UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form 10-K/A

(Amendment No. 2)

 (Mark One)

| ☒ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|---------|------------------------------------------------------------------------------------------------|

For the fiscal year ended December 31, 2016

| ☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|---------|----------------------------------------------------------------------------------------------------|

For the transition period from           to          

Commission File No. 001-36847

 Invitae Corporation

(Exact name of the registrant as specified in its charter)

 

 

| Delaware                                                        | 27-1701898                            |
|-----------------------------------------------------------------|---------------------------------------|
| (State or other jurisdiction of

incorporation or organization) | (I.R.S. Employer

Identification No.) |

1400 16th Street, San Francisco, California 94103

(Address of principal executive offices, Zip Code)

(415) 374-7782

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:

 

|                                      | Title of each class: |                        |   |   | Name of each exchange on which registered: |   |
|-------------------------------------------|----------------------|-----------------------------|--------|--------|--------------------------------------------|--------|
| Common Stock, par value $0.0001 per share |                 | The New York Stock Exchange |

Securities registered pursuant to Section 12(g) of the Act: None

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes  ☐  No  ☒

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes  ☐  No  ☒

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  ☒  No  ☐

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes  ☒  No  ☐

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  ☒

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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   | ☐ | (Do not check if a smaller reporting company) | Smaller reporting company | ☐ |
|                    |    |                                          | Emerging growth company   | ☒ |

If an emerging growth company, indicate by checkmark 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.☒

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes  ☐  No  ☒

As of June 30, 2016, the aggregate market value of common stock held by non-affiliates of the Registrant was approximately $135.1 million, based on the closing price of the common stock as reported on The New York Stock Exchange for that date.

The number of shares of the registrant’s Common Stock outstanding as of February 28, 2017 was 42,248,590.

 

 

 

----

 

EXPLANATORY NOTE

 

 

Invitae Corporation (Invitae) is filing this Amendment No 2 (this Amendment) to its Annual Report on Form 10‐K for the fiscal year ended December 31, 2016, previously filed with the Securities and Exchange Commission (SEC) on March 16, 2017 (the Original 10-K), for the sole purpose of filing a revised version of Exhibit 10.13, reflecting changes to Invitae’s confidential treatment request with respect to certain portions of such exhibit.  Accordingly, Exhibit 10.13 to this Amendment supersedes and replaces in its entirety Exhibit 10.13 to the Original 10-K, as well as Exhibit 10.13 to Amendment No. 1 to Form 10-K which was filed on June 23, 2017 and inadvertently did not include one page that is part of Exhibit 10.13. 

 

In addition, as required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by Invitae’s principal executive officer and principal financial officer are being filed as exhibits to this Amendment; however, paragraphs 3, 4 and 5 of the certifications have been omitted because this Amendment does not contain any financial statements nor does it contain or amend any disclosure with respect to Items 307 and 308 of Regulation S-K.

 

Except as described above, no other changes have been made to the Original 10-K.  This Amendment does not reflect events occurring after the date of the Original 10-K nor does it modify or update the disclosures contained in the Original 10-K that may be affected by subsequent events.  Accordingly, this Amendment should be read in conjunction with the Original 10-K and Invitae’s other filings made with the SEC subsequent to the filing of the Original 10-K.

 

 

2

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ITEM 15.  Exhibits and Financial Statement Schedules.

| (a) | Documents filed as part of this report: |
|-----|-----------------------------------------|

 

|   | 1. | Financial Statements: Reference is made to the Index to Financial Statements of Invitae Corporation included in Item 8 of Part II hereof. |
|--------|----|-----------------------------------------------------------------------------------------------------------------------------------------------------|

 

|   | 2. | Financial Statement Schedules: All schedules have been omitted because they are not required, not applicable, or the required information is included in the financial statements or notes thereto. |
|--------|----|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

|   | 3. | Exhibits: See Item 15(b) below. Each management contract or compensating plan or arrangement required to be filed has been identified. |
|--------|----|---------------------------------------------------------------------------------------------------------------------------------------------|

 

| (b) | Exhibits |
|-----|----------|

 

See Exhibit Index for a listing of exhibits.

 

Copies of the above exhibits not contained herein are available to any stockholder, upon payment of a reasonable per page fee, upon written request to: Chief Financial Officer, Invitae Corporation, 1400 16th Street, San Francisco, California 94103.

 

| (c) | Financial Statement Schedules:  Reference is made to Item 15(a) 2 above. |
|-----|-----------------------------------------------------------------------------------------|

 

3

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

|                            | INVITAE CORPORATION |
|---------------------------------|---------------------|
|                            |                |   |
|   Date: June 26, 2017 | By:                 | /s/ Sean E. George, Ph.D. |
|                            |                | Sean E. George, Ph.D.President and Chief Executive Officer |

 

 

 

 

4

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EXHIBIT INDEX

 

| ExhibitNumber |   | Description                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
|---------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 2.1&@     |   | Stock Purchase Agreement dated as of January 6, 2017 by and among Invitae Corporation, each of the selling shareholders listed on Schedule 1 thereto, and the sellers’ agent (incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8‐K filed January 6, 2017).                                                                                                                                                                                   |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 3.1           |   | Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8‐K filed February 23, 2015).                                                                                                                                                                                                                                                                                                            |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 3.2           |   | Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8‐K filed February 23, 2015).                                                                                                                                                                                                                                                                                                                      |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 4.1           |   | Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                                                                                                                                                                                             |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 4.2           |   | Fifth Amended and Restated Investors’ Rights Agreement, dated August 26, 2014, among Invitae Corporation and certain investors (incorporated by reference to Exhibit 4.2 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                                                                                    |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 4.3           |   | Omnibus Approval and Amendment with Respect to: Series F Preferred Stock Purchase Agreement; Fifth Amended and Restated Investors’ Rights Agreement; and Fifth Amended and Restated Voting Agreement, dated October 9, 2014, among Invitae Corporation and certain investors (incorporated by reference to Exhibit 4.3 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015). |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.1          |   | Form of Indemnification Agreement between the Registrant and its officers and directors (incorporated by reference to Exhibit 10.1 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                                                                                                                                     |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.2#         |   | 2010 Stock Plan and forms of agreements thereunder (incorporated by reference to Exhibits 10.2, 10.3 and 10.4 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                                                                                                                                                          |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.3#         |   | 2015 Stock Incentive Plan and forms of agreements thereunder (incorporated by reference to Exhibits 10.5, 10.6 and 10.7 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                                                                                                                                                |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.4#         |   | Form of Notice of Restricted Stock Unit Award and Restricted Stock Unit Agreement for Awards Granted under the 2015 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8‐K filed with the SEC on August 6, 2015).                                                                                                                                                                                                             |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.5#         |   | Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.8 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                                                                                                                                                                                                |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.6#         |   | Separation and Release of Claims Agreement between Invitae Corporation and Lisa Alderson dated March 8, 2016 (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed with the SEC on May 9, 2016).                                                                                                                                                                                                                                                    |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.7          |   | Lease (Standard Form), dated September 1, 2011, by and between Invitae Corporation (f/k/a Locus Development, Inc.) and Martin E. Harband, Trustee of the Harband Family Trust, as amended (incorporated by reference to Exhibit 10.12 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                   |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.8          |   | Sublease, dated December 6, 2013, by and between Invitae Corporation and Sutter West Bay Hospitals (incorporated by reference to Exhibit 10.13 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                                                                                                                    |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.9          |   | Lease, dated October 31, 2012, by and between Invitae Corporation and 278 University Investors, LLC (incorporated by reference to Exhibit 10.14 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                                                                                                              |
|          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |

 

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| 10.10     |   | Sublease, dated November 21, 2014, by and between Invitae Corporation and InMobi Inc (incorporated by reference to Exhibit 10.15 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).           |
|-----------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 10.11     |   | Lease Agreement dated as of September 2, 2015 by and between 1400 16th Street LLC, a Delaware limited liability company, and Invitae Corporation (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8‐K filed with the SEC on September 4, 2015). |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 10.12     |   | Loan and Security Agreement dated as of July 17, 2015 between Silicon Valley Bank and Invitae Corporation (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8‐K filed with the SEC on July 22, 2015).                                                 |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 10.13*    |   | Loan and Security Agreement dated as of March 15, 2017 between Oxford Capital, LLC and Invitae Corporation.                                                                                                                                                                                                               |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 10.14**   |   | Form of Warrant to Purchase Common Stock between Oxford Capital, LLC and Invitae Corporation.                                                                                                                                                                                                                             |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 12.1**    |   | Statement regarding computation of ratios.                                                                                                                                                                                                                                                                                |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 21.1      |   | List of Subsidiaries (incorporated by reference to Exhibit 21.1 to the Registrant’s Registration Statement on Form S‐1 (File No. 333‐201433), as amended, declared effective on February 11, 2015).                                                                                 |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 23.1**    |   | Consent of Independent Registered Public Accounting Firm.                                                                                                                                                                                                                                                                 |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 24.1**    |   | Power of Attorney (contained on the signature page to this Form 10‐K).                                                                                                                                                                                                                                         |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 31.1*     |   | Principal Executive Officer’s Certifications Pursuant to Section 302 of the Sarbanes‐Oxley Act of 2002.                                                                                                                                                                                                  |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 31.2*     |   | Principal Financial Officer’s Certifications Pursuant to Section 302 of the Sarbanes‐Oxley Act of 2002.                                                                                                                                                                                                  |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 32.1**+   |   | Certification Pursuant to 18 U.S.C. § 1350 (Section 906 of Sarbanes‐Oxley Act of 2002).                                                                                                                                                                                                              |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 32.2**+   |   | Certification Pursuant to 18 U.S.C. § 1350 (Section 906 of Sarbanes‐Oxley Act of 2002).                                                                                                                                                                                                              |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 101.INS** |   | XBRL Instance Document                                                                                                                                                                                                                                                                                                    |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 101.SCH** |   | XBRL Taxonomy Extension Schema                                                                                                                                                                                                                                                                                            |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 101.CAL** |   | XBRL Taxonomy Extension Calculation Linkbase                                                                                                                                                                                                                                                                              |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 101.DEF** |   | XBRL Taxonomy Extension Definition Linkbase                                                                                                                                                                                                                                                                               |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 101.LAB** |   | XBRL Taxonomy Extension label Linkbase                                                                                                                                                                                                                                                                                    |
|      |   |                                                                                                                                                                                                                                                                                                                      |
| 101.PRE** |   | XBRL Taxonomy Extension Presentation Linkbase                                                                                                                                                                                                                                                                             |

 

 

 

| #     | Indicates management contract or compensatory plan or arrangement.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|-------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| *     | Filed herewith.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
| **    | Previously filed with Invitae’s Annual Report on Form 10-K, originally filed with the SEC on March 16, 2017, which is being amended hereby.                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| @     | The schedules and exhibits to this agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request.                                                                                                                                                                                                                                                                                                                                                                                        |
| +     | In accordance with Item 601(b)(32)(ii) of Regulation S‐K and SEC Release No. 34‐47986, the certifications furnished in Exhibits 32.1 and 32.2 hereto are deemed to accompany this Form 10‐K and will not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) or deemed to be incorporated by reference into any filing under the Exchange Act or the Securities Act of 1933 except to the extent that the registrant specifically incorporates it by reference. |
| & | Confidential treatment was granted with respect to certain portions of this exhibit.  Omitted portions have been separately filed with the SEC.                                                                                                                                                                                                                                                                                                                                                                                                                                    |