As filed with the Securities and Exchange Commission on February 13, 2023
Registration No. 333-253263
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BioNTech SE
(Exact name of registrant as specified in its charter)
| Federal Republic of Germany | 98-151-1032 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
An der Goldgrube 12 D-55131 Mainz Germany | N/A | |
| (Address of Principal Executive Offices) | (Zip Code) |
2017 Employee Stock Ownership Plan
2020 Management Board ESOP
2020 Employee Equity Plan
2020 Restricted Stock Unit Plan for North America Employees
(Full title of the plans)
BioNTech US Inc.
40 Erie St., Suite 110
Cambridge, MA 02139
(Name and address of agent for service)
+1 (617) 337-4701
(Telephone number, including area code, of agent for service)
Copies to:
Paul Claydon Brian K. Rosenzweig Matthew T. Gehl Covington & Burling LLP 22 Bishopsgate London EC2N 4BQ United Kingdom +44 20 7067 2000 | Henning Bloss Jörn Hirschmann Covington & Burling LLP Marienturm Taunusanlage 9-10 60329 Frankfurt am Main Germany +49 69 768063 0 |
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. ☐
EXPLANATORY NOTE
BioNTech SE, or the Registrant, previously filed a Registration Statement on Form S-8 (File No. 333-253263), with the Securities and Exchange Commission, or the SEC, on February 18, 2021, to register ordinary shares, no par value per share, of the Registrant, or the Ordinary Shares, under the Registrant’s 2020 Employee Equity Plan, 2020 Restricted Stock Unit Plan for North America Employees, 2017 Employee Stock Ownership Plan and 2020 Management Board ESOP. Pursuant to the 2021 Registration Statement, an aggregate of 472,370 Ordinary Shares were registered for issuance from time to time under the 2020 Management Board ESOP.
The Registrant is filing this Post-Effective Amendment, pursuant to the Securities Act of 1933, as amended, or the Securities Act, and Securities Act Forms Compliance and Disclosure Interpretation Question 126.43, reflecting the interpretive position of the staff of the Division of Corporation Finance of the SEC, to amend the 2021 Registration Statement (i) to reflect that no Ordinary Shares have been, or will in the future be, issued pursuant to the 2020 Management Board ESOP, and (ii) to cover the issuance of 211,898 Ordinary Shares under the 2017 Employee Stock Ownership Plan and the issuance of 260,472 Ordinary Shares under the 2020 Restricted Stock Unit Plan for North America Employees, or collectively, the Carryover Shares, instead of the issuance of 472,370 Ordinary Shares under the 2020 Management Board ESOP. No additional securities are being registered by this Post-Effective Amendment.
Following the filing of this Post-Effective Amendment, the Registrant intends to file a Registration Statement on Form S-8 to register additional Ordinary Shares to be issued under the Registrant’s 2020 Employee Equity Plan and 2020 Restricted Stock Unit Plan for North America Employees, and to register Ordinary Shares to be issued under the Registrant’s 2021 Employee Stock Ownership Plan. Such registration statement will not separately register the Carryover Shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended, or 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 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 Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the SEC:
(1) The Registrant’s Annual Report on Form 20-F, filed with the SEC on March 30, 2022, as amended on October 26, 2022, which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed;
(2) All other reports filed with the SEC by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, since December 31, 2021; and
(3) The description of the Ordinary Shares contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-39081) filed with the SEC on October 7, 2019, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All documents 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 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; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the SEC shall not be deemed incorporated by reference into this Registration Statement. 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 which 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As a German European public company with limited liability, the Registrant is—insofar as applicable pursuant to the SE Regulation and the German law on the implementation of the SE (SEAG)—subject to the German Stock Corporation Act (Aktiengesetz), as amended. Under German law, the Registrant may not indemnify members of its Management Board and Supervisory Board to the extent the relevant claim or loss has arisen as a result of the breach by the member of his or her duties owed to the Registrant. Otherwise the Registrant is required under the law to indemnify its Management Board and Supervisory Board members from and against any liabilities arising out of or in connection with their services to the Registrant.
The Registrant provides directors’ and officers’ liability insurance for the members of its Management and Supervisory Boards against civil liabilities, which they may incur in connection with their activities on behalf of the Registrant.
Insofar as indemnification of liabilities arising under the Securities Act may be permitted to the Registrant’s board, executive officers, or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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 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 SEC 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; 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 (a)(1)(i) and (a)(1)(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 SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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 initial bona 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 initial bona 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 SEC 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, 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 Post-Effective Amendment to the Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in Mainz, Germany, on February 13, 2023.
| BIONTECH SE | ||
| By: | /s/ PROF. UGUR SAHIN, M.D. | |
| Name: Prof. Ugur Sahin, M.D. | ||
| Title: Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act, this Post-Effective Amendment to the Registration Statement on Form S-8 has been signed by the following persons on February 13, 2023 in the capacities indicated.
Signature | Title | |||
/s/ PROF. UGUR SAHIN, M.D. Prof. Ugur Sahin, M.D. | Chief Executive Officer (Principal Executive Officer) | |||
* Jens Holstein | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | |||
* Helmut Jeggle | Chair of the Supervisory Board | |||
* Prof. Christoph Huber, M.D. | Director | |||
* Michael Motschmann | Director | |||
* Dr. Ulrich Wandschneider | Director | |||
| *By: | /s/ PROF. UGUR SAHIN, M.D. | |
| Prof. Ugur Sahin, M.D. | ||
| As Attorney-in-Fact |
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE OF REGISTRANT
Pursuant to the requirements of the Securities Act, the undersigned, the duly authorized representative in the United States of BioNTech SE has signed this Post-Effective Amendment to the Registration Statement on Form S-8 on February 13, 2023.
| BIONTECH US INC. |
/s/ BRIAN KICKHAM |
Name: Brian Kickham Title: Secretary |
