Securities Registration: Employee Benefit Plan (s-8)
November 10 2016 - 4:12PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on November 10, 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
PFENEX INC.
(Exact name
of Registrant as specified in its charter)
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Delaware
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27-1356759
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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10790 Roselle Street
San Diego, CA 92121
(858) 352-4400
(Address
of principal executive offices, including zip code)
Pfenex Inc.
2016 Inducement Equity Incentive Plan
(Full title of the plan)
Bertrand C. Liang
Pfenex Inc.
10790
Roselle Street
San Diego, CA 92121
(858) 352-4400
(Name,
address and telephone number, including area code, of agent for service)
Copies to:
Daniel R. Koeppen
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
12235 El Camino Real, Suite 200
San Diego, CA 92130
Telephone: (858) 350-2300
Facsimile: (858) 350-2399
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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☒
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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
(1)(2)
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Proposed
Maximum
Offering Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, $0.001 par value per share:
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-Outstanding under the 2016 Inducement Equity Incentive
Plan
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132,290
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$9.09
(3)
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$1,202,516.10
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$139.38
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-To be issued under the 2016 Inducement Equity Incentive
Plan
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367,710
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7.98
(4)
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$2,934,325.80
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$340.09
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TOTAL:
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500,000
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$4,136,841.90
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$479.47
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrants common stock that become issuable under the Pfenex Inc. 2016
Inducement Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrants outstanding shares of common
stock.
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(2)
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For the sole purpose of calculating the registration fee, the amount to be registered under this Registration Statement has been broken down into two subtotals.
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(3)
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Estimated in accordance with Rule 457(h) solely for the purposes of calculating the registration fee. The price of $9.09 per share represents the exercise price per share.
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(4)
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Estimated in accordance with Rule 457(c) and (h) solely for purposes of calculating the registration fee on the basis of $7.98 per share, the average of the high and low sale prices of the Registrants common stock
as reported on the NYSE MKT on November 7, 2016.
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PFENEX INC.
EXPLANATORY NOTE
This
Registration Statement is filed by Pfenex Inc. (the Registrant) for the purpose of registering 132,290 shares of common stock of the Registrant that are currently subject to outstanding options under the Pfenex Inc. 2016 Inducement
Equity Incentive Plan (the 2016 Plan) and 367,710 shares of common stock of the Registrant reserved for issuance under the 2016 Plan.
PART I
INFORMATION
REQUIRED IN THE PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration
Statement on
Form S-8
(the Registration Statement) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the Securities Act), and the
introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plan covered by this Registration Statement as specified by Rule 428(b)(1)
under the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The Registrant hereby incorporates by
reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the Commission):
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(1)
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The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the Commission on March 10, 2016;
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(2)
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The Registrants Quarterly Reports on Form 10-Q for the three months ended March 31, 2016, June 30, 2016 and September 30, 2016, filed with the Commission on May 9, 2016, August 8, 2016 and November 9, 2016,
respectively;
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(3)
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The Registrants Definitive Proxy Statement on Schedule 14A, filed with the Commission on March 31, 2016, but only to the extent incorporated by reference in the Registrants Annual Report on Form 10-K for the
fiscal year ended December 31, 2015;
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(4)
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The Registrants Current Reports on Form 8-K filed with the Commission on January 29, 2016, February 11, 2016, May 6, 2016, July 6, 2016, July 28, 2016 and August 8, 2016, only to the extent that the items
therein are specifically stated to be filed rather than furnished for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the Exchange Act); and
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(5)
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The description of the Registrants common stock contained in the Companys Registration Statement on Form 8-A (File No. 001-36540) filed with the Commission on July 14, 2014, pursuant to Section 12(b) of the
Exchange Act, including any amendment or report filed for the purpose of updating such description.
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All documents filed by
the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents;
provided
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however
, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any
subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
Under no circumstances will any information furnished under current items 2.02 or 7.01 of Form 8-K be
deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
Item 4.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
Item 6.
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Indemnification of Directors and Officers.
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Section 145 of the Delaware General
Corporation Law authorizes a corporations board of directors to grant, and authorizes a court to award, indemnity to officers, directors, and other corporate agents.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrants amended and restated certificate of
incorporation includes provisions that eliminate the personal liability of its directors and officers for monetary damages for breach of their fiduciary duty as directors and officers.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, the amended and restated certificate of incorporation and
amended and restated bylaws of the Registrant provide that:
The Registrant shall indemnify its directors and officers for serving the
Registrant in those capacities or for serving other business enterprises at the Registrants request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in
good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe such persons conduct was unlawful.
The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable
law.
The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a
proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
The Registrant is not obligated pursuant to its amended and restated bylaws to indemnify a person with respect to proceedings initiated by
that person, except with respect to proceedings authorized by the Registrants board of directors or brought to enforce a right to indemnification.
The rights conferred in the amended and restated certificate of incorporation and amended and restated bylaws are not exclusive, and the
Registrant is authorized to enter into indemnification agreements with its directors, officers, employees, and agents and to obtain insurance to indemnify such persons.
The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees,
and agents.
The Registrant has entered into separate indemnification agreements with each of its directors and certain of its officers
that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the Delaware General Corporation Law and also to provide for certain additional procedural protections. The Registrant also maintains directors and
officers insurance to insure such persons against certain liabilities.
These indemnification provisions and the indemnification
agreements entered into between the Registrant and its directors and certain of its officers may be sufficiently broad to permit the indemnification of the Registrants officers and directors for liabilities (including reimbursement of expenses
incurred) arising under the Securities Act.
See also the undertaking set out in response to Item 9 herein.
Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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Exhibit
Number
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Description
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4.1
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Specimen Common Stock Certificate of the Registrant (which is incorporated herein by reference to Exhibit 4.1 to the Registrants Registration Statement on Form S-1/A (Registration No. 333-196539), filed with the Commission on
June 23, 2014).
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
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10.1
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2016 Inducement Equity Incentive Plan and related form agreements (which is incorporated herein by reference to Exhibit 10.4 to the Registrants quarterly report on Form 10-Q for the quarter ended September 30, 2016, filed with
the Commission on November 9, 2016).
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23.1
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Consent of Haskell & White LLP, Independent Registered Public Accounting Firm.
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto).
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24.1
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Power of Attorney (contained on signature page hereto).
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A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(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 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: (1) Paragraphs
(A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the
purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant 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 San Diego, State of California, on November 10, 2016.
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Pfenex Inc.
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By:
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/s/ Bertrand C. Liang
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Bertrand C. Liang
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President, Chief Executive Officer, Secretary and Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Bertrand C. Liang, Paul A.
Wagner, and Patricia Lady, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign
the Registration Statement on Form S-8 of Pfenex Inc., and any or all amendments thereto (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he
might or could do in person, hereby and about the premises hereby ratifying and confirming all that said attorneys-in-fact and agent, proxy and agent, or his, her or their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933 this Registration Statement on Form S-8 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/ Bertrand C. Liang
Bertrand C. Liang
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President, Chief Executive Officer, Secretary and Director
(Principal Executive Officer)
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November 10, 2016
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/s/ Paul A. Wagner
Paul A. Wagner
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Chief Financial Officer
(Principal Financial Officer)
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November 10, 2016
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/s/ Patricia Lady
Patricia Lady
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Chief Accounting Officer
(Principal Accounting Officer)
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November 10, 2016
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/s/ Robin D. Campbell
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Director
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November 10, 2016
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Robin D. Campbell
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/s/ John M. Taylor
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Director
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November 10, 2016
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John M. Taylor
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/s/ Dennis M. Fenton
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Director
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November 10, 2016
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Dennis M. Fenton
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/s/ William R. Rohn
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Chairman and Director
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November 10, 2016
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William R. Rohn
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/s/ Phillip M. Schneider
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Director
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November 10, 2016
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Phillip M. Schneider
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EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
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Specimen Common Stock Certificate of the Registrant (which is incorporated herein by reference to Exhibit 4.1 to the Registrants Registration Statement on Form S-1/A (Registration No. 333-196539), filed with the Commission on
June 23, 2014).
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
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10.1
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2016 Equity Incentive Inducement Award Plan and related form agreements (which is incorporated herein by reference to Exhibit 10.4 to the Registrants quarterly report on Form 10-Q for the quarter ended September 30, 2016,
filed with the Commission on November 9, 2016).
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23.1
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Consent of Haskell & White LLP, Independent Registered Public Accounting Firm.
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto).
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24.1
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Power of Attorney (contained on signature page hereto).
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