S-8
As filed with the Securities and Exchange Commission on April 9, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ELEVEN BIOTHERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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| Delaware |
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26-2025616 |
| (State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification No.) |
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| 215 First Street, Suite 400
Cambridge, MA |
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02142 |
| (Address of Principal Executive Offices) |
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(Zip Code) |
2014 Stock Incentive Plan
2014 Employee Stock Purchase Plan
Amended and Restated 2009 Stock Incentive Plan
(Full Title of the Plan)
Abbie C. Celniker, Ph.D.
President and Chief Executive Officer
Eleven Biotherapeutics, Inc.
215 First Street, Suite 400
Cambridge, MA 02142
(Name
and Address of Agent For Service)
(617) 871-9911
(Telephone Number, Including Area Code, of Agent For Service)
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
the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b 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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x (Do not check if a smaller reporting company) |
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Smaller reporting company |
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¨ |
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 |
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Proposed
Maximum
Aggregate
Offering Price |
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Amount of
Registration Fee |
| Common Stock, $0.001 par value per share |
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2,213,962 shares(2) |
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$7.66(3) |
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$16,949,822.52(3) |
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$2,184.00 |
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| (1) |
In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar transactions. |
| (2) |
Consists of (i) 1,346,235 shares issuable under the Amended and Restated 2009 Stock Incentive Plan; (ii) 710,247 shares issuable under the 2014 Stock Incentive Plan and (iii) 157,480 shares issuable under
the 2014 Employee Stock Purchase Plan. Upon the expiration, termination, surrender, cancellation, forfeiture or repurchase of outstanding awards under the Amended and Restated 2009 Stock Incentive Plan, the unissued balance of shares issuable under
such awards will be issuable under the 2014 Stock Incentive Plan. |
| (3) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act of 1933, as amended. The price per share and aggregate offering price are calculated on the basis of
(a) $3.39, the weighted average exercise price of the 1,346,235 shares subject to outstanding stock options granted under the Amended and Restated 2009 Stock Incentive Plan, at prices ranging from $0.64 to $9.59 per share, (b) $16.85, the
weighted exercise price of the 80,715 shares subject to outstanding stock options granted under the 2014 Stock Incentive Plan, and (c) $14.01 per share, the average of the high and low sale prices of the registrant’s common stock on the
Nasdaq Global Market on April 7, 2014, in accordance with Rule 457(c) under the Securities Act of 1933, as amended, for the 787,012 shares issuable in the aggregate under the 2014 Stock Incentive Plan and 2014 Employee Stock Purchase Plan that
are not subject to outstanding options. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Item 1 is included in documents sent or given to participants in the plans covered by this registration
statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).
Item 2.
Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is included in documents
sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the “Commission”). The following documents, which are on file with
the Commission, are incorporated in this registration statement by reference:
(a) The registrant’s latest annual report filed
pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the registrant’s latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the document referred to in (a) above.
(c) The description of the securities contained in the
registrant’s registration statement on Form 8-A filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in this registration statement and to be part
hereof from the date of the filing of such 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 the purposes of this registration statement to
the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of
Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Wilmer Cutler Pickering Hale and Dorr LLP has opined as to the legality of the securities being offered by this registration statement.
Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law, or the “DGCL, permits a corporation to eliminate the personal liability of its
directors or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a
law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The registrant’s certificate of incorporation provides that no director shall be
personally liable to the registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination
or limitation of liability of directors for breaches of fiduciary duty.
Section 145 of the DGCL provides that a corporation has the
power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions
brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court
of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the Court of
Chancery or such other court shall deem proper.
The registrant’s certificate of incorporation provides that the registrant will
indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the
registrant), by reason of the fact that he or she is or was, or has agreed to become, the registrant’s director or officer, or is or was serving, or has agreed to serve, at the registrant’s request as a director, officer, partner, employee
or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or
omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom if such
Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the regstrant’s best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his
or her conduct was unlawful.
The registrant’s certificate of incorporation also provides that the registrant will indemnify any
Indemnitee who was or is a party to an action or suit by or in the right of the registrant to procure a judgment in the registrant’s favor by reason of the fact that the Indemnitee is or was, or has agreed to become, the registrant’s
director or officer, or is or was serving, or has agreed to serve, at the registrant’s request as a director, officer, partner, employee or trustee or, or in a similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have
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been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the registrant’s best interests, except that no
indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the registrant, unless a court determines that, despite such adjudication but in view of all of the
circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the registrant against all
expenses (including attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If the registrant does not assume the defense, expenses must be advanced to an Indemnitee under certain
circumstances.
The registrant has entered into indemnification agreements with its directors executive officers. In general, these
agreements provide that the registrant will indemnify the director or executive officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or officer of the company or in connection with their service at
the registrant’s request for another corporation or entity. The indemnification agreements also provide for procedures that will apply in the event that a director or executive officer makes a claim for indemnification and establish certain
presumptions that are favorable to the director or executive officer.
The registrant maintains a general liability insurance policy that
covers certain liabilities of the registrant’s directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.
Insofar as the forgoing provisions permit indemnification of directors, executive officers, or persons controlling the registrant for
liability arising under the Securities Act, the registrant has been informed that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8.
Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 9. Undertakings.
1. Item 512(a) of Regulation S-K. 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; and
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(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 (i) and (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.
(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 therein, 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.
2. Item 512(b) of Regulation S-K. 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 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. Item 512(h) of Regulation S-K. 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.
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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 Cambridge, Massachusetts, on this 9th day of April, 2014.
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| ELEVEN BIOTHERAPEUTICS, INC. |
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| By: |
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/s/ Abbie C. Celniker |
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Abbie C. Celniker, Ph.D. |
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President and Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Eleven Biotherapeutics, Inc., hereby severally constitute and appoint Abbie C. Celniker, Gregory
D. Perry and John J. McCabe, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed
herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Eleven Biotherapeutics, Inc. to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration
statement and any and all amendments thereto.
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.
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| Signature |
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Title |
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Date |
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| /s/ Abbie C. Celniker
Abbie C. Celniker, Ph.D. |
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Director, President and Chief Executive Officer (Principal Executive Officer) |
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April 9, 2014 |
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| /s/ Gregory D. Perry
Gregory D. Perry |
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Chief Financial and Business Officer (Principal Financial and Accounting Officer) |
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April 9, 2014 |
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| /s/ Daniel S. Lynch
Daniel S. Lynch |
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Chairman of the Board of Directors |
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April 9, 2014 |
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| /s/ Noubar B. Afeyan
Noubar B. Afeyan, Ph.D. |
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Director |
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April 9, 2014 |
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| /s/ David A. Berry
David A. Berry, M.D., Ph.D. |
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Director |
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April 9, 2014 |
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| /s/ Mark J. Levin
Mark J. Levin |
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Director |
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April 9, 2014 |
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| /s/ Cary G. Pfeffer
Cary G. Pfeffer, M.D. |
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Director |
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April 9, 2014 |
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| /s/ Jane V. Henderson
Jane V. Henderson |
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Director |
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April 9, 2014 |
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| /s/ Paul Chaney
Paul Chaney |
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Director |
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April 9, 2014 |
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INDEX TO EXHIBITS
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| Number |
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Description |
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| 4.1(1) |
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Restated Certificate of Incorporation of the Registrant |
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| 4.2(1) |
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Amended and Restated By-Laws of the Registrant |
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| 4.3(2) |
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Amended and Restated Investor Rights Agreement, as amended, of the Registrant |
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| 5 |
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Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant |
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| 23.1 |
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Consent of Wilmer Cutler Pickering Hale and Dorr LLP
(included in Exhibit 5) |
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| 23.2 |
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Consent of Ernst & Young LLP, independent registered public accounting firm |
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| 24 |
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Power of attorney (included on the signature pages of this registration statement) |
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| 99.1(3) |
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2014 Stock Incentive Plan |
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| 99.2(3) |
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2014 Employee Stock Purchase Program |
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| 99.3(3) |
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Amended and Restated 2009 Stock Incentive Plan |
| (1) |
Previously filed with the Securities and Exchange Commission on February 18, 2014 as an Exhibit to the Registrant’s Current Report on Form 8-K (File No. 001- 36296) and incorporated herein by reference.
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| (2) |
Previously filed with the Securities and Exchange Commission on December 30, 2013 as an Exhibit to the Registrant’s Registration Statement on Form S-1 (File No. 333-193131) and incorporated herein by
reference. |
| (3) |
Previously filed with the Securities and Exchange Commission on January 24, 2014 as an Exhibit to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-193131) and
incorporated herein by reference. |
