Securities Registration: Employee Benefit Plan (s-8)
June 01 2016 - 4:18PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 1, 2016
Registration No. 333 -
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
DYNAVAX TECHNOLOGIES CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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33-0728374
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(State of Incorporation)
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(I.R.S. Employer
Identification Number)
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2929 Seventh Street, Suite 100
Berkeley, CA 94710
(510)
848-5100
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant’s Principal Executive Offices)
Dynavax Technologies Corporation Amended and Restated 2011 Equity Incentive Plan
Dynavax Technologies Corporation Amended and Restated 2014 Employee Stock Purchase Plan
(Full Title of the Plan)
Michael
Ostrach
Senior Vice President, Chief Financial Officer
Dynavax Technologies Corporation
2929 Seventh Street, Suite 100
Berkeley, CA 94710
(510)
848-5100
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
Glen Y. Sato, Esq.
Cooley LLP
3175 Hanover
St.
Palo Alto, CA 94304
(650) 843-5000
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. (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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x
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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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¨
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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
(2)
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Proposed
maximum
offering price
per share
(3)
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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
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— Amended and Restated 2011 Equity Incentive Plan,
including related rights to purchase Series A Junior Participating Preferred Stock
(1)
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3,200,000
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$15.71
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$50,272,000
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$5,062.39
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— Amended and Restated 2014 Employee Stock Purchase
Plan, including related rights to purchase Series A Junior Participating Preferred Stock
(1)
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200,000
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$15.71
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$3,142,000
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$316.40
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Total
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3,400,000
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$15.71
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$53,414,000
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$5,378.79
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(1)
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Each share of the Registrant’s common stock, par value $0.001 per share (“Common Stock”) being registered hereunder, if issued prior to the termination by the Registrant of its Rights Agreement, dated as
of November 5, 2008, between the Registrant and the rights agent named therein, includes Series A Junior Participating Preferred Stock purchase rights (the “Rights”). Prior to the occurrence of certain events, the Rights will not be
exercisable or evidenced separately from the Registrant’s Common Stock and have no value except as reflected in the market price of the shares to which they are attached.
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(2)
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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 the Registrant’s Common
Stock that become issuable under the Dynavax Technologies Corporation Amended and Restated 2011 Equity Incentive Plan (“2011 Plan”) or under the Dynavax Technologies Corporation Amended and Restated 2014 Employee Stock Purchase Plan
(“2014 ESPP”) 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 the Registrant’s Common Stock.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h)(1) of the Securities Act based on the average of the high ($15.94) and low ($15.48) sales prices for the
Registrant’s Common Stock reported by The NASDAQ Capital Market on May 27, 2016.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
This
Registration Statement on Form S-8 is being filed for the purpose of registering an additional (a) 3,200,000 shares of the Registrant’s Common Stock reserved for issuance under the 2011 Plan, and (b) 200,000 shares of the
Registrant’s Common Stock reserved for issuance under the 2014 ESPP.
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION
STATEMENT ON FORM S-8
The contents of the Registration Statements on Form S-8 (File No. 333-171552, 333-190313, 333-197838 and
333-204506), filed with the Securities and Exchange Commission (the “Commission”) on January 6, 2011, August 1, 2013, August 4, 2014 and May 28, 2015, respectively, are incorporated by reference herein.
EXHIBITS
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Incorporated by Reference
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Exhibit
Number
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Document
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Exhibit
Number
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Filing
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Filing Date
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File No.
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Filed
Herewith
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3.1
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Sixth Amended and Restated Certificate of Incorporation
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3.1
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S-1/A
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February 5, 2004
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333-109965
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3.2
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Amended and Restated Bylaws
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3.2
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S-1/A
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February 5, 2004
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333-109965
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3.3
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Form of Certificate of Designation of Series A Junior Participating Preferred Stock
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3.3
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8-K
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November 6, 2008
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000-50577
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3.4
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Certificate of Amendment of Amended and Restated Certificate of Incorporation
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3.1
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8-K
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January 4, 2010
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001-34207
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3.5
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Certificate of Amendment of Amended and Restated Certificate of Incorporation
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3.1
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8-K
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January 5, 2011
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001-34207
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3.6
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Certificate of Amendment of Amended and Restated Certificate of Incorporation
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3.6
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8-K
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May 30, 2013
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001-34207
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3.7
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Certificate of Amendment of the Sixth Amended and Restated Certificate of Incorporation
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3.1
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8-K
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November 10, 2014
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001-34207
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4.1
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Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7 above
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4.2
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Form of Specimen Common Stock Certificate
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4.2
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S-1/A
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January 16, 2004
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333-109965
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2
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Incorporated by Reference
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Exhibit
Number
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Document
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Exhibit
Number
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Filing
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Filing Date
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File No.
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Filed
Herewith
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4.3
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Rights Agreement dated as of November 5, 2008, by and between the Company and Mellon Investor Services LLC
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4.4
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8-K
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November 6, 2008
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000-50577
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4.4
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Form of Right Certificate
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4.5
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8-K
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November 6, 2008
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000-50577
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5.1
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Opinion of Cooley LLP
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X
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23.1
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Consent of Independent Registered Public Accounting Firm
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X
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23.2
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Consent of Cooley LLP (contained in Exhibit 5.1 to this Registration Statement)
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24.1
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Power of Attorney (see Signature Page)
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99.1
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Dynavax Technologies Corporation Amended and Restated 2011 Equity Incentive Plan
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X
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99.2
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Form of Restricted Stock Unit Award Notice and Agreement used in connection with the 2011 Equity Incentive Plan
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99.2
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S-8
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January 6, 2011
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333-171552
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99.3
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Form of Option Notice and Agreement used in connection with the 2011 Equity Incentive Plan
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99.3
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S-8
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January 6, 2011
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333-171552
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99.4
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Dynavax Technologies Corporation Amended and Restated 2014 Employee Stock Purchase Plan
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X
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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 Berkeley, State of California, on this 1
st
day of June, 2016.
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DYNAVAX TECHNOLOGIES CORPORATION
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By:
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/s/ EDDIE GRAY
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Eddie Gray
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Chief Executive Officer
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(Principal Executive Officer)
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below does hereby constitute and appoint Eddie Gray and Michael
Ostrach, and each of them, with full power of substitution and full power to act without the other, his true and lawful attorney-in-fact and agent to act for him in his 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 this Registration Statement, 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 order to effectuate the same as fully, to all intents and purposes, as they or he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, 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
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Title
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Date
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/s/ EDDIE GRAY
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Chief Executive Officer and Director
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June 1, 2016
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Eddie Gray
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(Principal Executive Officer)
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/s/ MICHAEL OSTRACH
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Senior Vice President, Chief Financial Officer
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June 1, 2016
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Michael Ostrach
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(Principal Financial Officer)
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/s/ DAVID JOHNSON
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Vice President, Chief Accounting Officer
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June 1, 2016
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David Johnson
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(Principal Accounting Officer)
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/s/ ARNOLD L. ORONSKY, Ph.D.
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Director
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June 1, 2016
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Arnold L. Oronsky, Ph.D.
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/s/ LAURA BREGE
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Director
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June 1, 2016
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Laura Brege
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/s/ FRANCIS R. CANO, Ph.D.
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Director
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June 1, 2016
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Francis R. Cano, Ph.D.
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4
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Signature
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Title
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Date
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/s/ DENNIS A. CARSON, M.D.
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Director
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June 1, 2016
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Dennis A. Carson, M.D.
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/s/ DANIEL L. KISNER, M.D.
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Director
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June 1, 2016
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Daniel L. Kisner, M.D.
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/s/ PEGGY V. PHILLIPS
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Director
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June 1, 2016
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Peggy V. Phillips
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/s/ STANLEY A. PLOTKIN, M.D.
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Director
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June 1, 2016
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Stanley A. Plotkin, M.D.
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/s/ NATALE S. RICCIARDI
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Director
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June 1, 2016
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Natale S. Ricciardi
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5
INDEX TO EXHIBITS
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Incorporated by Reference
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Exhibit
Number
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Document
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Exhibit
Number
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Filing
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Filing Date
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File No.
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Filed
Herewith
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3.1
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Sixth Amended and Restated Certificate of Incorporation
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3.1
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S-1/A
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February 5, 2004
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333-109965
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3.2
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Amended and Restated Bylaws
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3.2
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S-1/A
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February 5, 2004
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333-109965
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3.3
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Form of Certificate of Designation of Series A Junior Participating Preferred Stock
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3.3
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8-K
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November 6, 2008
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000-50577
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3.4
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Certificate of Amendment of Amended and Restated Certificate of Incorporation
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3.1
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8-K
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January 4, 2010
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001-34207
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3.5
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Certificate of Amendment of Amended and Restated Certificate of Incorporation
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3.1
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8-K
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January 5, 2011
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001-34207
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3.6
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Certificate of Amendment of Amended and Restated Certificate of Incorporation
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3.6
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8-K
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May 30, 2013
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001-34207
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3.7
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Certificate of Amendment of the Sixth Amended and Restated Certificate of Incorporation
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3.1
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8-K
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November 10, 2014
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001-34207
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4.1
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Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7 above
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4.2
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Form of Specimen Common Stock Certificate
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4.2
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S-1/A
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January 16, 2004
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333-109965
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4.3
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Rights Agreement dated as of November 5, 2008, by and between the Company and Mellon Investor Services LLC
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4.4
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8-K
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November 6, 2008
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000-50577
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4.4
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Form of Right Certificate
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4.5
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8-K
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November 6, 2008
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000-50577
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5.1
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Opinion of Cooley LLP
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X
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23.1
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Consent of Independent Registered Public Accounting Firm
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X
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6
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Incorporated by Reference
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Exhibit
Number
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Document
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Exhibit
Number
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Filing
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Filing Date
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File No.
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Filed
Herewith
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23.2
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Consent of Cooley LLP (contained in Exhibit 5.1 to this Registration Statement)
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24.1
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Power of Attorney (see Signature Page)
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99.1
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Dynavax Technologies Corporation Amended and Restated 2011 Equity Incentive Plan
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X
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99.2
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Form of Restricted Stock Unit Award Notice and Agreement used in connection with the 2011 Equity Incentive Plan
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99.2
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S-8
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January 6, 2011
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333-171552
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99.3
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Form of Option Notice and Agreement used in connection with the 2011 Equity Incentive Plan
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99.3
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S-8
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January 6, 2011
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333-171552
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99.4
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Dynavax Technologies Corporation Amended and Restated 2014 Employee Stock Purchase Plan
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X
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7
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