As filed with the Securities and Exchange Commission on May 13, 2022

Registration No. 333-255699

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

POST-EFFECTIVE

AMENDMENT NO. 3

TO

FORM S-3

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

IMMUNITYBIO, INC.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   43-1979754
(State or other jurisdiction of
incorporation or organization)
  (I.R.S. Employer
Identification Number)

3530 John Hopkins Court

San Diego, California 92121

(858) 633-0300

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Richard Adcock

Chief Executive Officer and President

ImmunityBio, Inc.

3530 John Hopkins Court

San Diego, California 92121

(858) 633-0300

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

 

 

Copies to:

 

Jason Liljestrom

General Counsel

ImmunityBio, Inc.

3530 John Hopkins Court

San Diego, California 92121

(858) 633-0300

 

Martin J. Waters

Wilson Sonsini Goodrich & Rosati,

Professional Corporation

12235 El Camino Real

San Diego, California 92130

(858) 350-2300

 

 

Approximate date of commencement of proposed sale to the public: From time to time, after the effective date of this Registration Statement.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  ☐

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  ☐

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  ☐

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     ☒    Accelerated filer     ☐
Non-accelerated filer     ☐    Smaller reporting company     ☐
     Emerging growth company     ☐

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 Exchange Act.  ☐

 

 

 


The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on such date as the SEC, acting pursuant to said Section 8(a), may determine.

EXPLANATORY NOTE

The sole purpose of this Post-Effective Amendment No. 3 to Registration Statement on Form S-3 (File No. 333-255699) is to file an updated Exhibit 23.1 to the Registration Statement. No changes have been made to the preliminary prospectus consisting of the base prospectus and prospectus supplement included as a part of Part I of the Registration Statement on Form S-3 pursuant to this Amendment No. 3 to the Registration Statement. Accordingly, Part I of the Registration Statement on Form S-3 has been omitted from this amendment.


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 14. Other Expenses of Issuance and Distribution

The following are the categories of expenses to be incurred in connection with the issuance and distribution of the securities registered under this registration statement, other than underwriting discounts and commissions. Actual amounts will be provided in the applicable prospectus supplement.

 

     Amount to be
Paid
 

SEC registration fee

   $ 30,664.79  

Printing costs

     10,000.00  

Legal fees and expenses

     150,000.00  

Accounting fees and expenses

     75,000.00  

Transfer agent’s and trustee’s fees and expenses

     5,000.00  

Miscellaneous

     4,335.21  
  

 

 

 

Total

   $ 275,000.00 (1) 
  

 

 

 

 

(1)

Many of these expenses were paid in connection with the filing of the Registration Statement on S-3ASR (File No. 333-255699) by the Company on April 30, 2021.

Item 15. Indemnification of Directors and Officers

The Registrant’s amended and restated certificate of incorporation, as amended contains provisions that eliminate, to the maximum extent permitted by the General Corporation Law of the State of Delaware, the personal liability of the Registrant’s directors and executive officers for monetary damages for breach of their fiduciary duties as directors or officers. The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws provide that the Registrant must indemnify its directors and executive officers and may indemnify its employees and other agents to the fullest extent permitted by the General Corporation Law of the State of Delaware.

Sections 145 and 102(b)(7) of the General Corporation Law of the State of Delaware provide that a corporation may indemnify any person made a party to an action by reason of the fact that he or she was a director, executive officer, employee or agent of the corporation or is or was serving at the request of a corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of an action by or in right of the corporation, no indemnification may generally be made in respect of any claim as to which such person is adjudged to be liable to the corporation.

The Registrant has entered into indemnification agreements with its directors and executive officers, in addition to the indemnification provided for in its amended and restated certificate of incorporation and amended and restated bylaws, and intends to enter into indemnification agreements with any new directors and executive officers in the future.

The Registrant has purchased and intends to maintain insurance on behalf of any person who is or was a director or officer of the Registrant against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.

See also the undertakings set out in response to Item 17 herein.

 

II-1


Item 16. Exhibits

(a) Exhibits. The following exhibits are filed herewith or incorporated herein by reference:

 

         Incorporated by Reference  

Exhibit
Number

  

Exhibit Title

  Form     File No.     Exhibit     Filing Date  

1.1*

   Form of Underwriting Agreement.        

1.2

   Open Market Sale Agreement, dated April 30, 2021, by and between ImmunityBio, Inc. and Jefferies LLC.     8-K       001-37507       10.1       May 3, 2021  

3.1

   Amended and Restated Certificate of Incorporation of ImmunityBio, Inc.     8-K       001-37507       3.1       August 4, 2015  

3.2

   Certificate of Amendment of Amended and Restated Certificate of Incorporation of ImmunityBio, Inc.     8-K       001-37507       3.1       March 10, 2021  

3.3

   Certificate of Amendment of Amended and Restated Certificate of Incorporation of ImmunityBio, Inc. dated February 1, 2022.     POSASR       333-255699       3.3       March 1, 2022  

3.4

   Amended and Restated Bylaws of ImmunityBio, Inc.     10-Q       001-37507       3.2       August 12, 2021  

4.1

   Nominating Agreement by and between the Registrant and Cambridge Equities, LP, dated June 18, 2015.     S-1       333-205124       4.1       June 19, 2015  

4.2

   Registration Rights Agreement by and between the Registrant and Cambridge Equities LP, dated December 23, 2014.     S-1       333-205124       4.3       June 19, 2015  

4.3

   Voting Agreement, dated as of December  21, 2020, by and among ImmunityBio, Inc., NantKwest, Inc., and the NantKwest, Inc. stockholders party thereto.     8-K       001-37507       10.1       December 22, 2020  

4.4

   Voting Agreement, dated as of December  21, 2020, by and among NantKwest, Inc., ImmunityBio, Inc. and the ImmunityBio, Inc. stockholders party thereto.     8-K       001-37507       10.2       December 22, 2020  

4.5*

   Form of Certificate of Designation.        

4.6

   Specimen Common Stock Certificate.     S-8 POS       333-252232       4.1       May 21, 2021  

4.7*

   Form of Preferred Stock Certificate.        

4.8

   Form of Indenture.     S-3       333-233434       4.6       August 23, 2019  

4.9

   Form of Debt Security (included in Exhibit 4.8).        

4.10*

   Form of Warrant.        

 

II-2


          Incorporated by Reference

Exhibit
Number

  

Exhibit Title

   Form      File No.      Exhibit      Filing Date

4.11*

   Form of Warrant Agreement.            

4.12*

   Form of Unit Agreement.            

5.1

   Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.      S-3        333-255699        5.1      March 7, 2022

23.1**

   Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.            

23.2

   Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1).            

24.1

   Power of Attorney (see signature page to the original filing of this registration statement).            

25.1***

   Form T-1 Statement of Eligibility of Trustee for Indenture under the Trust Indenture Act of 1939.            

 

*

To be filed, if necessary, by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended and incorporated herein by reference.

**

Filed herewith.

***

To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939 under the electronic form type “305B2.”

Item 17. Undertakings

(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 of 1933;

(ii) 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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii) 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;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply 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 SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

 

II-3


(2) 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.

(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.

(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to the effective date;

(5) 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:

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) 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;

(iii) 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

(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the

 

II-4


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.

(c) 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 SEC such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.

(d) The undersigned registrant hereby undertakes that:

(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.

(e) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.

 

II-5


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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on May 13, 2022.

 

IMMUNITYBIO, INC.
By:  

/s/ Richard Adcock

  Richard Adcock
  Chief Executive Officer and President

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:

 

Signature

 

Title

 

Date

/s/ Richard Adcock

  Chief Executive Officer, President and Director   May 13, 2022
Richard Adcock   (Principal Executive Officer)  

/s/ David C. Sachs

  Chief Financial Officer   May 13, 2022
David C. Sachs   (Principal Financial Officer)  

/s/ Regan J. Lauer

  Chief Accounting Officer   May 13, 2022
Regan J. Lauer   (Principal Accounting Officer)  

*

  Global Chief Scientific and Medical Officer and   May 13, 2022
Patrick Soon-Shiong   Executive Chairman of the Board of Directors  

*

  Chief Corporate Affairs Officer and Director   May 13, 2022
Barry J. Simon    

*

  Director   May 13, 2022
Michael D. Blaszyk    

*

  Director   May 13, 2022
John Owen Brennan    

*

  Director   May 13, 2022
Wesley Clark    

*

  Director   May 13, 2022
Cheryl L. Cohen    

*

  Director   May 13, 2022
Linda Maxwell    

*

  Director   May 13, 2022
Christobel Selecky    

 

*By:  

/s/ Richard Adcock

Richard Adcock
Attorney-in-Fact

 

II-6

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