Securities Registration: Employee Benefit Plan (s-8)
October 02 2018 - 4:56PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on October 2, 2018
Registration
No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Gritstone Oncology, Inc.
(Exact name of Registrant as specified in its charter)
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Delaware
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47-4859534
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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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5858 Horton Street, Suite 210
Emeryville, California
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94608
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(Address of Principal Executive Offices)
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(Zip Code)
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2015 Equity Incentive Plan
2018 Incentive Award Plan
2018 Employee Stock Purchase Plan
(Full Title of the Plan)
Andrew Allen, M.D., Ph.D.
President and Chief Executive Officer
Gritstone Oncology, Inc.
5858 Horton Street, Suite 210
Emeryville, California 94608
(510)
871-6100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Alan C. Mendelson, Esq.
Brian J. Cuneo, Esq.
Latham & Watkins LLP
140 Scott Drive
Menlo
Park, California 94025
Telephone: (650)
328-4600
Facsimile: (650)
463-2600
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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, smaller reporting company and emerging growth company in Rule
12b-2
of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated
filer
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☒
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Smaller reporting company
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☐
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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 7(a)(2)(B) of the Securities Act. ☒
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
(1)
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Proposed
Maximum
Offering Price
Per Share
(2)
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Proposed
Maximum
Aggregate
Offering Price
(2)
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Amount of
Registration Fee
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Common Stock, $0.0001 par value per share
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5,420,524
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$3.97-$14.62
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$54,164,436
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$6,565
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this
registration statement shall also cover any additional shares of the Registrants common stock that become issuable under the 2015 Equity Incentive Plan, as amended (the 2015 Plan), the 2018 Incentive Award Plan (the 2018
Plan) and the 2018 Employee Stock Purchase Plan (the ESPP) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without the Registrants receipt of consideration which would increase
the number of outstanding shares of common stock. In addition, pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefits
plan described herein.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and
Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price (a) for outstanding options granted under the 2015 Plan and the 2018 Plan are based upon the weighted-average exercise price of such
outstanding options and (b) for shares reserved for future issuance under the 2018 Plan and the ESPP are based on the average of the high and the low price of Registrants common stock as reported on the Nasdaq Global Select Market on
September 28, 2018. The chart below details the calculations of the registration fee:
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Securities
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Number of
Shares
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Offering Price
Per Share
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Aggregate
Offering Price
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Shares issuable upon the exercise of outstanding options
granted under the 2015 Plan
(3)
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2,355,270
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$3.97
(2)(a)
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$9,350,422
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Shares reserved for future grant under the 2018 Plan
(3)
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2,782,920
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$14.62
(2)(b)
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$40,686,291
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Shares reserved for future grant under the ESPP
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282,334
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$14.62
(2)(b)
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$4,127,723
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Proposed Maximum Aggregate Offering Price
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$54,164,436
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(3)
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Pursuant to the terms of the 2018 Plan, any shares subject to outstanding options originally granted under the
2015 Plan that terminate, expire or lapse for any reason without the delivery of shares to the holder thereof shall become available for issuance pursuant to awards granted under the 2018 Plan.
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Proposed sale to take place as soon after the effective date of the
registration statement as awards under the plans are exercised and/or vest.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form
S-8
is not being filed with or included in this Form
S-8
(by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the SEC).
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
In this registration statement, Gritstone Oncology, Inc. is sometimes referred to as
Registrant, we, us or our.
Item 3. Incorporation of Documents by Reference.
The SEC allows us to incorporate by reference the information we file with them, which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to be part of this registration statement, and later information filed with the SEC will update and supersede this information. We hereby incorporate by reference into this
registration statement the following documents previously filed with the SEC:
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(a)
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The prospectus filed by the Registrant with the SEC pursuant to Rule 424(b) under the Securities Act, on
September 28, 2018, relating to the registration statement on Form
S-1,
as amended (No.
333-226976),
which contains the Registrants audited financial
statements for the latest fiscal year for which such statements have been filed;
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(b)
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The Registrants Current Report on Form
8-K
as filed with the SEC
on October 2, 2018; and
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(c)
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The description of the Registrants common stock contained in the Registrants registration statement
on Form
8-A
(Registration
No. 001-38663),
filed by the Registrant with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as amended (the
Exchange Act), on September 18, 2018 including any amendments or reports filed for the purpose of updating such description.
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All documents that the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to the registration statement which indicates that all of the shares of common stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in
this registration statement and to be a part hereof from the date of the filing of such documents; except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under current Items 2.02 or
7.01 of Form
8-K,
and exhibits furnished on such form that relate to such items, that is not deemed filed under such provisions. For the purposes of this registration statement, any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Under no circumstances will any information filed under current Items 2.02 or 7.01 of Form
8-K,
and exhibits furnished
on such form that relate to such items, be deemed incorporated herein by reference unless such Form
8-K
expressly provides to the contrary.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Latham & Watkins LLP and certain attorneys and investment funds affiliated with the firm own an aggregate of less than 1% of Registrants Common
Stock.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 102 of the Delaware General Corporation Law, we have adopted provisions in our amended and restated certificate of incorporation
(the Certificate of Incorporation) filed with the Secretary of State of the State of Delaware and our amended and restated bylaws (the Bylaws) that limit or eliminate the personal liability of our directors for a breach of
their fiduciary duty of care as a director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material information reasonably available to them.
Consequently, a director will not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:
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any breach of the directors duty of loyalty to us or our stockholders;
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any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or
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any transaction from which the director derived an improper personal benefit.
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These limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. Our Certificate of Incorporation
also requires us to indemnify our officers and directors and authorizes us to indemnify our employees and other agents to the fullest extent permitted under Delaware law.
As permitted by Section 145 of the Delaware General Corporation Law, our Bylaws provide that:
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we shall indemnify our directors and officers to the fullest extent permitted by the Delaware General Corporation
Law, subject to limited exceptions;
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we may indemnify our employees and agents to the fullest extent permitted by the Delaware General Corporation
Law, subject to limited exceptions;
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we shall advance expenses to our directors and officers and may advance expenses to our employees and agents in
connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and
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the rights provided in our Bylaws are not exclusive.
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Our Certificate of Incorporation and our Bylaws provide for the indemnification provisions described above and elsewhere herein. We have also entered into
separate indemnification agreements with our directors and officers which may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements generally require us, among
other things, to indemnify our officers and directors against liabilities that may arise by reason of their status or service as directors or officers, other than liabilities arising from willful misconduct. These indemnification agreements also
generally require us to advance any expenses incurred by the directors or officers as a result of any proceeding against them as to which they could be indemnified. In addition, we have purchased a policy of directors and officers
liability insurance that insures our directors and officers against the cost of defense, settlement or payment of a judgment in some circumstances. These indemnification provisions and the indemnification agreements may be sufficiently broad to
permit indemnification of our officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended, or the Securities Act.
Item 7. Exemption from Registration Claimed.
Not
applicable.
Item 8. Exhibits.
Reference is made under this Item 8 to the exhibit index included in this Registration Statement.
Item 9. Undertakings.
1. The Registrant hereby
undertakes:
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(a)
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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 of 1933;
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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 set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table
in the effective registration statement;
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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) do not apply if the registration statement is on Form
S-8
and the information required to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
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(b)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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(c)
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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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(d)
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That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or
used or referred to by the undersigned Registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
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2. The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
3. 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 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 Act and will be governed by the final adjudication of such issue.
Exhibit Index
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Indicates management contract or compensatory plan.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form
S-8
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Emeryville, California, on this 2nd day of
October, 2018.
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Gritstone Oncology, Inc.
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By:
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/s/ Andrew Allen
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Andrew Allen, M.D., Ph.D.
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Andrew Allen, M.D., Ph.D. and Jean-Marc
Bellemin and each of them, with full power of substitution and full power to act without the other, his or her true and lawful
attorney-in-fact
and agent to act for him
or her in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file this registration statement, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact
and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary to be done in order to effectuate the same as fully, to all intents and purposes, as they or he or she might or could do in person, hereby ratifying and confirming all
that said
attorneys-in-fact
and agents, or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities
and on the date indicated.
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Signature
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Title
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Date
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/s/ Andrew Allen
Andrew Allen, M.D., Ph.D.
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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October 2, 2018
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/s/ Jean-Marc Bellemin
Jean-Marc Bellemin
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Executive Vice President, Chief Financial Officer
(Principal Financial and Accounting Officer)
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October 2, 2018
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/s/ Richard Heyman
Richard Heyman, Ph.D.
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Director
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October 2, 2018
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/s/ Steve Krognes
Steve Krognes
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Director
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October 2, 2018
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/s/ Judith Li
Judith Li
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Director
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October 2, 2018
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/s/ Nicholas Simon
Nicholas Simon
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Director
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October 2, 2018
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/s/ Peter Svennilson
Peter Svennilson
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Director
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October 2, 2018
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/s/ Thomas Woiwode
Thomas Woiwode, Ph.D.
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Director
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October 2, 2018
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