As filed with the Securities and Exchange Commission on August 23, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Pyxis Oncology, Inc.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) | 83-1160910 (I.R.S. Employer Identification Number) |
321 Harrison Avenue
Boston, MA 02118
(Address, including zip code, of registrant’s principal executive offices)
Apexigen, Inc. 2022 Equity Incentive Plan
(Full titles of the plan)
Lara Sullivan, M.D.
President and Chief Executive Officer
321 Harrison Avenue
Boston, MA 02140
(617) 221-9059
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Asher M. Rubin
Frank F. Rahmani
Istvan A. Hajdu
Sidley Austin LLP
555 California Street, Suite 2000
San Francisco, CA 94104
Telephone: (650) 565-7000
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 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
On May 23, 2023, Pyxis Oncology, Inc. (the “Registrant”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Apexigen, Inc. (“Apexigen”) and Ascent Merger Sub Corp., a wholly-owned subsidiary of the Registrant (“Merger Sub”), pursuant to which, on August 23, 2023, Merger Sub merged with and into Apexigen (the “Merger”), with Apexigen continuing as a wholly-owned subsidiary of the Registrant. This Registration Statement on Form S-8 (this “Registration Statement”) registers 376,339 shares of the Registrant’s common stock, par value $0.001 per share (“Common Stock”), issuable with respect to future awards granted under the Apexigen, Inc. 2022 Equity Incentive Plan (the “Plan”), which was assumed by the Company in connection with the Merger.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
All information required by Part I to be contained in the prospectus is omitted from this Registration Statement in accordance with the explanatory note to Part I of Form S-8 and Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”). Documents containing the information required by Part I of the Registration Statement will be sent or given to Plan participants 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, which have been filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:
● | Our Annual Report on Form 10-K for the year ended December 31, 2022 (filed with the Commission on March 22, 2023 and amended on May 10, 2023) (the “2022 Annual Report”); |
● | Our Quarterly Reports on Form 10-Q for the period ended March 31, 2023 (filed with the Commission on May 11, 2023) and the period ended June 30, 2023 (filed with the Commission on August 11, 2023); |
● | The description of our Common Stock contained in our Registration Statement on Form 8-A, filed with the Commission on October 5, 2021, and any other amendment or report filed for the purpose of updating such description, including Exhibit 4.1 to the 2022 Annual Report; and |
● | Our Current Reports on Form 8-K filed with the Commission on March 22, 2023, March 28, 2023, May 24, 2023 (at 06:59:40), June 13, 2023, June 30, 2023, August 11, 2023 (at 06:34:09) and August 23, 2023. |
All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, 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 securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as “Incorporated Documents”).
Any statement contained herein or in an Incorporated Document 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 Incorporated Document 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.
Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information disclosed by the Registrant under Items 2.02 or 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, that the Registrant may from time to time furnish to the Commission will be incorporated by reference into, or otherwise included in, 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.
Section 102 of the General Corporation Law of the State of Delaware (the “DGCL”) permits a corporation to eliminate the personal liability of its directors for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The amended and restated certificate of incorporation of the Registrant provides that none of its directors shall be personally liable to the Registrant or the stockholders of the Registrant for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
The amended and restated certificate of incorporation of the Registrant contains provisions that limit the liability of the directors of the Registrant for monetary damages to the fullest extent permitted by the DGCL. Consequently, directors of the Registrant are not personally liable to the Registrant or stockholders of the Registrant for monetary damages for any breach of fiduciary duties as directors, except liability for:
● | any breach of the director’s duty of loyalty to the Registrant or its stockholders; |
● | any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
● | unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; or |
● | any transaction from which the director derived an improper personal benefit. |
The amended and restated certificate of incorporation of the Registrant and the amended and restated bylaws of the Registrant require the Registrant to indemnify its directors and officers, and allow the Registrant to indemnify other employees and agents, to the fullest extent permitted by the DGCL. Subject to certain limitations and limited exceptions, the amended and restated certificate of incorporation of the Registrant requires the Registrant to advance expenses incurred by its directors and officers for the defense of any action for which indemnification is required or permitted.
The Registrant has entered into indemnification agreements with each of its directors and executive officers. These agreements provide that the Registrant will indemnify each of its directors and such officers to the fullest extent permitted by law and the amended and restated certificate of incorporation of the Registrant.
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.
Insofar as the forgoing provisions permit indemnification of directors, executive officers, or persons controlling the Registrant for liability arising under the Securities Act, the Registrant has been informed that, in the opinion of the Commission, 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.
EXHIBIT | DESCRIPTION | |
4.1 | ||
4.2 | ||
4.5* | ||
5.1* | Opinion of Sidley Austin LLP as to the validity of the securities being registered. | |
23.1* | ||
23.2* | ||
24.1* | ||
107* |
* Filed herewith.
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 this registration statement (or the most recent post-effective amendment thereof) that, individually or in the aggregate, represent a fundamental change in the information set forth in this 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) promulgated under the Securities Act 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 this registration statement or any material change to such information in this registration statement; |
provided, however, that paragraphs (a)(1)(i), (1)(ii) and (a)(1)(iii) of this Item 9 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 15(d) of the Exchange Act, that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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 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 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 this 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 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 Boston, Massachusetts, on August 23, 2023.
PYXIS ONCOLOGY, INC. | ||
By: | /s/ Lara Sullivan, M.D. | |
Lara Sullivan, M.D. | ||
President and Chief Executive Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Lara Sullivan, M.D. and Pamela Connealy and each of them, as such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-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 and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s 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 has been signed by the following persons in the capacities indicated:
Signature | Title | Date | ||
| /s/ Lara Sullivan, M.D. | President, Chief Executive Officer and Director | August 23, 2023 | ||
Lara Sullivan, M.D. | (Principal Executive Officer) |
| ||
/s/ Pamela Connealy | Chief Financial Officer and Chief Operating Officer | August 23, 2023 | ||
| Pamela Connealy | (Principal Financial Officer) | |||
/s/ Jitendra Wadhane | Chief Accounting Officer | August 23, 2023 | ||
| Jitendra Wadhane | (Principal Accounting Officer) | |||
/s/ John Flavin | Chairman of the Board of Directors | August 23, 2023 | ||
| John Flavin | ||||
/s/ Thomas Civik | Director | August 23, 2023 | ||
| Thomas Civik | ||||
/s/ Darren Cline | Director | August 23, 2023 | ||
| Darren Cline | ||||
/s/ Jakob Dupont, M.D. | Director | August 23, 2023 | ||
| Jakob Dupont, M.D. | ||||
/s/ Rachel Humphrey, M.D. | Director | August 23, 2023 | ||
| Rachel Humphrey, M.D. | ||||
/s/ Freda Lewis-Hall, M.D. | Director | August 23, 2023 | ||
Freda Lewis-Hall, M.D. | ||||
