Bionano Genomics, Inc 8-K, filed Apr 8, 2024
Bionano Genomics, Inc. (BNGO)
8-K
2024-04-08
For: 2024-04-08
View Original
Added on
April 09, 2026
About this 8-K
Bionano Genomics, Inc filed this 8-K on April 8, 2024.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 8, 2024
(Exact Name of Registrant as Specified in its Charter)
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (858 ) 888-7600
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter)
or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 Section 13(a) of the Exchange Act. ☐
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Item 8.01
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Other Events.
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On April 8, 2024, Bionano Genomics, Inc. (the “Company”) filed a prospectus supplement (the “Prospectus Supplement”) to its effective
registration statement on Form S-3 (File No. 333-270459) (the “Registration Statement”) filed with the U.S. Securities and Exchange Commission, under the Securities Act of 1933, as amended, with respect to the sale and issuance in a registered
direct offering by the Company of (i) 6,536,682 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), (ii) pre-funded warrants to purchase 2,196,944 shares of Common Stock, and (iii) warrants to
purchase 8,733,626 shares of Common Stock (the “Warrant Shares”).
In connection with the filing of the Prospectus Supplement, the Company is filing a legal opinion of its counsel, Cooley LLP, regarding
the validity of the Shares and the Warrant Shares being registered, which opinion is attached as Exhibit 5.1 to this Current Report on Form 8-K.
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Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits
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Exhibit
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Description
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Opinion of Cooley LLP
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104
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Inline XBRL for the cover page of this Current Report on Form 8-K.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Date: April 8, 2024
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Bionano Genomics, Inc.
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By:
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/s/ R. Erik Holmlin, Ph.D.
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R. Erik Holmlin, Ph.D.
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President and Chief Executive Officer
(Principal Executive Officer)
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Exhibit 5.1
Thomas A. Coll
+1 858 550 6013
collta@cooley.com
April 8, 2024
Bionano Genomics, Inc.
9540 Towne Centre Drive, Suite 100
San Diego, California 92121
Ladies and Gentlemen:
We have acted as counsel to Bionano Genomics, Inc., a Delaware corporation (the “Company”), in connection with the offering of (i) 6,536,682 shares (the “Shares”)
of its common stock, par value $0.0001 per share (the “Common Stock”); (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase up to 2,196,944 shares of Common Stock (the “Pre-Funded Warrant Shares”); and (iii) accompanying warrants (together with the Pre-Funded Warrants, the ”Warrants”) to purchase up to 8,733,626 shares of Common Stock (together with the Pre-Funded Warrant Shares, the “Warrant Shares”), pursuant to the Registration Statement on Form S-3 (File No. 333-270459) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”)
by the Company under the Securities Act of 1933, as amended (the “Securities Act”), the prospectus included in the
Registration Statement (the “Base Prospectus”) and the prospectus supplement relating to the Shares, the Warrants and the
Warrant Shares, dated April 4, 2024, filed with the Commission pursuant to Rule 424(b) under the Securities Act (together with the Base Prospectus, the “Prospectus”).
In connection with this opinion, we have examined and relied upon the Registration Statement, the Prospectus, the forms of the Warrants, the Company’s certificate of incorporation and bylaws, each as currently in effect, and such other records, documents, opinions, certificates, memoranda and instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
With regard to our opinion as to the Warrant Shares, we express no opinion to the extent that future issuances of securities of the Company,
antidilution adjustments to outstanding securities of the Company or other matters cause the Warrants to be exercisable for more shares of Common Stock than the number then available for issuance by the Company. Further, we have assumed the
exercise price of the Warrants will not be adjusted to an amount below the par value per share of the Common Stock.
With regard to our opinion concerning the Warrants constituting valid and binding obligations of the Company:
(i) Our opinion is subject to, and may be limited by, (a) applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, debtor and creditor, and similar
laws which relate to or affect creditors’ rights generally, and (b) general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing) regardless of whether considered in a
proceeding in equity or at law.
Bionano Genomics, Inc.
April 8, 2024
Page Two
(ii) Our opinion is subject to the qualification that the availability of specific performance, an injunction or other equitable remedies is subject to the discretion of the
court before which the request is brought.
(iii) We express no opinion as to any provision of the Warrants that: (a) provides for liquidated damages, buy-in damages, monetary penalties, prepayment or make-whole payments or other economic
remedies to the extent such provisions may constitute unlawful penalties, (b) relates to advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitations, trial by
jury, or procedural rights, (c) restricts non-written modifications and waivers, (d) provides for the payment of legal and other professional fees where such payment is contrary to law or public policy, (e) relates to exclusivity, election or
accumulation of rights or remedies, (f) authorizes or validates conclusive or discretionary determinations, or (g) provides that provisions of the Warrants are severable to the extent an essential part of the agreed exchange is determined to be
invalid and unenforceable.
(iv) We express no opinion as to whether a state court outside of the State of New York or a federal court of the United States would give effect to the choice of New York law or
jurisdiction provided for in the Warrants.
Our opinion is expressed solely with respect to the General Corporation Law of the State of Delaware and, as to the Warrants constituting binding
obligations of the Company, the laws of the State of New York. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal
or state securities law, rule or regulation.
On the basis of the foregoing, in reliance thereon and subject to the qualifications set forth herein, we are of the opinion that (i) the Shares, when
sold and issued against payment therefor in accordance with the Registration Statement and the Prospectus, will be validly issued, fully paid and nonassessable, (ii) the Warrants, when duly executed by the Company and delivered to the purchasers
thereof against payment therefor as described in the Registration Statement and the Prospectus, will be binding obligations of the Company and (iii) the Warrant Shares, when issued and paid for in accordance with the terms of the Warrants, will
be validly issued, fully paid and nonassessable.
This opinion is limited to the matters expressly set forth in this letter, and no opinion should be implied, or may be inferred, beyond the matters
expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we undertake no obligation or responsibility to update or supplement this letter to reflect any facts or circumstances that may
hereafter come to our attention or any changes in law that may hereafter occur.
We consent to the reference to our firm under the heading “Legal Matters” in the Prospectus and to the filing of this opinion as an exhibit to the
Company’s Current Report on Form 8-K filed with the Commission for incorporation by reference into the Registration Statement. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Bionano Genomics, Inc.
April 8, 2024
Page Three
Very truly yours,
Cooley LLP
By:/s/ Thomas A. Coll
Thomas A. Coll