As filed with the Securities and Exchange Commission on February 12 , 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NANOBIOTIX S.A.
(Exact name of registrant as specified in its charter)
France
| Not applicable
|
(State or other jurisdiction of incorporation or organization) | (I.R.S. employer identification No.) |
60, rue de Wattignies
75012 Paris, France
(Address of Principal Executive Offices)(Zip Code)
Historical BSA Plans: 04-12, 2013, 2014, 2015-1, 2015-2(a), 2016 Ordinary, 2016 Performance, 2016-02, 2017, 2018, 2018-01, 2018-02, 2019-1, 2020)
Historical BSPCE Plans: (2012-1, 08-2013, 09-2014, 2015-01, 2015-03, 2016 Ordinary , 2016 Performance, 2017 Ordinary, 2017)
Historical Free Share Plans: (2017, 2018, 2019)
Historical Stock Option Plan: (2016, 2016-2, 2017, 2018, 2019, LLY 2019)
BSA Plan
Free Share Plan
2020 Stock Option Plan
(Full title of the plans)
Nanobiotix Corporation
Attn: Philippe Mauberna
210 Broadway
Cambridge, Massachusetts
+1 617 712 1568
(Name and address of agent for service) (Telephone number, including area code, of agent for service)
| Copies to: |
Peter E. Devlin Robert G. Marshall II Jones Day 250 Vesey Street New York, New York 10281 +1 212 262 3939 | | | Renaud Bonnet Jean-Gabriel Griboul Jones Day 2 rue Saint-Florentin 75001 Paris, France +33 1 56 59 39 39 |
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 Securities Act. | ☐ |
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered (1) | | Amount to be Registered (2) | | Proposed Maximum Offering Price per Share | | Proposed Maximum Aggregate Offering Price | | Amount of Registration Fee |
Ordinary Shares, €0.03 nominal value per share, reserved for issuance upon exercise of outstanding share options (options de souscription d’actions or “OSA”) granted under the Stock Option Plans identified on the cover of this Registration Statement (the “Stock Option Plans”) | | 986,359 | | $8.25 (3) | | $8,137,461.75 | | $887.80 |
Ordinary shares, €0.03 nominal value per share, reserved for issuance upon exercise of outstanding employee warrants (bons de souscription de parts de créateur d’entreprise or “BSPCE”) granted under the BSPCE Plans identified on the cover of this Registration Statement | | 718,767 | | $17.19 (3) | | $12,355,604.73 | | $1,348.00 |
Ordinary shares, €0.03 nominal value per share, reserved for issuance upon exercise of outstanding share warrants (bons de souscription d’actions or “BSA”) granted under the BSA Plans identified on the cover of this Registration Statement | | 263,028 | | $17.00 (3) | | $4,472,604.43 | | $487.96 |
| Ordinary shares, €0.03 nominal value per share, outstanding under the Free Share Plans identified on the cover of this Registration Statement | | 446,500 | | $ 17.94 (4) | | $ 8,007,977.50 | | $ 873.67 |
| Ordinary shares, €0.03 nominal value per share, reserved for future issuance (i) upon the exercise of stock options issuable under the 2020 Stock Option Plan, (ii) under the Free Share Plan, and (iii) upon exercise of BSA issuable under the BSA Plan | | 2,800,000 (5) | | $ 17.94 (4) | | $50,218,000.00 | | $5,478.78 |
| Aggregate Registration Fee | | | | | | | | $9,076.21 |
| (1) | These shares may be represented by American Depositary Shares, or ADSs, of Nanobiotix S.A. (the “Registrant”). Each ADS represents one ordinary share of the Registrant. The Registrant’s ADSs issuable upon deposit of the ordinary shares registered hereby have been registered pursuant to a separate registration statement on Form F-6 (File No. 333-250880). |
| (2) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional ordinary shares of the Registrant that may become issuable under any of the plans identified on the cover of this Registration Statement by reason of any share dividend, share split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant's outstanding ordinary shares. |
| (3) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act based upon the weighted average exercise price per ordinary share, expressed in U.S. dollars based on the European Central Bank euro reference exchange rate for U.S. dollars on February 8, 2021 (€1.00=$1.12025). |
| (4) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act based upon the price of $ 17.94 per ADS, which was the average of the high and low prices of the ADSs as reported on Nasdaq Global Select Market for February 11 , 2021. |
| (5) | Comprises (i) 850,000 free shares authorized for grant by the executive board, (ii) 100,000 ordinary shares underlying BSAs authorized for grant by the executive board (a portion of the 650,000 ordinary shares for which the shareholders have delegated authority to the executive board), (iii) 850,000 ordinary shares underlying stock options authorized for grant by the executive board and (iv) 1,000,000 ordinary shares underlying stock options authorized for grant by the executive board , provided that the shareholders authorization relating to the grants described in this footnote (5) further restricts the aggregate number of shares issuable as free shares, BSAs and stock options mentioned in (i), (ii) and (iii) to an aggregate of 850,000 ordinary shares. Accordingly, notwithstanding the 2,800,000 shares registered here, the aggregate amount issuable upon such future issuances cannot exceed 1,850,000 ordinary shares. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the 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 Nanobiotix S.A. (the “Registrant”) with the U.S. Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:
(a) the Registrant’s prospectus dated December 10, 2020, filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “
Securities Act”), on
December 11, 2020, relating to the Registration Statement on Form F-1, as amended (File No. 333-250707), which contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed;
(b) the Registrant’s reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December 10, 2020; and
(e) the descriptions of the Registrant’s American Depositary Shares and Ordinary Shares contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission on
December 8, 2020 (File No. 001-39777) under the Securities Exchange Act of 1934, as amended (the “
Exchange Act”), including any amendment or report filed for the purpose of updating such description.
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 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 hereby have been sold or which deregisters all such 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 filing of such reports and documents. Any statement contained in this Registration Statement, in an amendment hereto or 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 amendment to this Registration Statement or in any document that also is or 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.
Information subsequently furnished on Form 6-K shall not be deemed incorporated herein by reference unless such Form 6-K expressly provides to the contrary.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under French law, provisions in the By-laws that limit the liability of directors and officers are ineffective. However, French law allows sociétés anonymes to contract for and maintain liability insurance against civil liabilities incurred by any of their directors and officers involved in a third-party action, provided that they acted in good faith and within their capacities as directors or officers of the company. Criminal liability cannot be indemnified under French law, whether directly by the company or through liability insurance. Such rules apply to executive and supervisory board members.
The Registrant has obtained and maintains customary liability insurance coverage for our supervisory board members and executive board members, including insurance against liability under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to the Registrant’s directors, officers and controlling persons, 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.
ITEM 8. EXHIBITS
The following exhibits are filed herewith:
Exhibit Number | Description |
| By-laws of the Registrant (English translation) (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| Form of Deposit Agreement by and among Nanobiotix S.A. and Citibank, N.A., as depositary, and the Holders and Beneficial Owners of American Depositary Shares issued thereunder (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| Form of American Depositary Receipt (included in Exhibit 4.1) |
| Opinion of Jones Day |
| Consent of Ernst & Young et Autres |
| Consent of Jones Day (included in Exhibit 5.1) |
| Power of Attorney of each of the directors of the Registrant and the principal executive, financial and accounting officers of the Registrant (included on the signature page of this Form S-8). |
| Summary of BSA Plans (incorporated herein by reference to Exhibit 10.7 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| Summary of BSPCE Plans (incorporated herein by reference to Exhibit 10.8 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| 2016 Stock Option Plan (incorporated herein by reference to Exhibit 10.9 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| 2016-2 Stock Option Plan (incorporated herein by reference to Exhibit 10.10 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| 2017 Stock Option Plan (incorporated herein by reference to Exhibit 10.11 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| 2018 Stock Option Plan (incorporated herein by reference to Exhibit 10.12 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| 2019 Stock Option Plan (incorporated herein by reference to Exhibit 10.13 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| LLY 2019 Stock Option Plan (incorporated herein by reference to Exhibit 10.14 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| Summary of Free Share Plans (incorporated herein by reference to Exhibit 10.15 to the Registrant’s Registration Statement on Form F-1 (File No. 333-250707)) |
| Summary of BSA Plan |
| 2020 Stock Option Plan |
| Summary of Free Share Plan |
* 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 therein, 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.
2. 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 initial bona fide offering thereof.
3. 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, 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 Paris, France on February 12 , 2021.
| | NANOBIOTIX S.A. |
| | | |
| | By: | /s/ Laurent Levy |
| | | Name: Laurent Levy, Ph.D. |
| | | Title: Chairman of the Executive Board |
We, the undersigned directors, officers and/or authorized representative in the United States of Nanobiotix S.A., hereby severally constitute and appoint Laurent Levy and Philippe Mauberna, 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 any and all pre-effective and post-effective amendments to this Registration Statement on Form S-8, under the Securities Act of 1933, as amended, in connection with the registration under the Securities Act of 1933, as amended, of equity securities of Nanobiotix S.A., and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys, 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 each of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.
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 indicated on February 12 , 2021.
| Signature | | Title |
| | | |
| /s/ Laurent Levy | | Chairman of the Executive Board |
| Laurent Levy | | (Principal Executive Officer) |
| | | |
| /s/ Philippe Mauberna | | Chief Financial Officer and Executive Board Member |
| Philippe Mauberna | | (Principal Financial Officer and Principal Accounting Officer) |
| | | |
| /s/ Laurent Condomine | | Supervisory Board Chairman |
| Laurent Condomine | | |
| | | |
| /s/ Anne-Marie Graffin | | Supervisory Board Deputy Chairman |
| Anne-Marie Graffin | | |
| | | |
| /s/ Alain Herrera | | Supervisory Board Member |
| Alain Herrera | | |
| | | |
| /s/ Enno Spillner | | Supervisory Board Member |
| Enno Spillner | | |
AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the undersigned as the duly authorized representative in the United States of Nanobiotix S.A. in Paris, France February 12 , 2021.
| | NANOBIOTIX CORPORATION |
| | | |
| | By: | /s/ Philippe Mauberna |
| | | Name: Philippe Mauberna |
| | | Title: Treasurer and Authorized Signatory |
