As filed with the Securities and Exchange Commission on May 31, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORMS-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XOMA CORPORATION
(Exact name of registrant as specified in its charter)
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| Delaware | | 52-2154066 |
(State or other jurisdiction of Incorporation or organization) | | (I.R.S. Employer Identification No.) |
2910 Seventh Street
Berkeley, California 94710
(Address, including zip code, of Principal Executive Offices)
Thomas Burns
Senior Vice President, Finance and Chief Financial Officer
XOMA Corporation
2910 Seventh Street
Berkeley, California 94710
(510)204-7200
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
James F. Fulton
Michael E. Tenta
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94306
(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.
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| Large accelerated filer | | ☐ | | Accelerated filer | | ☒ |
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| Non-accelerated filer | | ☐ (Do not check if a smaller reporting company) | | Smaller reporting company | | ☐ |
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| 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
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Title of securities to be registered | | Amount to be registered (1) | | Proposed maximum offering price per share (2) | | Proposed maximum aggregate offering price (2) | | Amount of registration fee |
Amended and Restated 2010 Long Term Incentive Plan and Stock Award Plan Common Stock, $0.0075 par value per share | | 1,470,502 shares (3) | | $6.47 | | $9,514,148 | | $1,102.69 |
Amended 2015 Employee Share Purchase Plan Common Stock, $0.0075 par value per share | | 250,000 shares (4) | | $6.47 | | $1,617,500 | | $187.47 |
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| (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 Company’s Common Stock (“Common Stock”) that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction that increases the number of the Company’s outstanding shares of Common Stock. |
| (2) | This estimate is made pursuant to Rule 457(h) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee. The offering price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock on March 23, 2017, as reported on the Nasdaq Stock Market. |
| (3) | Represents shares of Common Stock that were added to the number of shares authorized for issuance under the XOMA Corporation Amended and Restated 2010 Long Term Incentive Plan and Stock Award Plan (the “2010 Plan”) upon approval of an amendment to the 2010 Plan by the Company’s stockholders at the Company’s 2017 Annual Meeting of Stockholders on May 18, 2017. |
| (4) | Represents shares of Common Stock that were added to the number of shares authorized for issuance under the XOMA Corporation Amended 2015 Employee Share Purchase Plan (the “2015 ESPP”) upon approval of an amendment to the 2015 ESPP by the Company’s stockholders at the Company’s 2017 Annual Meeting of Stockholders on May 18, 2017. |
EXPLANATORY NOTE
This Registration Statement on FormS-8 is being filed for the purpose of registering an additional 1,470,502 shares of Common Stock of XOMA Corporation (the “Company”) issuable pursuant to the XOMA Corporation Amended and Restated 2010 Long Term Incentive Plan and Stock Award Plan (the “2010 Plan”) and 250,000 shares of Common Stock of the Company issuable pursuant to the XOMA Corporation Amended 2015 Employee Share Purchase Plan (the “2015 ESPP”). These additional shares of Common Stock are securities of the same class as other securities for which a registration statement on FormS-8 was filed with the Securities and Exchange Commission (the “Commission”) on December 27, 2010 (File No 333- 171429), June 6, 2011 (FileNo. 333-174730), June 1, 2012 (FileNo. 333-181849), September 12, 2014 (FileNo. 333-198719) and June 24, 2016 (FileNo. 333-212238) and with respect to the 2010 Plan and a registration statement on FormS-8 (File No 333- 204367) that was filed with the Commission on May 21, 2015 with respect to the 2015 ESPP. These additional shares of Common Stock were approved to be reserved for issuance upon approval of an amendment to each of the 2010 Plan and the 2015 ESPP by the Company’s stockholders at the Company’s 2017 Annual Meeting of Stockholders on May 18, 2017.
PART II
INCORPORATION OF DOCUMENTS BY REFERENCE
This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which a Registration Statement of the Company on FormS-8 relating to the same employee benefit plans is effective.
The Company previously registered shares of its Common Stock for issuance under the 2010 Plan under Registration Statements on FormS-8 filed with the Commission on December 27, 2010 (File No 333- 171429), June 6, 2011 (FileNo. 333-174730), June 1, 2012 (FileNo. 333-181849), September 12, 2014 (FileNo. 333-198719) and June 24, 2016 (FileNo. 333-212238). The Company previously registered shares of its Common Stock for issuance under the 2015 ESPP under a Registration Statement on FormS-8 filed with the Commission on May 21, 2015 (FileNo. 333- 204367). Pursuant to General Instruction E to FormS-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Berkeley, State of California, on May 31, 2017.
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| XOMA CORPORATION |
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| By: | | /s/ James Neal |
| | James Neal |
| | Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James Neal and Thomas Burns, and each of them, as his true and lawfulattorneys-in-fact and agents, each with the full power of substitution, for him and in his 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 their or his 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 and on the dates indicated.
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Signature | | Title | | Date |
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/s/ James Neal | | Chief Executive Officer and Director (Principal Executive Officer) | | May 31, 2017 |
| JAMES NEAL | | | | |
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/s/ Thomas Burns | | Senior Vice President, Finance and Chief Financial Officer (Principal Accounting and Financial Officer) | | May 31, 2017 |
| THOMAS BURNS | | | | |
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/s/ W. Denman Van Ness | | Chairman the Board of Directors | | May 31, 2017 |
| W. DENMAN VAN NESS | | | | |
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| | Director | | |
| JOSEPH M. LIMBER | | | | |
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/s/ Jack L. Wyszomierski | | Director | | May 31, 2017 |
| JACK L. WYSZOMIERSKI | | | | |
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/s/ Matthew Perry | | Director | | May 31, 2017 |
| MATTHEW PERRY | | | | |
EXHIBIT INDEX
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| | | | | Incorporation By Reference |
Exhibit
Number | | Exhibit Description | | Form | | SEC File No. | | Exhibit | | Filing Date |
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| 4.1 | | Certificate of Incorporation of XOMA Corporation | | 8-K | | 000-14710 | | 3.1 | | 01/03/2012 |
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| 4.2 | | Certificate of Amendment of Certificate of Incorporation of XOMA Corporation | | 8-K | | 000-14710 | | 3.1 | | 05/31/2012 |
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| 4.3 | | Certificate of Amendment of Certificate of Incorporation of XOMA Corporation | | 8-K | | 000-14710 | | 3.1 | | 05/28/2014 |
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| 4.4 | | Certificate of Amendment to the Amended Certificate of Incorporation of XOMA Corporation | | 8-K | | 000-14710 | | 3.1 | | 10/18/2016 |
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| 4.5 | | Certificate of Designation of Preferences, Rights and Limitations of Series X Convertible Preferred Stock | | 8-K | | 000-14710 | | 3.1 | | 02/16/2017 |
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| 4.6 | | By-laws of XOMA Corporation | | 8-K | | 000-14710 | | 3.2 | | 01/03/2012 |
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| 4.7 | | Specimen of Common Stock Certificate | | 8-K | | 000-14710 | | 4.1 | | 01/03/2012 |
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| 5.1 | | Opinion of Cooley LLP | | | | | | | | |
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| 23.1 | | Consent of Independent Registered Public Accounting Firm | | | | | | | | |
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| 23.2 | | Consent of Cooley LLP (included in Exhibit 5.1) | | | | | | | | |
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| 24.1 | | Power of Attorney (included in Part II of this Registration Statement) | | | | | | | | |
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| 99.1 | | XOMA Corporation Amended and Restated 2010 Long Term Incentive and Stock Award Plan | | 10-Q | | 000-14710 | | 10.1 | | 05/24/2017 |
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| 99.2 | | XOMA Corporation Amended 2015 Employee Share Purchase Plan | | 10-Q | | 000-14710 | | 10.2 | | 05/24/2017 |
