As filed with the Securities and Exchange Commission on November 22, 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

 

 

OREXIGEN THERAPEUTICS, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   65-1178822

(State or other jurisdiction of

Incorporation or organization)

 

(I.R.S. Employer

Identification Number)

3344 N. Torrey Pines Ct., Suite 200

La Jolla, California 92037

(858) 875-8600

(Address, including zip code, of Registrant’s principal executive offices)

 

 

OREXIGEN THERAPEUTICS, INC. AMENDED AND RESTATED 2007 EQUITY INCENTIVE AWARD PLAN

(Full Title of the Plan)

 

 

Michael A. Narachi

President and Chief Executive Officer

Orexigen Therapeutics, Inc.

3344 N. Torrey Pines Ct., Suite 200

La Jolla, California 92037

(858) 875-8600

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

David G. Peinsipp, Esq.

Cooley LLP

101 California Street, 5 th Floor

San Francisco, California 94111

(415) 693-2000

 

Thomas Lynch, Esq.

Executive Vice President, General Counsel and Secretary

Orexigen Therapeutics, Inc.

3344 N. Torrey Pines Ct., Suite 200

La Jolla, California 92037

(858) 875-8600

 

 

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.

 

Large accelerated filer   ☒    Accelerated filer   ☐
Non-accelerated filer   ☐  (do not check if a smaller reporting company)    Smaller reporting company   ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities to be Registered  

Amount

to be

Registered (1) (2)

 

Proposed

Maximum

Offering Price

Per Share (3)

 

Proposed

Maximum

Amount of

Aggregate

Offering Price (3)

 

Amount of

Registration Fee

Common Stock, $0.001 par value

  4,850,000   $2.54   $12,319,000   $1,427.77

 

 

 

(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock, $0.001 par value per share (the “Common Stock”), that become issuable under the Amended and Restated 2007 Equity Incentive Award Plan of Orexigen Therapeutics, Inc. (the “Restated Award Plan”), by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration that results in an increase in the number of the outstanding shares of Common Stock.
(2) Represents 4,850,000 additional shares of Common Stock available for issuance under the Restated Award Plan.
(3) This estimate is made pursuant to Rule 457(h) solely for purposes of calculating the registration fee, and is based on the average of the high and low prices for the Common Stock as reported on the Nasdaq Global Market on November 17, 2016.

 

 

 

REGISTRATION OF ADDITIONAL SECURITIES

Orexigen Therapeutics, Inc. (the “Company,” “we,” “us,” or “our”) has prepared this registration statement (this “Registration Statement”) in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended, to register 4,850,000 additional shares of its common stock, par value $0.001 per share (the “Common Stock”), newly issuable pursuant to the Orexigen Therapeutics, Inc. Amended and Restated 2007 Equity Incentive Award Plan (the “Restated Award Plan”). The stockholders of the Company approved the Restated Award Plan, which increased the number of shares available for issuance, on July 8, 2016.

On July 8, 2016, the Company effected a one-for-ten reverse stock split of its Common Stock (the “Reverse Stock Split”). Pursuant to the terms of the Restated Award Plan, the number of shares issuable under the Restated Award Plan was proportionately adjusted. Accordingly, the aggregate number of shares of Common Stock available under the Restated Award Plan following the Reverse Stock Split is 10,300,000.

Of this amount, 5,450,000 shares of Common Stock available for issuance under the Restated Award Plan, as adjusted for the Reverse Stock Split, were previously registered on Registration Statements on Form S-8 (File Nos. 333-142405, 333-165442, 333-175071, 333-194951 and 333-202763) filed with the Securities and Exchange Commission (the “SEC”) on April 26, 2007, March 12, 2010, June 22, 2011, April 1, 2014 and March 16, 2015, respectively (the “Existing Registration Statements”).

In accordance with General Instruction E to Form S-8, the contents of the Existing Registration Statements are hereby incorporated by reference.

Item 3. Incorporation of Documents by Reference.

The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this Registration Statement, and later information filed with the SEC will update and supersede this information. We hereby incorporate by reference into this Registration Statement the following documents previously filed with the SEC:

 

  (a) our Annual Report on Form 10-K, as amended, for the year ended December 31, 2015, which was filed on February 26, 2016;

 

  (b) our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2016, June 30, 2016 and September 30, 2016, filed on May 5, 2016, August 5, 2016 and November 7, 2016 respectively;

 

  (c) our Current Reports on Form 8-K filed on January 8, 2016, February 8, 2016, March 15, 2016, March 25, 2016, April 4, 2016, April 15, 2016, May 23, 2016, May 27, 2016, June 8, 2016, July 11, 2016, August 1, 2016 and October 17, 2016;

 

  (d) our Definitive Proxy Statement on Schedule 14A, filed on May 27, 2016; and

 

  (e) the description of our Common Stock contained in our Registration Statement on Form 8-A, filed on April 18, 2007, including any amendments or reports filed for the purpose of updating the description.

In addition, all documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such statements as set forth therein. 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 other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. 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 document which also is incorporated or 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 shall any information furnished under Item 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.

These documents may also be accessed on our website at www.orexigen.com . Except as otherwise specifically incorporated by reference in this Registration Statement, information contained in, or accessible through, our website is not a part of this Registration Statement.

We will furnish without charge to you, upon written or oral request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents, by writing or telephoning us at the following address:

Orexigen Therapeutics, Inc.

3344 N. Torrey Pines Ct., Suite 200

La Jolla, California 92037

Attention: Corporate Secretary

(858) 875-8600

Item 8. Exhibits.

The following is a list of the exhibits filed as part of this Registration Statement, which are incorporated herein:

 

Exhibit
Number 		 

Document

4.1(1)   Amended and Restated Certificate of Incorporation of the Registrant
4.2(2)   Certificate of Amendment of Amended and Restated Certificate of Incorporation of the Registrant
4.3(1)   Amended and Restated Bylaws of the Registrant
4.4(3)   Amendment to Amended and Restated Bylaws of the Registrant
4.5(6)   Certificate of Designations, Preferences and Rights of Series Z Non-Convertible Non-Voting Preferred Stock
4.6(7)   Certificate of Amendment of Amended and Restated Certificate of Incorporation of the Registrant, as amended
4.7(1)   Form of Common Stock Certificate
4.8(4)   Form of Warrant to Purchase Common Stock
4.9(5)   Indenture dated as of December 6, 2013, by and between the Registrant and Wilmington Trust, National Association, as trustee
4.10(6)   Indenture dated as of March 21, 2016, by and between the Registrant and U.S. Bank National Association, as trustee and collateral agent, including the Form of 0% Convertible Senior Secured Note due 2020
4.11(8)   Form of Warrant to Purchase Common Stock
4.12(6)   Investor Rights Agreement, dated as of March 15, 2016, by and among the Registrant, Baupost and the other investors party thereto
4.13(6)   Securities Purchase Agreement, dated as of March 15, 2016, by and among the Registrant and each purchaser party thereto
5.1   Opinion of Cooley LLP
23.1   Consent of Independent Registered Public Accounting Firm
23.2   Consent of Cooley LLP (included in Exhibit 5.1)
24.1   Power of Attorney (included in the signature page hereto)
99.1(9)   Orexigen Therapeutics, Inc. Amended and Restated 2007 Equity Incentive Award Plan

 

(1) Incorporated by reference to the Registrant’s Registration Statement on Form S-1, filed with the SEC on December 19, 2006, as amended (File No. 333-139496).
(2) Incorporated by reference to the Registrant’s Registration Statement on Form S-8, filed with the SEC on June 22, 2011 (File No. 333-175071).
(3) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on July 3, 2014.
(4) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on December 15, 2011.
(5) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on December 9, 2013.
(6) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 25, 2016.
(7) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on July 11, 2016.
(8) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 15, 2016.
(9) Incorporated by reference to the Registrant’s Quarterly Report on 10-Q, filed with the SEC on August 5, 2016.

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 22, 2016.

 

OREXIGEN THERAPEUTICS, INC.
By:  

/s/ Michael A. Narachi

  Michael A. Narachi
  President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Michael A. Narachi, Jason A. Keyes and Thomas Lynch, and each of them, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign this Registration Statement, and any and all amendments thereto (including post-effective amendments), and to file the same, with exhibits and schedules 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 necessary or desirable to be done in and about the premises, 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 substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ Michael A. Narachi

Michael A. Narachi

  

President, Chief Executive Officer and Director

(Principal Executive Officer)

  November 22, 2016

/s/ Jason A. Keyes

Jason A. Keyes

  

Senior Vice President and Chief Financial Officer

(Principal Financial and Accounting Officer)

  November 22, 2016

/s/ Patrick J. Mahaffy

Patrick J. Mahaffy

   Chairman of the Board of Directors   November 22, 2016

/s/ Louis C. Bock

Louis C. Bock

   Director   November 22, 2016

/s/ Brian H. Dovey

Brian H. Dovey

   Director   November 22, 2016

/s/ David J. Endicott

David J. Endicott

   Director   November 22, 2016

/s/ Peter K. Honig, M.D.

Peter K. Honig, M.D.

   Director   November 22, 2016

/s/ Deborah A. Jorn

Deborah A. Jorn

   Director   November 22, 2016

/s/ Lota S. Zoth

Lota S. Zoth

   Director   November 22, 2016

EXHIBIT INDEX

 

Exhibit
Number 		 

Document

4.1(1)   Amended and Restated Certificate of Incorporation of the Registrant
4.2(2)   Certificate of Amendment of Amended and Restated Certificate of Incorporation of the Registrant
4.3(1)   Amended and Restated Bylaws of the Registrant
4.4(3)   Amendment to Amended and Restated Bylaws of the Registrant
4.5(6)   Certificate of Designations, Preferences and Rights of Series Z Non-Convertible Non-Voting Preferred Stock
4.6(7)   Certificate of Amendment of Amended and Restated Certificate of Incorporation of the Registrant, as amended
4.7(1)   Form of Common Stock Certificate
4.8(4)   Form of Warrant to Purchase Common Stock
4.9(5)   Indenture dated as of December 6, 2013, by and between the Registrant and Wilmington Trust, National Association, as trustee
4.10(6)   Indenture dated as of March 21, 2016, by and between the Registrant and U.S. Bank National Association, as trustee and collateral agent, including the Form of 0% Convertible Senior Secured Note due 2020
4.11(8)   Form of Warrant to Purchase Common Stock
4.12(6)   Investor Rights Agreement, dated as of March 15, 2016, by and among the Registrant, Baupost and the other investors party thereto
4.13(6)   Securities Purchase Agreement, dated as of March 15, 2016, by and among the Registrant and each purchaser party thereto
5.1   Opinion of Cooley LLP
23.1   Consent of Independent Registered Public Accounting Firm
23.2   Consent of Cooley LLP (included in Exhibit 5.1)
24.1   Power of Attorney (included in the signature page hereto)
99.1(9)   Orexigen Therapeutics, Inc. Amended and Restated 2007 Equity Incentive Award Plan

 

(1) Incorporated by reference to the Registrant’s Registration Statement on Form S-1, filed with the SEC on December 19, 2006, as amended (File No. 333-139496).
(2) Incorporated by reference to the Registrant’s Registration Statement on Form S-8, filed with the SEC on June 22, 2011 (File No. 333-175071).
(3) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on July 3, 2014.
(4) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on December 15, 2011.
(5) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on December 9, 2013.
(6) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 25, 2016.
(7) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on July 11, 2016.
(8) Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 15, 2016.
(9) Incorporated by reference to the Registrant’s Quarterly Report on 10-Q, filed with the SEC on August 5, 2016.