Veracyte (VCYT) S-8 POSRegistration of securities for employees (post-effective amendment)

Veracyte, Inc. (the “Registrant”) previously filed a Registration Statement on Form S-8 (File No. 333-270147) with respect to 2,878,378 shares of the Registrant’s Common Stock (“Common Stock”) issuable under the Veracyte, Inc. 2013 Stock Incentive Plan (the “Prior Plan”) with the Securities and Exchange Commission (the “Commission”) on March 1, 2023, a Registration Statement on Form S-8 (File No. 333-263116) with respect to 2,844,924 shares of Common Stock issuable under the Prior Plan filed with the Commission on March 1, 2022, a Registration Statement on Form S-8 (File No. 333-253363) with respect to 2,328,021 shares of Common Stock issuable under the Prior Plan filed with the Commission on February 22, 2021, a Registration Statement on Form S-8 (File No. 333-236630) with respect to 1,985,013 shares of Common Stock issuable under the Prior Plan filed with the Commission on February 25, 2020, a Registration Statement (File No. 333-229848) with respect to 1,634,528 shares of Common Stock issuable under the Prior Plan filed with the Commission on February 25, 2019, a Registration Statement on Form S-8 (File No. 333-223292) with respect to 1,368,159 shares of Common Stock issuable under the Prior Plan filed with the Commission on February 28, 2018, a Registration Statement on Form S-8 (File No. 333-216388) with respect to 1,350,491 shares of Common Stock issuable under the Prior Plan filed with the Commission on March 2, 2017, a Registration Statement on Form S-8 (File No. 333-210185) with respect to 1,107,411 shares of Common Stock issuable under the Prior Plan filed with the Commission on March 14, 2016, a Registration Statement on Form S-8 (File No. 333-203097) with respect to 1,746,673 shares of Common Stock issuable under the Prior Plan filed with the Commission on March 30, 2015, and a Registration Statement on Form S-8 (File No. 333-191992) with respect to 1,786,209 shares of Common Stock issuable under the Prior Plan and 2,368,797 shares of Common Stock issuable under the Veracyte, Inc. 2008 Stock Plan filed with the Commission on October 30, 2013 (each a “Registration Statement”, and collectively, the “Registration Statements”).

On June 8, 2023 (the “Effective Date”), the Registrant’s stockholders approved the Veracyte, Inc. 2023 Equity Incentive Plan (the “2023 Plan”), and in connection therewith, no further awards will be made under the Prior Plan as of and following the Effective Date. Pursuant to the terms of the 2023 Plan, the number of shares reserved and available for grant and issuance pursuant to the 2023 Plan is the number of reserved shares of Common Stock not issued or subject to outstanding grants under the Prior Plan on the Effective Date plus (a) shares of Common Stock that are subject to awards granted under the Prior Plan that cease to be subject to such awards by forfeiture or otherwise after the Effective Date, (b) shares of Common Stock issued under the Prior Plan, including shares of Common Stock issued pursuant to the exercise of stock options, that are forfeited after the Effective Date, (c) shares of Common Stock issued under the Prior Plan that are repurchased by the Registrant at the original issue price after the Effective Date, (d) shares of Common Stock that are subject to awards granted under the Prior Plan that are settled in cash after the Effective Date, and (e) shares of Common Stock that are subject to awards under the Prior Plan that are used to pay the exercise price of an award or withheld to satisfy the tax withholding obligations related to an award after the Effective Date (collectively, the “Rollover Shares”).

Accordingly, the Registrant is filing this Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (the “Post-Effective Amendment”) pursuant to Item 512(a)(1)(iii) of Regulation S-K and SEC Compliance and Disclosure Interpretation 126.43 to amend each of the Registration Statements to register the offer of the Rollover Shares under the 2023 Plan (as such shares would no longer be issuable under the Prior Plan as of the Effective Date). In accordance with SEC Compliance and Disclosure Interpretation 126.43, no new filing fee is due upon the filing of this Post-Effective Amendment. This Post-Effective Amendment constitutes Post-Effective Amendment No. 1 to each of the Registration Statements. For the avoidance of doubt, the Company is not registering any additional shares of Common Stock on this Post-Effective Amendment that were not previously approved by the Company’s stockholders as of the Effective Date.

The information specified in Part I of Form S-8 is omitted from this Post-Effective Amendment in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the Note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Post-Effective Amendment as specified by Rule 428(b)(1) under the Securities Act.

In addition, all documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any portions thereof furnished by the Registrant, including information furnished under Item 2.02 and Item 7.01 and any exhibits relating to Item 2.02 or Item 7.01 furnished under Item 9.01 of Form 8-K and any certification required by 18 U.S.C. § 1350), subsequent to the filing of this Post-Effective Amendment and prior to the filing of a post-effective amendment to this Post-Effective Amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Post-Effective Amendment and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Post-Effective Amendment to the extent that a statement contained in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.

Section 145 of the Delaware General Corporation Law (“DGCL”) authorizes a court to award or a corporation’s board of directors to grant indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the DGCL are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.

The Registrant’s restated certificate of incorporation contains provisions that eliminate the personal liability of the Registrant’s directors to the Registrant or the Registrant’s stockholders for monetary damages for breach of fiduciary duty to the fullest extent permitted by the DGCL. Consequently, the Registrant’s directors are not personally liable to the Registrant or the Registrant’s stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:

The Registrant’s restated certificate of incorporation and the Registrant’s amended and restated bylaws require the Registrant to indemnify its directors and officers to the maximum extent not prohibited by the DGCL and allow it to indemnify other employees and agents as authorized by its Board of Directors or by the action of a committee of the Board of Directors or designated officers established by or designated in resolutions approved by its Board of Directors. Subject to certain limitations, the Registrant’s amended and restated bylaws also require it to advance expenses incurred by its directors and officers for the defense of any action for which indemnification is required or permitted.

The Registrant has entered, and intends to continue to enter, into separate indemnification agreements with its directors, officers and certain other employees, in addition to the indemnification provided for in its restated certificate of incorporation and amended and restated bylaws. These agreements, among other things, require the Registrant to indemnify its directors, officers and certain other employees for certain expenses, including attorneys’ fees, judgments, penalties, fines and settlement amounts actually incurred by these individuals in any action or proceeding arising out of their service to the Registrant or any of its subsidiaries or any other company or enterprise to which these individuals provide services at the Registrant’s request. Subject to certain limitations, the Registrant’s indemnification agreements also require it to advance expenses incurred by its directors, officers and certain other employees for the defense of any action for which indemnification is required or permitted.

The Registrant currently carries liability insurance for its directors and officers. The indemnification provisions in the Registrant’s restated certificate of incorporation, amended and restated bylaws and the indemnification agreements entered into between the Registrant and each of its directors and officers is sufficiently broad to permit indemnification of the Registrant’s directors and officers for liabilities arising under the Securities Act.

See also the undertakings set out in response to Item 9 of this Post-Effective Amendment.

Not Applicable.