As filed with the Securities and Exchange Commission on January 29, 2015

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

FOUNDATION MEDICINE, INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Delaware		27-1316416
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification No.)

Foundation Medicine, Inc.

150 Second Street

Cambridge MA, 02141

(617) 418-2200

(Address of Principal Executive Offices)

Foundation Medicine, Inc. 2013 Stock Option and Incentive Plan

(Full Title of the Plans)

 

 

Michael J. Pellini, M.D.

President and Chief Executive Officer

Foundation Medicine, Inc.

150 Second Street

Cambridge MA, 02141

(Name and Address of Agent For Service)

(617) 418-2200

(Telephone Number, Including Area Code, of Agent For Service)

Copy to:

Kingsley L. Taft, Esq.

Arthur R. McGivern, Esq.

Goodwin Procter LLP

Exchange Place

53 State Street

Boston, Massachusetts 02109

(617) 570-1000

 

 

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 Exchange Act.

 

Large accelerated filer		¨		Accelerated filer		x
Non-accelerated filer		¨  (Do not check if a smaller reporting company)		Smaller reporting company		¨

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered		Amount to be Registered(1)		Proposed Maximum Offering Price per Share(2)		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee(4)
Common Stock, $0.0001 par value per share		1,134,996 shares(3)		$45.76		$51,937,416.96		$6,035.13

(1)

Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement on Form S-8 (this “Registration Statement”) shall also cover any additional shares of common stock of the Registrant, par value $0.0001 per share (the “Common Stock”) which become issuable under the Registrant’s 2013 Stock Option and Incentive Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of Common Stock.

(2)	Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act, and based on the average of the high and low sale prices of the Registrant’s Common Stock, as quoted on the Nasdaq Global Select Market, on January 22, 2015.

(3)

Represents an automatic increase to the number of shares available for issuance under the Plan, effective January 1, 2015. Shares available for issuance under the Plan were previously registered on registration statements on Form S-8 filed with the Securities and Exchange Commission on September 25, 2013 (Registration No. 333-191380) and March 10, 2014 (Registration No. 333-194439).

(4)

The Registrant previously filed a registration statement on Form S-1 (Registration No. 333-194711) with the Securities and Exchange Commission on March 20, 2014 (the “S-1 Registration Statement”). A filing fee of $22,218 was paid by the Registrant prior to the filing of the S-1 Registration Statement, which was calculated assuming an estimated aggregate offering of $150,000,000 of the Registrant’s Common Stock. Pursuant to Rule 457(p) under the Securities Act, any unused portion of the $22,218 filing fee for such unsold Common Stock under the S-1 Registration Statement is entitled to be used to offset future filing fees. In accordance with Rule 457(p), $22,218 of the registration fee for this Registration Statement on Form S-8 is being offset by the remaining unused portion of the registration fees for the S-1 Registration Statement.

 

 

 

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EXPLANATORY NOTE

This Registration Statement on Form S-8 registers additional shares of Common Stock under the Registrant’s 2013 Stock Option and Incentive Plan (the “Plan”). The number of shares of Common Stock reserved and available for issuance under the Plan is subject to an automatic annual increase on each January 1, beginning in 2014, by an amount equal to four percent of the number of shares of Common Stock issued and outstanding on the immediately preceding December 31 or such lesser number of shares of Common Stock as determined by the Administrator (as defined in the Plan). Accordingly, on January 1, 2015, the number of shares of Common Stock reserved and available for issuance under the Plan increased by 1,134,996. This Registration Statement registers these additional 1,134,996 shares of Common Stock. The additional shares are of the same class as other securities relating to the Plan for which the Registrant’s registration statements filed on Form S-8 (Registration Nos. 333-191380 and 333-194439), on September 25, 2013 and on March 10, 2014, are effective. The information contained in the Registrant’s registration statements on Form S-8 (Registration Nos. 333-191380 and 333-194439) is hereby incorporated by reference pursuant to General Instruction E.

Part II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8.

Exhibits.

See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this Registration Statement, which Exhibit Index is incorporated herein by reference.

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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 Cambridge, Commonwealth of Massachusetts, on the 29^th day of January, 2015.

 

POWER OF ATTORNEY AND SIGNATURES

KNOW ALL BY THESE PRESENT, that each individual whose signature appears below hereby constitutes and appoints each of Michael J. Pellini, M.D., Robert W. Hesslein, Steven J. Kafka and Jason Ryan as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person in such person’s 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 each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

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

 

Name		Title		Date
/s/ Michael J. Pellini		President, Chief Executive Officer and Director		January 29, 2015
Michael J. Pellini, M.D.		(Principal Executive Officer)
/s/ Jason Ryan		Senior Vice President, Finance		January 29, 2015
Jason Ryan		(Principal Financial and Accounting Officer)
/s/ Alexis Borisy		Director		January 29, 2015
Alexis Borisy
/s/ Brook Byers		Director		January 29, 2015
Brook Byers
/s/ Evan Jones		Director		January 29, 2015
Evan Jones
/s/ David Schenkein		Director		January 29, 2015
David Schenkein, M.D.
/s/ Krishna Yeshwant		Director		January 29, 2015
Krishna Yeshwant, M.D.

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EXHIBIT INDEX

 

Exhibit No.		Description
4.1		Sixth Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the Registrant’s Form 8-K filed on October 2, 2013).
4.2		Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 of the Registrant’s Form 8-K filed on October 2, 2013).
4.3		Form of Common Stock certificate of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-190226) filed on September 12, 2013).
4.4		Second Amended and Restated Investors’ Rights Agreement, by and between the Registrant and the Investors named therein, dated as of June 20, 2013 (incorporated by reference to Exhibit 4.3 to the Registrant’s Registration Statement on Form S-1 (File No. 333-190226) filed on July 29, 2013).
4.5		Investor Rights Agreement, by and between the Registrant and Roche Holdings, Inc., dated January 11, 2015 (incorporated by reference to Exhibit 4.1 of the Registrant’s Form 8-K filed on January 12, 2015).
4.6		Amendment to Second Amended and Restated Investors’ Rights Agreement, by and between the Registrant and the Investors named therein, dated January 11, 2015 (incorporated by reference to Exhibit 4.2 of the Registrant’s Form 8-K filed on January 12, 2015).
5.1*		Opinion of Goodwin Procter LLP.
23.1*		Consent of Ernst & Young LLP, independent registered public accounting firm.
23.2		Consent of Goodwin Procter LLP (included in Exhibit 5.1).
24.1		Power of attorney (included on signature page).
99.1		2013 Stock Option and Incentive Plan and forms of agreements thereunder (incorporated by reference to Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-190226) filed on September 12, 2013).

 

*	Filed herewith.