As filed with the Securities and Exchange Commission on June 10, 2022

Registration No. 333-            

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Rigetti Computing, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   83-0950636

(State or other jurisdiction

of incorporation)

  

(IRS Employer

Identification No.)

775 Heinz Avenue
Berkeley, CA		   94710
(Address of principal executive offices)   (Zip Code)

Rigetti Computing, Inc. 2022 Equity Incentive Plan

Rigetti Computing, Inc. 2022 Employee Stock Purchase Plan

Rigetti & Co, Inc. 2013 Equity Incentive Plan

QxBranch, Inc. 2018 Equity Compensation Plan

(Full title of the plans)

Rick Danis

General Counsel

Rigetti Computing, Inc.

775 Heinz Avenue

Berkeley, CA 94710

(Name and address of agent for service)

(510) 210-5550

(Telephone number, including area code, of agent for service)

 

 

Copies to:

Rupa Briggs

Sarah Sellers

Cooley LLP

55 Hudson Yards

New York, NY 10001

(212) 479-6000

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ☐    Accelerated filer   ☐
Non-accelerated filer   ☒    Smaller reporting company   ☒
     Emerging growth company   ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Item 1. Plan Information.

The documents containing the information specified in Part I will be delivered in accordance with Rule 428(b) under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act of 1933, as amended (the “Securities Act”). These documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of the Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

Item 2. Registrant Information and Employee Plan Annual Information.

The written statement required by Item 2 of Part I is included in documents that will be delivered to participants in the plans covered by this Registration Statement pursuant to Rule 428(b) of the Securities Act.

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents, which have been filed with the Commission, are incorporated by reference into this Registration Statement:

 

(i)    The Registrant’s Quarterly Report on Form 10-Q (File No. 001-40140) (the “Form 10-Q”) for the fiscal quarter ended March  31, 2022, filed with the Commission on May 16, 2022;
(ii)    The Registrant’s Current Reports on Form 8-K (File No. 001-40140) (other than information furnished rather than filed), filed with the Commission on January  10, 2022, February  9, 2022, February  18, 2022, February  28, 2022, March 7, 2022 (excluding all historical and pro forma audited and unaudited financial statements included in Items  2.01 and 9.01, the related notes to such financial statements and the accompanying report of independent registered public accounting firms issued with respect thereto), April  19, 2022, and May 25, 2022 (including the Registrant’s audited recast financial statements as of and for the eleven months ended December 31, 2021 and as of and for the year ended January 31, 2021) and the Registrant’s Amendment No. 1 to Current Report on Form 8-K (File No.  001-40140) filed with the Commission on January 13, 2022 (excluding the audited pro forma balance sheet included in Exhibit 99.1 thereto) and;
(iii)    The Registrant’s prospectus, dated June 1, 2022, filed with the Commission on June 1, 2022 (the “Prospectus”) pursuant to Rule 424(b) under the Securities Act of 1933, as amended, relating to the Registration Statement on Form S-1 (File No. 333-263798);
(iv)    The description of the Registrant’s Common Stock which is contained in a registration statement on Form 8-A filed on March 1, 2022 (File No. 001-40140) under the Securities Act as well as any additional amendments or reports filed for the purpose of updating such description.

In addition, all documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, as amended (other than Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such information that are related to such items), prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement.

Any statement contained in the documents incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified, superseded, or replaced for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference in this Registration Statement modifies, supersedes, or replaces such statement. Any such statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a part of this Registration Statement.

Item 4. Description of Securities.

Not applicable.

Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

The Registrant is governed by the Delaware General Corporation Law, as the same exists or may hereafter be amended (the “DGCL”). Section 145(a) of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

Section 145(b) of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation unless and 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, he or she is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or other adjudicating court shall deem proper.

Section 145(g) of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify the person against such liability under Section 145 of the DGCL.

 

Additionally, the Registrant’s certificate of incorporation limits the Registrant’s directors’ liability to the fullest extent permitted under the DGCL. The DGCL provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability:

 

  •  

for any transaction from which the director derives an improper personal benefit;

 

  •  

for any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

  •  

for any unlawful payment of dividends or redemption of shares; or

 

  •  

for any breach of a director’s duty of loyalty to the corporation or its stockholders.

If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Registrant’s directors will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

Delaware law and the Registrant’s Bylaws provide that the Registrant will, in certain situations, indemnify its directors and officers and may indemnify other employees and other agents, to the fullest extent permitted by law. Any indemnified person is also entitled, subject to certain limitations, to advancement, direct payment, or reimbursement of reasonable expenses (including attorneys’ fees and disbursements) in advance of the final disposition of the proceeding.

In addition, the Registrant has entered into separate indemnification agreements with its directors and officers. These agreements, among other things, require the Registrant to indemnify its directors and officers for certain expenses, including attorneys’ fees, judgments, fines, and settlement amounts incurred by a director or officer in any action or proceeding arising out of their services as one of the Registrant’s directors or officers or any other company or enterprise to which the person provides services at the Registrant’s request.

The Registrant maintains a directors’ and officers’ insurance policy pursuant to which its directors and officers are insured against liability for actions taken in their capacities as directors and officers. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or control persons, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

 

          Incorporated by Reference

Exhibit No.

   

Description

    Schedule/
Form		    File No.    Exhibit    Filing Date
3.1    Certificate of Incorporation of Rigetti Computing, Inc.     8-K    001-40140    3.1    March 7, 2022
3.2    Bylaws of Rigetti Computing, Inc.    8-K    001-40140    3.2    March 7, 2022
5.1*    Opinion of Cooley LLP            
23.1*    Consent of BDO USA LLP            

23.2*

   

Consent of Cooley LLP (included in Exhibit 5.1)

           

24.1*

   

Power of Attorney (included on signature page)

           

99.1

   

Rigetti Computing, Inc. 2022 Equity Incentive Plan

   8-K    001-40140    10.16    March 7, 2022

99.2    Form of Stock Option Grant Package under Rigetti Computing, Inc. 2022 Equity Incentive Plan    8-K    001-40140    10.17    March 7, 2022
99.3*    Form of RSU Grant Package under Rigetti Computing, Inc. 2022 Equity Incentive Plan            
99.4    Form of Stock Award Grant Package under Rigetti Computing, Inc. 2022 Equity Incentive Plan    8-K    001-40140    10.19    March 7, 2022
99.5    Rigetti Computing, Inc. 2022 Employee Stock Purchase Plan    8-K    001-40140    10.20    March 7, 2022
99.6    Rigetti & Co, Inc. 2013 Equity Incentive Plan, as amended    10-Q    001-40140    10.21    May 16, 2022
99.7    Form of Stock Option Grant Notice and Form of Stock Option Agreement under Rigetti & Co, Inc. 2013 Equity Incentive Plan    S-4/A    333-260692    10.22    February 8,
2022
99.8    Form of Restricted Stock Unit Grant Notice and Form of Restricted Stock Unit Agreement under Rigetti  & Co, Inc. 2013 Equity Incentive Plan    S-4/A    333-260692    10.23    February 8,
2022
99.9*    QxBranch, Inc. 2018 Equity Compensation Plan            
99.10*    Form of Stock Option Grant Agreement under the QxBranch, Inc. 2018 Equity Compensation Plan            
107*    Filing Fee Table            

 

*

Filed herewith.

Item 9. Undertakings.

(a) The undersigned Registrant hereby undertakes:

 

  (1)

To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

  (i)

to include any prospectus required by Section 10(a)(3) of the Securities Act;

 

  (ii)

to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement;

  (iii)

to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

 

  (2)

That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

  (3)

To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Berkeley, State of California, on this 10th day of June, 2022.

 

RIGETTI COMPUTING, INC.
By:  

/s/ Chad Rigetti

  Name: Chad Rigetti
  Title: Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Chad Rigetti, Brian Sereda and Rick Danis, and each of them, as his true and lawful agents, proxies and attorneys-in-fact, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with all exhibits thereto and other 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 each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature    Title   Date

/s/ Chad Rigetti

Chad Rigetti

    Chief Executive Officer and Co-Chair of the Board (Principal Executive Officer)   June 10, 2022

/s/ Brian Sereda

Brian Sereda

    Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)   June 10, 2022

/s/ Michael Clifton

Michael Clifton

    Director   June 10, 2022

/s/ David Cowan

David Cowan

    Director   June 10, 2022

/s/ Alissa Fitzgerald

Alissa Fitzgerald

    Director   June 10, 2022

/s/ Ray Johnson

Ray Johnson

    Director   June 10, 2022

/s/ Cathy McCarthy

Cathy McCarthy

    Director   June 10, 2022

/s/ Gen. Peter Pace

Gen. Peter Pace

   

Director

   June 10, 2022

/s/ H. Gail Sandford

H. Gail Sandford

   

Director

   June 10, 2022
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