As filed with the U.S. Securities and Exchange Commission on March 4, 2024

Registration No. 333-   

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

NUVATION BIO INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   85-0862255

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

1500 Broadway, Suite 1401

New York, New York 10036

(Address of principal executive offices, including zip code)

Nuvation Bio Inc. 2021 Equity Incentive Plan

Nuvation Bio Inc. 2021 Employee Stock Purchase Plan

(Full titles of the plans)

Moses Makunje

Vice President, Finance

Nuvation Bio Inc.

1500 Broadway, Suite 1401

New York, New York 10036

(332) 208-6102

(Name, address and telephone number, including area code, of agent for service)

Copies to:

 

Stephen Dang

Vice President, Legal

Nuvation Bio Inc.

1500 Broadway, Suite 1401

New York, New York 10036

(332) 208-6102

 

Kenneth L. Guernsey

John T. McKenna

Melissa H. Boyd

Cooley LLP

3 Embarcadero Center, 20th Floor

San Francisco, California 94111

(415) 693-2000

 

 

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

This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 10,032,586 shares of the Class A Common Stock of Nuvation Bio Inc. (the “Registrant”) to be issued pursuant to the Registrant’s 2021 Equity Incentive Plan (the “2021 Plan”) and 2,508,146 shares of the Class A Common Stock of the Registrant to be issued pursuant to the Registrant’s 2021 Employee Stock Purchase Plan (the “2021 ESPP”).

PART II

 

ITEM 3.

INCORPORATION OF DOCUMENTS BY REFERENCE

The following documents filed by the Registrant with the Securities and Exchange Commission are incorporated by reference into this Registration Statement:

(a) The contents of the earlier registration statements on Form S-8 and exhibits thereto relating to the 2021 Plan and the 2021 ESPP, filed with the Securities and Exchange Commission on June  8, 2021 (File No. 333-526910), August  26, 2022 (File No. 333-267110), and March 16, 2023 (File No.  333-270614).

(b)  The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, which includes audited financial statements for the Registrant’s latest fiscal year, filed with the Securities and Exchange Commission on February 29, 2024.

(c) The Registrant’s Current Report on Form 8-K filed with the Commission on January 8, 2024.

(d) The description of our Class A Common Stock which is contained in a Registration Statement on Form 8-A filed on June 26, 2020 (File No. 001-39351) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

All other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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 document that also is deemed to be incorporated by reference herein 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.



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 the City of New York, State of New York, on March 4, 2024.

 

  NUVATION BIO INC.
    By:  

/s/ David Hung, M.D.

      David Hung, M.D.
      Founder, President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David Hung, M.D. and Moses Makunje, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her 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, 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 any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

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

 

Signature

  

Title

  

Date

/s/ David Hung, M.D.

David Hung, M.D.

  

President, Chief Executive Officer and Director

(Principal Executive Officer)

   March 4, 2024

/s/ Moses Makunje

Moses Makunje

   Vice President, Finance (Principal Financial Officer and Principal Accounting Officer)    March 4, 2024

/s/ Daniel G. Welch

Daniel G. Welch

   Chair of the Board of Directors    March 4, 2024

/s/ Robert B. Bazemore Jr.

Robert B. Bazemore Jr.

   Director    March 4, 2024

/s/ Kim Blickenstaff

Kim Blickenstaff

   Director    March 4, 2024

/s/ Kathryn E. Falberg

Kathryn E. Falberg

   Director    March 4, 2024

/s/ Robert Mashal, M.D.

Robert Mashal, M.D.

   Director    March 4, 2024

/s/ W. Anthony Vernon

W. Anthony Vernon

   Director    March 4, 2024
LOGO       Exhibit 5.1

John T. McKenna

+1 650 843 5059

jmckenna@cooley.com

March 4, 2024

Nuvation Bio Inc.

1500 Broadway, Suite 1401

New York, New York 10036

Ladies and Gentlemen:

We have acted as counsel to Nuvation Bio Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a registration statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) covering the offering of up to 12,540,732 shares (the “Shares”) of the Company’s Class A common stock, par value $0.0001 per share (“Common Stock”), consisting of (i) 10,032,586 shares of Common Stock issuable pursuant to the Company’s 2021 Equity Incentive Plan (the “2021 EIP”) and (ii) 2,508,146 shares of Common Stock issuable pursuant to the Company’s 2021 Employee Stock Purchase Plan (together with the 2021 EIP, the “Plans”).

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Company’s certificate of incorporation and bylaws, each as currently in effect, (c) the Plans and (d) such other records, documents, opinions, certificates, memoranda and instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and the related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

This opinion is limited to the matters expressly set forth in this letter, and no opinion should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we have no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.

Cooley LLP 3175 Hanover St. Palo Alto, CA 94304-1130

t: (650) 843-5059 f: (650) 849-7400 cooley.com

 


LOGO

Nuvation Bio Inc.

March 4, 2024

Page 2

 

We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.

 

Sincerely,
COOLEY LLP
By:  

/s/ John T. McKenna

  John T. McKenna

 

Cooley LLP 3175 Hanover St. Palo Alto, CA 94304-1130

t: (650) 843-5059 f: (650) 849-7400 cooley.com

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the use of our report dated February 29, 2024, with respect to the consolidated financial statements of Nuvation Bio Inc., incorporated herein by reference.

/s/ KPMG LLP

Short Hills, New Jersey

March 4, 2024

 

Exhibit 107

Filing Fee Table

Form S-8

(Form Type)

NUVATION BIO INC.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

 

               
Security Type  

Security

Class

Title

 

Fee

Calculation
Rule

  Amount to be
Registered (1)
  Proposed
Maximum
Offering
Price Per
Share
 

Proposed

Maximum

Aggregate

Offering

Price

 

Fee

Rate

  Amount of
Registration
Fee
               
Equity   Class A common stock, par value $0.0001 per share, reserved for issuance pursuant to  the Registrant’s 2021 Equity Incentive Plan   457(c) and  457(h)   10,032,586(2)   $1.94 (4)   $19,463,216.84(4)   .0001476    $2,872.77 
               
Equity   Class A common stock, par value $0.0001 per share, reserved for issuance pursuant to the Registrant’s 2021 Employee Stock Purchase Plan   457(c) and  457(h)   2,508,146(3)   $1.65 (5)   $4,138,440.90(5)   .0001476   $610.83
         
Total Offering Amounts     $23,601,657.74      $3,483.60 
         
Total Fees Previously Paid        
         
Total Fee Offsets        
         
Net Fee Due           $3,483.60 

 

(1)

Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Class A common stock (“Common Stock”) that become issuable under the 2021 Equity Incentive Plan (the “2021 Plan”) and the 2021 Employee Stock Purchase Plan (the “2021 ESPP”) set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrant’s Common Stock.

 

(2)

Represents additional shares of Common Stock reserved for future issuance under the 2021 Plan. The 2021 Plan provides that an additional number of shares will automatically be added annually to the shares authorized for issuance under the 2021 Plan on January 1st of each year, for a period of not more than 10 years, commencing on January 1, 2022 and ending on (and including) January 1, 2031, in an amount equal to the lesser of (a) 4% of the total number of shares of capital stock outstanding on December 31st of the preceding calendar year and (b) a number of shares of Common Stock designated by action of the Registrant’s board of directors prior to the first day of any calendar year. This filing covers the increase on January 1, 2024.


(3)

Represents additional shares of Common Stock reserved for future issuance under the 2021 ESPP. The 2021 ESPP provides that an additional number of shares will automatically be added annually to the shares authorized for issuance under the ESPP on January 1st of each calendar year, beginning on January 1, 2022 and ending on and including January 1, 2031, by the lesser of (a) 1% of the total number of shares of capital stock outstanding on December 31st of the preceding calendar year; (b) 9,500,708 shares of Common Stock and (c) a number of shares of Common Stock designated by action of the Registrant’s board of directors prior to the first day of any calendar year. This filing covers the increase on January 1, 2024.

 

(4)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and 457(h) promulgated under the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price are calculated using the average of the high and low prices of the Registrant’s Common Stock as reported on the New York Stock Exchange on February 29, 2024.

 

(5)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and 457(h) promulgated under the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price are calculated using the average of the high and low prices of the Registrant’s Common Stock as reported on the New York Stock Exchange on February 29, 2024, multiplied by 85%, which is the percentage of the price per share applicable to purchases under the 2021 ESPP.


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