Shares
Common Stock
Goldman, Sachs & Co.
Morgan Stanley
Leerink Partners
Janney Montgomery Scott
Through andincluding , 2014 (the 25th day after the date of this prospectus), alldealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer's obligation to deliver aprospectus when acting as an underwriter and with respect to an unsold allotment or subscription.
INFORMATION NOT REQUIRED IN PROSPECTUS
The following table indicates the expenses to be incurred in connection with this offering described in this registration statement,other than the underwriting discount, all of which will be paid by us. All amounts are estimated except the Securities and Exchange Commission registration fee, the Financial Industry RegulatoryAuthority, Inc., or FINRA, filing fee and The NASDAQ Global Market fee.
| Amount | |||
---|---|---|---|---|
SEC Registration fee | $ | 8,887.20 | ||
FINRA filing fee | 10,850.00 | |||
NASDAQ Global Market initial listing fee | * | |||
Accountants' fees and expenses | * | |||
Legal fees and expenses | * | |||
Blue Sky fees and expenses | * | |||
Transfer Agent's fees and expenses | * | |||
Printing and engraving expenses | * | |||
Miscellaneous | * | |||
| | | | |
Total expenses | $ | * | ||
| | | | |
| | | | |
- *
- Tobe provided by amendment
Section 102 of the General Corporation Law of the State of Delaware permits a corporation to eliminate the personal liabilityof directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failedto act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law orobtained an improper personal benefit. Our restated certificate of incorporation provides that no director of the Registrant shall be personally liable to it or its stockholders for monetary damagesfor any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the General Corporation Law of the State of Delaware prohibitsthe elimination or limitation of liability of directors for breaches of fiduciary duty.
Section 145of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee, or agent of thecorporation, or a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses (includingattorneys' fees), judgments, finesand amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party to anythreatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the bestinterests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right ofthe corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation
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unlessand only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, suchperson is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Ourrestated certificate of incorporation provides that we will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completedaction, suit or proceeding (other than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become, a director or officer, or is or was serving, or hasagreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (allsuch persons being referred to as an "Indemnitee"), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys' fees), judgments,fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in amanner he or she reasonably believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or herconduct was unlawful. Our restated certificate of incorporation provides that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of us to procure a judgmentin our favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer,partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken oromitted in such capacity, against all expenses (including attorneys' fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with suchaction, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, except thatno indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to us, unless a court determines that, despite suchadjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful,on the merits or otherwise, he or she will be indemnified by us against all expenses (including attorneys' fees) actually and reasonably incurred in connection therewith. Expenses must be advanced toan Indemnitee under certain circumstances.
Wehave entered into indemnification agreements with each of our directors and officers. These indemnification agreements may require us, among other things, to indemnify our directorsand officers for some expenses, including attorneys' fees, judgments, fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service asone of our directors or officers, or any other company or enterprise to which the person provides services at our request.
Wemaintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions in theircapacities as directors or officers.
Inany underwriting agreement we enter into in connection with the sale of common stock being registered hereby, the underwriters will agree to indemnify, under certain conditions, us,our directors, our officers and persons who control us within the meaning of the Securities Act of 1933, as amended, or the Securities Act, against certain liabilities.
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Set forth below is information regarding shares of capital stock issued by us within the past three years. Also included is theconsideration received by us for such shares and information relating to the section of the Securities Act, or rule of the Securities and Exchange Commission, under which exemption from registrationwas claimed.
(a) Issuanceof Securities.
1. InAugust 2011, we issued an aggregate of 5,054,945 shares of series D preferred stock to investors at a price per share of $4.55 for aggregate grossconsideration of $23.0 million. These shares will automatically convert into 5,054,945 shares of our common stock upon the closing of this offering.
2. InMarch 2013, we issued an aggregate of 6,930,967 shares of series E preferred stock to investors at a price per share of $5.7712 for aggregate grossconsideration of $40.0 million. These shares will automatically convert into 6,930,967 shares of our common stock upon the closing of this offering.
(b) StockOption Grants. From January 1, 2011 through July 1, 2014, we granted stock options to purchase an aggregate of 3,934,584 shares of our common stockat a weighted-average exercise price of $2.33 per share, to certain of our employees, directors and consultants in connection with services provided to us by such persons. Of these, options topurchase 71,793 shares of common stock have been exercised through July 1, 2014 for aggregate consideration of $101,277, at a weighted-average exercise price of $1.41 per share.
(c) Warrants.Since May 2011, we issued one warrant to SVB and one to MDF in connection with various loan and security agreements. These warrants are immediatelyexercisable for the purchase of 49,780 shares of preferred stock. If none of these warrants are exercised, upon the closing of this offering, SVB's warrant for 19,780 shares of preferred stock willterminate while MDF's warrant for the purchase of 30,000 shares of preferred stock will automatically convert to common stock pursuant to a cashless net exercise.
Theissuances of stock options, warrants and the shares of common stock issuable upon the exercise of the options described in this Item 15 were issued pursuant to writtencompensatory plans or arrangements with our employees, directors and consultants, in reliance on the exemption provided by Rule 701 promulgated under the Securities Act, or pursuant toSection 4(a)(2) under the Securities Act, relative to transactions by an issuer not involving any public offering, to the extent an exemption from such registration was required.
Allof the foregoing securities are deemed restricted securities for purposes of the Securities Act. All certificates representing the issued shares of capital stock described in thisItem 15 included appropriate legends setting forth that the securities have not been registered and the applicable restrictions on transfer.
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- (a)
- Exhibits.
Exhibit Number | Description of Exhibit | ||
---|---|---|---|
1.1 | * | Form of Underwriting Agreement | |
3.1 | Restated Certificate of Incorporation of the Registrant, as amended (currently in effect) | ||
3.2 | Bylaws of the Registrant (currently in effect) | ||
3.3 | * | Form of Restated Certificate of Incorporation of the Registrant (to be effective upon the closing of this offering) | |
3.4 | * | Form of Amended and Restated Bylaws of the Registrant (to be effective upon the closing of this offering) | |
4.1 | * | Specimen Stock Certificate evidencing the shares of common stock | |
4.2 | Fourth Amended and Restated Investors' Rights Agreement, dated as of March 22, 2013 | ||
5.1 | * | Opinion of Latham & Watkins LLP | |
10.1 | # | Amended and Restated 2006 Employee, Director and Consultant Stock Plan, as amended, and form of option agreements thereunder | |
10.2 | #* | 2014 Incentive Award Plan and form of option agreements thereunder | |
10.3 | #* | Non-Employee Director Compensation Program | |
10.4 | * | Form of Indemnification Agreement for Directors and Officers | |
10.5 | # | Employment Letter Agreement, dated as of March 14, 2008, by and between the Registrant and John McDonough | |
10.6 | # | Employment Letter Agreement, dated as of March 8, 2013, by and between the Registrant and Marc Jones | |
10.7 | # | Employment Letter Agreement, dated as of July 19, 2013, by and between the Registrant and Sarah Kalil | |
10.8 | # | Employment Letter Agreement, dated as of February 15, 2014, by and between the Registrant and Michael Pfaller | |
10.9 | # | Employment Letter Agreement, dated as of December 19, 2006, by and between the Registrant and Tom Lowery, Jr. | |
10.10 | # | Consulting Agreement, dated as of July 20, 2006, by and between the Registrant and Michael Cima, as amended on March 19, 2013 | |
10.11 | # | Consulting Agreement, dated as of July 20, 2006 by and between the Registrant and Robert Langer, as amended on March 20, 2013 | |
10.12 | | Sales Agreement, dated as of February 11, 2011, by and between GE Healthcare Bio-Sciences Corp. and the Registrant | |
10.13 | | Exclusive License Agreement, dated as of November 7, 2006, as amended on December 2, 2008 and February 21, 2011, by and between The General Hospital Corporation d/b/a Massachusetts General Hospital andthe Registrant |
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Exhibit Number | Description of Exhibit | ||
---|---|---|---|
10.14 | Security Agreement, dated as of May 9, 2011, by and between the Registrant and Massachusetts Development Finance Agency | ||
10.15 | Loan and Security Agreement, dated as of August 30, 2007, as amended by the First Loan Modification Agreement on June 26, 2009 and the Second Loan Modification Agreement on June 25, 2013, by and betweenthe Registrant and Silicon Valley Bank | ||
10.16 | Commercial Lease, dated as of May 6, 2013, as amended on September 24, 2013, by and between the Registrant and Columbus Day Realty, Inc. | ||
10.17 | Lease, dated as of August 6, 2010, by and between the Registrant and King 101 Hartwell LLC | ||
10.18 | Promissory Note, dated May 9, 2011, issued by the Registrant to Massachusetts Development Finance Agency | ||
23.1 | Consent of Ernst & Young LLP | ||
23.2 | * | Consent of Latham & Watkins LLP (included in Exhibit 5.1) | |
24.1 | Power of Attorney (with respect to Messrs. Cumming and Elsbree, included on signature page) |
- *
- Tobe filed by amendment.
- #
- Indicatesmanagement contract or compensatory plan.
-
- Portionsof this exhibit (indicated by asterisks) have been omitted pursuant to a request for confidential treatment pursuant to Rule 406under the Securities Act of 1933.
(b) FinancialStatement Schedules. Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in the financialstatements or notes thereto.
The undersigned registrant hereby undertakes to provide to the underwriter, at the closing specified in the underwriting agreement,certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.
Insofaras indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoingprovisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Actand 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, officeror 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 beingregistered, 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 suchindemnification 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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Theundersigned hereby undertakes that:
- (1)
- Forpurposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registrationstatement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall bedeemed to be part of this registration statement as of the time it was declared effective.
- (2)
- Forthe purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed tobe 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)
- Forthe purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of aregistration 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 bepart 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 partof 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, asto 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 registrationstatement or made in any such document immediately prior to such date of first use.
- (4)
- Ina primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used tosell 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 thepurchaser and will be considered to offer or sell such securities to such purchaser:
- (i)
- Anypreliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
- (ii)
- Anyfree writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersignedregistrant;
- (iii)
- Theportion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or itssecurities provided by or on behalf of the undersigned registrant; and
- (iv)
- Anyother communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement on Form S-1 tobe signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lexington, Commonwealth of Massachusetts, on this 2nd day of July, 2014.
T2 BIOSYSTEMS, INC. | ||||
By: | /s/ JOHN MCDONOUGH John McDonough President and Chief Executive Officer |
We, the undersigned officers and directors of T2 Biosystems, Inc., hereby severally constitute and appoint John McDonough andMarc R. Jones, and each of them singly (with full power to each of them to act alone), as our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution ineach of them for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement (or any otherregistration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto andother 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 eachand every act and thing requisite or necessary to be done in and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all thatsaid attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuantto the requirements of the Securities Act of 1933, this Registration Statement on Form S-1 has been signed by the following persons in the capacities held on the datesindicated.
Signature | Title | Date | ||
---|---|---|---|---|
/s/ JOHN MCDONOUGH John McDonough | President, Chief Executive Officer and Director (principal executive officer) | July 2, 2014 | ||
/s/ MARC R. JONES Marc R. Jones | Chief Financial Officer (principal financial and accounting officer) | July 2, 2014 | ||
* David B. Aronoff | Director | July 2, 2014 | ||
* Joshua Bilenker, M.D. | Director | July 2, 2014 | ||
* Thomas J. Carella | Director | July 2, 2014 | ||
* Michael J. Cima, Ph.D. | Director | July 2, 2014 | ||
* Alan Crane | Director | July 2, 2014 |
Signature | Title | Date | ||
---|---|---|---|---|
/s/ JOHN W. CUMMING John W. Cumming | Director | July 2, 2014 | ||
/s/ DAVID ELSBREE David Elsbree | Director | July 2, 2014 | ||
* Stacy A. Feld | Director | July 2, 2014 | ||
* Robert Langer, D. Sc. | Director | July 2, 2014 | ||
* Stanley N. Lapidus | Director | July 2, 2014 | ||
* Harry W. Wilcox | Director | July 2, 2014 |
By: | /s/ JOHN MCDONOUGH John McDonough Attorney-in-Fact |
Exhibit Number | Description of Exhibit | ||
---|---|---|---|
1.1 | * | Form of Underwriting Agreement | |
3.1 | Restated Certificate of Incorporation of the Registrant, as amended (currently in effect) | ||
3.2 | Bylaws of the Registrant (currently in effect) | ||
3.3 | * | Form of Restated Certificate of Incorporation of the Registrant (to be effective upon the closing of this offering) | |
3.4 | * | Form of Amended and Restated Bylaws of the Registrant (to be effective upon the closing of this offering) | |
4.1 | * | Specimen Stock Certificate evidencing the shares of common stock | |
4.2 | Fourth Amended and Restated Investors' Rights Agreement, dated as of March 22, 2013 | ||
5.1 | * | Opinion of Latham & Watkins LLP | |
10.1 | # | Amended and Restated 2006 Employee, Director and Consultant Stock Plan, as amended, and form of option agreements thereunder | |
10.2 | #* | 2014 Incentive Award Plan and form of option agreements thereunder | |
10.3 | #* | Non-Employee Director Compensation Program | |
10.4 | * | Form of Indemnification Agreement for Directors and Officers | |
10.5 | # | Employment Letter Agreement, dated as of March 14, 2008, by and between the Registrant and John McDonough | |
10.6 | # | Employment Letter Agreement, dated as of March 8, 2013, by and between the Registrant and Marc Jones | |
10.7 | # | Employment Letter Agreement, dated as of July 19, 2013, by and between the Registrant and Sarah Kalil | |
10.8 | # | Employment Letter Agreement, dated as of February 15, 2014, by and between the Registrant and Michael Pfaller | |
10.9 | # | Employment Letter Agreement, dated as of December 19, 2006, by and between the Registrant and Tom Lowery, Jr. | |
10.10 | # | Consulting Agreement, dated as of July 20, 2006, by and between the Registrant and Michael Cima, as amended on March 19, 2013 | |
10.11 | # | Consulting Agreement, dated as of July 20, 2006 by and between the Registrant and Robert Langer, as amended on March 20, 2013 | |
10.12 | | Sales Agreement, dated as of February 11, 2011, by and between GE Healthcare Bio-Sciences Corp. and the Registrant | |
10.13 | | Exclusive License Agreement, dated as of November 7, 2006, as amended on December 2, 2008 and February 21, 2011, by and between The General Hospital Corporation d/b/a Massachusetts General Hospital andthe Registrant | |
10.14 | Security Agreement, dated as of May 9, 2011, by and between the Registrant and Massachusetts Development Finance Agency |
Exhibit Number | Description of Exhibit | ||
---|---|---|---|
10.15 | Loan and Security Agreement, dated as of August 30, 2007, as amended by the First Loan Modification Agreement on June 26, 2009 and the Second Loan Modification Agreement on June 25, 2013, by and between theRegistrant and Silicon Valley Bank | ||
10.16 | Commercial Lease, dated as of May 6, 2013, as amended on September 24, 2013, by and between the Registrant and Columbus Day Realty, Inc. | ||
10.17 | Lease, dated as of August 6, 2010, by and between the Registrant and King 101 Hartwell LLC | ||
10.18 | Promissory Note, dated May 9, 2011, issued by the Registrant to Massachusetts Development Finance Agency | ||
23.1 | Consent of Ernst & Young LLP | ||
23.2 | * | Consent of Latham & Watkins LLP (included in Exhibit 5.1) | |
24.1 | Power of Attorney (with respect to Messrs. Cumming and Elsbree included on signature page) |
- *
- Tobe filed by amendment.
- #
- Indicatesmanagement contract or compensatory plan.
-
- Portionsof this exhibit (indicated by asterisks) have been omitted pursuant to a request for confidential treatment pursuant to Rule 406under the Securities Act of 1933.