Neurogene (NGNE) S-8 Registration of securities for employees

As filed with the Securities and Exchange Commission on November 15, 2019

RegistrationNo. 333-            

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORMS-8

REGISTRATION STATEMENT

UNDER THE

SECURITIES ACT OF 1933

NEOLEUKIN THERAPEUTICS, INC.

(Exact name of Registrant as specified in its charter)

Delaware	98-0542593
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification Number)

360-1616 Eastlake Avenue East

Seattle, Washington 98102

(206)732-2133

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

Neoleukin Therapeutics, Inc. 2014 Equity Incentive Plan

Non-Plan Stock Option Agreements (Inducement Stock Option Awards)

(Full title of the plans)

Jonathan G. Drachman

Chief Executive Officer

Neoleukin Therapeutics, Inc.

360-1616 Eastlake Avenue East

Seattle, Washington 98102

(206)732-2133

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

Please send copies of all communications to:

Effie Toshav, Esq.

Amanda Rose, Esq.

Ryan Mitteness, Esq.

Fenwick & West LLP

555 California Street, 12th Floor

San Francisco, California 94104

(415)875-2300

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 definition of “large accelerated filer”, “accelerated filer”, “smaller reporting company”, and “emerging growth company” in Rule12b-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 Securities Act.  ☒

CALCULATION OF REGISTRATION FEE

Title of Each Class 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, par value $0.000001 per share, to be issued under the 2014 Equity Incentive Plan	4,500,000(2)	$2.97(3)	$13,365,000(3)	$1,735
Common Stock, par value $0.000001 per share, issued under the 2014 Equity Incentive Plan	941,494(4)	$2.97(3)	$2,796,238(3)	$363
Common Stock, par value $0.000001 per share (Inducement Stock Option Awards)	3,300,000(5)	$2.80(6)	$9,240,000(6)	$1,200
Total	8,741,494		$25,401,238	$3,298

(1) 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 Registrant’s common stock that becomes issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.

(2) Represents additional shares of the Registrant’s common stock reserved for issuance under the Neoleukin Therapeutics, Inc. (formerly Aquinox Pharmaceuticals, Inc.) 2014 Equity Incentive Plan (the “2014 Plan”) resulting from the stockholder approval of the amendment to the 2014 Plan obtained at the Registrant’s 2019 annual meeting of stockholders held on November 12, 2019.

(3) Estimated solely for the purpose of this offering under Rules 457(h) and 457(c) of the Securities Act on the basis of the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq Global Market on November 12, 2019.

(4) Represents additional shares of common stock reserved for issuance under the 2014 Plan as of January 1, 2019.

(5) Consists of shares issuable under new hire inducement stock option awards granted on August 31, 2019 in accordance with Nasdaq Listing Rule 5635(c).

(6) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act. The price per share and aggregate offering price are calculated on the basis of the exercise price of the options outstanding under the applicable inducement stock option award.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information called for by Part I of FormS-8 is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended (the “Securities Act”) and the instructions to FormS-8. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to FormS-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. The documents containing the information specified in Part I of FormS-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents filed by the Registrant with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are incorporated herein by reference:

(a) the Registrant’s Annual Report on Form10-K for the fiscal year ended December 31, 2018, which includes audited financial statements for the Registrant’s latest fiscal year, filed with the Commission on March 7, 2019;

(b) the Registrant’s Quarterly Reports on Form10-Q for the fiscal quarters ended March 31, 2019, filed with the Commission onMay 7, 2019; June  30, 2019, filed with the Commission onAugust 1, 2019; and September  30, 2019, filed with the Commission onNovember 13, 2019; and

(c) the Registrant’s Current Reports on Form8-K filed with the Commission onAugust 6, 2019;August  12, 2019;October 2, 2019,October 11, 2019, andNovember 14, 2019; and

(d) the description of the Registrant’s Common Stock which is contained in the Registrant’s registration statement onForm8-A filed on March 3, 2014 (FileNo. 001-36327) under the Exchange Act, including any amendment or report filed for the purpose of updating such description.

All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and 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 into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein. 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 in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such 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 is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.

As permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation includes a provision that eliminates, to the fullest extent permitted by law, the personal liability of a director for monetary damages resulting from breach of his or her fiduciary duty as a director, except for liability:

• for any breach of the director’s duty of loyalty to the Registrant or its stockholders;

• for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;

• under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends, stock purchases or redemptions); or

• for any transaction from which the director derived an improper personal benefit.

• As permitted by the Delaware General Corporation Law, the Registrant’s restated bylaws provide that:

• the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions;

• the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law;

• the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions; and

• the rights conferred in the Registrant’s restated bylaws are not exclusive.

In addition, the Registrant intends to enter into indemnification agreements with each of its current directors and executive officers. These agreements will provide for the indemnification of directors and executive officers for all reasonable expenses and liabilities incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were agents of the Registrant.

The Registrant currently carries liability insurance for its directors and executive officers for securities matters.

The indemnification provisions in the Registrant’s restated certificate of incorporation and restated bylaws and the indemnification agreements to be entered into between the Registrant and each of its directors and executive officers is sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.

See also the undertakings set out in response to Item 9 hereof.

Item 7. Exemption From Registration Claimed.

Not applicable.

Item 8. Exhibits.

The following exhibits are filed herewith:

Exhibit Number	Exhibit Description	Incorporated by Reference					Filed Herewith
		Form	File No.		Exhibit	Filing Date
4.1	Amended and Restated Certificate of Incorporation of the Registrant	8-K		001-36327	3.1	March 12, 2014
4.2	Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Registrant	10-Q		001-36327	3.4	November 13, 2019
4.3	Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Registrant	10-Q		001-36327	3.5	November 13, 2019
4.4	Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock	8-K		001-36327	3.1	August 12, 2019

4.5	Amended and Restated Bylaws of the Registrant	S-1/A	333-193615	3.6	February 28, 2014
4.6	Form of Registrant’s Common Stock certificate	10-Q	001-36327	4.1	May 13, 2014
5.1	Opinion of Fenwick & West LLP					X
23.1	Consent of Fenwick & West LLP (contained in Exhibit 5.1)					X
23.2	Consent of Deloitte LLP, Independent Registered Public Accounting Firm					X
24.1	Power of Attorney (included on the signature page to this Registration Statement)					X
99.1	2014 Equity Incentive Plan, as amended	8-K	001-36327	10.1	November 14, 2019
99.2	Forms of Option Agreement and Option Grant Notice for Registrant’s 2014 Equity Incentive Plan	S-1	333-193615	10.4	January 28, 2014
99.3	Form of Inducement Stock Option Agreement					X

Item 9. 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;

(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 the 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

(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) above do not apply if 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 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.

B. 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 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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.

C. 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 hereby, 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, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on FormS-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Seattle, Washington, on this 15th day of November, 2019.

NEOLEUKIN THERAPEUTICS, INC.
By:	/s/ Jonathan G. Drachman, M.D.
	Jonathan G. Drachman, M.D.
	Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Jonathan G. Drachman and Kamran Alam, and each of them, as his or her true and lawfulattorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on FormS-8, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto saidattorney-in-fact and agent 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 for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that saidattorney-in-fact and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

Name	Title	Date
/s/ Jonathan G. Drachman, M.D. Jonathan G. Drachman, M.D.	President, Chief Executive Officer and Director (Principal Executive Officer)	November 15, 2019
/s/ Kamran Alam Kamran Alam	Interim Chief Financial Officer (Principal Financial and Accounting Officer)	November 15, 2019
/s/ M. Cantey Boyd M. Cantey Boyd	Director	November 15, 2019
/s/ Sarah B. Noonberg, M.D., Ph.D. Sarah B. Noonberg, M.D., Ph.D.	Director	November 15, 2019
/s/ Lewis T. “Rusty” Williams, M.D., Ph.D. Lewis T. “Rusty” Williams, M.D., Ph.D.	Director	November 15, 2019
/s/ Sean Nolan Sean Nolan	Director	November 15, 2019
/s/ Todd Simpson Todd Simpson	Director	November 15, 2019