As filed with the Securities and Exchange Commission on October 23, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ALEXZA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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77-0567768 |
(State of Incorporation) |
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(I.R.S. Employer
Identification No.) |
Alexza Pharmaceuticals, Inc.
2091 Stierlin Court
Mountain View, California 94043
(650) 944-7000
(Address
of principal executive offices) (Zip code)
2015 Employee
Stock Purchase Plan
(Full title of the plans)
Thomas B. King
President and Chief Executive Officer
Alexza Pharmaceuticals, Inc.
2091 Stierlin Court
Mountain View, California 94043
(650) 944-7000
(Name and
address of agent for service) (Telephone number, including area code, of agent for service)
Copies to:
Brent Fassett, Esq.
COOLEY LLP
380 Interlocken Crescent, Suite 900
Broomfield, Colorado 80021
(720) 566-4000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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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 |
Common Stock, par value $0.0001 per share |
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500,000 shares (2) |
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$1.22 (3) |
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$610,000.00 |
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$61.43 |
Total |
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500,000 shares |
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N/A |
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$610,000.00 |
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$61.43 |
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(1) |
Pursuant to Rule 416(a), this Registration Statement shall also cover any additional shares of Registrants Common Stock that become issuable under the plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Registrants Common Stock. |
(2) |
Represents 500,000 shares of Common Stock reserved for future issuance under the Alexza Pharmaceuticals, Inc. 2015 Employee Stock Purchase Plan (the 2015 ESPP). Any of such shares of Common Stock that are
subject to awards that expire or are terminated without having been exercised in full or are repurchased, reacquired or forfeited following the effective date of the 2015 ESPP will be available for future issuance under the 2015 ESPP.
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(3) |
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) of the Securities Act. The proposed maximum aggregate offering price per share and proposed maximum aggregate
offering price are calculated using the average of the high and low prices of Registrants Common Stock as reported on the Nasdaq Capital Market on October 21, 2015. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. |
Plan Information* |
Item 2. |
Registrant Information and Employee Plan Annual Information* |
* |
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the
Securities Act), and the Note to Part I of Form S-8. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents by Reference |
The following documents filed by Alexza
Pharmaceuticals, Inc. (the Company) with the Securities and Exchange Commission filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), are incorporated by reference
into this Registration Statement and shall be deemed to be a part hereof:
(a) The Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed on March 13, 2015.
(b) The
Companys Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2015, filed on May 11, 2015 and June 30, 2015, filed on August 8, 2015.
(c) The Companys definitive proxy statement on Schedule 14A filed on April 30, 2015, and as amended pursuant to Amendment
No. 1 to Schedule 14A filed June 8, 2015.
(d) Current Reports on Form 8-K filed on April 29,
2015, May 22, 2015, June 11, 2015, June 18, 2015, June 23, 2015, June 25, 2015, July 24, 2015, September 28, 2015, October 2, 2015, October 13, 2015 and
October 14, 2015.
(e) The description of the Companys common stock contained in the Companys Registration
Statement on Form S-3 filed with the Securities and Exchange Commission on June 26, 2012, and all amendments or reports filed for the purpose of updating such description.
(f) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the
annual report referred to in (a) above.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than current reports furnished under Item 2.02 and Item 7.01 of Form 8-K and exhibits filed with such form that are related to such items) prior to the filing of a post-effective amendment 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 herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed and incorporated document modifies or supersedes such statement. Any statement contained in an incorporated
document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or
1.
in any other subsequently filed incorporated document 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.
The Registrants Exchange Act file number with the Commission is 000-51820.
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 registrants Amended and Restated
Certificate of Incorporation provides that a director will not be personally liable to the registrant or to its stockholders for monetary damages for any breach of fiduciary duty as a director to the fullest extent permitted by Section 102 of
Delaware General Corporation Law.
As permitted by Section 145 of the Delaware General Corporation Law, the bylaws of the registrant
provide that (i) the registrant is required to indemnify its directors and executive officers to the fullest extent not prohibited by the Delaware General Corporation Law, (ii) the registrant may, in its discretion, indemnify its other
employees and agents as set forth in the Delaware General Corporation Law, (iii) the registrant is required to advance all expenses incurred by its directors and executive officers in connection with certain legal proceedings, (iv) the
rights conferred in the bylaws are not exclusive, and (v) the registrant is authorized to enter into indemnity agreements with its directors, officers, employees and agents.
The registrant has entered into agreements with its directors and officers that require the registrant to indemnify these persons against
expenses, judgments, fines, settlements, and other amounts that any such person becomes legally obligated to pay (including with respect to a derivative action) in connection with any proceeding, whether actual or threatened, to which such person
may be made a party by reason of the fact that such person is or was a director or officer of the registrant or any of its affiliates. The indemnity agreements also set forth certain procedures that will apply in the event of a claim for
indemnification thereunder. At present, no litigation or proceeding is pending that involves a director or officer of the registrant regarding which indemnification is sought, nor is the registrant aware of any threatened litigation that may result
in claims for indemnification.
The registrant maintains a directors and officers insurance and registrant reimbursement
policy. The policy (i) insures directors and officers against losses for which the registrant does not indemnify and which losses arise from certain wrongful acts in the indemnified parties capacities as directors and officers and
(ii) reimburses the registrant for those losses for which the registrant has lawfully indemnified the directors and officers. The policy contains various exclusions, none of which apply to the offering.
Item 7. |
Exemption from Registration Claimed. |
Not applicable.
2.
See Exhibit Index.
1. |
The undersigned registrant hereby undertakes: |
(a) 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. 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% change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective 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)(i) and (a)(ii) do not apply if 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.
(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
2. |
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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
3. |
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 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. |
3.
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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Mountain View, State of California, on October 23, 2015.
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ALEXZA PHARMACEUTICALS, INC. |
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By: |
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/s/ Thomas B. King |
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Thomas B. King, |
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President and Chief Executive Officer |
4.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below constitutes and appoints THOMAS B. KING AND STACY PALERMINI,
and each or any one of them, his or her true and lawful attorney-in-fact and agent, 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
(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 their or his substitutes or substitute, 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/ Thomas B. King
Thomas B. King |
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President, Chief Executive Officer and Director
(Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) |
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October 23, 2015 |
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/s/ J. Kevin Buchi
J. Kevin Buchi |
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Director |
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October 23, 2015 |
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/s/ Deepika R. Pakianathan
Deepika R. Pakianathan |
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Director |
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October 23, 2015 |
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/s/ J. Leighton Read
J. Leighton Read |
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Director |
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October 23, 2015 |
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/s/ Gordon Ringold
Gordon Ringold |
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Director |
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October 23, 2015 |
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/s/ Isaac Stein
Isaac Stein |
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Director |
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October 23, 2015 |
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/s/ Joseph L. Turner
Joseph L. Turner |
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Director |
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October 23, 2015 |
5.
EXHIBIT INDEX
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Exhibit
Number |
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Description of Document |
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4.1(1) |
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Specimen Common Stock Certificate |
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4.2(1) |
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Restated Certificate of Incorporation, as currently in effect |
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4.3(1) |
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Certificate of Amendment to the Restated Certificate of Incorporation, as currently in effect |
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4.4(1) |
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Certificate of Amendment to the Restated Certificate of Incorporation, as currently in effect |
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4.5(2) |
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Amended and Restated Bylaws, as currently in effect |
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4.6(3) |
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Amendment to the Amended and Restated Bylaws, as currently in effect |
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5.1 |
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Opinion of Cooley LLP |
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23.1 |
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Consent of Independent Registered Public Accounting Firm |
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23.2 |
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Consent of Cooley LLP is contained in Exhibit 5.1 to this Registration Statement |
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24.1 |
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Power of Attorney is contained on the signature pages |
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99.1 |
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2015 Employee Stock Purchase Plan |
(1) |
Incorporated by reference to exhibits to our Registration Statement on Form S-3 filed on June 26, 2012 (File No. 333-182341). |
(2) |
Incorporated by reference to exhibits to our Registration Statement on Form S-1 filed on December 22, 2005 as amended (File No. 333-130644). |
(3) |
Incorporated by reference to our Annual Report on Form 10-K (File No. 000-51820) as filed with the SEC on March 17, 2008. |
6.
Exhibit 5.1
Brent D. Fassett
(720)
566-4025
fassettbd@cooley.com
October 23, 2015
Alexza Pharmaceuticals, Inc.
2091 Stierlin Court
Mountain View, CA 94043
Re: |
Registration on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to Alexza Pharmaceuticals, Inc., a Delaware corporation (the Company), and you have requested our opinion
in connection with the filing of a registration statement on Form S-8 (the Registration Statement) with the Securities and Exchange Commission covering the offering of up to five hundred thousand (500,000) shares
of the Companys Common Stock, $0.0001 par value (the Shares), pursuant to the Companys 2015 Employee Stock Purchase Plan (the Plan).
In connection with this opinion, we have examined and relied upon the Registration Statement and related Prospectus included therein, the Companys
Amended and Restated Certificate of Incorporation, as amended and Bylaws, as currently in effect, the Plan and the originals or copies certified to our satisfaction of such other records, documents, certificates, memoranda and other instruments as
we deem necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as
copies thereof, and the due execution and delivery by all parties other than the Company of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. As to certain factual matters, we have relied upon a
certificate of an officer of the Company and have not sought independently to verify such matters.
Our opinion is expressed only with respect to the
General Corporation Law of the State of Delaware. We express no opinion as to whether the laws of any particular jurisdiction other than those identified above are applicable to the subject matter hereof. We are not rendering any opinion as to
compliance with any federal or state antifraud law, rule or regulation relating to securities, or to the sale or issuance thereof.
On the basis of the
foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable (except as to
shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration Statement.
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Sincerely, |
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COOLEY LLP |
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By: |
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/s/ Brent D. Fassett |
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Brent D. Fassett, Partner |
380 INTERLOCKEN CRESCENT,
SUITE 900, BROOMFIELD, CO 80021-8023 T: (720) 566-4000 F: (720) 566-4099 WWW.COOLEY.COM
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 2015 Employee Stock Purchase Plan of Alexza
Pharmaceuticals, Inc. of our reports dated March 13, 2015, with respect to the consolidated financial statements of Alexza Pharmaceuticals, Inc. and the effectiveness of internal control over financial reporting of Alexza Pharmaceuticals, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 2014, filed with the Securities and Exchange Commission.
/s/
Ernst & Young LLP
Redwood City, CA
October 23, 2015
EXHIBIT 99.1
ALEXZA PHARMACEUTICALS, INC.
2015 EMPLOYEE STOCK PURCHASE PLAN
ADOPTED BY THE BOARD OF DIRECTORS:
APRIL 27, 2015
APPROVED BY THE STOCKHOLDERS:
JUNE 23, 2015
EFFECTIVE DATE: JUNE 23, 2015
1. GENERAL; PURPOSE.
(a) The Plan provides a means by which Eligible Employees of the Company and certain designated Related
Corporations may be given an opportunity to purchase shares of Common Stock. The Plan permits the Company to grant a series of Purchase Rights to Eligible Employees under an Employee Stock Purchase Plan. The Plan is intended to be the successor plan
to the Alexza Pharmaceuticals, Inc. 2005 Employee Stock Purchase Plan, as amended (the 2005 ESPP). From and after the Effective Date, no new offerings will commence and no additional purchase rights will be granted under
the 2005 ESPP, but all 2005 ESPP offerings have commenced prior the Effective Date shall continue in effect in accordance with their existing terms so that outstanding purchase rights under ongoing offerings in effect under the 2005 ESPP as of the
Effective Date (the Outstanding Purchase Rights) may be exercised on their applicable scheduled purchase dates in accordance with the terms of such outstanding 2005 ESPP offerings.
(b) The Company, by means of the Plan, seeks to retain the services of such Employees, to secure and retain the services of new
Employees and to provide incentives for such persons to exert maximum efforts for the success of the Company and its Related Corporations.
2.
ADMINISTRATION.
(a) The Board will administer the Plan unless and until the Board delegates administration of
the Plan to a Committee or Committees, as provided in Section 2(c).
(b) The Board will have the power, subject to, and
within the limitations of, the express provisions of the Plan:
(i) To determine how and when Purchase Rights will be granted and
the provisions of each Offering (which need not be identical).
(ii) To designate from time to time which Related Corporations of
the Company will be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and Purchase Rights, and to
establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan, in a manner and to the extent it deems necessary or expedient to make
the Plan fully effective.
(iv) To settle all controversies regarding the Plan and Purchase Rights granted under the
Plan.
(v) To suspend or terminate the Plan at any time as provided in Section 12.
(vi) To amend the Plan at any time as provided in Section 12.
(vii) Generally, to exercise such powers and to perform such acts as it deems necessary or expedient to promote the best interests of
the Company and its Related Corporations and to carry out the intent that the Plan be treated as an Employee Stock Purchase Plan.
(viii) To adopt such procedures and sub-plans as are necessary or appropriate to permit participation in the Plan by Employees who are
foreign nationals or employed outside the United States.
(c) The Board may delegate some or all of the administration of the Plan
to a Committee or Committees. If administration is delegated to a Committee, the Committee will have, in connection with the administration of the Plan, the powers theretofore possessed by the Board that have been delegated to the Committee,
including the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board will thereafter be to the Committee or subcommittee), subject, however, to such
resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may retain the authority to concurrently administer the Plan with the Committee and may, at any time, revest in the Board some
or all of the powers previously delegated. Whether or not the Board has delegated administration of the Plan to a Committee, the Board will have the final power to determine all questions of policy and expediency that may arise in the administration
of the Plan.
(d) All determinations, interpretations and constructions made by the Board in good faith will not be subject
to review by any person and will be final, binding and conclusive on all persons.
3. SHARES OF
COMMON STOCK SUBJECT TO THE PLAN.
(a)
Subject to the provisions of Section 11(a) relating to Capitalization Adjustments, the maximum number of shares of Common Stock that may be issued under the Plan will not exceed six hundred thirty-six thousand two hundred forty-nine
(636,249) shares of Common Stock, which number of shares consists of: (i) five hundred thousand (500,000) newly reserved shares of Common Stock, plus (ii) the number of shares of Common Stock subject to the 2005 ESPP Remaining
Reserve.
(b) If any Purchase Right granted under the Plan terminates without having been exercised in full, the shares of
Common Stock not purchased under such Purchase Right will again become available for issuance under the Plan.
(c) The
stock purchasable under the Plan will be shares of authorized but unissued or reacquired Common Stock, including shares repurchased by the Company on the open market.
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4. GRANT OF PURCHASE RIGHTS;
OFFERING.
(a) The Board may from time to time grant or provide for the grant of Purchase Rights to Eligible
Employees under an Offering (consisting of one or more Purchase Periods) on an Offering Date or Offering Dates selected by the Board. Each Offering will be in such form and will contain such terms and conditions as the Board will deem appropriate,
and will comply with the requirement of Section 423(b)(5) of the Code that all Employees granted Purchase Rights will have the same rights and privileges. The terms and conditions of an Offering shall be incorporated by reference into the Plan
and treated as part of the Plan. The provisions of separate Offerings need not be identical, but each Offering will include (through incorporation of the provisions of this Plan by reference in the document comprising the Offering or otherwise) the
period during which the Offering will be effective, which period will not exceed 27 months beginning with the Offering Date, and the substance of the provisions contained in Sections 5 through 8, inclusive.
(b) If a Participant has more than one Purchase Right outstanding under the Plan, unless he or she otherwise indicates in forms
delivered to the Company: (i) each form will apply to all of his or her Purchase Rights under the Plan, and (ii) a Purchase Right with a lower exercise price (or an earlier-granted Purchase Right, if different Purchase Rights have
identical exercise prices) will be exercised to the fullest possible extent before a Purchase Right with a higher exercise price (or a later-granted Purchase Right if different Purchase Rights have identical exercise prices) will be exercised.
(c) The Board will have the discretion to structure an Offering so that if the Fair Market Value of a share of Common Stock on
the first Trading Day of a new Purchase Period within that Offering is less than or equal to the Fair Market Value of a share of Common Stock on the Offering Date for that Offering, then (i) that Offering will terminate immediately as of that
first Trading Day, and (ii) the Participants in such terminated Offering will be automatically enrolled in a new Offering beginning on the first Trading Day of such new Purchase Period.
5. ELIGIBILITY.
(a)
Purchase Rights may be granted only to Employees of the Company or, as the Board may designate in accordance with Section 2(b), to Employees of a Related Corporation. Except as provided in Section 5(b), an Employee will not be eligible
to be granted Purchase Rights unless, on the Offering Date, the Employee has been in the employ of the Company or the Related Corporation, as the case may be, for such continuous period preceding such Offering Date as the Board may require, but in
no event will the required period of continuous employment be equal to or greater than two years. In addition, the Board may provide that no Employee will be eligible to be granted Purchase Rights under the Plan unless, on the Offering Date, such
Employees customary employment with the Company or the Related Corporation is more than 20 hours per week and more than five months per calendar year or such other criteria as the Board may determine consistent with Section 423 of the
Code.
(b) The Board may provide that each person who, during the course of an Offering, first becomes an Eligible Employee
and elects to participate in an Offering will, on a date or dates specified in the Offering which coincides with the day on which such person becomes an Eligible Employee or which occurs thereafter, receive a Purchase Right under that Offering,
which
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Purchase Right will thereafter be deemed to be a part of that Offering. Such Purchase Right will have the same characteristics as any Purchase Rights originally granted under that Offering, as
described herein, except that:
(i) the date on which such Purchase Right is granted will be the Offering Date of such
Purchase Right for all purposes, including determination of the exercise price of such Purchase Right;
(ii) the period of
the Offering with respect to such Purchase Right will begin on its Offering Date and end coincident with the end of such Offering; and
(iii) the Board may provide that if such person first becomes an Eligible Employee within a specified period of time before the end of
the Offering, he or she will not receive any Purchase Right under that Offering.
(c) The Board may provide that each person
who did not elect to fully participate in an ongoing Offering prior to the commencement of a subsequent Purchase Period and elects to participate in the Offering will, on a date or dates specified in the Offering which coincides with the day on
which such person elects to participate in the Offering or which occurs thereafter, receive a Purchase Right under that Offering, which Purchase Right will thereafter be deemed to be a part of that Offering. Such Purchase Right will have the same
characteristics as any Purchase Rights originally granted under that Offering, as described herein, except that:
(i) the
date on which such Purchase Right is granted will be the Offering Date of such Purchase Right for all purposes, including determination of the exercise price of such Purchase Right;
(ii) the period of the Offering with respect to such Purchase Right will begin on its Offering Date and end coincident with the end of
such Offering; and
(iii) the Board may provide that if such person first elects to participate in the Offering within a
specified period of time before the end of the Offering, he or she will not receive any Purchase Right under that Offering.
(d)
No Employee will be eligible for the grant of any Purchase Rights if, immediately after any such Purchase Rights are granted, such Employee owns stock possessing five percent or more of the total combined voting power or value of all classes of
stock of the Company or of any Related Corporation. For purposes of this Section 5(c), the rules of Section 424(d) of the Code will apply in determining the stock ownership of any Employee, and stock which such Employee may purchase under
all outstanding Purchase Rights and options will be treated as stock owned by such Employee.
(e) As specified by
Section 423(b)(8) of the Code, an Eligible Employee may be granted Purchase Rights only if such Purchase Rights, together with any other rights granted under all Employee Stock Purchase Plans of the Company and any Related Corporations, do not
permit such Eligible Employees rights to purchase stock of the Company or any Related Corporation to accrue at a rate which exceeds $25,000 of Fair Market Value of such stock (determined at the time such rights are granted, and which, with
respect to the Plan, will be determined as of their respective Offering Dates) for each calendar year in which such rights are outstanding at any time.
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(f) Officers of the Company and any designated Related Corporation, if they are otherwise
Eligible Employees, will be eligible to participate in Offerings under the Plan. Notwithstanding the foregoing, the Board may provide in an Offering that Employees who are highly compensated Employees within the meaning of Section 423(b)(4)(D)
of the Code will not be eligible to participate.
6. PURCHASE RIGHTS; PURCHASE
PRICE.
(a) On each Offering Date, each Eligible Employee, pursuant to an Offering made under the Plan, will be
granted a Purchase Right to purchase up to that number of shares of Common Stock purchasable either with a percentage or with a maximum dollar amount, as designated by the Board, but in either case not exceeding 20% of such Employees earnings
(as defined by the Board in each Offering) during the period that begins on the Offering Date (or such later date as the Board determines for a particular Offering) and ends on the date stated in the Offering, which date will be no later than the
end of the Offering.
(b) The Board will establish one or more Purchase Dates during an Offering on which Purchase Rights
granted for that Offering will be exercised and shares of Common Stock will be purchased in accordance with such Offering.
(c)
In connection with each Offering made under the Plan, the Board may specify (i) a maximum number of shares of Common Stock that may be purchased by any Participant on any Purchase Date during such Offering, (ii) a maximum aggregate
number of shares of Common Stock that may be purchased by all Participants pursuant to such Offering and/or (iii) a maximum aggregate number of shares of Common Stock that may be purchased by all Participants on any Purchase Date under the
Offering. If the aggregate purchase of shares of Common Stock issuable upon exercise of Purchase Rights granted under the Offering would exceed any such maximum aggregate number, then, in the absence of any Board action otherwise, a pro rata (based
on each Participants accumulated Contributions) allocation of the shares of Common Stock available will be made in as nearly a uniform manner as will be practicable and equitable.
(d) The purchase price of shares of Common Stock acquired pursuant to Purchase Rights will be not less than the lesser of:
(i) an amount equal to 85% of the Fair Market Value of the shares of Common Stock on the Offering Date; or
(ii) an amount equal to 85% of the Fair Market Value of the shares of Common Stock on the applicable Purchase Date.
7. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An Eligible Employee may elect to participate in an Offering and authorize payroll deductions as the means of making Contributions
by completing and delivering to the Company, within the time specified in the Offering, an enrollment form provided by the Company. The
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enrollment form will specify the amount of Contributions not to exceed the maximum amount specified by the Board. Each Participants Contributions will be credited to a bookkeeping account
for such Participant under the Plan and will be deposited with the general funds of the Company except where applicable law requires that Contributions be deposited with a third party. If permitted in the Offering, a Participant may begin such
Contributions with the first payroll occurring on or after the Offering Date (or, in the case of a payroll date that occurs after the end of the prior Offering but before the Offering Date of the next new Offering, Contributions from such payroll
will be included in the new Offering). If permitted in the Offering, a Participant may thereafter reduce (including to zero) or increase his or her Contributions. If specifically provided in the Offering, in addition to making Contributions by
payroll deductions, a Participant may make Contributions through the payment by cash or check prior to a Purchase Date.
(b) During
an Offering, a Participant may cease making Contributions and withdraw from the Offering by delivering to the Company a withdrawal form provided by the Company. The Company may impose a deadline before a Purchase Date for withdrawing. Upon such
withdrawal, such Participants Purchase Right in that Offering will immediately terminate and the Company will distribute to such Participant all of his or her accumulated but unused Contributions and such Participants Purchase Right in
that Offering shall thereupon terminate. A Participants withdrawal from that Offering will have no effect upon his or her eligibility to participate in any other Offerings under the Plan, but such Participant will be required to deliver a new
enrollment form to participate in subsequent Offerings.
(c) Purchase Rights granted pursuant to any Offering under the Plan
will terminate immediately if the Participant either (i) is no longer an Employee for any reason or for no reason (subject to any post-employment participation period required by law) or (ii) is otherwise no longer eligible to participate.
The Company will distribute to such individual all of his or her accumulated but unused Contributions.
(d) During a
Participants lifetime, Purchase Rights will be exercisable only by such Participant. Purchase Rights are not transferable by a Participant, except by will, by the laws of descent and distribution, or, if permitted by the Company, by a
beneficiary designation as described in Section 10.
(e) Unless otherwise specified in the Offering, the Company will
have no obligation to pay interest on Contributions.
8. EXERCISE OF PURCHASE
RIGHTS.
(a) On each Purchase Date, each Participants accumulated Contributions will be applied to the
purchase of shares of Common Stock, up to the maximum number of shares of Common Stock permitted by the Plan and the applicable Offering, at the purchase price specified in the Offering. No fractional shares will be issued unless specifically
provided for in the Offering.
(b) If any amount of accumulated Contributions remains in a Participants account after
the purchase of shares of Common Stock on the final Purchase Date of an Offering, then such remaining amount will not roll over to the next Offering and will instead be distributed in full to such Participant after the final Purchase Date of such
Offering without interest.
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(c) No Purchase Rights may be exercised to any extent unless the shares of Common Stock to
be issued upon such exercise under the Plan are covered by an effective registration statement pursuant to the Securities Act and the Plan is in material compliance with all applicable federal, state, foreign and other securities and other laws
applicable to the Plan. If on a Purchase Date the shares of Common Stock are not so registered or the Plan is not in such compliance, no Purchase Rights will be exercised on such Purchase Date, and the Purchase Date will be delayed until the shares
of Common Stock are subject to such an effective registration statement and the Plan is in material compliance, except that the Purchase Date will in no event be more than 6 months from the Offering Date. If, on the Purchase Date, as delayed to the
maximum extent permissible, the shares of Common Stock are not registered and the Plan is not in material compliance with all applicable laws, no Purchase Rights will be exercised and all accumulated but unused Contributions will be distributed to
the Participants without interest.
9. COVENANTS OF THE COMPANY.
The Company will seek to obtain from each federal, state, foreign or other regulatory commission or agency having jurisdiction over the Plan
such authority as may be required to grant Purchase Rights and issue and sell shares of Common Stock thereunder. If, after commercially reasonable efforts, the Company is unable to obtain the authority that counsel for the Company deems necessary
for the grant of Purchase Rights or the lawful issuance and sale of Common Stock under the Plan, and at a commercially reasonable cost, the Company will be relieved from any liability for failure to grant Purchase Rights and/or to issue and sell
Common Stock upon exercise of such Purchase Rights.
10. DESIGNATION OF BENEFICIARY.
(a) The Company may, but is not obligated to, permit a Participant to submit a form designating a beneficiary who will receive any
shares of Common Stock and/or Contributions from the Participants account under the Plan if the Participant dies before such shares and/or Contributions are delivered to the Participant. The Company may, but is not obligated to, permit the
Participant to change such designation of beneficiary. Any such designation and/or change must be on a form approved by the Company.
(b) If a Participant dies, and in the absence of a valid beneficiary designation, the Company will deliver any shares of Common Stock
and/or Contributions to the executor or administrator of the estate of the Participant. If no executor or administrator has been appointed (to the knowledge of the Company), the Company, in its sole discretion, may deliver such shares of Common
Stock and/or Contributions to the Participants spouse, dependents or relatives, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.
11. ADJUSTMENTS UPON CHANGES IN COMMON STOCK;
CORPORATE TRANSACTIONS.
(a) In the event of a Capitalization Adjustment, the Board will
appropriately and proportionately adjust: (i) the class(es) and maximum number of securities subject to the Plan pursuant to Section 3(a), (ii) the class(es) and maximum number of securities by which the share reserve is to increase
automatically each year pursuant to Section 3(a), (iii) the class(es) and
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number of securities subject to, and the purchase price applicable to outstanding Offerings and Purchase Rights, and (iv) the class(es) and number of securities that are the subject of the
purchase limits under each ongoing Offering. The Board will make these adjustments, and its determination will be final, binding and conclusive.
(b) In the event of a Corporate Transaction, then: (i) any surviving corporation or acquiring corporation (or the surviving or
acquiring corporations parent company) may assume or continue outstanding Purchase Rights or may substitute similar rights (including a right to acquire the same consideration paid to the stockholders in the Corporate Transaction) for
outstanding Purchase Rights, or (ii) if any surviving or acquiring corporation (or its parent company) does not assume or continue such Purchase Rights or does not substitute similar rights for such Purchase Rights, then the Participants
accumulated Contributions will be used to purchase shares of Common Stock within ten business days prior to the Corporate Transaction under the outstanding Purchase Rights, and the Purchase Rights will terminate immediately after such purchase.
12. AMENDMENT, TERMINATION OR SUSPENSION OF THE
PLAN.
(a) The Board may amend the Plan at any time in any respect the Board deems necessary or advisable.
However, except as provided in Section 11(a) relating to Capitalization Adjustments, stockholder approval will be required for any amendment of the Plan for which stockholder approval is required by applicable law or listing requirements,
including any amendment that either (i) materially increases the number of shares of Common Stock available for issuance under the Plan, (ii) materially expands the class of individuals eligible to become Participants and receive Purchase
Rights, (iii) materially increases the benefits accruing to Participants under the Plan or materially reduces the price at which shares of Common Stock may be purchased under the Plan, (iv) materially extends the term of the Plan, or
(v) expands the types of awards available for issuance under the Plan, but in each of (i) through (v) above only to the extent stockholder approval is required by applicable law or listing requirements.
(b) The Board may suspend or terminate the Plan at any time. No Purchase Rights may be granted under the Plan while the Plan is
suspended or after it is terminated.
(c) Any benefits, privileges, entitlements and obligations under any outstanding
Purchase Rights granted before an amendment, suspension or termination of the Plan will not be materially impaired by any such amendment, suspension or termination except (i) with the consent of the person to whom such Purchase Rights were
granted, (ii) as necessary to comply with any laws, listing requirements, or governmental regulations (including, without limitation, the provisions of Section 423 of the Code and the regulations and other interpretive guidance issued
thereunder relating to Employee Stock Purchase Plans) including without limitation any such regulations or other guidance that may be issued or amended after the Effective Date, or (iii) as necessary to obtain or maintain favorable tax,
listing, or regulatory treatment. To be clear, the Board may amend outstanding Purchase Rights without a Participants consent if such amendment is necessary to ensure that the Purchase Right and/or the Plan complies with the requirements of
Section 423 of the Code.
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13. EFFECTIVE DATE OF PLAN.
The Plan will become effective upon the Effective Date.
14. MISCELLANEOUS PROVISIONS.
(a) Proceeds from the sale of shares of Common Stock pursuant to Purchase Rights will constitute general funds of the Company.
(b) A Participant will not be deemed to be the holder of, or to have any of the rights of a holder with respect to, shares of Common
Stock subject to Purchase Rights unless and until the Participants shares of Common Stock acquired upon exercise of Purchase Rights are recorded in the books of the Company (or its transfer agent).
(c) The Plan and Offering do not constitute an employment contract. Nothing in the Plan or in the Offering will in any way alter the at
will nature of a Participants employment or be deemed to create in any way whatsoever any obligation on the part of any Participant to continue in the employ of the Company or a Related Corporation, or on the part of the Company or a Related
Corporation to continue the employment of a Participant.
(d) The provisions of the Plan will be governed by the laws of the State
of Delaware without resort to that states conflicts of laws rules.
15. DEFINITIONS.
As used in the Plan, the following definitions will apply to the capitalized terms indicated below:
(a) 2005 ESPP Remaining Reserve means the number of shares of Common Stock that remain
available for issuance under the 2005 ESPP after all Outstanding Purchase Rights are exercised.
(b)
Board means the Board of Directors of the Company.
(c)
Capital Stock means each and every class of common stock of the Company, regardless of the number of votes per share.
(d) Capitalization Adjustment means any change that is made in, or other events
that occur with respect to, the Common Stock subject to the Plan or subject to any Purchase Right after the Effective Date without the receipt of consideration by the Company through merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash, large nonrecurring cash dividend, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other similar equity
restructuring transaction, as that term is used in Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor thereto). Notwithstanding the foregoing, the conversion of any convertible securities of the
Company will not be treated as a Capitalization Adjustment.
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(e) Code means the Internal Revenue
Code of 1986, as amended, including any applicable regulations and guidance thereunder.
(f) Committee means a committee of one or more members of the Board to whom
authority has been delegated by the Board in accordance with Section 2(c).
(g)
Common Stock means the common stock of the Company, having 1 vote per share.
(h) Company means Alexza Pharmaceuticals, Inc., a Delaware corporation.
(i) Contributions means the payroll deductions and other additional payments
specifically provided for in the Offering that a Participant contributes to fund the exercise of a Purchase Right. A Participant may make additional payments into his or her account if specifically provided for in the Offering, and then only if the
Participant has not already had the maximum permitted amount withheld during the Offering through payroll deductions.
(j) Corporate Transaction means the consummation, in a single transaction or in a
series of related transactions, of any one or more of the following events:
(i) a sale or other disposition of all
or substantially all, as determined by the Board in its sole discretion, of the consolidated assets of the Company and its Subsidiaries;
(ii) a sale or other disposition of at least 50% of the outstanding securities of the Company;
(iii) a merger, consolidation or similar transaction following which the Company is not the surviving corporation; or
(iv) a merger, consolidation or similar transaction following which the Company is the surviving corporation but the shares of Common
Stock outstanding immediately preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of the merger, consolidation or similar transaction into other property, whether in the form of securities, cash or
otherwise.
(k) Director means a member of the Board.
(l) Effective Date means the effective date of this Plan document, which is the
date of the annual meeting of stockholders of the Company held in calendar year 2015 provided the Plan is approved by the Companys stockholders at such meeting.
(m) Eligible Employee means an Employee who meets the requirements set forth in
the document(s) governing the Offering for eligibility to participate in the Offering, provided that such Employee also meets the requirements for eligibility to participate set forth in the Plan.
(n) Employee means any person, including an Officer or Director, who is
employed for purposes of Section 423(b)(4) of the Code by the Company or a Related Corporation. However, service solely as a Director, or payment of a fee for such services, will not cause a Director to be considered an
Employee for purposes of the Plan.
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(o) Employee Stock Purchase Plan
means a plan that grants Purchase Rights intended to be options issued under an employee stock purchase plan, as that term is defined in Section 423(b) of the Code.
(p) Exchange Act means the Securities Exchange Act of 1934, as amended and the
rules and regulations promulgated thereunder.
(q) Fair Market
Value means, as of any date, the value of the Common Stock determined as follows:
(i) If the Common
Stock is listed on any established stock exchange or traded on any established market, the Fair Market Value of a share of Common Stock will be the closing sales price for such stock as quoted on such exchange or market (or the
exchange or market with the greatest volume of trading in the Common Stock) on the date of determination, as reported in such source as the Board deems reliable. Unless otherwise provided by the Board, if there is no closing sales
price for the Common Stock on the date of determination, then the Fair Market Value will be the closing sales price on the last preceding date for which such quotation exists.
(ii) In the absence of such markets for the Common Stock, the Fair Market Value will be determined by the Board in good faith in
compliance with applicable laws and in a manner that complies with Sections 409A of the Code.
(r)
Offering means the grant to Eligible Employees of Purchase Rights, with the exercise of those Purchase Rights automatically occurring at the end of one or more Purchase Periods. The terms and conditions of
an Offering will generally be set forth in the Offering Document approved by the Board for that Offering.
(s) Offering Date means a date selected by the Board for an Offering to
commence.
(t) Officer means a person who is an officer of the
Company or a Related Corporation within the meaning of Section 16 of the Exchange Act.
(u)
Participant means an Eligible Employee who holds an outstanding Purchase Right.
(v) Plan means this Alexza Pharmaceuticals, Inc. 2015 Employee Stock Purchase
Plan.
(w) Purchase Date means one or more dates during an
Offering selected by the Board on which Purchase Rights will be exercised and on which purchases of shares of Common Stock will be carried out in accordance with such Offering.
(x) Purchase Period means a period of time specified within an Offering,
generally beginning on the Offering Date or on the first Trading Day following a Purchase Date, and ending on a Purchase Date. An Offering may consist of one or more Purchase Periods.
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(y) Purchase Right means an option
to purchase shares of Common Stock granted pursuant to the Plan.
(z) Related
Corporation means any parent corporation or subsidiary corporation of the Company whether now or subsequently established, as those terms are defined in Sections 424(e) and (f), respectively, of the Code.
(aa) Securities Act means the Securities Act of 1933, as
amended.
(bb) Trading Day means any day on which the
exchange(s) or market(s) on which shares of Common Stock are listed, including but not limited to the NYSE, Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market or any successors thereto, is open for trading.
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