Securities Registration: Employee Benefit Plan (s-8)
March 23 2017 - 4:41PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on March 23, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CYMABAY THERAPEUTICS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware
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94-3103561
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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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7999 Gateway Blvd., Suite 130
Newark, CA 94560
(Address
of principal executive offices) (Zip code)
CymaBay Therapeutics, Inc. 2013 Equity Incentive Plan
(Full title of the plan)
Harold Van Wart
President and Chief Executive Officer
CymaBay Therapeutics, Inc.
7999 Gateway Blvd., Suite 130
Newark, CA 94560
(510)
293-8800
(Name and address of agent for service) (Telephone number, including area code, of agent
for service)
Copies to:
Matthew B. Hemington
Cooley LLP
3175 Hanover
Street
Palo Alto, California 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.
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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)
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Proposed
Maximum
Offering Price
Per
Share(2)
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Proposed
Maximum
Aggregate
Offering Price(2)
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Amount of
Registration Fee
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Common Stock, par value $0.0001 per share
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1,172,350 shares
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$4.025
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$4,718,709
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$547
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(1)
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Represents additional shares of the Registrants common stock, par value $0.0001 (the
Common Stock
) issuable under the Registrants 2013 Equity Incentive Plan (the
Plan
) by reason of the automatic share increase provision of the Plan. Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the
Securities Act
). This Registration Statement shall also
cover any additional shares of 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 the
Registrants outstanding shares of Common Stock.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering
price is based upon $4.025, which is the average of the high and low selling prices of the Registrants Common Stock as reported on the NASDAQ Capital Market on March 20, 2017.
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EXPLANATORY NOTE
CymaBay Therapeutics, Inc. (the
Registrant
) is filing this Registration Statement on
Form S-8
for the purpose of registering an additional 1,172,350 shares of its Common Stock, issuable to eligible persons under the CymaBay Therapeutics, Inc. 2013 Equity Incentive Plan (
2013
Plan
), which Common Stock is in addition to the shares of Common Stock previously registered on the following Form
S-8s
(collectively, the
Prior Form
S-8s
):
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the Registrants
Form S-8
filed on April 11, 2014 (File
No. 333-195211);
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the Registrants Form
S-8
filed on August 21, 2014 (File
No. 333-198289);
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the Registrants Form
S-8
filed on March 23, 2015 (File
No. 333-202941);
and
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the Registrants Form
S-8
filed on March 29, 2016 (File
No. 333-210453)
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Pursuant to General Instruction E to Form
S-8,
the contents of the Prior Form
S-8s
are incorporated herein by reference and made a part hereof.
PART II
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Exhibit
Number
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Description
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4.1
(1)
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Amended and Restated Certificate of Incorporation of the Registrant.
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4.2
(2)
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Amended and Restated Bylaws of the Registrant.
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4.3
(3)
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Form of Registration Rights Agreement
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4.4
(4)
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Form of 2013 Financing Warrant.
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4.5
(5)
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Amendment No. 1 to Registration Rights Agreement.
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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 Cooley LLP (included in Exhibit 5.1).
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23.2
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Consent of Independent Registered Public Accounting Firm.
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24.1
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Power of Attorney (included on the signature page of this
Form S-8).
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99.1
(6)
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2013 Equity Incentive Plan
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99.2
(7)
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Form of Option Grant Notice and Option Agreement under the 2013 Equity Incentive Plan
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99.3
(8)
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Form of Incentive Award Grant Notice under the 2013 Equity Incentive Plan
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(1)
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Previously filed as Exhibit 3.1 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(2)
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Previously filed as Exhibit 3.2 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(3)
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Previously filed as Exhibit 4.2 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(4)
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Previously filed as Exhibit 4.3 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(5)
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Previously filed as Exhibit 4.4 to the Registrants Annual Report on Form
10-K
(File
No. 000-55021),
filed with the Commission on
March 31, 2014, and incorporated by reference herein.
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(6)
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Previously filed as Exhibit 10.1 to the Registrants Current Report on Form
8-K
(File
No. 000-55021),
filed with the Commission
on June 6, 2014, and incorporated by reference herein.
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(7)
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Previously filed as Exhibit 10.26 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(8)
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Previously filed as Exhibit 10.22 to the Registrants Form
10-K,
(File
No. 000-55021)
filed with the SEC on March 31, 2014.
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2
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 Newark, State of
California, on this 23rd day of March, 2017.
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C
YMA
B
AY
T
HERAPEUTICS
, I
NC
.
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By:
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/s/ Harold Van Wart
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Harold Van Wart
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President and Chief Executive Officer
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3
POWER OF ATTORNEY
K
NOW
A
LL
P
ERSONS
B
Y
T
HESE
P
RESENTS
, that each person whose signature appears below constitutes and appoints Harold Van Wart and Sujal Shah, and each 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 or she 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, 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/ Harold Van Wart
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Harold Van Wart
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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March 23, 2017
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/s/ Sujal Shah
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Sujal Shah
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Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
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March 23, 2017
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/s/ Robert J. Wills
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Robert J. Wills
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Director
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March 23, 2017
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/s/ Carl Goldfischer
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Carl Goldfischer
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Director
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March 23, 2017
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/s/ Robert Booth
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Robert Booth
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Director
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March 23, 2017
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/s/ Kurt von Emster
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Kurt von Emster
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Director
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March 23, 2017
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/s/ Caroline Loewy
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Caroline Loewy
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Director
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March 23, 2017
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/s/ Evan A Stein
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Evan A. Stein
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Director
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March 23, 2017
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/s/ Paul F. Truex
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Paul F. Truex
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Director
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March 23, 2017
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/s/ Robert J. Weiland
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Robert J. Weiland
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Director
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March 23, 2017
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4
EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
(1)
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Amended and Restated Certificate of Incorporation of the Registrant.
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4.2
(2)
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Amended and Restated Bylaws of the Registrant.
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4.3
(3)
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Form of Registration Rights Agreement
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4.4
(4)
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Form of 2013 Financing Warrant.
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4.5
(5)
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Amendment No. 1 to Registration Rights Agreement.
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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 Cooley LLP (included in Exhibit 5.1).
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23.2
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Consent of Independent Registered Public Accounting Firm.
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24.1
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Power of Attorney (included on the signature page of this
Form S-8).
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99.1
(6)
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2013 Equity Incentive Plan
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99.2
(7)
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Form of Option Grant Notice and Option Agreement under the 2013 Equity Incentive Plan
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99.3
(8)
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Form of Incentive Award Grant Notice under the 2013 Equity Incentive Plan
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(1)
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Previously filed as Exhibit 3.1 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(2)
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Previously filed as Exhibit 3.2 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(3)
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Previously filed as Exhibit 4.2 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(4)
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Previously filed as Exhibit 4.3 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(5)
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Previously filed as Exhibit 4.4 to the Registrants Annual Report on Form
10-K
(File
No. 000-55021),
filed with the Commission on
March 31, 2014, and incorporated by reference herein.
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(6)
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Previously filed as Exhibit 10.1 to the Registrants Current Report on Form
8-K
(File
No. 000-55021),
filed with the Commission
on June 6, 2014, and incorporated by reference herein.
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(7)
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Previously filed as Exhibit 10.26 to the Registrants Amendment No. 2 to Registration Statement on Form 10/A
(File No. 000-55021),
filed with the Commission on
October 17, 2013, and incorporated by reference herein.
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(8)
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Previously filed as Exhibit 10.22 to the Registrants Form
10-K,
(File
No. 000-55021)
filed with the SEC on March 31, 2014.
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5
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