As filed with the Securities and Exchange Commission on December 9, 2022

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Athenex, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   43-1985966

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification No.)

1001 Main Street, Suite 600,

Buffalo, NY

   14203
(Address of Principal Executive Offices)   (Zip Code)

Athenex, Inc. Amended and Restated 2017 Omnibus Incentive Plan, As Amended

(Full title of the plan)

Johnson Y.N. Lau

Chief Executive Officer

Athenex, Inc. 1001 Main Street, Suite 600

Buffalo, NY 14203

(Name and address of agent for service)

(716) 427-2950

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

 

 

Copies to:

Alexander R. McClean, Esq.

Harter Secrest & Emery LLP

1600 Bausch & Lomb Place

Rochester, New York 14604

(585) 232-6500

 

 

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

Pursuant to General Instruction E to Form S-8 under the Securities Act of 1933, as amended (the “Securities Act), this Registration Statement on Form S-8 (the “Registration Statement”) is filed by Athenex, Inc. (the “Company”) to register 12,500,000 additional shares of common stock, par value $0.001 per share (the “Common Stock”) that may be issued under the Amended and Restated 2017 Omnibus Incentive Plan, as amended (the “Amended Plan”). On October 11, 2022, the Company filed with the U.S. Securities and Exchange Commission (the “SEC”) a definitive proxy statement that included proposals to, among other things, increase the number of shares available for issuance under the Amended Plan by 12,500,000 shares of Common Stock. The proposal to increase the number of shares available for issuance under the Amended Plan was approved by the Company’s stockholders on November 22, 2022.

Pursuant to General Instruction E to Form S-8 under the Securities Act, the Company incorporates into this Registration Statement the content of its prior registration statements, filed on June 26, 2017 (Registration No. 333-218984), August 6, 2020 (Registration No. 333-241666), and July 27, 2021 (Registration No. 333-258192), except as expressly modified herein.

PART II

INFORMATION REQUIRED IN REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The SEC’s rules allow the Company to incorporate by reference information into this Registration Statement. This enables the Company to disclose important information to you by referring you to another document. Any information referred to in this way is considered part of this Registration Statement from the date the Company files such document. Any reports filed by the Company with the SEC after the date of this Registration Statement, and before the date that the offering of the securities by means of this Registration Statement is terminated, will automatically update and, where applicable, supersede any information contained in this Registration Statement or incorporated by reference in this Registration Statement.

We incorporate by reference into this Registration Statement the following documents or information filed with the SEC (other than, in each case, documents or information deemed to have been furnished under Item 2.02 or Item 7.01 of Form 8-K, which is not deemed filed in accordance with SEC rules and is not incorporated by reference herein):

 

  •  

Our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed with the SEC on March 16, 2022;

 

  •  

Our Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2022 filed with the SEC on May 10, 2022; the quarterly period ended June  30, 2022 filed with the SEC on July 29, 2022, and the quarterly period ended September 30, 2022 filed with the SEC on November 3, 2022.

 

  •  

Our Current Reports on Form 8-K  filed with the SEC on January  12, 2022, January  21, 2022, February 15, 2022, February  22, 2022, March  16, 2022, March  24, 2022, March  29, 2022, April  15, 2022, June  14, 2022, June  24, 2022, July  1, 2022, July  11, 2022, August  15, 2022, August  18, 2022, September  16, 2022, October 3, 2022,  November  21, 2022, and November 22, 2022.

 

  •  

The description of our Common Stock contained in our registration statement on Form  8-A filed by the Company with the SEC on June 12, 2017 under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any amendment or report filed for the purpose of updating such description (including Exhibit 4.2 to the Registrant’s Annual Report on Form 10-K filed with the SEC on March 2, 2020).

We also incorporate by reference all documents we file in the future pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as amended, after the date of this Registration Statement and prior to the sale of all the securities covered by this Registration Statement, except in each case the information contained in such document to the extent “furnished” and not “filed.”

 

2

Item 8.

Exhibits.

INDEX TO EXHIBITS

 

Exhibit
Number		   

Description

4.1    Amended and Restated Certificate of Incorporation of the Company, effective as of June  19, 2017 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on June 22, 2017)
4.2    Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Athenex, Inc., effective as of November  22, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on November 22, 2022)
4.3    Amended and Restated Bylaws of the Company, effective as of June  19, 2017 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on June 22, 2017)
4.4    Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 (File No. 333-217928) filed on May 12, 2017)
4.5    Athenex, Inc. Amended and Restated 2017 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.4 of the Company’s Quarterly Report on Form 10-Q filed on August 6, 2020)
4.6    First Amendment to the Athenex, Inc. Amended and Restated 2017 Omnibus Incentive Plan (incorporated by reference to Exhibit 4.6 of the Company’s Registration Statement on Form S-8 (File No. 333-258192) filed on July 27, 2021)
4.7    Second Amendment to the Athenex, Inc. Amended and Restated 2017 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on November 22, 2022)
5.1*    Legal Opinion of Harter Secrest & Emery LLP
23.1*    Consent of Independent Registered Public Accounting Firm
23.2*    Consent of Harter Secrest & Emery LLP (included in Exhibit 5.1)
24.1*    Power of Attorney (included on signature page)
107*    Filing Fee Table

 

*   Filed herewith.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 the City of Buffalo, State of New York, on this 8th day of December, 2022.

 

ATHENEX, INC.
By:  

/s/ Johnson Y.N. Lau

  Johnson Y.N. Lau
 

Chief Executive Officer and Board Chairman

(Principal Executive Officer)

POWER OF ATTORNEY

Each person whose signature appears below appoints Johnson Y.N. Lau and Joe Annoni, and each of them, the individual’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for the person and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, new registration statements pursuant to General Instruction E of Form S-8 pertaining to the registration of additional securities and post-effective amendments thereto, and any and all other documents in connection therewith to be filed with the SEC, 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 and about the premises, 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 as agents or any of them, or their 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.

 

Signature    Title    Date

/s/ Johnson Y.N. Lau

    Chief Executive Officer and Board Chairman    December 5, 2022
Johnson Y.N. Lau    (Principal Executive Officer)   

/s/ Joe Annoni

    Chief Financial Officer    December 8, 2022
Joe Annoni    (Principal Financial and Accounting Officer)   

/s/ Stephanie Davis

      
Stephanie Davis    Director    December 5, 2022

/s/ Manson Fok

      
Manson Fok    Director    December 6, 2022

/s/ Jordan Kanfer

      
Jordan Kanfer    Director    December 5, 2022

/s/ Robert Spiegel

      
Robert Spiegel    Director    December 5, 2022

/s/ Benson Tsang

      
Benson Tsang    Director    December 6, 2022

/s/ John Moore Vierling

      
John Moore Vierling    Director    December 7, 2022

/s/ Jinn Wu

      
Jinn Wu    Director    December 5, 2022
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