As filed with the Securities and Exchange Commission on May 16, 2016
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Argos Therapeutics, Inc.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 56-2110007 |
(State or Other Jurisdiction of Incorporation
or Organization) | (I.R.S. Employer Identification No.) |
| | |
4233 Technology Drive Durham, North Carolina | 27704 |
| (Address of Principal Executive Offices) | (Zip Code) |
Inducement Stock Option Award
(Full Title of the Plan)
Jeffrey D. Abbey
Chief Executive Officer
Argos Therapeutics, Inc.
4233 Technology Drive
Durham, North Carolina 27704
(Name and Address of Agent For Service)
(919) 287-6300
(Telephone Number, Including Area Code, of Agent For Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b of the Exchange Act.
| Large accelerated filer[_] | Accelerated filer[_] |
Non-accelerated filer[X] (Do not check if a smaller reporting company) | Smaller reporting company[_] |
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
| Common Stock, $0.001 par value per share | 300,000 shares(2) | $2.16(3) | $648,000(3) | $66.00 |
| (1) | In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
| (2) | Consists of 300,000 shares issuable under the Inducement Stock Option Award pursuant to a nonstatutory stock option award agreement entered into with Lee F. Allen on January 19, 2016. |
| .(3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act of 1933, as amended (based on the exercise price of the options outstanding under the inducement stock option award). |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.Plan Information.
The information required by Item 1 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).
Item 2.Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Documents by Reference.
The registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the “Commission”). The following documents, which are on file with the Commission, are incorporated in this registration statement by reference:
(a) The registrant’s latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the registrant’s latest fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above.
(c) The description of the securities contained in the registrant’s registration statement on Form 8-A filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which 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 the 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 the purposes of this registration statement 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 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.
Hutchison PLLC has opined as to the legality of the securities being offered by this registration statement.
Item 6.Indemnification of Directors and Officers.
The registrant’s certificate of incorporation limits the personal liability of directors for breach of fiduciary duty to the maximum extent permitted by the Delaware General Corporation Law and provides that no director will have personal liability to the registrant or to its stockholders for monetary damages for breach of fiduciary duty or other duty as a director. However, these provisions do not eliminate or limit the liability of any of the registrant’s directors for: (i) any breach of the director’s duty of loyalty to the registrant or its stockholders; (ii) any act or omission not in good faith or which involves intentional misconduct or a knowing violation of law; (iii) voting or assenting to any unlawful payments of dividends, stock repurchases or other distributions; or (iv) any transaction from which the director derived an improper personal benefit.
Any amendment to or repeal of these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission or claim that occurred or arose prior to such amendment or repeal. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of the registrant’s directors will be further limited to the greatest extent permitted by the Delaware General Corporation Law.
In addition, the registrant’s certificate of incorporation provides that the registrant must indemnify its directors and officers and must advance expenses, including attorneys’ fees, to its directors and officers in connection with legal proceedings, subject to very limited exceptions.
The registrant maintains a general liability insurance policy that covers certain liabilities of its directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers. In addition, the registrant has entered into indemnification agreements with all of its directors and executive officers. These indemnification agreements may require the registrant, among other things, to indemnify each such director for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by him in any action or proceeding arising out of his service as one of our directors.
Certain of the registrant’s non-employee directors may, through their relationships with their employers, be insured or indemnified against certain liabilities incurred in their capacity as members of the registrant’s board of directors.
Item 7.Exemption from Registration Claimed.
Not applicable.
Item 8.Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 9.Undertakings.
1. Item 512(a) of Regulation S-K. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of 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; 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 (i) and (ii) 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 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.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona 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.
2. Item 512(b) of Regulation S-K. 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 initialbona fide offering thereof.
3. Item 512(h) of Regulation S-K. 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 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 Securities Act and will be governed by the final adjudication of such issue.
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 Durham, State of North Carolina, on May 16, 2016.
| | | | |
| | ARGOS THERAPEUTICS, INC. |
| | | |
| | By: | | /s/ Jeffrey D. Abbey |
| | | | Jeffrey D. Abbey |
| | | | President and Chief Executive Officer |
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Argos Therapeutics, Inc., hereby severally constitute and appoint Jeffrey D. Abbey and Lori R. Harrelson and each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration Statement on Form S-8 filed herewith and any and all pre-effective and post-effective amendments to said registration statement and generally to do all such things in our name and behalf in our capacities as officers and directors to enable Argos Therapeutics, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
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.
| | | | | |
| Signature | | Title | | Date |
| | | |
| /s/ Jeffrey D. Abbey | | President and Chief Executive Officer, and Director | | May 16, 2016 |
| Jeffrey D. Abbey | | (Principal Executive Officer) | | |
| | | | | |
| /s/ Lori R. Harrelson | | Vice President of Finance (Principal Financial and | | May 16, 2016 |
| Lori R. Harrelson | | Accounting Officer) | | |
| | | | | |
| | | Director | | |
| Hubert Birner, Ph.D. | | | | |
| | | | | |
| /s/ Robert F. Carey | | Director | | May 16, 2016 |
| Robert F. Carey | | | | |
| | | | | |
| /s/ Andrei Petrov | | Director | | May 16, 2016 |
| Andrei Petrov, Ph.D. | | | | |
| | | | | |
| /s/ Alexey Vinogradov | | Director | | May 16, 2016 |
| Alexey Vinogradov, Ph.D. | | | | |
| | | | | |
| /s/ Philippe Van Holle | | Director | | May 16, 2016 |
| Philippe Van Holle | | | | |
| | | | | |
| /s/ Sander van Deventer | | Director | | May 16, 2016 |
| Sander van Deventer, M.D., Ph.D. | | | | |
INDEX TO EXHIBITS
| Number | | Description |
| | | |
| 4.1(1) | | Restated Certificate of Incorporation of the Registrant |
| | | |
| 4.2(1) | | Amended and Restated By-Laws of the Registrant |
| | | |
| 5 | | Opinion of Hutchison PLLC, corporate counsel to the Registrant |
| | | |
| 23.1 | | Consent of Hutchison PLLC (included in Exhibit 5) |
| | | |
| 23.2 | | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
| | | |
| 24 | | Power of attorney (included on the signature pages of this registration statement) |
| | | |
| 99.1 | | Inducement Stock Option Award – Nonstatutory Stock Option Agreement, dated January 19, 2016 between the Registrant and Lee F. Allen |
| | | |
| | | |
| | | |
____________
| (1) | Previously filed with the Securities and Exchange Commission on February 18, 2014 as an Exhibit to the Registrant’s Current Report on Form 8-K (File No. 001-35443) and incorporated herein by reference. |
