Ngm Biopharmaceuticals S8 Registration of securities for employees

Ngm Biopharmaceuticals (NGM) S-8Registration of securities for employees

As filed with the U.S. Securities and Exchange Commission on April 4, 2019

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORMS-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

NGM BIOPHARMACEUTICALS, INC.

(Exact name of registrant as specified in its charter)


Delaware		26-1679911
(State or other jurisdiction of Incorporation or organization)		(I.R.S. Employer Identification No.)

333 Oyster Point Boulevard

South San Francisco, California 94080

(650)243-5555

(Address of principal executive offices) (Zip code)

NGM Biopharmaceuticals, Inc. 2008 Equity Incentive Plan

NGM Biopharmaceuticals, Inc. Amended and Restated 2018 Equity Incentive Plan

NGM Biopharmaceuticals, Inc. 2019 Employee Stock Purchase Plan

(Full titles of the plans)

David J. Woodhouse, Ph.D.

Chief Executive Officer and Acting Chief Financial Officer

NGM Biopharmaceuticals, Inc.

333 Oyster Point Boulevard

South San Francisco, California 94080

(650)243-5555

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

Copies to:

Kenneth L. Guernsey

Michael E. Tenta

J. Carlton Fleming

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” in Rule12b-2 of the Exchange Act.

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 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 $0.001 per share
– 2008 Equity Incentive Plan	7,105,389⁽²⁾	$4.59⁽⁵⁾	$32,613,736⁽⁵⁾	$3,953
– Amended and Restated 2018 Equity Incentive Plan	17,874,624⁽³⁾	$10.41 – $16.00 ⁽⁶⁾	$263,107,132⁽⁶⁾	$31,889
– 2019 Employee Stock Purchase Plan	1,000,000⁽⁴⁾	$13.60⁽⁷⁾	$13,600,000⁽⁷⁾	$1,649
Total	25,980,013		$309,320,868	$37,491

(1)

Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of NGM Biopharmaceutical, Inc. (the “Registrant”) common stock that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Registrant’s common stock, par value $0.001 per share (the “Common Stock”), as applicable.

(2)

Represents shares of Common Stock issuable upon exercise of stock options outstanding under the 2008 Equity Incentive Plan (the “2008 Plan”) as of the date of this Registration Statement. The 2008 Plan expired pursuant to its terms in January 2018 and no further option grants will be made under the 2008 Plan. However, outstanding options granted under the 2008 will remain outstanding, subject to the terms of the 2008 Plan and the relevant award agreement until such options are exercised or they terminate or expire by their terms.

(3)

Represents shares reserved for future issuance under the Registrant’s Amended and Restated 2018 Equity Incentive Plan (the “Restated2018 Plan”), shares of Common Stock issuable upon exercise of stock options outstanding under the Restated 2018 Plan. To the extent that any shares subject to awards under the 2008 Plan expire or terminate on or after the termination of the 2008 Plan, or any shares previously issued pursuant to the 2008 Plan are forfeited or repurchased by the Registrant on or after the termination of the 2008 Plan, the shares of Common Stock subject to such awards will become available for issuance under the Restated 2018 Plan. The Restated 2018 Plan also provides that a number of shares reserved for issuance under the Restated 2018 Plan will automatically increase on January 1st each calendar year for ten years, starting on January 1, 2020 and ending on and including January 1, 2029, by the lesser of (a) four percent (4.0%) of the total number of the Registrant’s capital stock outstanding as of December 31st of the immediately preceding calendar year or (b) a number determined by the Registrant’s board of directors.

(4)

Represents shares of Common Stock reserved for future issuance under the Registrant’s 2019 Employee Stock Purchase Plan (the “2019 ESPP”). The 2019 ESPP provides that the number of shares reserved for issuance under the 2019 ESPP will automatically increase on January 1st each calendar year, starting on January 1, 2020 and continuing through January 1, 2029, by the lesser of (a) one percent (1.0%) of the total number of shares of the Registrant’s capital stock outstanding on December 31st of the preceding calendar year, (b) 1,000,000 shares of Common Stock or (c) a number determined by the Registrant’s board of directors that is less than (a) or (b).

(5)

(6)

Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of (a) the weighted-average exercise price for outstanding options granted pursuant to the Restated 2018 Plan as of the date of this Registration Statement and (b) the initial public offering price of $16.00 per share of common stock as set forth in the Registrant’s Registration Statement on FormS-1 (File No. 333-227608) declared effective on February 3, 2019 with respect to the balance of shares to be registered pursuant to the Restated 2018 Plan. The chart below details the calculations of the registration fee:


Securities	Number of Shares of Common Stock		Offering Price Per Share			Aggregate Offering Price/ Registration Fee
Common Stock, par value $0.001 per share, issuable upon the exercise of outstanding options granted under the Restated 2018 Plan		4,094,249	$	10.41	(6)(a)	$	42,621,132
Common Stock, par value $0.001 per share, reserved for future grant under the Restated 2018 Plan		13,780,375	$	16.00	(6)(b)	$	220,486,000
Proposed Maximum Aggregate Offering Price:						$	263,107,132
Registration Fee:						$	31,889

(7)

Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee. The proposed maximum offering price per share and proposed maximum aggregate offering price are calculated using the initial public offering price of $16.00 per share of common stock as set forth in the Registrant’s Registration Statement on FormS-1 (File No. 333-227608) declared effective on April 3, 2019 multiplied by 85%, which is the percentage of the price per share applicable to purchases under the 2019 ESPP.

PART II

ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

The following documents filed by NGM Biopharmaceuticals, Inc. (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:

(a)

The Registrant’s prospectus filed on April 4, 2019 pursuant to Rule 424(b) under the Securities Act relating to the Registration Statements on FormS-1 (FileNo. 333-227608), which contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed.

(b)

The description of the Registrant’s Common Stock which is contained in a registration statement on Form8-A filed on March 29, 2019 (FileNo. 001-38853) under the Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

(c)

All other reports and documents subsequently 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 which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and 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.

ITEM 4. DESCRIPTION OF SECURITIES

See the description of Common Stock contained in the Registration Statement on FormS-1 (FileNo. 333-227608).

ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL

Not applicable.

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS

Section 145 of the Delaware General Corporation Law (the “DGCL”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act. The Registrant’s amended and restated certificate of incorporation that will be in effect upon the closing of the initial public offering permits indemnification of our directors, officers, employees and other agents to the maximum extent permitted by the DGCL, and the Registrant’s amended and restated bylaws that will be in effect upon the closing of the initial public offering provide that the Registrant will indemnify its directors and executive officers and permit the Registrant to indemnify its other officers, employees and other agents, in each case to the maximum extent permitted by the DGCL.

The Registrant has entered into indemnification agreements with its directors and officers, whereby it has agreed to indemnify its directors and officers to the fullest extent permitted by law, including indemnification against expenses and liabilities incurred in legal proceedings to which the director or officer was, or is threatened to be made, a party by reason of the fact that such director or officer is or was a director, officer, employee or agent of the Registrant, provided that such director or officer acted in good faith and in a manner that the director or officer reasonably believed to be in, or not opposed to, the best interest of the Registrant. At present, there is no pending litigation or proceeding involving a director or officer of the Registrant regarding which indemnification is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification.

The Registrant maintains insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his or her capacity as such.

ITEM 7.

EXEMPTION FROM REGISTRATION CLAIMED.

Not applicable.

ITEM 8.

EXHIBITS


		Incorporated by Reference
Exhibit Number	Description	Schedule Form	File Number	Exhibit	Filing Date

4.1	Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.	S-1	333-227608	3.1	September 28, 2018

4.2	Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.	S-1	333-227608	3.2	March 25, 2019

4.3	Form of Amended and Restated Certificate of Incorporation of the Registrant, to be in effect upon the completion of the Registrant’s initial public offering.	S-1	333-227608	3.3	April 1, 2019

4.4	Amended and Restated Bylaws of the Registrant, as currently in effect.	S-1	333-227608	3.3	September 28, 2018

4.5	Form of Amended and Restated Bylaws of the Registrant, to be in effect upon the completion of the Registrant’s initial public offering.	S-1	333-227608	3.4	September 28, 2018

4.6	Form of Common Stock Certificate.	S-1	333-227608	4.2	April 1, 2019

5.1*	Opinion of Cooley LLP.

23.1*	Consent of Cooley LLP (included in Exhibit 5.1).

23.2*	Consent of Independent Registered Public Accounting Firm.

24.1*	Power of Attorney (included on the signature page of thisForm S-8).

99.1	2008 Equity Incentive Plan, as amended.	S-1	333-227608	10.1	September 28, 2018

99.2	Forms of Stock Option Agreement and Stock Option Grant Notice under the 2008 Equity Incentive Plan.	S-1	333-227608	10.2	September 28, 2018

99.3	Amended and Restated 2018 Equity Incentive Plan, to be in effect upon the completion of Registrant’s initial public offering.	S-1	333-227608	10.3	March 25, 2019

99.4	Forms of Stock Option Agreement and Notice of Grant of Stock Option under the Amended and Restated 2018 Equity Incentive Plan, to be in effect upon the completion of Registrant’s initial public offering.	S-1	333-227608	10.4	March 25, 2019

99.5	Forms of Restricted Stock Unit Agreement and Notice of Grant of Restricted Stock Unit under the Amended and Restated 2018 Equity Incentive Plan, to be in effect upon the completion of Registrant’s initial public offering.	S-1	333-227608	10.5	March 25, 2019

99.6	2019 Employee Stock Purchase Plan, to be in effect upon the completion of Registrant’s initial public offering.	S-1	333-227608	10.6	March 25, 2019

*	Filed herewith.

ITEM 9. UNDERTAKINGS

1.	The undersigned Registrant hereby undertakes:

(a)

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 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% 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)(i) and (a)(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.

(b)

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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)

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.

(d)

That, for the purpose of determining liability of the Registrant under the Securities Act 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.

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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

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 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 South San Francisco, State of California, on this 4th day of April, 2019.


NGM BIOPHARMACEUTICALS, INC.

By:		/s/ David J. Woodhouse
		David J. Woodhouse, Ph.D.
		Chief Executive Officer and Acting Chief Financial Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William J. Rieflin and David J. Woodhouse, and each of them, as his or her true and lawfulattorneys-in-fact and agents, each with the full power of substitution, for him or her and in their name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), 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 his, her or their substitute or substitutes, 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 on FormS-8 has been signed by the following persons in the capacities and on the dates indicated.


Signature	Title	Date

/s/ David J. Woodhouse David J. Woodhouse, Ph.D.	Chief Executive Officer, Acting Chief Financial Officer and Director (Principal Financial Officer and Principal Accounting Officer)	April 4, 2019

/s/ William J. Rieflin William J. Rieflin	Executive Chairman and Director	April 4, 2019

/s/Jin-Long Chen Jin-Long Chen, Ph.D.	Chief Scientific Officer and Director	April 4, 2019

/s/ David V. Goeddel David V. Goeddel, Ph.D.	Director	April 4, 2019

/s/ Suzanne Sawochka Hooper Suzanne Sawochka Hooper	Director	April 4, 2019

/s/ Mark Leschly Mark Leschly	Director	April 4, 2019

/s/ David Schnell David Schnell, M.D.	Director	April 4, 2019

/s/ Peter Svennilson Peter Svennilson	Director	April 4, 2019

/s/ McHenry T. Tichenor, Jr. McHenry T. Tichenor, Jr.	Director	April 4, 2019

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

Emerging growth company