Securities Registration: Employee Benefit Plan (s-8)
January 11 2021 - 05:20PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on January 11, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IBIO, INC.
(Exact name of registrant as specified
in its charter)
Delaware
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26-2797813
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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8800 HSC Parkway
Bryan, Texas 77807-1107
(979) 446-0027
(Address, including
zip code, of principal executive offices)
iBio, Inc. 2020 Omnibus Incentive
Plan
(Full title of the
plan)
Thomas F. Isett
Chairman and Chief Executive Officer
8800 HSC Parkway
Bryan, Texas 77807-1107
(979) 446-0027
(Name, address of and telephone number,
including area code, of agent for service)
Copies to:
Leslie Marlow, Esq.
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Hank Gracin, Esq
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Patrick J. Egan, Esq.
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Gracin & Marlow, LLP
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The Chrysler Building
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405 Lexington
Avenue, 26th Floor
New York,
New York 10174
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(212) 907-6457
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(Name, address and telephone number)
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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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x
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Smaller reporting company
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x
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Emerging growth company
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¨
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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 13(a) of the Exchange Act. ¨
CALCULATION OF REGISTRATION FEE
Title of securities
to be registered (1)
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Amount to be
Registered (2)(3)
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Proposed
maximum
offering price
per share (4)
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Proposed
maximum
aggregate
offering price
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Amount
of
registration
fee (5)
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Common Stock, par value $0.001 per share
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35,516,923
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$
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1.20
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$
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42,620,308
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$
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4,650
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(1)
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The securities to be registered include options and other
rights to acquire the common stock, par value $0.001 per share (the “Common Stock”), of iBio, Inc. (the
“Registrant”).
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933,
as amended (the “Securities Act”), this Registration Statement also covers any additional securities that may
be offered or issued in connection with any stock split, stock dividend or similar transaction.
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(3)
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Represents shares of Common Stock issuable under the iBio, Inc.
2020 Omnibus Incentive Plan (the “2020 Plan”). Pursuant to the terms of the 2020 Plan, any shares of Common
Stock subject to outstanding stock options or other awards granted under the iBio, Inc. 2018 Omnibus Equity Incentive
Plan (the “2018 Plan”) that, on or after the date on which the 2020 Plan became effective, expire, terminate or
are forfeited for any reason prior to exercise or settlement shall become available for issuance pursuant to share awards
granted under the 2020 Plan, subject to certain limitations.
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(4)
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Estimated pursuant to Rule 457(c) and 457(h) of the Securities
Act solely for purposes of calculating the registration fee. The price for the shares under the 2020 Plan is based upon the
average of the high and low sale prices of the Common Stock on January 6, 2021, as reported by the NYSE American.
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(5)
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Calculated pursuant to Section 6(b) of the
Securities Act as 0.00010910 of the proposed maximum aggregate offering price.
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EXPLANATORY NOTE
iBio, Inc.
(the “Registrant” or the “Company”) hereby files this Registration Statement on Form S-8 relating
to its common stock, par value $0.001 per share (the “Common Stock”), which have been reserved for issuance and are
issuable pursuant to the Company’s 2020 Omnibus Incentive Plan (hereinafter referred to as the “2020 Plan”).
The Registrant’s
Board of Directors believes that it is in the best interest of the Company and its stockholders
for the Company to have in place the 2020 Plan, which reflects current best practice provisions. The 2020 Plan is
the successor to the iBio, Inc. 2018 Omnibus Equity Incentive Plan, as amended (the “2018 Plan”). Now that the
2020 Plan is effective, all outstanding awards under the 2018 Plan will remain outstanding, but no further grants will be made
under the 2018 Plan. The Board of Directors believes the 2020 Plan, including the maximum number of shares available for
awards under the 2020 Plan, is necessary to ensure that we have adequate capacity to continue to attract, motivate, reward and
retain employees, non-employee directors and consultants.
The total number of
shares available under the 2020 Plan for awards to officers, employees, non-employee directors, and consultants consist of (i) the
32,000,000 shares reserved and available for issuance pursuant to the grant of new awards under the 2020 Plan, and (ii) the
3,516,923 shares subject to outstanding stock options or other awards granted under the 2018 Plan that, after the date on which
the 2020 Plan became effective, are forfeited, canceled or otherwise terminated, other than by exercise; or are tendered or withheld
(or not issued) to satisfy a tax withholding obligation or the purchase or exercise price, if any, as such shares become available
from time to time.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual
Information*
* The information
specified in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 is omitted from this filing in accordance
with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the
introductory note to Part I of Form S-8. The documents containing the information specified in Part I will be delivered
to the participants in the 2020 Plan as required by Rule 428. Such documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents
by Reference.
The Securities and
Exchange Commission (the “SEC”) allows us to “incorporate by reference” the information we file with it
which means that we can disclose important information to you by referring you to those documents instead of having to repeat
the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus, and
later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), between the date of this prospectus and the termination of
the offering:
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The Registrant’s Annual
Report on Form 10-K for the fiscal year ended June 30, 2020, which was filed with the SEC on October 13, 2020 and Annual
Report on Form 10-K/A for the year ended June 30, 2020, which was filed with the SEC on October 27, 2020 (Commission
File No. 001-35023);
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·
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The Registrant’s Quarterly
Report on Form 10-Q for the quarterly period ended September 30, 2020, which was filed with the SEC on November 16,
2020 (Commission File No. 001-35023);
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·
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The Registrant’s Current Reports on Form 8-K filed with the SEC on July 9,
2020, July 29,
2020 and August 13,
2020, October 2,
2020, October 5,
2020, October 9,
2020, October 13,
2020, October 16,
2020, October 22,
2020, November 3,
2020, November 24,
2020, November 25,
2020, December 7,
2020, December 9,
2020, December 10,
2020, December 23,
2020 and December 28,
2020(Commission File No. 001-35023);
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·
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The Registrant’s Definitive Proxy Statement on Schedule 14A filed with the SEC on November 3,
2020, as amended on November 6,
2020 (Commission File No. 001-35023); and
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·
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The description of the Registrant’s common stock, par value $0.001 per share, included
(i) under
the caption “Description of Securities” in the Prospectus forming a part of Amendment No. 2 to the Registrant’s
Registration Statement on Form S-1, filed with the SEC on October 24, 2019 (File No. 333-233504) and
(ii) in Exhibit 4.9
to the Registrant’s Annual Report on Form 10-K for the fiscal year ended June 30, 2020, filed with the SEC
on October 13, 2020.
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All reports and other
documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act shall be
deemed to be incorporated by reference in this Registration Statement and to be a part of this Registration Statement from the
respective date of filing of each of those reports or documents until the filing of a post-effective amendment to this Registration
Statement which indicates either that all securities offered by this Registration Statement have been sold or which deregisters
all of the securities under this Registration Statement then remaining unsold.
Any statement contained
in this Registration Statement or in a document incorporated or deemed to be incorporated by reference in this Registration Statement
shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained
in this Registration Statement or in any other subsequently filed document which also is or is deemed to be incorporated by reference
in this Registration Statement modifies or supersedes that statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable
Item 6. Indemnification of Directors and Officers
The Registrant’s
certificate of incorporation requires it to indemnify its officers and directors to the fullest extent permitted by Delaware law,
which generally permits indemnification for actions taken by officers or directors as the Registrant’s representatives if
the officer or director acted in good faith and in a manner he or she reasonably believed to be in the best interest of the Registrant.
The Registrant has entered into indemnification agreements with its officers and directors to specify the terms of its indemnification
obligations. In general, these indemnification agreements provide that the Registrant will:
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indemnify its directors and officers
to the fullest extent now permitted under current law and to the extent the law later is amended to increase the scope
of permitted indemnification;
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advance payment of expenses to
a director or officer incurred in connection with an indemnifiable claim, subject to repayment if it is later determined
that the director or officer was not entitled to be indemnified;
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reimburse the director or officer
for any expenses incurred by the director or officer in seeking to enforce the indemnification agreement; and
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have the opportunity to participate in the defense of any indemnifiable claims against the
director or officer.
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As permitted under
Delaware law, the Registrant’s bylaws contain a provision indemnifying directors, officers, employee or agent of the Registrant
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with an action, suit or proceeding if they acted in good faith and in a manner they reasonably believed
to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful.
The separation and
distribution agreement that the Registrant entered into with Integrated BioPharma provides for indemnification by the Registrant
of Integrated BioPharma and its directors, officers and employees for some liabilities, including liabilities under the Securities
Act and the Securities Exchange Act of 1934, as amended, in connection with the distribution, and a mutual indemnification of
each other for product liability claims arising from their respective businesses, and also requires that the Registrant indemnify
Integrated BioPharma for various liabilities of iBio, and for any tax that may be imposed with respect to the distribution and
which result from our actions or omissions in that regard.
Item 7. Exemption from Registration
Claimed
Not applicable.
Item 8. Exhibits.
Exhibit Number
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Description
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3.1
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Certificate
of Incorporation of iBio, Inc., Certificate of Merger, Certificate of Ownership and Merger, Certificate of Amendment
of the Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q
filed with the Securities and Exchange Commission on May 11, 2018 - File No. 001-35023))
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3.2
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Certificate
of Amendment of the Certificate of Incorporation of iBio, Inc. (incorporated herein by reference to Exhibit 3.2
to the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on February 14, 2018 - File
No. 001-35023)
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3.3
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Certificate
of Amendment of the Certificate of Incorporation of iBio, Inc. (incorporated herein by reference to the Company’s
Current Report on Form 8-K filed with the SEC on June 8, 2018 - File No. 001-35023)
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3.4
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First
Amended and Restated Bylaws of iBio, Inc. (incorporated herein by reference to Exhibit 3.2 to the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission on August 14, 2009 - File No. 000-53125)
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3.5
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Certificate
of Designation, Preferences and Rights of the iBio CMO Preferred Tracking Stock of iBio, Inc. (incorporated herein by
reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange
Commission on February 24, 2017 - File No. 001-35023)
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3.6
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Certificate of Designation, Preferences and Rights of the iBio CMO Preferred Tracking Stock of iBio, Inc. (incorporated
herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and
Exchange Commission on February 24, 2017 - File No. 001-35023)
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3.7
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Certificate
of Designation, Preferences and Rights of the Series A Convertible Preferred Stock of iBio, Inc. (Incorporated herein
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange
Commission on June 27, 2018 - File No. 001-35023)
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3.8
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Certificate
of Designation, Preferences and Rights of the Series B Convertible Preferred Stock of iBio, Inc. (incorporated herein
by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange
Commission on June 27, 2018 - File No. 001-35023)
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3.9
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Certificate
of Designation, Preferences and Rights of the Series C Convertible Preferred Stock of iBio, Inc. (incorporated herein
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange
Commission on October 29, 2019 - File No. 001-35023)
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4.1
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Form of
Common Stock Certificate (Incorporated herein by reference to Exhibit 4.1 to the Company’s Form 10-12G filed
with the Securities and Exchange Commission on July 11, 2008 - Commission File No. 000-53125)
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5.1*
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Opinion of Gracin &
Marlow, LLC
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10.1
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iBio, Inc.
2020 Omnibus Incentive Plan (incorporated by reference to Appendix A of the Registrant’s Definitive Proxy Statement
on Schedule 14A, filed with the SEC on November 3, 2020).
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10.2*
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Form of Non-Qualified Stock Option Agreement for Employees
under the iBio, Inc. 2020 Omnibus Incentive Plan
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10.3*
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Form of Non-Qualified Stock Option Agreement for Non-Employee
Directors (Initial Grant) under the iBio, Inc. 2020 Omnibus Incentive Plan
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10.4*
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Form of Non-Qualified Stock Option Agreement for Non-Employee
Directors (Annual Grant) under the iBio, Inc. 2020 Omnibus Incentive Plan
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10.5*
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Form of Restricted Stock Unit Award Agreement for Employees
under the iBio, Inc. 2020 Omnibus Incentive Plan
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23.1*
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Consent of CohnReznick LLP, Independent Registered
Public Accounting Firm
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23.2*
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Consent of Gracin & Marlow, LLC (Included in Exhibit 5.1)
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24.1*
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Powers of Attorney (included on signature page to this Registration Statement)
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*Filed herewith.
Item 9.
Undertakings.
(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the
Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information in the Registration Statement; and
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(iii)
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To include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
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provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply to the Registration Statement on Form S-8
if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
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(2)
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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.
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(3)
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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.
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(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities
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 Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York, State of New York, January 11, 2021.
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IBIO, INC.
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By:
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/s/ Thomas F. Isett
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Chairman and Chief Executive Officer
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(Principal Executive Officer)
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POWER OF ATTORNEY
Each
of the undersigned, whose signature appears below, hereby constitutes and appoints Thomas F. Isett and John Delta, and each of
them, his 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 any or all amendments to this registration statement, and
any subsequent registration statement filed by the registrant pursuant to Rule 462(b) of the Securities Act of 1933,
as amended, which relates 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,
or his or their substitute or substitutes, and each of them, full power and authority to do and perform each and every act and
thing necessary or appropriate to be done with respect to this registration statement or any amendments hereto in 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 his or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons
on behalf of the Registrant, iBio, Inc., in the capacities and on the date indicated.
Signature
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Title
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Date
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/s/
Thomas F. Isett
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Chairman and Chief Executive Officer (Principal Executive Officer)
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January
11, 2021
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Thomas F. Isett
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/s/ John
Delta
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Acting Chief Financial
Officer
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January 11, 2021
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John Delta
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(Principal Financial
Officer and Principal Accounting Officer)
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/s/ Robert
B. Kay
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Director
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January 11, 2021
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Robert B. Kay
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/s/ James
T. Hill
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Director
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January 11, 2021
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General James T. Hill (Ret.)
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/s/ Glenn
Chang
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Director
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January 11, 2021
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Glenn Chang
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/s/ John
D. McKey, Jr.
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Director
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January 11,
2021
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John D. McKey, Jr.
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/s/ Seymour
Flug
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Director
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January 11, 2021
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Seymour Flug
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/s/ Linda
W. Armstrong, M.D.
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Director
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January 11, 2021
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Linda W. Armstrong, M.D.
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/s/ Alexandra
Kropotova
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Director
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January 11, 2021
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Alexandra Kropotova
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/s/ Gary
Sender
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Director
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January 11, 2021
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Gary Sender
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EXHIBIT INDEX
Exhibit Number
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Description
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3.1
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Certificate
of Incorporation of iBio, Inc., Certificate of Merger, Certificate of Ownership and Merger, Certificate of Amendment
of the Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q
filed with the Securities and Exchange Commission on May 11, 2018 - File No. 001-35023))
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3.2
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Certificate
of Amendment of the Certificate of Incorporation of iBio, Inc. (incorporated herein by reference to Exhibit 3.2
to the Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on February 14, 2018 - File
No. 001-35023)
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3.3
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Certificate
of Amendment of the Certificate of Incorporation of iBio, Inc. (incorporated herein by reference to the Company’s
Current Report on Form 8-K filed with the SEC on June 8, 2018 - File No. 001-35023)
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3.4
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First
Amended and Restated Bylaws of iBio, Inc. (incorporated herein by reference to Exhibit 3.2 to the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission on August 14, 2009 - File No. 000-53125)
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3.5
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Certificate
of Designation, Preferences and Rights of the iBio CMO Preferred Tracking Stock of iBio, Inc. (incorporated herein by
reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange
Commission on February 24, 2017 - File No. 001-35023)
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3.6
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Certificate of Designation, Preferences and Rights of the iBio CMO Preferred Tracking Stock of iBio, Inc. (incorporated
herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and
Exchange Commission on February 24, 2017 - File No. 001-35023)
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3.7
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Certificate
of Designation, Preferences and Rights of the Series A Convertible Preferred Stock of iBio, Inc. (Incorporated herein
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange
Commission on June 27, 2018 - File No. 001-35023)
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3.8
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Certificate
of Designation, Preferences and Rights of the Series B Convertible Preferred Stock of iBio, Inc. (incorporated herein
by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange
Commission on June 27, 2018 - File No. 001-35023)
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3.9
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Certificate
of Designation, Preferences and Rights of the Series C Convertible Preferred Stock of iBio, Inc. (incorporated herein
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange
Commission on October 29, 2019 - File No. 001-35023)
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4.1
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Form of
Common Stock Certificate (Incorporated herein by reference to Exhibit 4.1 to the Company’s Form 10-12G filed
with the Securities and Exchange Commission on July 11, 2008 - Commission File No. 000-53125)
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5.1*
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Opinion of Gracin & Marlow, LLC
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10.1
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iBio, Inc.
2020 Omnibus Incentive Plan (incorporated by reference to Appendix A of the Registrant’s Definitive Proxy Statement
on Schedule 14A, filed with the SEC on November 3, 2020).
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10.2*
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Form of Non-Qualified Stock Option Agreement for Employees under the iBio, Inc.
2020 Omnibus Incentive Plan
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10.3*
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Form of Non-Qualified Stock Option Agreement for Non-Employee Directors (Initial
Grant) under the iBio, Inc. 2020 Omnibus Incentive Plan
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10.4*
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Form of Non-Qualified Stock Option Agreement for Non-Employee Directors (Annual Grant)
under the iBio, Inc. 2020 Omnibus Incentive Plan
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10.5*
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Form of Restricted Stock Unit Award Agreement for Employees under the iBio, Inc.
2020 Omnibus Incentive Plan
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23.1*
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Consent of CohnReznick LLP, Independent Registered Public Accounting Firm
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23.2*
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Consent of Gracin & Marlow, LLC (Included in Exhibit 5.1)
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24.1*
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Powers of Attorney (included on signature page to this Registration Statement)
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*Filed herewith.
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