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As filed with the Securities and Exchange Commission on May 3, 2017
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Registration No. 333-____________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
_________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
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Lion Biotechnologies, Inc.
(Exact name of registrant as specified
in its charter)
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Nevada
(State or other jurisdiction
of
incorporation or organization)
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75-3254381
(I.R.S. Employer
Identification Number)
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999 Skyway Road, Suite 150
San Carlos, California 94070
(Address of registrant’s
principal executive offices, including zip code)
_________________________________
Executive Employment Agreement
(Full title of the plan)
_________________
Maria Fardis, Ph.D.
President and Chief Executive
Officer
Lion Biotechnologies, Inc.
999 Skyway Road, Suite 150
San Carlos, California 94070
(650) 260-7120)
(Name, address, including zip
code, and telephone number, including area code, of agent for service)
_________________
With copies to:
Istvan Benko
Tony Shin
TroyGould PC
1801 Century Park East, 16th Floor
Los Angeles, California 90067
(310) 553-4441
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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o
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Accelerated filer
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þ
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Non-accelerated filer
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o
(Do not check if a
smaller reporting company)
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Smaller reporting company
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o
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act.
o
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered
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Amount to be
registered
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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, par value $0.000041666 per share
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498,327
(1)(2)
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$6.83
(3)
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$3,403,573.41
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$395.00
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(1) The number of shares being registered represents (i) 412,500 shares of common stock, par value $0.000041666 per share
(“Common Stock”), of Lion Biotechnologies, Inc. (“Registrant”), issuable upon the vesting of Restricted
Stock Units granted to Dr. Maria Fardis pursuant to the Executive Employment Agreement, effective as of June 1, 2016, between Registrant
and Dr. Fardis (the “Employment Agreement”); and (ii) 85,827 shares of Common Stock vested and issued to Dr. Fardis
pursuant to Restricted Stock Units granted under the Employment Agreement.
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(2) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration
Statement also covers any additional shares of common stock that may become issuable in the event of a stock split, stock dividend,
recapitalization or other similar transactions.
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(3) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities
Act, and Rule 457(h) under the Securities Act based on the average of the high and low sale prices of the common stock as reported
on the NASDAQ Global Market on May 1, 2017.
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EXPLANATORY NOTE
This Registration Statement on Form S-8
is being filed for the purpose of registering (i) 412,500 shares of common stock, par value $0.000041666 per share, of Lion Biotechnologies,
Inc. (“Registrant”), issuable upon the vesting of Restricted Stock Units granted to Dr. Maria Fardis pursuant to the
Executive Employment Agreement, effective as of June 1, 2016, between Registrant and Dr. Fardis (the “Employment Agreement”)
and (ii) 85,827 shares of Common Stock that have vested and been issued to Dr. Fardis pursuant to Restricted Stock Units granted
under the Employment Agreement.
This Registration Statement also includes
a reoffer prospectus prepared in accordance with General Instruction C of Form S-8 and in accordance with the requirements of Part
I of Form S-3. This reoffer prospectus may be used by Dr. Fardis to offer and sell or otherwise dispose of up to an aggregate of
498,327 shares of common stock, of which 85,827 shares have been issued pursuant to Restricted Stock Units granted under the Employment
Agreement, and of which 412,500 shares are issuable upon the vesting of Restricted Stock Units granted under the Employment Agreement.
PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
The information specified in Item 1 and
Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with 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 will be sent or given to Dr. Fardis as required by Rule 428(b)(1) under the Securities Act.
Such documents are not required to be filed with the Securities and Exchange Commission (the “SEC”), either as part
of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. Such
documents, together with the documents incorporated by reference herein pursuant to Item 3 of Part II of this Registration Statement
on Form S-8, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
REOFFER PROSPECTUS
LION BIOTECHNOLOGIES, INC.
498,327 SHARES OF COMMON STOCK
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This Reoffer Prospectus relates to the reoffer
and resale from time to time of up to 498,327 shares of common stock, par value $0.000041666 per share, of Lion Biotechnologies,
Inc., a Nevada corporation (the “Company,” “we,” “us,” or “our”) that have been
acquired, or that may be acquired, by Dr. Maria Fardis (the “Selling Stockholder”), who is our President and Chief
Executive Officer and a director of the Company, pursuant to Restricted Stock Units granted under the Executive Employment Agreement
effective as of June 1, 2016, between the Company and the Selling Stockholder (the “Employment Agreement”).
The Selling Stockholder may sell these shares
from time to time in the principal market on which our common stock is traded at the prevailing market price, in negotiated transactions,
or through any other means described in the section titled “Plan of Distribution.” The Selling Stockholder may be deemed
to be an underwriter within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), of the shares
of common stock that she is offering. We will pay the expenses of registering these shares. We are not offering any shares of common
stock pursuant to this Reoffer Prospectus and we will not receive any of the proceeds from the sale of shares by the Selling Stockholder.
The shares are being registered to permit
the Selling Stockholder, or her respective pledgees, donees, transferees or other successors-in-interest, to sell the shares from
time to time in the public market. We do not know when or in what amount the Selling Stockholder may offer the securities for sale.
The Selling Stockholder may sell some, all or none of the securities offered by this Reoffer Prospectus. See “Plan of Distribution”
beginning on page 8 for more information about how the Selling Stockholder may sell or dispose of the shares of common stock covered
by this Reoffer Prospectus.
Our common stock is traded on The NASDAQ
Global Market under the symbol “LBIO.” On May 1, 2017, the last reported sale price of our common stock as reported
on The NASDAQ Global Market was $6.90 per share.
Investing in the securities offered under
this Reoffer Prospectus involves a high degree of risk. You should read the “Risk Factors” section beginning on page
4 and in the documents incorporated by reference herein, before making an investment decision.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF
THIS REOFFER PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
You should rely only on the information
contained in this Reoffer Prospectus. No person has been authorized to give any information or to make any representations, other
than as contained herein, in connection with the offer contained in this Reoffer Prospectus, and, if given or made, such information
or representations must not be relied upon. This Reoffer Prospectus does not constitute an offer to sell or solicitation of an
offer to buy any of the securities offered hereby in any state to any person to whom it is unlawful to make such offer or solicitation.
The date of this Reoffer Prospectus
is May 3, 2017.
TABLES OF CONTENTS
PROSPECTUS SUMMARY
Our Business
We are a clinical-stage biopharmaceutical
company focused on the development and commercialization of novel cancer immunotherapy products designed to harness the power of
a patient’s own immune system to eradicate cancer cells. Our lead program is an adoptive cell therapy utilizing tumor-infiltrating
lymphocytes (TIL), which are T cells derived from patients’ tumors, for the treatment of metastatic melanoma.
A patient's immune system, particularly
their TIL, plays an important role in identifying and killing cancer cells. TIL consist of a heterogeneous population of T cells
that can recognize a wide variety of cancer-specific mutations and can overcome tumor escape mechanisms. TIL therapy involves growing
a patient's TIL in special culture conditions outside the patient's body, or ex vivo, and then infusing the T cells back into the
patient followed by infusion of six doses of interleukin-2 (IL-2). By expanding a patient’s TIL ex vivo, away from the immune-suppressive
tumor microenvironment, the T cells can rapidly proliferate. As a result, billions of TIL, when infused back into the patient,
are better able to search out and potentially eradicate the tumor.
We have an on-going Phase 2 clinical trial
of our lead product candidate, LN-144, TIL for the treatment of metastatic melanoma. This three-arm study is enrolling patients
with melanoma whose disease has progressed following treatment with at least one systemic therapy. The trial opened for enrollment
during the second half of 2015 and is being conducted at ten sites. The purpose of the study is to evaluate the safety, and efficacy
of our autologous TIL product (LN-144). The trial’s primary objective is to characterize the safety of LN-144. Secondary
outcome measures efficacy of the LN-144 includes objective response and complete response rates. Additional secondary or exploratory
endpoints may be considered as well. Updates from this Phase 2 trial are planned to be released in 2017.
During 2015, we received orphan drug designation
for LN-144 in the United States to treat metastatic melanoma. This designation provides seven years of market exclusivity in the
United States, subject to certain limited exceptions. However, the orphan drug designation does not convey any advantage in or
shorten the duration of the regulatory review or approval process.
We are pursuing metastatic melanoma as our
first target indication because of the promising initial results in this indication generated by Dr. Steven Rosenberg, M.D., Ph.D.,
Chief of the Surgery Branch of the National Cancer Institute (NCI) and the commercial opportunity inherent in the significant unmet
need of this patient population. Melanoma is a common type of skin cancer, accounting for approximately 76,380 patients diagnosed
and 10,130 deaths each year in the United States according to the American Cancer Society’s Cancer Estimated 2016 Facts and
Figures. According to the NCI’s Surveillance, Epidemiology and End Results (SEER) program, about 2-5% of patients with melanoma
have metastatic disease. Patients with metastatic melanoma following treatment under the current standards of care have a particularly
dire prognosis with very few curative treatment options.
In addition to our ongoing trial in metastatic
melanoma, we have initiated clinical trials of TIL therapy in several additional cancer indications in 2017, including cervical,
and head and neck cancer, and we plan to initiate additional indications by the company as well as through collaborations which
may include glioblastoma and pancreatic cancer.
2016 Developments
In 2016, we underwent significant changes,
including the following:
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We submitted an Investigational New Drug Application to conduct studies in cervical and head and neck cancer. Those studies
are expected to commence in 2017.
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We hired new a Chief Executive Officer, Chief Financial Officer and Chief Scientific Officer.
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We raised $100 million through the sale of equity in a private placement.
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We announced a five-year extension of our Cooperative Research and Development Agreement (the “CRADA”) with the
National Cancer Institute (the “NCI”).
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We entered into an exclusive license agreement with PolyBioCept AB (“PolyBioCept”) and a related clinical trials
agreement with the Karolinksa University Hospital.
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We presented TIL technology data in four posters at the Society for Immunotherapy of Cancer (SITC) Annual Meeting.
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We entered into a new three-year manufacturing agreement with WuXi Apptech, Inc. (“WuXi”)
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We entered into a new three-year manufacturing agreement with Lonza Walkersville, Inc (“Lonza”).
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We entered into a new sponsored research agreement and clinical grant agreement with the H. Lee Moffitt Cancer Center and Research
Institute (“Moffitt”).
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We grew from 20 employees at the beginning of 2016 to over 51 by the end of the year.
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We moved our corporate headquarters from New York, New York to San Carlos, California
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Company History
We filed our original Articles of Incorporation
with the Secretary of State of Nevada on September 17, 2007. Until March 2010, we were an inactive company known as Freight Management
Corp. On March 15, 2010, we changed our name to Genesis Biopharma, Inc. and in 2011 we commenced our current business. On September
26, 2013, we amended and restated our Articles of Incorporation to, among other things, change our name to Lion Biotechnologies,
Inc., effect a 1-for-100 reverse stock split (pro-rata reduction of outstanding shares) of our common stock, increase (after the
reverse stock split) the number of our authorized number of shares of common stock to 150,000,000 shares, and authorize the issuance
of 50,000,000 shares of “blank check” preferred stock, $0.001 par value per share.
Our principal executive offices are located
at 999 Skyway Road, Suite 150, San Carlos, California, 94070, and our telephone number at that address is (650) 260-7120. Our website
is located at www.lbio.com. Information on our website is not, and should not be considered, part of this Reoffer Prospectus.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This Reoffer Prospectus and the documents
incorporated herein by reference contain forward-looking statements. These statements relate to future events or to our future
financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results to
be materially different from any future results expressed or implied by the forward-looking statements. In some cases, you can
identify forward-looking statements by the use of words such as “believe,” “anticipate,” “intend,”
“plan,” “estimate,” “may,” “could,” “anticipate,” “predict,”
or “expect” and similar expressions. You should not place undue reliance on forward-looking statements since they involve
known and unknown risks, uncertainties and other factors that are, in many cases, beyond our control. Forward-looking statements
are not guarantees of future performance. Actual events or results may differ materially from those discussed in the forward-looking
statements as a result of various factors. Except as required by applicable law, we do not undertake any obligation to publicly
update any forward-looking statements, whether as a result of new information, future developments or otherwise.
Important factors that could cause actual
results to differ materially from those reflected in our forward-looking statements include, among others:
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our inability to obtain regulatory approval for, or successfully commercialize, our leading product candidate, LN-144, or our
other product candidates;
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difficulty in enrolling patients in our clinical trials and uncertainty of clinical trial results;
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our history of operating losses and inability to become profitable;
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uncertainty and volatility in the price of our common stock;
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the costs and effects of existing and potential governmental investigations and litigation;
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our inability to meet the continued listing requirements of The NASDAQ Global Market;
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our inability to implement and maintain appropriate internal controls;
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uncertainty as to our employees’ and independent contractors' compliance with regulatory standards and requirements and
securities insider trading rules;
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dependence on the efforts of third parties to conduct and oversee our clinical trials for our product candidates, to manufacture
clinical supplies of our product candidates and to commercialize our product candidates;
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the effect of government regulations on our business;
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a loss of any of our key management personnel;
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our inability to secure and maintain relationships with collaborators and contract manufacturers;
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our inability to develop or commercialize our product candidates due to intellectual property rights held by third parties
and our inability to protect the confidentiality of our trade secrets; and
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our potential inability to access capital required to fund proposed operations.
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All written and verbal forward-looking statements
attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained
or referred to in this section. We caution investors not to rely too heavily on the forward-looking statements we make or that
are made on our behalf.
In addition, you should refer to the section
of this Reoffer Prospectus entitled “Risk Factors” as well as the documents we have incorporated by reference for a
discussion of other important factors that may cause our actual results to differ materially from those expressed or implied by
our forward-looking statements. As a result of these factors, we cannot assure you that the forward-looking statements will prove
to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate, the inaccuracy may be material. In light
of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation
or warranty by us or any other person that we will achieve our objectives and plans in any specified time frame, or at all.
Additional cautionary statements or discussions
of risks and uncertainties that could affect our results or the achievement of the expectations described in forward-looking statements
may also be contained in the documents we incorporate by reference into this Reoffer Prospectus, including our most recent Annual
Report on Form 10-K filed with the SEC and our Quarterly Reports on Form 10-Q filed subsequently with the SEC.
RISK FACTORS
Investment in any securities offered pursuant
to this Reoffer Prospectus involves a high degree of risk. Prior to making a decision about investing in our securities, you should
carefully consider the risk factors described below, which are not exhaustive. You should also carefully review the risk factors
described in our most recent Annual Report on Form 10-K and in any subsequent Quarterly Reports on Form 10-Q or Current Reports
on Form 8-K that we file with the SEC after the date of this Reoffer Prospectus, all of which are incorporated by reference into
this Reoffer Prospectus. You should also carefully review all other information contained in or incorporated by reference into
this Reoffer Prospectus, including the information contained above under the heading “Cautionary Note Regarding Forward-Looking
Statements,” as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
Specific Risks Related to Our Securities
We are, and in the future may be, subject to legal
or administrative actions that could adversely affect our results of operations and our business.
On April 10, 2017, the SEC announced settlements
with us and with other public companies and unrelated parties in the
In the Matter of Certain Stock Promotion
investigation.
Our settlement with the SEC is consistent with our previous disclosures (including in our Form 10-K that we filed with the SEC
on March 9, 2017). On April 14 2017, a purported shareholder filed a class action complaint in the United States District Court,
Northern District of California for violation of Federal securities laws (
Leonard DeSilvio v. Lion Biotechnologies, Inc. Manish
Singh, Michael Handelman and Elma Hawkins, case no: 3:17cv2086
) against our company and three of our former officers and directors.
On April 19, 2017, a second class action complaint
(Amra Kuc vs. Lion Biotechnologies, Inc. Manish Singh, Michael Handelman
and Elma Hawkins, case no: 3:17cv2086
) was filed in the same court. Both complaints allege, among other things, that the defendants
violated the federal securities laws by making materially false and misleading statements, or failed to make disclosures, in certain
of our Form 10-K and Form 10-Q periodic filings regarding the actions taken by Manish Singh and our former investor relations firm.
We intend to vigorously defend against the
foregoing complaints. Litigation is inherently uncertain, and it is not possible to estimate the amount or range of possible loss
that might result from an adverse judgment or a settlement of these matters. We could incur substantial unreimbursed legal fees,
settlements, judgments and other expenses in connection with these or other legal and regulatory proceedings that may not qualify
for coverage under, or may exceed the limits of, our applicable directors and officers liability insurance policies and could have
a material adverse effect on our financial condition, liquidity and results of operations. These matters also may distract the
time and attention of our officers and directors or divert our other resources away from our ongoing commercial and development
programs. An unfavorable outcome in any of these matters could damage our business and reputation or result in additional claims
or proceedings against us.
Our existing directors and executive officers hold
a substantial amount of our common stock and may be able to influence significant corporate decisions.
As of December 31, 2016, our officers and
directors beneficially owned approximately 11% of our outstanding common stock. These stockholders, if they act together, may be
able to materially affect the outcome of matters presented to our stockholders, including the election of our directors and other
corporate actions such as:
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A merger with or into another company;
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A sale of substantially all of our assets; and
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Amendments to our articles of incorporation.
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Additionally, the decisions of these stockholders
may conflict with our interests or those of our other stockholders and the market price of our stock may be adversely affected
by market volatility.
Our stock price may be volatile, and our stockholders'
investment in our stock could decline in value.
The market price of our common stock is
likely to be volatile and could fluctuate widely in response to many factors, including but not limited to:
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announcements of the results of clinical trials by us or our competitors;
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developments with respect to patents or proprietary rights;
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announcements of technological innovations by us or our competitors;
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announcements of new products or new contracts by us or our competitors;
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actual or anticipated variations in our operating results due to the level of development expenses and other factors;
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changes in financial estimates by securities analysts and whether our earnings meet or exceed such estimates;
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conditions and trends in the pharmaceutical, biotechnology and other industries;
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receipt, or lack of receipt, of funding in support of conducting our business;
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regulatory developments within, and outside of, the United States;
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litigation or arbitration;
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general volatility in the financial markets;
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general economic, political and market conditions and other factors; and
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the occurrence of any of the risks described in the documents incorporated by reference into this Reoffer Prospectus.
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You may experience future dilution as a result of
future equity offerings or other equity issuances.
We will have to raise additional capital
in the future. To raise additional capital, we may in the future offer additional shares of our common stock or other securities
convertible into or exchangeable for our common stock.
Future sales of our common stock in the public market
could cause our stock price to fall.
Our stock price could decline as a result
of sales of a large number of shares of our common stock or the perception that these sales could occur. These sales, or the possibility
that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and at a
price that we deem appropriate.
As of May 2, 2017, we had over 62 million
shares of common stock outstanding, in addition we had approximately 22.6 million, stock options to purchase common stock based
on vesting requirements, warrants to purchase common stock and the conversion of preferred stock, that would increase the number
of common stock outstanding if these instruments were exercised or converted.
In addition, in the future, we may issue
additional shares of common stock or other equity or debt securities convertible into common stock in connection with a financing,
acquisition, litigation settlement, employee arrangements or otherwise. Any such issuance could result in substantial dilution
to our existing stockholders and could cause our stock price to decline.
If securities or industry analysts do not publish
research or reports about our company, or if they issue adverse or misleading opinions regarding us or our stock, our stock price
and trading volume could decline.
Although we have research coverage by securities
and industry analysts, if coverage is not maintained, the market price for our stock may be adversely affected. Our stock price
also may decline if any analyst who covers us issues an adverse or erroneous opinion regarding us, our business model, our intellectual
property or our stock performance, or if our clinical trials and operating results fail to meet analysts’ expectations. If
one or more analysts cease coverage of us or fail to regularly publish reports on us, we could lose visibility in the financial
markets, which could cause our stock price or trading volume to decline and possibly adversely affect our ability to engage in
future financings
If we fail to maintain an effective system of internal
control over financial reporting, we may not be able to accurately report our financial results. As a result, we could become subject
to sanctions or investigations by regulatory authorities and/or stockholder litigation, which could harm our business and have
an adverse effect on our stock price.
As a public reporting company, we are subject
to various regulatory requirements, including the Sarbanes-Oxley Act of 2002, which requires our management to assess and report
on our internal controls over financial reporting. Nevertheless, in future years, our testing, or the subsequent testing by our
independent registered public accounting firm, may reveal deficiencies in our internal controls that we would be required to remediate
in a timely manner so as to be able to comply with the requirements of Section 404 of the Sarbanes-Oxley Act each year. If we are
not able to comply with the requirements of Section 404 of the Sarbanes-Oxley Act each year, we could be subject to sanctions or
investigations by the SEC, NASDAQ or other regulatory authorities which would require additional financial and management resources
and could adversely affect the market price of our common stock. In addition, material weaknesses in our internal controls could
result in a loss of investor confidence in our financial reports.
Our board could issue one or more additional series
of preferred stock without stockholder approval with the effect of diluting existing stockholders and impairing their voting and
other rights.
Our articles of incorporation authorize
the issuance of up to 50,000,000 shares of “blank check” preferred stock (of which only 17,000 have been designated
as the Series A Convertible Preferred Stock and 11,500,000 designated as Series B Convertible Preferred Stock) with designations,
rights and preferences as may be determined from time to time by our board of directors. Our board is empowered, without stockholder
approval, to issue one or more series of preferred stock with dividend, liquidation, conversion, voting or other rights which could
dilute the interest of, or impair the voting power of, our common stockholders. The issuance of a series of preferred stock could
be used as a method of discouraging, delaying or preventing a change in control. For example, it would be possible for our board
of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to
effect a change in control of our company.
We do not anticipate paying cash dividends for the
foreseeable future, and therefore investors should not buy our stock if they wish to receive cash dividends.
We have never declared or paid any cash
dividends or distributions on our common stock. We currently intend to retain our future earnings to support operations and to
finance expansion and, therefore, we do not anticipate paying any cash dividends on our common stock in the foreseeable future.
We may be subject to claims for rescission or damages
in connection with certain sales of shares of our common stock in the open market.
In January 2014, the SEC declared effective
a registration statement that we filed to cover the resale of shares issued and sold (or to be issued and sold) by certain selling
stockholders. On March 11, 2016, that registration statement (and the prospectus contained therein) became ineligible for future
use, and selling stockholders could no longer sell any shares of our common stock in open market transactions by means of that
prospectus. We believe that certain stockholders did sell up to 128,500 shares of our common stock in open market transactions
in May 2016 by means of the ineffective registration statement/prospectus. Accordingly, those sales were not made in accordance
with Sections 5 and 10(a)(3) of the Securities Act, and the purchasers of those shares may have rescission rights (if they still
own the shares) or claims for damages (if they no longer own the shares). In addition, we also may have indemnification obligations
to the selling stockholders. The amount of any such liability is uncertain.
USE OF PROCEEDS
We will not receive any proceeds from the
sale of the common stock by the Selling Stockholder.
SELLING STOCKHOLDER
The following table sets forth information
with respect to the Selling Stockholder and the shares of our common stock beneficially owned by the Selling Stockholder as of
May 2, 2017. The Selling Stockholder may offer all, some or none of the shares of common stock covered by this Reoffer Prospectus.
We cannot advise you as to whether the Selling Stockholder will, in fact, sell any or all of such shares of common stock.
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Name of Beneficial Owner
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Shares Beneficially Owned Prior to the Offering
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Number of
Shares Offered
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Shares Beneficially Owned After the Offering
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Percentage of Outstanding Shares Beneficially Owned After the Offering
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Maria Fardis
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362,563(1)
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498,327
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135,417
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*
|
_________________________
(1) Includes 85,827
shares owned by Dr. Fardis, 141,319 shares to be issued under the Restricted Stock Units by July 1, 2017, and 135,417 shares issuable
within 60 days (by July 1, 2017) upon the vesting of stock options granted to Dr. Fardis. Does not include 271,181 shares issuable
under the Restricted Stock Units that are included in this Prospectus, but that have not vested and may not vest within 60 days.
* Less
than 1%
Dr. Fardis agreed to serve as our President
and Chief Executive Officer, and has been a director of this company, since June 1, 2016.
PLAN OF DISTRIBUTION
The common shares covered by this Reoffer
Prospectus are being registered by us for the account of the Selling Stockholder, which, as used herein, includes donees, pledgees,
transferees or other successors-in-interest selling shares of common stock or interests in shares of common stock received after
the date of this Reoffer Prospectus from the selling stockholder as a gift, pledge, partnership distribution or other transfer.
Transferees, successors and donees of the selling stockholder will not be able to use this Reoffer Prospectus for resales until
they are named in the table above by prospectus supplement or post-effective amendment. If required, we will add transferees, successors
and donees by prospectus supplement in instances where the transferee, successor or donee has acquired its shares from the holder
named in this Reoffer Prospectus after the effective date of this Reoffer Prospectus
The common shares offered hereby may be
sold from time to time directly by or on behalf of the Selling Stockholder in one or more transactions on The NASDAQ Global Market
or on any stock exchange on which the common shares may be listed at the time of sale, in privately negotiated transactions, or
through a combination of such methods, at market prices prevailing at the time of sale, at prices related to such prevailing market
prices, at fixed prices (which may be changed) or at negotiated prices. The Selling Stockholder may sell shares through one or
more agents, brokers or dealers or directly to purchasers. Such brokers or dealers may receive compensation in the form of commissions,
discounts or concessions from the Selling Stockholder and/or purchasers of the common shares or both. Such compensation as to a
particular broker or dealer may be in excess of customary commissions.
In connection with sales, the Selling Stockholder
and any participating broker or dealer may be deemed to be “underwriters” within the meaning of the Securities Act,
and any commissions they receive and the proceeds of any sale of shares may be deemed to be underwriting discounts and commissions
under the Securities Act.
We are bearing all costs relating to the
registration of the common shares to be offered hereby. Any commissions or other fees payable to broker-dealers in connection with
any sale of the common shares will be borne by the Selling Stockholder or other party selling such common shares. In order to comply
with certain states’ securities laws, if applicable, the common shares may be sold in such jurisdictions only through registered
or licensed brokers or dealers. In certain states, the common shares may not be sold unless the common shares have been registered
or qualified for sale in such state, or unless an exemption from registration or qualification is available and is obtained or
complied with. Sales of the common shares must also be made by the Selling Stockholder in compliance with all other applicable
state securities laws and regulations.
In addition to any shares sold hereunder,
the Selling Stockholder may sell common shares in compliance with Rule 144. There is no assurance that the Selling Stockholder
will sell all or a portion of the common shares offered hereby.
The Selling Stockholder may agree to indemnify
any broker-dealer or agent that participates in transactions involving sales of the common shares against certain liabilities in
connection with the offering of the common shares arising under the Securities Act.
We have notified the Selling Stockholder
of the need to deliver a copy of this Reoffer Prospectus in connection with any sale of the common shares.
LEGAL MATTERS
The validity of the shares of common stock
offered by this Reoffer Prospectus will be passed upon by TroyGould, PC, Los Angeles California. Some of the attorneys at TroyGould
PC own shares of our common stock constituting in the aggregate less than 1% of our outstanding shares of our common stock.
EXPERTS
Our financial statements as of December
31, 2016 and for the year then ended, and management’s assessment of the effectiveness of internal control over financial
reporting as of December 31, 2016 incorporated by reference into this Reoffer Prospectus have been so incorporated in reliance
on the reports of Marcum LLP, independent registered public accounting firm, upon the authority of said firm as experts in auditing
and accounting.
Our financial statements as of
December 31, 2015 and 2014 and for the years then ended incorporated
by reference into this Reoffer Prospectus have been so incorporated in reliance on the reports of Weinberg & Company,
P.A., independent registered public accounting firm, upon the authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN FIND
MORE INFORMATION
We are subject to the information and periodic
reporting requirements of the Exchange Act and, in accordance with that act, file periodic reports and other information with
the SEC. The periodic reports and other information filed by us are available for inspection and copying at prescribed rates at
the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information about the operation of the SEC’s Public Reference Room. The SEC also maintains an Internet site that
contains all reports and other information that we file electronically with the SEC. The address of that website is
www.sec.gov
.
This Reoffer Prospectus is a part of a registration
statement on Form S-8 that we filed with the SEC. This Reoffer Prospectus does not contain all of the information set forth in
the registration statement and its exhibits and schedules, certain parts of which are omitted in accordance with the SEC’s
rules and regulations. For further information, we refer you to the registration statement and to such exhibits and schedules.
You may review a copy of the registration statement at the SEC’s public reference room in Washington, D.C. as well as through
the SEC’s website. Please be aware that statements in this Reoffer Prospectus referring to a contract or other document are
summaries and you should refer to the exhibits that are part of the registration statement for a copy of the contract or other
document.
INCORPORATION OF
CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference
the following documents previously filed with the SEC:
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·
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our Annual Report on Form 10-K for the year ended December 31, 2016 filed with the SEC on March 9, 2017;
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·
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our Quarterly Report on Form 10-Q for the period ended March 31, 2017, filed with the SEC on May 3, 2017;
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·
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our Current Reports on Form 8-K filed with the SEC on March 2, 2017, March 7, 2017, March 31, 2017, April 11, 2017, April 19,
2017, April 21, 2017, and May 1, 2017, respectively; and
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·
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the description of our stock contained in our registration statement on Form 8-A filed on February 25, 2015 pursuant to Section
12 of the Exchange Act, and any amendment or report filed for the purpose of updating such description.
|
All documents filed by Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been
sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and
to be a part hereof from the date of filing of such documents. Any statement contained in this Registration Statement, in an amendment
hereto or 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 amendment
to this Registration Statement or in any document that is or is deemed to be incorporated by reference herein modifies or supersedes
such statement.
Under no circumstances shall any information
furnished prior to or subsequent to the date hereof 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.
We will provide without charge to each person,
including any beneficial owner, to whom this Reoffer Prospectus is delivered, upon his or her written or oral request, a copy of
any or all documents referred to above that have been or may be incorporated by reference into this Reoffer Prospectus, excluding
exhibits to those documents unless they are specifically incorporated by reference into those documents. Requests for those documents
should be directed to us as follows: Lion Biotechnologies, Inc., 999 Skyway Road, Suite 150, San Carlos, California, 94070, Attn:
Corporate Secretary, Telephone: (650) 260-7120.
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the
foregoing provisions, we have been informed 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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ITEM 3.
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Incorporation of Documents by Reference
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Registrant hereby incorporates by reference
the following documents previously filed with the SEC:
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·
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our Annual Report on Form 10-K for the year ended December 31, 2016 filed with the SEC on March 9, 2017;
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·
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our Quarterly Report on Form 10-Q for the period ended March 31, 2017, filed with the SEC on May 3, 2017;
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·
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our Current Reports on Form 8-K filed with the SEC on March 2, 2017, March 7, 2017, March 31, 2017, April 11, 2017, April 19,
2017, April 21, 2017, and May 1, 2017, respectively; and
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·
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the description of our stock contained in our registration statement on Form 8-A filed on February 25, 2015 pursuant to Section
12 of the Exchange Act, and any amendment or report filed for the purpose of updating such description.
|
All documents filed by Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been
sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and
to be a part hereof from the date of filing of such documents. Any statement contained in this Registration Statement, in an amendment
hereto or 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 amendment
to this Registration Statement or in any document that is or is deemed to be incorporated by reference herein modifies or supersedes
such statement.
Under no circumstances shall any information
furnished prior to or subsequent to the date hereof 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.
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ITEM 4.
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Description of Securities
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Not applicable.
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ITEM 5.
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Interests of Named Experts and Counsel
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Sanford J. Hillsberg, a member of the Board
of Directors of the Registrant, is an attorney with TroyGould PC. Some of the attorneys at TroyGould PC own shares of our common
stock constituting in the aggregate less than 1% of our outstanding shares of our common stock.
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ITEM 6.
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Indemnification of Directors and Officers
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Registrant’s amended and restated
articles of incorporation provide that, to the maximum extent permitted under applicable law, none of its directors or officers
will have any personal liability to Registrant or its stockholders for damages for breach of fiduciary duty as a director or officer.
Section 78.7502 of the Nevada Revised Statutes
permits a corporation to indemnify a present or former director, officer, employee or agent of the corporation, or of another entity
or enterprise for which such person is or was serving in such capacity at the request of the corporation, who was or is a party
or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, except an action by or
in the right of the corporation, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection therewith, arising by reason of such person’s service in such capacity if
such person (1) is not liable pursuant to Section 78.138 of the Nevada Revised Statutes, which sets forth standards for the conduct
of directors and officers, or (2) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed
to the best interests of the corporation and, with respect to a criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. In the case of actions brought by or in the right of the corporation, however, no indemnification
may be made for any claim, issue or matter as to which such person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless
and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines
upon application that in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses as the court deems proper.
Section 78.751 of the Nevada Revised Statutes
permits any discretionary indemnification under Section 78.7502 of the Nevada Revised Statutes, unless ordered by a court or advanced
to a director or officer by the corporation in accordance with the Nevada Revised Statutes, to be made by a corporation only as
authorized in each specific case upon a determination that indemnification of the director, officer, employee or agent is proper
in the circumstances. Such determination must be made (1) by the stockholders, (2) by the board of directors by majority vote of
a quorum consisting of directors who were not parties to the action, suit or proceeding, (3) if a majority vote of a quorum consisting
of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion,
or (4) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent
legal counsel in a written opinion.
Registrant’s amended and restated
bylaws require Registrant to indemnify its directors and officers in a manner that is consistent with the provisions of Nevada
law described in the preceding two paragraphs.
Registrant also has entered into indemnification
agreements with its directors in which Registrant agrees, among other things, to indemnify them against certain liabilities that
may arise by reason of their status or service as directors.
Registrant maintains a general liability
insurance policy that covers certain liabilities of directors and officers of Registrant arising out of claims based on acts or
omissions in their capacities as directors or officers.
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ITEM 7.
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Exemption from Registration Claimed
|
The 85,827 shares of common stock issued
to Dr. Fardis under the Employment Agreement were in a transaction not involving a public offering and in compliance with exemptions
from registration afforded by Section 4(a)(2) of the Securities Act.
See the Exhibit Index following the signature
page for a list of exhibits filed as part of this Registration Statement, which Exhibit Index is incorporated herein by reference.
(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;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement;
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement; provided, however, that 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 Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement.
(2) 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 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, each filing
of Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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.
(h) 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, 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 San Carlos, California, on May 3, 2017.
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LION BIOTECHNOLOGIES, INC.
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By:
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/s/ Maria Fardis
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Maria Fardis
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each individual whose signature appears below constitutes and appoints Maria Fardis and Franco Valle and each of them, his/her
true and lawful attorneys-in-fact and agents with full power of substitution and re-substitution, for him/her and in his/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 sign any registration statement for the same offering covered by this Registration Statement and filed pursuant
to Rule 462 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and all 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 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 her or his 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, as amended, this Registration Statement has been signed by the following persons in the capacities indicated.
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Signature
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Title
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Date
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/s/ Maria Fardis
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Chief Executive Officer and Director
(Principal Executive Officer)
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May 3, 2017
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Maria Fardis, Ph.D.
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/s/ Gregory T. Schiffman
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Chief Financial Officer
(Principal Financial Officer)
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May 3, 2017
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Gregory T. Schiffman
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/s/ Franco Valle
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Controller
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May 3, 2017
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Franco Valle
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(Principal Accounting Officer)
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/s/ Merrill A. McPeak
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Director
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May 3, 2017
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Merrill A. McPeak
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/s/ Jay Venkatesan
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Director
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May 3, 2017
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Jay Venkatesan
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/s/ Sanford J. Hillsberg
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Director
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May 3, 2017
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Sanford J. Hillsberg
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/s/
Wayne
Rothbaum
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Director
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May 3, 2017
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Wayne
Rothbaum
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/s/ Ryan Maynard
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Director
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May 3, 2017
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Ryan Maynard
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/s/ Iain Dukes
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Director
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May 3, 2017
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Iain Dukes
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EXHIBIT INDEX
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Exhibit No.
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Description
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4.1
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Amended and Restated Articles of Incorporation of Registrant (incorporated herein by reference to Registrant’s definitive Information Statement on Schedule 14C filed with the Commission on August 20, 2013).
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4.2
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Bylaws of Registrant (incorporated herein by reference to the Registrant’s Registration Statement on Form SB-2 (Reg. No. 333-148920) filed with the Commission on January 29, 2008).
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4.3
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Amended and Restated Bylaws of Lion Biotechnologies, Inc., effective as of November 14, 2016 (incorporated herein by reference to the Registrant’s Current Report on Form 8-K filed with the Commission on November 16, 2016).
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4.4
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Specimen Common Stock Certificate of Registrant (incorporated herein by reference to Registrant’s registration statement on Form 8-A filed on February 25, 2015).
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4.5
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Executive Employment Agreement, effective as of June 1, 2016 (incorporated herein by reference to Registrant’s Quarterly Report on Form 10-Q filed with the Commission on August 9, 2016).
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5.1
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Opinion of TroyGould PC
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23.1
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Consent of TroyGould PC (included in Exhibit 5.1)
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23.2
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Consent of Marcum LLP
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23.3
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Consent of Weinberg & Company
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24.1
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Power of Attorney (included on the signature page herein)
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