As filed with the Securities and Exchange Commission on March 15, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORMS-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CYMABAY THERAPEUTICS, INC.
(Exact name of Registrant as specified in its charter)
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| Delaware | | 94-3103561 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
7999 Gateway Blvd., Suite 130
Newark, CA 94560
(Address of principal executive offices) (Zip code)
CymaBay Therapeutics, Inc. 2013 Equity Incentive Plan
(Full title of the plan)
Sujal Shah
President and Chief Executive Officer
CymaBay Therapeutics, Inc.
7999 Gateway Blvd., Suite 130
Newark, CA 94560
(510)293-8800
(Name and address of agent for service) (Telephone number, including area code, of agent for service)
Copies to:
Matthew B. Hemington
Cooley LLP
3175 Hanover Street
Palo Alto, California 94304
(650)843-5000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, anon-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” inRule 12b-2 of the Exchange Act.
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| Large accelerated filer | | ☐ | | Accelerated filer | | ☒ |
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| Non-accelerated filer | | ☐ (Do not check if a smaller reporting company) | | Smaller reporting company | | ☒ |
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| 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 Securities Act. ☒
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered | | Amount to be Registered (1) | | Proposed Maximum Offering Price Per Share(2) | | Proposed Maximum Aggregate Offering Price(2) | | Amount of Registration Fee |
Common Stock, par value $0.0001 per share | | 2,220,439 shares | | $13.525 | | $30,031,437.48 | | $3,738.91 |
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| (1) | Represents additional shares of the Registrant’s common stock, par value $0.0001 (the “Common Stock”) issuable under the Registrant’s 2013 Equity Incentive Plan (the “Plan”) by reason of the automatic share increase provision of the Plan. Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”). This Registration Statement shall also cover any additional shares of Common Stock that become issuable under the Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock. |
| (2) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price is based upon $13.525, which is the average of the high and low selling prices of the Registrant’s Common Stock as reported on the Nasdaq Capital Market on March 14, 2018. |
EXPLANATORY NOTE
CymaBay Therapeutics, Inc. (the “Registrant”) is filing this Registration Statement onForm S-8 for the purpose of registering an additional 2,220,439 shares of its Common Stock, issuable to eligible persons under the CymaBay Therapeutics, Inc. 2013 Equity Incentive Plan (“2013 Plan”), which Common Stock is in addition to the shares of Common Stock previously registered on the following FormS-8s (collectively, the “Prior FormS-8s”):
| | • | | the Registrant’sForm S-8 filed on April 11, 2014 (FileNo. 333-195211); |
| | • | | the Registrant’s FormS-8 filed on August 21, 2014 (FileNo. 333-198289); |
| | • | | the Registrant’s FormS-8 filed on March 23, 2015 (FileNo. 333-202941); |
| | • | | the Registrant’s FormS-8 filed on March 29, 2016 (FileNo. 333-210453); and |
| | • | | the Registrant’s FormS-8 filed on March 23, 2017 (FileNo. 333-216905). |
PART II
| ITEM 3. | INCORPORATION BY REFERENCE |
Pursuant to General Instruction E to FormS-8, the contents of the Prior FormS-8s are incorporated herein by reference and made a part hereof.
The following documents filed by the Registrant with the Securities and Exchange Commission are incorporated by reference into this Registration Statement:
| | a) | The Registrant’s Annual Report on Form10-K filed on March 15, 2018, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (FileNo. 001-36500). |
| | b) | The Registrant’s Current Reports on Form8-K filed on January 12, 2018 and January 30, 2018, under the Exchange Act (FileNo. 001-36500). |
| | c) | The description of the Registrant’s common stock contained in the Registrant’s Form8-A filed on June 16, 2014, including any amendment or report filed for the purpose of updating such description. |
| | d) | All documents, reports and definitive proxy or information statements filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form8-K and exhibits furnished on such form that relate to such items) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained 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 document that also 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. |
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| (1) | Previously filed as Exhibit 3.1 to the Registrant’s Amendment No. 2 to Registration Statement on Form 10/A (FileNo. 000-55021), filed with the Commission on October 17, 2013, and incorporated by reference herein. |
| (2) | Previously filed as Exhibit 3.2 to the Registrant’s Amendment No. 2 to Registration Statement on Form 10/A (FileNo. 000-55021), filed with the Commission on October 17, 2013, and incorporated by reference herein. |
| (3) | Previously filed as Exhibit 4.2 to the Registrant’s Amendment No. 2 to Registration Statement on Form 10/A (FileNo. 000-55021), filed with the Commission on October 17, 2013, and incorporated by reference herein. |
| (4) | Previously filed as Exhibit 4.3 to the Registrant’s Amendment No. 2 to Registration Statement on Form 10/A (FileNo. 000-55021), filed with the Commission on October 17, 2013, and incorporated by reference herein. |
| (5) | Previously filed as Exhibit 4.4 to the Registrant’s Annual Report on Form10-K (FileNo. 000-55021), filed with the Commission on March 31, 2014, and incorporated by reference herein. |
| (6) | Previously filed as Exhibit 10.1 to the Registrant’s Current Report on Form8-K (FileNo. 000-55021), filed with the Commission on June 6, 2014, and incorporated by reference herein. |
| (7) | Previously filed as Exhibit 10.26 to the Registrant’s Amendment No. 2 to Registration Statement on Form 10/A (FileNo. 000-55021), filed with the Commission on October 17, 2013, and incorporated by reference herein. |
| (8) | Previously filed as Exhibit 10.22 to the Registrant’s Form10-K, (FileNo. 000-55021) filed with the SEC on March 31, 2014. |
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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 onForm S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Newark, State of California, on this 15th day of March, 2018.
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| CYMABAY THERAPEUTICS, INC. |
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| By: | | /s/ Sujal Shah |
| | Sujal Shah |
| | 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 constitutes and appoints Sujal Shah and Daniel Menold, and each of them, his or her true and lawfulattorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto saidattorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that saidattorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Name and Signature | | Title | | Date |
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/s/ Sujal Shah | | President, Chief Executive Officer and Director | | March 15, 2018 |
| Sujal Shah | | (Principal Executive Officer) | | |
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/s/ Daniel Menold | | Vice President, Finance | | March 15, 2018 |
| Daniel Menold | | (Principal Financial and Accounting Officer) | | |
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/s/ Robert J. Wills | | Director | | March 15, 2018 |
| Robert J. Wills, Ph.D. | | | | |
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/s/ Carl Goldfischer | | Director | | March 15, 2018 |
| Carl Goldfischer, M.D. | | | | |
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/s/ Robert Booth | | Director | | March 15, 2018 |
| Robert Booth, Ph.D. | | | | |
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/s/ Kurt von Emster | | Director | | March 15, 2018 |
| Kurt von Emster, CFA | | | | |
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/s/ Caroline Loewy | | Director | | March 15, 2018 |
| Caroline Loewy | | | | |
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/s/ Evan A. Stein | | Director | | March 15, 2018 |
| Evan A. Stein, M.D., Ph D. | | | | |
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/s/ Paul F. Truex | | Director | | March 15, 2018 |
| Paul F. Truex | | | | |
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/s/ Robert J. Weiland | | Director | | March 15 2018 |
| Robert J. Weiland | | | | |
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