Securities Registration: Employee Benefit Plan (s-8)
May 31 2017 - 5:02PM
Edgar (US Regulatory)
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
FORM
S-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
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52-2154066
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(State or other jurisdiction of
Incorporation or organization)
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(I.R.S. Employer
Identification No.)
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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, 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.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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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
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Amount
to be
registered (1)
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Proposed
maximum
offering price
per
share (2)
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Proposed
maximum
aggregate
offering price (2)
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Amount of
registration fee
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Amended and Restated 2010 Long Term Incentive Plan and Stock
Award Plan
Common Stock, $0.0075 par value per share
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1,470,502 shares (3)
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$6.47
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$9,514,148
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$1,102.69
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Amended 2015 Employee Share Purchase Plan
Common Stock, $0.0075 par value per share
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250,000 shares (4)
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$6.47
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$1,617,500
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$187.47
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(1)
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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 Companys 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 Companys outstanding shares of Common Stock.
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(2)
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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.
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(3)
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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 Companys stockholders at the Companys 2017 Annual Meeting of Stockholders on May 18, 2017.
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(4)
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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 Companys stockholders at the Companys 2017 Annual Meeting of Stockholders on May 18, 2017.
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EXPLANATORY NOTE
This Registration Statement on Form
S-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 Form
S-8
was filed with the Securities and Exchange Commission (the Commission) on December 27, 2010 (File No 333- 171429), June 6, 2011 (File
No. 333-174730),
June 1, 2012 (File
No. 333-181849),
September 12, 2014 (File
No. 333-198719)
and
June 24, 2016 (File
No. 333-212238)
and with respect to the 2010 Plan and a registration statement on Form
S-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 Companys
stockholders at the Companys 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 Form
S-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 Form
S-8
filed with the Commission on December 27, 2010 (File No 333- 171429), June 6, 2011 (File
No. 333-174730),
June 1, 2012 (File
No. 333-181849),
September 12, 2014 (File
No. 333-198719)
and June 24, 2016 (File
No. 333-212238).
The Company
previously registered shares of its Common Stock for issuance under the 2015 ESPP under a Registration Statement on Form
S-8
filed with the Commission on May 21, 2015 (File
No. 333-
204367). Pursuant to General Instruction E to Form
S-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 on
Form 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:
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/s/ James Neal
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James Neal
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Chief Executive Officer
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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 lawful
attorneys-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 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-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
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Title
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Date
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/s/ James
Neal
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Chief Executive Officer and Director
(Principal Executive Officer)
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May 31, 2017
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J
AMES
N
EAL
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/s/ Thomas
Burns
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Senior Vice President, Finance and Chief Financial Officer
(Principal Accounting and Financial Officer)
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May 31, 2017
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T
HOMAS
B
URNS
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/s/ W. Denman Van
Ness
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Chairman the Board of Directors
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May 31, 2017
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W. D
ENMAN
V
AN
N
ESS
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Director
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J
OSEPH
M. L
IMBER
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/s/ Jack L.
Wyszomierski
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Director
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May 31, 2017
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J
ACK
L. W
YSZOMIERSKI
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/s/ Matthew
Perry
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Director
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May 31, 2017
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M
ATTHEW
P
ERRY
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EXHIBIT INDEX
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Incorporation By
Reference
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Exhibit
Number
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Exhibit Description
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Form
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SEC File No.
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Exhibit
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Filing Date
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4.1
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Certificate of Incorporation of XOMA Corporation
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8-K
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000-14710
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3.1
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01/03/2012
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4.2
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Certificate of Amendment of Certificate of Incorporation of XOMA Corporation
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8-K
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000-14710
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3.1
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05/31/2012
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4.3
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Certificate of Amendment of Certificate of Incorporation of XOMA Corporation
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8-K
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000-14710
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3.1
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05/28/2014
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4.4
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Certificate of Amendment to the Amended Certificate of Incorporation of XOMA Corporation
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8-K
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000-14710
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3.1
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10/18/2016
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4.5
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Certificate of Designation of Preferences, Rights and Limitations of Series X Convertible Preferred Stock
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8-K
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000-14710
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3.1
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02/16/2017
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4.6
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By-laws
of XOMA Corporation
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8-K
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000-14710
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3.2
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01/03/2012
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4.7
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Specimen of Common Stock Certificate
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8-K
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000-14710
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4.1
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01/03/2012
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5.1
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Opinion of Cooley LLP
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23.1
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Consent of Independent Registered Public Accounting Firm
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23.2
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Consent of Cooley LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (included in Part II of this Registration Statement)
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99.1
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XOMA Corporation Amended and Restated 2010 Long Term Incentive and Stock Award Plan
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10-Q
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000-14710
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10.1
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05/24/2017
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99.2
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XOMA Corporation Amended 2015 Employee Share Purchase Plan
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10-Q
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000-14710
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10.2
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05/24/2017
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