As filed with the U.S. Securities and Exchange Commission on August 9, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Aptevo Therapeutics Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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81-1567056 |
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(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
2401 4th Avenue, Suite 1050
Seattle, WA 98121
(Address of principal executive offices) (Zip code)
Aptevo Therapeutics Inc. 2018 Stock Incentive Plan
(Full title of the plan)
_____________________________________
Shawnte Mitchell
Secretary, Senior Vice President and General Counsel
Aptevo Therapeutics Inc.
2401 4th Avenue, Suite 1050
Seattle, WA 98121
(206) 838-0500
(Name and address of agent for service) (Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non‑accelerated filer, 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 ☐ |
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. ☒
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered |
Amount to be Registered(1) |
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Proposed Maximum Offering Price per Share(2) |
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Proposed Maximum Aggregate Offering Price(2) |
Amount of Registration Fee |
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Common Stock, par value $0.0001 per share |
2,925,000 |
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$4.47 - $5.45 |
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$13,234,540 |
$1,647.70 |
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(1) |
Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Registrant’s common stock that become issuable under the Registrant’s 2018 Stock Incentive Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Registrant’s common stock. |
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(2) |
Estimated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of (a) the weighted-average exercise price for options granted pursuant to the Plan as of the date of this Registration Statement and (b) $4.47, the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq Global Market on August 6, 2018, with respect to the balance of the shares to be registered pursuant to the Plan. The chart below details the calculations of the registration fee: |
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Securities |
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Number of Shares of |
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Offering Price Per Share |
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Aggregate Offering Price/Registration Fee |
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Common Stock, par value $0.0001 per share, issuable upon the exercise of outstanding options granted under the Plan |
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163,050 |
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$ |
5.45 |
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$ |
888,623 |
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Common Stock, par value $0.0001 per share, reserved for future grant under the Plan |
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2,761,950 |
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$ |
4.47 |
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$ |
12,345,917 |
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Proposed Maximum Aggregate Offering Price: |
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$ |
13,234,540 |
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Registration Fee: |
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$ |
1,647.70 |
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This Registration Statement on Form S-8 is being filed by Aptevo Therapeutics Inc. (the “Registrant”) for the purpose of registering 2,925,000 shares of the Registrant’s Common Stock to be issued pursuant to the Registrant’s 2018 Stock Incentive Plan (the “Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 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. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART II
ITEM 3.INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
(a) the description of the Registrant’s Common Stock which is contained in the Registrant’s registration statement on Form 10 initially filed on April 15, 2016 (File No. 001-37746) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and declared effective on July 15, 2016, including any amendment or report filed for the purpose of updating such description;
(b) the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, which includes audited financial statements for the Registrant’s latest fiscal year, filed with the Commission on March 13, 2018, as amended July 27, 2018 (the “2017 Form 10-K”);
(c) the information specifically incorporated by reference into the 2017 Form 10-K from the Registrant’s definitive proxy statement on Schedule 14A, filed with the Commission on April 20, 2018;
(d) the Registrant’s Quarterly Reports on Form 10-Q, filed with the Commission on May 10, 2018 and August 9, 2018;
(e) the Registrant’s Current Reports on Form 8-K, filed with the Commission on June 1, 2018, and August 7, 2018; and
(f) all other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and 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 Registration Statement to the extent that a statement contained herein or in any subsequently filed document that 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.
ITEM 4.DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5.INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the shares of common stock to be registered in connection with this registration statement will be passed upon by Shawnte Mitchell, Senior Vice President, General Counsel and Secretary of the registrant. Ms. Mitchell is compensated by the registrant as an employee and is expected to receive awards under the Plan.
ITEM 6.INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act.
The Registrant’s restated certificate of incorporation provides that the Registrant will indemnify each person who was or is a party or 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 registrant) by reason of the fact that he or she is or was, or has agreed to become, a director or officer of the Registrant, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, including any employee benefit plan, (all such persons being referred to hereafter as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), liabilities, losses, judgments, fines (including excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974) and amounts paid in settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with such action, suit or proceeding and any appeal therefrom, if Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or not opposed to, the best interests of the registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The Registrant’s restated certificate of incorporation provides that the registrant will indemnify any Indemnitee who was or is a party to or threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the registrant to procure a judgment in our favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director or officer of the registrant, or is or was serving, or has agreed to serve, at our request, as a director, officer, partner, employee or trustee of or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, (including any employee benefit plan), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with such action, suit or proceeding and any appeal therefrom, if Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Registrant, except that no indemnification shall be made with respect to any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Registrant, unless, and only to the extent, that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expense (including attorney’s fees) which the Court of Chancery of Delaware or the court in which such action or suit was brought shall deem proper. Notwithstanding the foregoing, to the extent that an Indemnitee has been successful, on the merits or otherwise, in defense of any action, suit or proceeding, Indemnitee shall be indemnified by the Registrant against all expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.
The Registrant has entered into agreements to indemnify the registrant’s directors and executive officers. These agreements, among other things, provide that the registrant will indemnify the director or executive officer to the fullest extent permitted by law for claims arising in his or her capacity as a director, officer, manager, employee, agent or representative of the Registrant. The indemnification agreements also establish the procedures that will apply in the event a director or officer makes a claim for indemnification.
The Registrant may maintain insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his capacity as such. The Registrant has obtained director and officer liability insurance to cover liabilities directors and officers may incur in connection with their services to the Registrant.
ITEM 7.EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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Exhibit Number |
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Description |
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3.1(1) |
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Restated Certificate of Incorporation of Aptevo Therapeutics Inc. |
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3.2(2) |
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4.1(3) |
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5.1 |
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Opinion of Shawnte Mitchell, Senior Vice President, General Counsel and Secretary of Registrant. |
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23.1 |
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23.2 |
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24.1 |
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99.1(4) |
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Aptevo Therapeutics Inc. 2018 Equity Incentive Plan.
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(1) |
Previously filed as Exhibit 3.1 of the Registrant’s Form 8-K filed on August 2, 2016, File No. 001-37746 and incorporated herein by reference. |
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(2) |
Previously filed as Exhibit 3.2 of the Registrant’s Form 8-K filed on August 2, 2016, File No. 001-37746 and incorporated herein by reference. |
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(3) |
Previously filed as Exhibit 4.1 of the Registrant’s Form 10 filed on June 29, 2016, File No. 001-37746 and incorporated herein by reference. |
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(4) |
Previously filed as Exhibit 10.1 of the Registrant’s Form 10-Q filed on August 9, 2018, File No. 001-37746 and incorporated herein by reference.
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ITEM 9.UNDERTAKINGS
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(a) |
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: |
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(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(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. 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; |
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(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 Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in 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; and
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(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. |
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(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. |
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(4) |
That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the Registrant undertakes that in a primary offering of securities of the Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
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(i) |
Any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424; |
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(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant; |
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(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and |
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(iv) |
Any other communication that is an offer in the offering made by the Registrant to the purchaser. |
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(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. |
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(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 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. |
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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Seattle, State of Washington, on this 9th day of August, 2018.
Aptevo Therapeutics Inc.
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By: |
: /s/ Jeffrey G. Lamothe |
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Jeffrey G. Lamothe Senior Vice President, Chief Financial Officer and Treasurer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jeffrey G. Lamothe and Shawnte Mitchell, and each one 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 their name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, 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 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 her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
Title |
Date |
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/s/ Marvin L. White Marvin L. White |
President, Chief Executive Officer and Director (Principal Executive Officer) |
August 9, 2018 |
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/s/ Jeffrey G. Lamothe Jeffrey G. Lamothe |
Senior Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer) |
August 9, 2018 |
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/s/ Fuad El-Hibri Fuad El-Hibri |
Director |
August 9, 2018 |
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/s/ Daniel J. Abdun-Nabi Daniel J. Abdun-Nabi |
Director |
August 9, 2018 |
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/s/ Grady Grant, III Grady Grant, III |
Director |
August 9, 2018 |
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/s/ Zsolt Harsanyi, Ph.D. Zsolt Harsanyi, Ph.D. |
Director |
August 9, 2018 |
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/s/ Barbara Lopez Kunz Barbara Lopez Kunz |
Director |
August 9, 2018 |
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/s/ John E. Niederhuber, M.D. John E. Niederhuber, M.D. |
Director |
August 9, 2018 |
Exhibit 5.1
Aptevo Therapeutics Inc.
2401 4th Avenue, Suite 1050
Seattle, Washington 98121
August 9, 2018
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of Aptevo Therapeutics Inc., a Delaware corporation (the “Company”). This opinion is being rendered solely in connection with the Company’s Registration Statement on Form S-8 (the “Registration Statement”) being filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of an aggregate of 2,925,000 shares of common stock, $0.0001 par value per share (the “Shares”), of the Company, issuable under the Company’s 2018 Stock Incentive Plan (the “Plan”).
This opinion is being delivered pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinion set forth herein, I or attorneys under my supervision (with whom I have consulted) have examined the Plan and the Registration Statement (including the exhibits thereto) and originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as I or attorneys under my supervision (with whom I have consulted) have deemed necessary or appropriate as a basis for the opinion set forth below.
In my examination, I or attorneys under my supervision (with whom I have consulted) have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts material to this opinion that I or attorneys under my supervision (with whom I have consulted) did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials.
Based upon and subject to the foregoing, I am of the opinion that the issuance of the Shares reserved for issuance under the Plan has been duly authorized and that the Shares, when issued and delivered in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the reference to me under the caption “Interests of Named Experts and Counsel” in the Registration Statement. By giving this consent, I do not admit that I am an expert with respect to any part of the Registration Statement, including this exhibit, within the meaning of the term “expert” as used in the Securities Act or the rules and regulations of the Commission issued thereunder.
Sincerely,
/s/ Shawnte Mitchell
Shawnte Mitchell
Senior Vice President, General Counsel and Secretary
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8), pertaining to the 2018 Stock Incentive Plan of Aptevo Therapeutics Inc. of our report dated March 13, 2018, with respect to the consolidated financial statements of Aptevo Therapeutics Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2017, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Seattle, Washington
August 9, 2018