Securities Registration: Employee Benefit Plan (s-8)

Date : 09/03/2019 @ 8:11PM
Source : Edgar (US Regulatory)
Stock : Aridis Pharmaceuticals Inc (ARDS)
Quote : 6.74  -0.02 (-0.30%) @ 9:06PM
Aridis Pharmaceuticals share price Chart

Securities Registration: Employee Benefit Plan (s-8)

 

As filed with the Securities and Exchange Commission on September 3, 2019

Registration No. 333-           

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

Aridis Pharmaceuticals, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware
(State or other jurisdiction of
incorporation or organization)

 

46-2641188
(I.R.S. Employer
Identification No.)

 

5941 Optical Ct.

San Jose, California 95138

(Address of principal executive offices) (Zip Code)

 

2014 Equity Incentive Plan

(Full title of the plans)

 

Dr. Vu Truong

Chief Executive Officer

5941 Optical Ct.

San Jose, California 95138

(Name and Address of agent for service)

 

(408) 385-1742

(Telephone number, including area code, of agent for service)

 

With a copy to:

 

Jeffrey Fessler, Esq.

Sheppard, Mullin, Richter & Hampton LLP

30 Rockefeller Plaza, 39th Floor

New York, NY 10112-0015

Phone (212) 653-8700

Fax (212) 653-8701

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.  (Check one):

 

  Large accelerated filer o

Accelerated filer   o

Non-accelerated filer   x

 

Smaller Reporting Company x

Emerging growth company x

 

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.  o

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

 

Title of Securities
to be Registered

 

Amount to
be
Registered
(1)

 

Proposed
Maximum Offering
Price Per Share

 

Proposed
Maximum
Aggregate Offering
Price

 

Amount of
Registration Fee

 

Common Stock, $0.0001 par value

 

1,386,721

(2)

$

10.40

 

$

14,421,899

(3)

$

1,748

 

Common Stock, $0.0001 par value

 

196,807

(4)

$

11.57

 

$

2,277,057

(5)

$

276

 

TOTAL

 

 

 

 

 

$

16,698,956

 

$

2,024

 

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock (“Common Stock”) of Aridis Pharmaceuticals, Inc. (the “Registrant”) that become issuable under the Registrant’s 2014 Equity Incentive Plan, as amended (the “Plan”), by reason of any stock dividend, stock split, recapitalization or other similar transaction that increases the number of the outstanding shares of the Registrant’s common stock.

 

 

(2)

Represents shares of Common Stock reserved for issuance upon the exercise of outstanding stock options granted under the Plan.

 

 

(3)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h)(1) of the Securities Act. The proposed maximum aggregate offering price per share and proposed maximum aggregate offering price for the 1,386,721 shares of Common Stock reserved for issuance upon the exercise of outstanding stock options granted under the Plan are calculated using a weighted average exercise price of $10.40 per share.

 

 

(4)

Represents shares of Common Stock reserved for future grant under the Plan. The Plan provides that an additional number of shares will automatically be added to the shares authorized for issuance under the Plan on January 1st of each calendar year (“Calculation Date”), from January 1, 2015 through January 1, 2024. The aggregate number of shares of Common Stock available for issuance under the Plan shall automatically be increased by the greater of: (a) 77,908; or (b) such number of shares equal to the number of shares sufficient to cause the option pool to equal 20% of the total number of shares of common stock of the Registrant issued and outstanding at the Calculation Date.

 

 

(5)

Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(h) of the Securities Act of 1933, as amended, by averaging the high and low sales prices of the Registrant’s common stock reported on the Nasdaq Capital Market on August 29, 2019.

 

 

 


 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

ITEM 1.                 PLAN INFORMATION.

 

Not required to be filed with this Registration Statement.

 

ITEM 2.                 REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.

 

Not required to be filed with this Registration Statement.

 

PART II

 

INFORMATION NOT REQUIRED IN THE PROSPECTUS

 

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.

 

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed by the Registrant with the Securities and Exchange Commission (“SEC”):

 

·                  The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018, filed with the Commission on March 28, 2019 (as amended on Form 10-K/A on April 19, 2019 and June 12, 2019);

 

·                  The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, filed with the Commission on May 14, 2019 and June 30, 2019, filed with the Commission on August 12, 2019;

 

·                  The Registrant’s Current Reports on Form 8-K filed on February 27, 2019, June 10, 2019, June 27, 2019, July 30, 2019, August 14, 2019, September 3, 2019 and Form 8-K/A filed on August 12, 2019;

 

·                  The Registrant’s definitive proxy statement on Schedule 14A filed on July 2, 2019; and

 

·                  The description of the Registrant’s common stock contained in its Registration Statement on Form 8-A filed with the Commission on August 13, 2018.

 

All documents, reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment 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 date of filing of such documents; provided, however, that documents, reports and definitive proxy or information statements, or portions thereof, which are 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 herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes that statement. Any such statement so modified or superseded shall not constitute a part of this Registration Statement, except as so modified or superseded.

 

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 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act.

 

Our certificate of incorporation provides that we will indemnify our directors to the fullest extent permitted by Delaware law.

 

II-1


 

In addition, as permitted by Section 145 of the Delaware General Corporation Law our bylaws provide that we will indemnify our directors and executive officers for serving us in those capacities or for serving other business enterprises at our request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful. We may, in our discretion, indemnify other officers, employees and agents in those circumstances where indemnification is permitted by applicable law. We are required to advance expenses, as incurred, to our directors and executive officers in connection with defending a proceeding, except that such directors or executive officers shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification. We will not be obligated pursuant to our bylaws to indemnify any director or executive officer in connection with any proceeding (or part thereof) initiated by such person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by our Board of Directors, (iii) such indemnification is provided by us, in our sole discretion, pursuant to the powers vested in the corporation under applicable law or (iv) such indemnification is required to be made pursuant to our restated bylaws. The rights conferred in our bylaws are not exclusive, and we are authorized to enter into indemnification agreements with our directors, officers, employees and agents and to obtain insurance to indemnify such persons. We may not retroactively amend our bylaw provisions to reduce our indemnification obligations to directors, officers, employees and agents. We may, to the fullest extent permitted by the Delaware Law, purchase and maintain insurance on behalf of any officer, director, employee and agent against any liability which may be asserted against such person.

 

At present, there is no pending litigation or proceeding involving any of the Registrant’s directors or executive officers as to which indemnification is required or permitted, and the Registrant is not aware of any threatened litigation or proceeding that may result in a claim for indemnification.

 

The Registrant has an insurance policy in place that covers its officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act, or otherwise.

 

ITEM 7.                 EXEMPTION FROM REGISTRATION CLAIMED.

 

Not applicable.

 

ITEM 8. EXHIBITS.

 

See the attached Exhibit Index on the page immediately following the signature pages hereto, which is incorporated herein by reference.

 

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 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)(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 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.

 

II-2


 

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 herein, 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 herein, 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 Securities and Exchange 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.

 

II-3


 

EXHIBIT INDEX

 

Exhibit Number

 

Description

4.1

 

Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.2 to Amendment No. 1 to the Registrant’s Form S-1 (File No. 333-226232) filed with the SEC on August 6, 2018)

4.2

 

Certificate of Correction to Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.5 to Amendment No. 2 to the Registrant’s Form S-1 (File No. 333-226232) filed with the SEC on August 8, 2018)

4.3

 

Form of Common Stock certificate of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Form S-1 (File No. 333-226232) filed with the SEC on July 18, 2018)

5.1

 

Opinion of Sheppard, Mullin, Richter & Hampton LLP

10.1

 

Aridis Pharmaceuticals, Inc. 2014 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Registration Statement on Form S-1 (file no. 333-226232), filed with the SEC on July 18, 2018)

23.1

 

Consent of Mayer Hoffman McCann P.C.

23.2

 

Consent of Sheppard, Mullin, Richter & Hampton LLP (included in Exhibit 5.1)

24.1

 

Power of Attorney (included on signature page)

 

II-4


 

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 San Jose, California, on the 3rd day of September 2019.

 

 

ARIDIS PHARMACEUTICALS, INC.

 

 

 

 

By:

/s/ Vu Truong

 

 

Vu Truong

 

 

Chief Executive Officer and Director

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Vu Truong, his true and lawful attorney-in-fact and agent with full power of substitution and re-substitution, for him/her and in his name, place and stead, in any and all capacities to sign any or all amendments (including, without limitation, post-effective amendments) to this Registration Statement, any related Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and any or all pre- or post-effective amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that said attorney-in-fact and agent, or any substitute or substitutes for him, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, the following persons in the capacities and on the dates indicated have signed this Registration Statement below.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Eric Patzer

 

Executive Chairman and Director

 

September 3, 2019

Eric Patzer

 

 

 

 

 

 

 

 

 

/s/ Vu Truong

 

Chief Executive Officer, Chief Scientific Officer and Director

 

September 3, 2019

Vu Truong

 

 

 

 

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Fred Kurland

 

Chief Financial Officer

 

September 3, 2019

Fred Kurland

 

(Principal Financial Officer and Principal Accounting Officer)

 

 

 

 

 

 

 

 

 

 

 

/s/ Craig Gibbs

 

Director

 

September 3, 2019

Craig Gibbs

 

 

 

 

 

 

 

 

 

/s/ John Hamilton

 

Director

 

September 3, 2019

John Hamilton

 

 

 

 

 

 

 

 

 

/s/ Robert R. Ruffolo

 

Director

 

September 3, 2019

Robert R. Ruffolo

 

 

 

 

 

 

 

 

 

/s/ Susan Windham-Bannister

 

Director

 

September 3, 2019

Susan Windham-Bannister

 

 

 

 

 

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