Full Press Release Details
DEXCOM, INC. (THE ISSUER ) HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION (THE SEC ) FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS CONTAINED IN THE REGISTRATION STATEMENT AND THE OTHER DOCUMENTS THE ISSUER HAS FILED WITH THE SEC
FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THIS OFFERING. YOU MAY OBTAIN THESE DOCUMENTS FOR FREE BY VISITING THE SEC WEB SITE AT WWW.SEC.GOV. ALTERNATIVELY, THE ISSUER WILL ARRANGE TO SEND YOU THE PROSPECTUS IF YOU REQUEST IT
BY CALLING TOLL-FREE 1-888-738-3646. YOU MAY ALSO REQUEST A COPY TO BE SENT TO YOU THROUGH THE ISSUER S WEBSITE AT
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT
( Agreement ) is made as of November 20, 2018, by and between DexCom, Inc., a Delaware corporation (the Company ), Verily Life Sciences LLC (formerly Google Life Sciences LLC)
( Verily ) and Onduo LLC ( Onduo ). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Collaboration and License Agreement (as defined below), which
definitions from the Collaboration and License Agreement shall be deemed to be incorporated herein by reference.
WHEREAS, the Company and Verily are parties to that certain Amended and Restated Collaboration and
License Agreement, dated as of November 20, 2018 (the Collaboration and License Agreement ), which amends and restates in its entirety that certain Collaboration and License Agreement dated as of August 10, 2015 by
and between the Company and Verily (as amended by Amendment No. 1 thereto effective as of October 25, 2016, Original Agreement ).
WHEREAS, this Agreement sets forth certain terms and conditions of payments that may be made by the
Company to Verily and Onduo pursuant to Section 8 of the Collaboration and License Agreement.
WHEREAS, Section 8.1 of the Collaboration and License Agreement provides that the Company shall pay
to Verily and Onduo, in consideration of (a) Verily s performance of its obligations under the Development Plan, (b) the licenses granted to the Company under Section 7.1 of the Collaboration and License Agreement, and
(c) the parties agreement to amend and restate the Original Agreement, a second upfront payment in, at the Company s election, either cash equal to Two-Hundred Fifty Million Dollars
($250,000,000) (the Upfront Payment Amount ) or an equivalent value of shares of the Company s common stock, $0.001 par value per share ( Common Stock ), calculated by dividing the Upfront
Payment Amount by the Initial VWAP (the Upfront Shares ), to be allocated between Verily and Onduo as set forth in the Collaboration and License Agreement, it being understood that (i) the issuance of all shares of
Common Stock issuable pursuant to this Agreement has been registered under the Securities Act of 1933, as amended ( Securities Act ), on the Company s registration statement on Form
S-3 (File No. 333-228495) (the Initial Registration Statement ), which became automatically effective upon filing, and (ii) all such
shares of Common Stock shall be freely tradeable at the time of issuance (subject solely to the restrictions on the Upfront Shares set forth in Section 1.1).
WHEREAS, Section 8.2 of the Collaboration and License Agreement provides, further, that upon
achievement of each Milestone Event, the Company shall pay to Verily and Onduo the applicable Milestone Payment in cash or registered and freely tradable shares of Common Stock (such shares, the Milestone Shares and,
together with the Upfront Shares, the Shares ), to be allocated between Verily and Onduo as set forth in the Collaboration and License Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Issuance of Shares.
1.1. Upfront Closing. Pursuant to Section 8.1 of the Collaboration and License Agreement, the Company hereby elects to pay the
Upfront Payment Amount to Verily and Onduo through the issuance to Verily and Onduo of the Upfront Shares within ten (10) Business Days after the Antitrust Clearance Date (as defined below) for the issuance of the Upfront Shares. Six percent
(6%) of the Upfront Shares shall be issued directly to Verily and ninety-four percent (94%) of the Upfront Shares shall be issued directly to Onduo. The issuance of the Upfront Shares shall be in consideration of (a) Verily s performance
of its obligations under the Development Plan, (b) the licenses granted to the Company under Section 7.1 of the Collaboration and License Agreement, and (c) the parties agreement to amend and restate the Original Agreement, and
the Upfront Shares must be duly and validly authorized, issued, fully paid, nonassessable, registered under the Securities Act and freely tradable (subject solely to the restrictions on trading set forth in this
Section 1.1) at the time of the delivery of the Upfront Shares to Verily and Onduo. The Upfront Shares shall be uncertificated and shall be registered in Verily s name or Onduo s name, as the case may be, on the
books of the Company by the Company s transfer agent (unless otherwise instructed by Verily or Onduo, as the case may be, in writing). Neither Verily, Onduo nor Onduo s Permitted Transferees (as defined below) may sell, transfer or
otherwise dispose of ( Transfer ) more than $20 million of the Upfront Shares (calculated by dividing such amount by the Initial VWAP), in the aggregate among Verily, Onduo and Onduo s Permitted Transferees, per
calendar quarter (the Transfer Limitation ); provided, that as between Verily and Onduo, Onduo shall have first priority over Verily; provided, further, that, this restriction will end upon the earlier
of September 30, 2021 and the Launch of the Second Product; provided, further, that Onduo shall be permitted to Transfer shares of Common Stock to any member or members of Onduo (Onduo s Permitted
Transferees ), subject to the agreement of any such recipient of transferred shares to be bound by the restrictions of this Section 1.1 (it being understood that any such Transfer shall not count toward the
Transfer Limitation); provided, further, that, notwithstanding the Transfer Limitation, Verily and Onduo (and any Permitted Transferee) may from time to time enter into, maintain, adjust, and consummate one or more equity derivative
transactions, each designed to hedge some or all of the risk to Verily or Onduo (or any such Permitted Transferee), as the case may be, of holding Upfront Shares and, solely in connection with any such equity derivative transaction, may agree with
its counterparty thereto to loan, pledge or otherwise encumber or hypothecate some or all of the Upfront Shares to which such equity derivative transaction relates in favor of such counterparty to facilitate hedging by such counterparty of its risk
in entering into, maintaining and adjusting such equity derivative transaction with Verily or Onduo (or any Permitted Transferee), as the case may be; and provided, further, none of the loans, pledges or other encumbrances or
hypothecations of Upfront Shares by Verily, Onduo or any Permitted Transferee may be settled in such shares, except in compliance with the Transfer Limitation. Verily hereby agrees to be bound by the restrictions of this
Section 1.1 with respect to any Upfront Shares that Onduo Transfers to Verily. The closing of the sale and purchase of the Upfront Shares (the Upfront Closing ) will take place
remotely via the exchange of documents and signatures after the satisfaction or waiver of each of the conditions set forth in Section 6 and Section 7 (other than those conditions that by their
nature are to be satisfied at the Upfront Closing, but subject to the fulfillment or waiver of those conditions) within ten (10) Business Days after the receipt of the last authorization, approval, clearance or waiting period expiration or
termination that is required in connection with the issuance of the Upfront Shares under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder (the HSR Act ) or any non-U.S. antitrust, merger control or competition law (collectively with
the HSR Act, any Antitrust Law ) (the date of receipt of the last authorization, approval, clearance or waiting period expiration or termination that is required in connection with the issuance of the Upfront Shares and each
issuance of Milestone Shares, each an Antitrust Clearance Date ).
1.2. Milestone Closings. In the event
that the Company exercises its option to pay a Milestone Payment by issuing Milestone Shares to Verily and/or Onduo pursuant to Section 8.2.1 of the Collaboration and License Agreement, the Company shall provide written notice of such election
to Verily and/or Onduo, as applicable, within two (2) Business Days following achievement of the applicable Milestone Event (a Payment Election ). In the event that the Company makes a Payment Election, the Company
shall issue to Verily and/or Onduo the applicable Milestone Shares, allocated as set forth in the Collaboration and License Agreement, by the later of thirty (30) days following the achievement of the applicable Milestone Event, or if the
receipt of any authorization, approval, clearance or waiting period expiration or termination is required in connection with the issuance of such Milestone Shares under any Antitrust Law, ten (10) Business Days after the Antitrust Clearance
Date with respect to such Milestone Shares (each such issuance, a Milestone Closing and, each of the Upfront Closing and each Milestone Closing, a Closing ). Milestone Shares
must be duly and validly authorized, issued, fully paid, nonassessable, registered under the Securities Act and freely tradable at the time of their delivery to Verily and/or Onduo. Milestone Shares shall be uncertificated and shall be registered in
Verily s name or Onduo s name, as the case may be, on the books of the Company by the Company s transfer agent (unless otherwise instructed by Verily or Onduo, as the case may be, in writing). Each Milestone Closing, if applicable,
will take place remotely via the exchange of documents and signatures after the satisfaction or waiver of each of the conditions set forth in Section 6 and Section 7 (other than those conditions
that by their nature are to be satisfied at the applicable Milestone Closing, but subject to the fulfillment or waiver of those conditions).
1.3. Obligations and Remedies. Notwithstanding anything contained in this Section 1, nothing in this
Agreement shall limit the Company s or Verily s rights, obligations or remedies under the Collaboration and License Agreement.
1.4. Late Payment. Any payment or portions thereof due under this Agreement that are not paid when due shall bear an interest rate of
1.5% per month from the payment due date until paid in full. This Section 1.4 shall in no way limit any other remedies available to the parties under this Agreement or the Collaboration and License Agreement.
2. Representations and Warranties of the Company. The Company hereby represents and warrants to Verily and Onduo that the
following representations and warranties are true and correct as of the date hereof and as of each Closing:
2.1. Organization, Valid
Existence and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as currently
conducted. The Company is duly qualified to transact business as a foreign corporation in each jurisdiction in which it conducts its business, except where failure to be so qualified would not reasonably be expected to result, either individually or
in the aggregate, in a material adverse effect on the Company s financial condition, business or operations (a Material Adverse Effect ).
2.2. Authorization. All corporate action on the part of the Company, its officers,
directors and shareholders necessary for (i) the authorization, execution and delivery of this Agreement, (ii) the performance of all obligations of the Company hereunder, and (iii) the authorization, issuance, sale and delivery of the
Shares has been taken or, in the case of the preceding clause (iii), will be taken prior to the applicable Closing. This Agreement has been duly executed and delivered by the Company and constitutes the valid and legally binding obligation of the
Company, enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors rights generally and
(b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
Valid Issuance of Registered Shares. The Shares that are being issued to Verily and Onduo by the Company hereunder have been duly and validly authorized and, when issued, sold and delivered in accordance with the terms of this Agreement for
the consideration expressed herein, will be duly and validly issued, fully paid, nonassessable, registered under the Securities Act and freely tradable (subject solely to the restrictions on the Upfront Shares set forth in
Section 1.1) and will be issued to Verily and Onduo free of any preemptive or similar rights and of any liens, encumbrances and restrictions on transfer, other than (i) any liens or encumbrances that are created or
imposed solely by Verily or Onduo and (ii) with respect to the Upfront Shares, as set forth in Section 1.1.
2.4. Non-Contravention. No consent, approval, order or authorization of, notice to, or
registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority, or any stock exchange or self-regulatory organization, on the part of the Company is required in connection with the
consummation of the issuance of the Shares contemplated by this Agreement, except for (i) the filing of a prospectus supplement with the United States Securities and Exchange Commission (the SEC ) pursuant to Rule
424(b) under the Securities Act and the continued effectiveness of the Initial Registration Statement (or the filing and continued effectiveness of one or more successor registration statements under the Securities Act that maintain the registration
of the issuance of the shares of Common Stock hereunder (all such registration statements, together with the Initial Registration Statement, the Registration Statement )) and (ii) any filings that may be required in
connection with the issuance of any Shares under any Antitrust Laws and any clearances or waiting period expirations or terminations related thereto. The execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated hereby will not (a) violate any provision of the organizational documents of the Company or (b) result in any violation of, or constitute, with or without the passage of time and giving of notice, either (1) a default in
any material respect of any contract, agreement, instrument, judgment, order, writ or decree or (2) an event that results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation,
impairment, forfeiture or nonrenewal of any material contract, agreement, order, instrument, indenture, permit, license, authorization or approval applicable to the Company.
2.5. SEC Compliance. The Company is in compliance in all material respects with all requirements applicable to it under the Securities
Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder (the Exchange Act ) and the documents filed with the SEC during the twelve month period prior to the date hereof and the
applicable Closing (the foregoing materials, including the exhibits thereto and documents incorporated therein, together with the Registration Statement and any amendment or supplement thereto, the SEC Documents ) comply in
all material respects with the requirements of the Exchange Act and the Securities Act, as applicable, and the rules and regulations of the SEC thereunder. As of their respective filing dates, none of the SEC Documents contained any untrue statement
of material fact or omitted a material fact required to be stated therein or necessary in order to make the statement therein, in the light of the circumstances under which they were made, not misleading.
2.6. Reporting Company; Form S-3. The
Company was not at the time of the filing of the Registration Statement and is not an ineligible issuer (as defined in Rule 405 promulgated under the Securities Act) and was and is eligible to register the issuance of the Shares
hereunder on a registration statement on Form S-3 under the Securities Act. The Registration Statement, and any amendment or supplement thereto, conforms and will conform in all material respects to the
requirements of the Securities Act and the rules and regulations thereunder. The prospectus used by the Company in connection with the registration of the Shares, and any amendment or supplement thereto, conforms in all material respects to the
requirements of the Securities Act and the rules and regulations thereunder. Neither the Registration Statement nor any amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact required to be