Post-effective Amendment to an S-8 Filing (s-8 Pos)
21 Mai 2021 - 11:12PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on May 21, 2021
Registration No. 333-252232
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8 TO FORM S-4
REGISTRATION STATEMENT
Under
The
Securities Act of 1933
ImmunityBio, Inc.
(Exact name of Registrant as specified in its charter)
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Delaware
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43-1979754
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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3530 John Hopkins Court
San Diego, California 92121
(Address of principal executive offices, including zip code)
Amended and Restated
ImmunityBio, Inc.
2015
Stock Incentive Plan
(Full title of the plan)
Richard
Adcock
Chief Executive Officer and President
ImmunityBio, Inc.
3530
John Hopkins Court
San Diego, California 92121
(858) 633-0300
(Name, address and telephone number, including area code, of agent for service)
Copies to:
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Martin J. Waters
Wilson Sonsini Goodrich & Rosati, P.C.
12235 El Camino Real
San
Diego, California 92130
(858) 350-2300
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Jason Liljestrom
General Counsel
ImmunityBio, Inc.
3530
John Hopkins Court
San Diego, California 92121
(858) 633-0300
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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.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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. ☐
CALCULATION
OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered (1)
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Proposed
Maximum
Offering Price
Per
Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, $0.001 par value per share,
reserved for issuance pursuant to the Amended and Restated ImmunityBio, Inc. 2015 Stock Incentive Plan
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7,306,564 (2)
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N/A (3)
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N/A
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N/A
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, (the Securities Act) this
Registration Statement shall also cover any additional shares of common stock of ImmunityBio, Inc., a Delaware corporation (the Registrant) that become issuable under the Registrants NantCell, Inc. 2015 Stock Incentive Plan,
which was amended and restated on March 4, 2021 to be renamed the Amended and Restated ImmunityBio, Inc. 2015 Stock Incentive Plan (the Assumed Plan) by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without receipt of consideration that increases the number of the Registrants outstanding shares of common stock.
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(2)
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Represents the maximum number of shares of the Registrants common stock issuable pursuant to 185,454
stock option and 7,121,110 restricted stock unit awards outstanding and held by the Registrants employees as that term is defined in Form S-8 under the Securities Act, under the Assumed Plan
as of the date of this Registration Statement (the Assumed Awards), which were assumed by the Registrant pursuant to the Agreement and Plan of Merger dated as of December 21, 2020 by and among NantKwest, Inc. (now renamed
ImmunityBio, Inc.), Nectarine Merger Sub, Inc., and ImmunityBio, Inc., a private company (the Merger Agreement), multiplied by exchange ratio in the merger of 0.8190 (the Exchange Ratio). Upon the closing of the
transaction contemplated by the Merger Agreement on March 9, 2021, the Registrant assumed the Assumed Awards, which were automatically converted into awards in respect of shares of the Registrants common stock, subject to appropriate
adjustments to the number of shares issuable pursuant to such Assumed Awards as provided in the Merger Agreement, and subject to the Exchange Ratio.
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(3)
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These shares of the Registrants common stock were registered under the Registration Statement on Form S-4 (File No. 333-252232) filed with the Securities and Exchange Commission (the Commission) on January 19, 2021, as amended on January 29,
2021 and declared effective by the Commission on February 1, 2021. All filing fees payable in connection with the issuance of these shares were previously paid in connection with the filing of the Registration Statement on Form S-4.
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EXPLANATORY NOTE
ImmunityBio, Inc. (fka NantKwest, Inc.), a Delaware corporation (the Registrant) hereby amends its Registration Statement on Form S-4 (File No.
333-252232) filed with the Securities and Exchange Commission (the Commission) on January
19, 2021, as amended on January 29, 2021 and declared effective by the Commission on February 1, 2021 (the Form S-4), by filing this Post-Effective Amendment No. 1 on Form S-8 relating to the shares of Registrants common stock issuable upon the future exercise or
settlement of certain Assumed Awards outstanding and held by the Registrants employees as that term is defined in Form S-8 under the Securities Act (as defined below) pursuant to the Assumed
Plan. All such shares of Common Stock were previously registered on the Form S-4 but will be subject to issuance pursuant to this Registration Statement.
PART I
INFORMATION
REQUIRED IN THE 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form
S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the Securities Act), and the introductory 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 plan covered by
this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:
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(1)
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The Registrants Annual Report on Form 10-K for the
fiscal year ended December 31, 2020, filed with the Commission on March 4, 2021;
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(2)
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The Registrants Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2021, filed with the Commission on May 14, 2021;
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(3)
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The Registrants Current Reports on Form 8-K filed with the
Commission on January
13, 2021, February
10, 2021, February
24, 2021, February
25, 2021, March
10, 2021, March
17, 2021, April
1, 2021, April
22, 2021 and May 3, 2021, only to the extent that the items therein are specifically stated to be
filed rather than furnished for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the Exchange Act); and
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(4)
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The description of the Registrants common stock contained in the Companys Annual Report on Form 10-K filed with the Commission on March 25, 2020, pursuant to Section 12(b) of the
Exchange Act, including any amendment or report filed for the purpose of updating such description.
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All documents filed
by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement 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 in this Registration Statement and to be 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 a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein
or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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Under no circumstances will any information furnished by the Registrant under Items 2.02 or
7.01 of any Current Report on Form 8-K filed by the Registrant as of the date hereof be deemed incorporated herein by reference unless such Current Report on
Form 8-K expressly so provides.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named
Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a corporations board of directors to grant, and authorizes a court to
award, indemnity to officers, directors and other corporate agents.
As permitted by Section 102(b)(7) of the Delaware General
Corporation Law, the Registrants amended and restated certificate of incorporation and amended and restated bylaws contain provisions that limit the liability of its directors for monetary damages to the fullest extent permitted by Delaware
law. Consequently, the Registrants directors will not be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for the following:
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any breach of their duty of loyalty to the Registrant or its stockholders;
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acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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unlawful payment of dividends or unlawful stock repurchases or redemptions; and
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any transaction from which the director derived an improper personal benefit.
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Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission
or claim that occurred or arose prior to that amendment or repeal. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of the
Registrants directors will be further limited to the greatest extent permitted by the Delaware General Corporation Law.
The
Registrant has entered into indemnification agreements with each of its directors and executive officers, in addition to the indemnification provided for in its amended and restated certificate of incorporation and amended and restated bylaws, and
intends to enter into indemnification agreements with any new directors and executive officers in the future. These agreements provide for the indemnification of directors and officers for certain expenses and liabilities incurred in connection with
any action, suit, proceeding or alternative dispute resolution mechanism, or hearing, inquiry or investigation that may lead to the foregoing, to which they are a party, or are threatened to be made a party, by reason of the fact that they are or
were a director, officer, employee, agent or fiduciary of the Registrant, or any of its subsidiaries, by reason of any action or inaction by them while serving as an officer, director, agent or fiduciary, or by reason of the fact that they were
serving at the request of the Registrant as a director, officer, employee, agent or fiduciary of another entity. In the case of an action or proceeding by or in the right of the Registrant or any of its subsidiaries, no indemnification will be
provided for any claim where a court determines that the indemnified party is prohibited from receiving indemnification.
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The Registrant has purchased and intends to maintain insurance on behalf of each and any
person who is or was a director or officer of the Registrant against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
See also the undertakings set out in response to Item 9 herein.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Indicates management contract or compensatory plan, contract, or arrangement.
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Item 9. Undertakings.
A.
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The undersigned Registrant hereby undertakes:
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(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 this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table
in the effective registration statement; and
(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.
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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 this 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.
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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.
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C.
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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 Commission such indemnification is against public policy as expressed in the Securities
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 Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused this Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement on
Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on May 21, 2021.
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IMMUNITYBIO, INC.
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By:
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/s/ Richard Adcock
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Richard Adcock
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard Adcock and
David Sachs, and each of them, as his or her true and lawful attorneys-in-fact and agents, 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 (including his or her capacity as a director and/or officer of ImmunityBio, Inc.), to sign the Registration Statement on Form S-8 of ImmunityBio, Inc.,
and any or all amendments thereto (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 for all intents and purposes as they, he, or she might or could do in person, hereby and about the premises hereby ratifying and confirming all that said
attorneys-in-fact and agent, proxy and agent, or his, her 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.
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Signature
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Title
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Date
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/s/ Patrick Soon-Shiong, M.D.
Patrick Soon-Shiong, M.D.
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Executive Chairman of the Board of Directors
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May 21, 2021
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/s/ Richard Adcock
Richard Adcock
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Chief Executive Officer, President and Director
(Principal Executive Officer)
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May 21, 2021
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/s/ David Sachs
David Sachs
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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May 21, 2021
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/s/ Barry Simon, M.D.
Barry Simon, M.D.
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Chief Corporate Affairs Officer and Director
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May 21, 2021
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/s/ Michael Blaszyk
Michael Blaszyk
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Director
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May 21, 2021
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/s/ Cheryl Cohen
Cheryl Cohen
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Director
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May 21, 2021
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/s/ John Brennan
John Brennan
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Director
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May 21, 2021
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/s/ Wesley Clark
Wesley Clark
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Director
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May 21, 2021
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/s/ Linda Maxwell, M.D.
Linda Maxwell, M.D.
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Director
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May 21, 2021
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/s/ Christobel Selecky
Christobel Selecky
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Director
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May 21, 2021
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