Ginkgo Bioworks Holdings, Inc S-1/A, filed Sep 16, 2021
Ginkgo Bioworks Holdings, Inc. (DNA)
As filed with the Securities and Exchange Commission on September 16, 2021
Registration No. 333-258712
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SOARING EAGLE ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
| Delaware |
6670 | 87-2652913 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
955 Fifth Avenue
New York NY 10075
(310) 209-7280
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Eli Baker
President and Chief Financial Officer
Soaring Eagle Acquisition Corp.
955 Fifth Avenue
New York, NY 10075
Telephone: (310) 209-7280
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| Joel L. Rubinstein Jonathan P. Rochwarger White & Case LLP 1221 Avenue of the Americas New York, NY 10020 (212) 819-8200 |
Rachel W. Sheridan Shagufa R. Hossain Emily E. Taylor Latham & Watkins LLP 555 Eleventh Street NW Suite 1000 Washington, D.C. 20004 (202) 637-2200 |
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: ☒
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 | ☐ | 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 Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered(1) |
Amount to be Registered(2) |
Proposed Maximum Offering Price Per Share (3) |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee(4) | ||||
| Class A common stock, par value $0.0001 per share |
77,500,000 | $9.92 | $768,412,500 | $83,833.80 | ||||
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| (1) | These securities are being registered solely in connection with the resale of shares of the registrant’s Class A common stock by certain selling stockholders (the “Selling Stockholders”) named in the Amendment No. 1 to this registration statement filed on September 15, 2021. The Selling Stockholders have committed to purchase up to 77,500,000 shares of Class A common stock, par value $0.0001 per share, of Soaring Eagle Acquisition Corp. |
| (2) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the securities being registered hereunder include such indeterminate number of additional securities as may be issuable to prevent dilution resulting of any stock dividend, stock split, recapitalization or other similar transactions. |
| (3) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act, based on the average of the high and low prices of the registrant’s ordinary shares as reported on September 10, 2021 which was $9.92 per share. |
| (4) | $84,890.71 previously paid. |
The registrant (the “Registrant”) hereby amends this registration statement (the “Registration Statement”) on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Soaring Eagle Acquisition Corp. (the “Company” or “SRNG”) is filing this Amendment No. 2 to the Registration Statement on Form S-1 (File No. 333-258712) solely to file Exhibit 5.1. Accordingly, this amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature pages to the Registration Statement and the filed exhibit. No changes are being made to the preliminary prospectus or Items 14 or 15 of Part II to the Registration Statement. Accordingly, the preliminary prospectus has been omitted from this filing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 13. | Other Expenses of Issuance and Distribution. |
The following table sets forth the estimated expenses to be borne by the registrant in connection with the issuance and distribution of the shares of common stock being registered hereby.
| Expense |
Estimated Amount |
|||
| Securities and Exchange Commission registration fee |
$ | 83,833.80 | ||
| Accounting fees and expenses |
$ | 20,000 | ||
| Legal fees and expenses |
$ | 50,000 | ||
| Financial printing and miscellaneous expenses |
$ | 20,000 | ||
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| Total |
$173,833.80 | |||
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| Item 14. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law, or the DGCL, permits a corporation to indemnify its directors and officers against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties. The directors or officers must have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action, an action only by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors and officers in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they must have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation. No indemnification may be made if such person must have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought must determine upon application that the defendant officers or directors are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. The current certificate of incorporation and the bylaw of the registrant provide for indemnification by the registrant of its directors, senior officers and employees to the fullest extent permitted by applicable law.
Section 102(b)(7) of the DGCL permits a corporation to provide in its charter that a director of the corporation must not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for payments of unlawful dividends or unlawful stock purchases or redemptions or (4) for any transaction from which the director derived an improper personal benefit. The current certificate of incorporation of the registrant provide for such limitation of liability.
We have entered into indemnification agreements with each of our directors and officers in which we have agreed to indemnify, defend and hold harmless, and also advance expenses as incurred, to the fullest extent permitted under applicable law, from damage arising from the fact that such person is or was an officer or director of our company or our subsidiaries.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, our amended and restated certificate of incorporation, our amended and restated bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise.
II-1
We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
We have purchased and intend to maintain insurance on behalf of the registrant and any person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in that capacity, subject to certain exclusions and limits of the amount of coverage.
| Item 15. | Recent Sales of Unregistered Securities. |
In connection with the Company’s initial formation in January 2020, Eagle Equity Partners III, LLC (the “Sponsor”) was issued 43,125,000 founder shares.
Simultaneously with the closing of the initial public offering (“IPO”) of the Company, the Sponsor purchased an aggregate of 19,250,000 private placement warrants at $1.50 per private placement warrant ($28,875,000 in the aggregate). Each private placement warrant is exercisable to purchase one share of Class A ordinary share at an exercise price of $11.50 per share. The proceeds from the private placement warrants were added to the proceeds from the IPO held in the trust account. There will be no redemption rights or liquidating distributions from the trust account with respect to the private placement securities.
| Item 16. | Exhibits and Financial Statement Schedules. |
The following exhibits are filed as part of this registration statement:
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II-3
II-4
II-5
| Exhibit | Description | |
| 101.LAB* |
Inline XBRL Taxonomy Extension Label Linkbase Document | |
| 101.PRE* |
Inline XBRL Taxonomy Extension Presentation Linkbase Document | |
| 104* |
Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) | |
| * | Previously filed. |
| † | The annexes, schedules, and certain exhibits to this Exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant hereby agrees to furnish supplementally a copy of any omitted annex, schedule or exhibit to the SEC upon request. |
| ‡ | Certain confidential information contained in this Exhibit has been omitted because it is (i) not material and (ii) of the type that the registrant treats as private or confidential. |
| + | Indicates a management contract of compensatory plan. |
| Item 17. | Undertakings. |
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, as amended; |
| (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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (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. |
| (2) | That, for the purpose of determining any liability under the Securities Act, 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. |
| (4) | That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
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| (5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
Insofar as indemnification for liabilities arising under the Securities 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 SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on the 16th day of September, 2021.
| SOARING EAGLE ACQUISITION CORP. | ||
| By: | /s/ Harry E. Sloan | |
| Name: | Harry E. Sloan | |
| Title: | Chief Executive Officer and Chairman | |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Name |
Title |
Date | ||
| /s/ Harry E. Sloan Harry E. Sloan |
Chief Executive Officer and Chairman (Principal Executive Officer) |
September 16, 2021 | ||
| /s/ Eli Baker Eli Baker |
President, Chief Financial Officer, Secretary and Director (Principal Financial and Accounting Officer) |
September 16, 2021 | ||
| * Scott M. Delman |
Director | September 16, 2021 | ||
| * Joshua Kazam |
Director | September 16, 2021 | ||
| * Isaac Lee |
Director | September 16, 2021 | ||
| * Timothy Leiweke |
Director | September 16, 2021 | ||
| * Dennis A. Miller |
Director | September 16, 2021 | ||
| * Laurence E. Paul |
Director | September 16, 2021 | ||
| * By: | /s/ Harry E. Sloan | |
| Harry E. Sloan, | ||
| Attorney-in-Fact |
S-1
Exhibit 5.1
September 16, 2021
Soaring Eagle Acquisition Corp.
955 Fifth Avenue
New York, NY 10075
Ladies and Gentlemen:
We have acted as New York counsel to Soaring Eagle Acquisition Corp., a Delaware corporation (the “SRNG” or the “Company”), in connection with the preparation and filing by the Company with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-1 (File No. 333-258712) (the “Registration Statement”) and the related prospectus relating to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the offer and sale by the selling stockholders named in the prospectus contained in the Registration Statement (the “Selling Stockholders”) of up to 77,500,000 shares of the Company’s Class A common stock, par value $0.0001 per share (the “New SRNG Class A common stock”), which were issued to the Selling Stockholders in a private placement offering that was exempt from the registration requirements under the Securities Act, in connection with the closing of the business combination (the “Business Combination”) among the Company, SEAC Merger Sub Inc., a wholly owned subsidiary of the Company (“Merger Sub”), and Ginkgo Bioworks, Inc. (“Ginkgo”), pursuant to the terms of subscription agreements between the Company and the Selling Stockholders, each dated as of May 11, 2021 (collectively, the “Subscription Agreements”). Upon the closing of the Business Combination, the Company will change its name to “Ginkgo Bioworks Holdings, Inc.”
In connection with the domestication of SRNG as a Delaware corporation (the “Domestication”), on September 15, 2021, SRNG changed its jurisdiction of incorporation by effecting a deregistration under the Cayman Islands Companies Act (2020 Revision) and a domestication under Section 388 of the Delaware General Corporation Law (“DGCL”), pursuant to which SRNG’s jurisdiction of incorporation changed from the Cayman Islands to the State of Delaware. In connection therewith, the Company filed the certificate of domestication simultaneously with the certificate of incorporation, in each case, in respect of the Company with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”). In this opinion, we refer to the Company following effectiveness of the Domestication as “New SRNG” and following the consummation of the Business Combination, the “New Ginkgo”.
Upon the certificate of domestication and the certificate of incorporation becoming effective under Section 103 of the DGCL and the closing of the Business Combination, among other things, pursuant to the Plan of Domestication (as defined below): (1) each of the then-issued and outstanding Class B ordinary shares, par value $0.0001 per share, of SRNG (the “SRNG Class B ordinary shares”) converted automatically, on a one-for-one basis, into SRNG Class A ordinary shares (as defined below); (2) immediately following the conversion described in clause (1), each of the then-issued and outstanding Class A ordinary shares, par value $0.0001 per share, of SRNG (the “SRNG Class A ordinary shares”) converted automatically, on a one-for-one basis, into shares of New SRNG Class A common stock; (3) each of the then-issued and outstanding warrants of SRNG (the “SRNG warrants”) converted automatically, on a
one-for-one basis, into warrants of New SRNG (the “New SRNG warrants”) pursuant to the Warrant Agreement, dated February 23, 2021 (the “Warrant Agreement”), between SRNG and Continental Stock Transfer & Trust Company (“Continental”), as warrant agent; and (4) each of the then-issued and outstanding units of SRNG (the “SRNG units”) were automatically separated into its component parts and entitled the holder thereof to one share of New SRNG Class A common stock and one-fifth of one New SRNG warrant. No fractional New SRNG warrants were issued upon separation of the SRNG units.
This opinion letter is rendered in accordance with the requirements of Item 601(b)(5) of Regulation S–K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus, any prospectus filed pursuant to Rule 424(b) with respect thereto, other than as expressly stated herein with respect to the offer and sale of the shares of New SRNG Class A common stock.
In connection with our opinion expressed below, we have examined originals or copies certified or otherwise identified to our satisfaction of the following documents and such other documents, corporate records, certificates and other statements of government officials and corporate officers of the Company as we deemed necessary for the purposes of the opinion set forth in this opinion letter:
| (a) | the Registration Statement; |
| (b) | Merger Agreement, dated as of May 11, 2021, by and among the Company, Merger Sub and Ginkgo, filed as Exhibit 2.1 to the Registration Statement (the “Merger Agreement”); |
| (c) | the Merger Agreement Amendment, filed by the Company as Exhibit 2.1 to its Quarterly Report on Form 10-Q on May 14, 2021; |
| (d) | Certificate of Incorporation of New SRNG, filed with the Delaware Secretary of State on September 15, 2021; |
| (e) | Bylaws of New SRNG, as in effect on September 15, 2021; |
| (f) | the specimen New SRNG Class A common stock Certificate, filed as Exhibit 4.5 to the Registration Statement; |
| (g) | Form of Subscription Agreements between the Company and the other Selling Stockholders, filed as Exhibit 10.3 to the Registration Statement; and |
| (h) | a copy of the Resolutions of the Board of Directors of New SRNG adopted on September 15, 2021. |
We have relied, to the extent we deem such reliance proper, upon such certificates or comparable documents of officers and representatives of the Company and of public officials and upon statements and information furnished by officers and representatives of the Company with respect to the accuracy of material factual matters contained therein which were not independently established by us. In rendering the opinion expressed below, we have assumed, without independent investigation or verification of any kind, the genuineness of all signatures on documents we have reviewed, the legal capacity and competency of all natural persons signing all such documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to authentic, complete original documents of all documents submitted to us as copies, the truthfulness, completeness and correctness of all factual representations and statements contained in all documents we have reviewed, the accuracy and completeness of all public records examined by us, and the accuracy of all statements in certificates of officers of the Company that we reviewed. We have also assumed that all conditions precedent to the closing of the Business Combination have been satisfied or will have been satisfied or otherwise waived.
Based upon the foregoing assumptions and assumptions set forth below, and subject to the qualifications and limitations stated herein, having considered such questions of law as we have deemed necessary as a basis for the opinion expressed below, we are of the opinion that the shares of New SRNG Class A common stock delivered by the Company pursuant to the Subscription Agreements have been duly authorized and the shares of New SRNG Class A common stock are validly issued, fully paid and nonassessable.
SRNG was a Cayman Islands exempted company that has been redomesticated as a Delaware corporation pursuant to the Domestication, and we have not considered, and we express no opinion as to, any law other than the DGCL.
This opinion letter is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This opinion letter is provided solely in connection with the distribution of the New SRNG Class A common stock pursuant to the Registration Statement and is not to be relied upon for any other purpose.
The opinion expressed above is as of the date hereof only, and we express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance occurring, or of which we learn, subsequent to the date of this opinion letter, including, without limitation, legislative and other changes in the law or changes in circumstances affecting any party. We assume no responsibility to update this opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they affect the opinion expressed in this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to our firm as counsel for the Company that has passed on the validity of the New SRNG Class A common stock appearing under the caption “Legal Matters” in the prospectus forming part of the Registration Statement or any prospectus filed pursuant to Rule 424(b) with respect thereto. In giving this consent, 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.
Very truly yours,
/s/ White & Case LLP
JR:JR:VM:SR:EM