens or long-term residents of the United States; |
• | U.S. holders that own, or are deemed to own, 5% or more (by vote or value) of our stock; or |
• | partnerships or other pass-through entities or investors in such entities. |
• | individual who is a citizen or resident of the United States; |
• | a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof, or the District of Columbia; |
• | an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
• | a trust, if it (i) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of the trust or (ii) has a valid election in effect under applicable U.S. Treasury Regulations to be treated as a U.S. person. |
| | Shares of Common Stock | ||||||||||
Name | | | Number of Shares of Common Stock Beneficially Owned Prior to the Offering(1) | | | Maximum Number of Shares of Common Registered Hereunder for Sale | | | Common Stock Beneficially Owned Upon Completion of the Offering(2) | |||
| Number of Shares | | | Percentage | ||||||||
Alto Opportunity Master Fund, SPC – Segregated Master Portfolio B(3) | | | 2,041,667 | | | 2,041,667 | | | 0 | | | 0% |
FourWorld Deep Value Opportunities Fund I, LLC | | | 1,701,389 | | | 1,701,389 | | | 0 | | | 0% |
JGB Capital LP | | | 210,972 | | | 210,972 | | | 0 | | | 0% |
JGB Capital Offshore Ltd. | | | 4,348,750 | | | 4,348,750 | | | 0 | | | 0% |
JGB Partners LP | | | 3,947,222 | | | 3,947,222 | | | 0 | | | 0% |
(1) | Figures in this column include the Upfront Shares and the Conversion Shares, in each case, without taking account of any limitation on conversion and exercise pursuant to the terms of the Debentures. |
(2) | Assumes that, after the date of this prospectus and prior to completion of this offering, none of the Selling Securityholders (i) acquires additional shares of our common stock or other securities or (ii) sells or otherwise disposes of shares of our common stock or other securities held by such selling shareholders as of the date hereof and not offered hereby |
(3) | Ayrton Capital LLC, the investment manager to Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B, has discretionary authority to vote and dispose of the shares held by Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B and may be deemed to be the beneficial owner of these shares. Waqas Khatri, in his capacity as Managing Member of Ayrton Capital LLC, may also be deemed to have investment discretion and voting power over the shares held by Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B. Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B and Mr. Khatri each disclaim any beneficial ownership of these shares. The address of Ayrton Capital LLC is 55 Post Rd West, 2nd Floor, Westport, CT 06880. |
• | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
• | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
• | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
• | an exchange distribution in accordance with the rules of the applicable exchange; |
• | privately negotiated transactions; |
• | settlement of short sales; |
• | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; |
• | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
• | a combination of any such methods of sale; or |
• | any other method permitted pursuant to applicable law. |
• | our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 5, 2024; |
• | our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 26, 2024 (to the extent incorporated by reference into Part III of our Annual Report on Form 10-K for the fiscal year ended December 31, 2023); |
• | our Quarterly Report on Form 10-Q for the quarters ended March 31, 2024, filed with the SEC on May 8, 2024; |
• | our Current Reports on Form 8-K filed with the SEC on February 28, 2024, March 5, 2024 (with respect to Item 2.05 only), April 5, 2024, April 8, 2024, May 8, 2024 (with respect to Item 2.05 only), and May 28, 2024; and |
• | the description of our common stock which is registered under Section 12 of the Exchange Act, in our registration statement on Form 8-A, filed on August 17, 2018, including any amendments or reports filed for the purposes of updating this description. |