S-8 1 d623076ds8.htm S-8 S-8

As filed with the Securities and Exchange Commission on June 28, 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

 

 

Adverum Biotechnologies, Inc.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   20-5258327

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification Number)

100 Cardinal Way

Redwood City, California

   94063
(Address of registrant’s principal executive offices)   Zip code

2024 Equity Incentive Award Plan

(Full title of the plans)

Linda Rubinstein

Chief Financial Officer

Adverum Biotechnologies, Inc.

100 Cardinal Way

Redwood City, California 94063

(650) 656-9323

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

 

 

Copies to:

Kenneth Guernsey

Julia Boesch

Cooley LLP

3 Embarcadero Center, 20th Floor

San Francisco, CA 94111-4004

(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 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 (this “Registration Statement”) is being filed by Adverum Biotechnologies, Inc. (the “Registrant”) for the purpose of registering up to an aggregate of 4,688,345 shares of the Registrant’s common stock, par value $0.0001 per share (the “Common Stock”), authorized for issuance under the Adverum Biotechnologies, Inc. 2024 Equity Incentive Award Plan (the “2024 Plan”); consisting of (i) up to 1,962,524 new shares of Common Stock reserved for issuance under the 2024 Plan, (ii) 198,076 shares of Common Stock that may be issued upon the exercise of outstanding options granted under the 2024 Plan; (iii) 90,866 shares of Common Stock that remained available for future grants under the Adverum Biotechnologies, Inc. 2014 Equity Incentive Award Plan, as amended and restated (the “2014 Plan”) immediately prior to the June 17, 2024 effective date of the 2024 Plan (the “Effective Date”), which shares were rolled over into the 2024 Plan under the terms thereof; and (iv) up to 2,416,879 shares of Common Stock subject to outstanding equity awards under the 2014 Plan that, on or after the Effective Date, may terminate, expire or lapse for any reason without the delivery of shares of Common Stock to the holder thereof and may potentially be returned to the 2014 Plan due to forfeiture of such prior awards and, as a result, may become available for issuance under the 2024 Plan under the terms thereof. The 2024 Plan was adopted by the Board of Directors of the Registrant on April 29, 2024, subject to stockholder approval, which approval was obtained at its 2024 annual meeting of stockholders on the Effective Date. No new awards will be granted under the 2014 Plan on or after the Effective Date and all outstanding awards previously granted under the 2014 Plan will remain outstanding, subject to the terms thereof.

PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

The information called for by Part I of Form S-8 is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act, and the instructions to Form S-8. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents have been filed by us with the SEC and are incorporated herein by reference:

 

  •  

our Annual Report on Form 10-K for the year ended December 31, 2023, which was filed with the SEC on March 18, 2024;

 

  •  

our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, which was filed with the SEC on May 9, 2024;

 

  •  

our Current Reports on Form 8-K filed with the SEC on February 5, 2024, February 6, 2024, February 8, 2024, March 20, 2024, June 11, 2024 and June 18, 2024, to the extent the information in such reports is filed and not furnished; and

 

  •  

the description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on July  28, 2014, including any amendments or reports filed for the purpose of updating such description, including Exhibit 4.2 to our Annual Report on Form 10-K for the year ended December 31, 2021, which was filed with the SEC on March 1, 2021.

All documents subsequently filed by the us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (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, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all of the shares of Common Stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents.

For purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded 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 such 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.

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, or the DGCL, authorizes a corporation to indemnify its directors and officers against liabilities arising out of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys’ fees) incurred by directors and officers in advance of the final disposition of such action, suit or proceeding. In addition, Section 145 provides that a corporation has the power to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them and incurred by them in their capacity as a director or officer, or arising out of their status as such, whether or not the corporation would have the power to indemnify the director or officer against such liability under Section 145.

Our amended and restated certificate of incorporation contains provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:

 

  •  

any breach of the director’s duty of loyalty to us or our stockholders;

 

  •  

any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

  •  

unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or

 

  •  

any transaction from which they derived an improper personal benefit.

Our amended and restated certificate of incorporation and amended and restated bylaws provide that we are required to indemnify our directors and officers, in each case to the fullest extent permitted by Delaware law. Our amended and restated bylaws also provide that we are obligated to advance expenses incurred by a director or officer in advance of the final disposition of any action or proceeding, and permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in that capacity regardless of whether we would otherwise be permitted to indemnify him or her under Delaware law. We have entered and expect to continue to enter into agreements to indemnify our directors, executive officers and other employees as determined by our board of directors. With specified exceptions, these agreements provide for indemnification for related expenses, including, among other things, attorneys’ fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. We also maintain directors’ and officers’ liability insurance.

Adverum currently carries liability insurance for its directors and officers.

Item 7. Exemption from Registration Claimed.

Not Applicable.

Item 8. Exhibits.

Exhibit Index

 

              

Incorporated by Reference

Exhibit
Number		   

Exhibit Description

   

Form

   

SEC

File No.

   

Exhibit
Number

   

Date

   

Filed

Herewith

 4.1    Restated Certificate of Incorporation.    8-K    001-36579    3.2    March 20, 2024   
 4.2    Amended and Restated Bylaws.    8-K    001-36579    3.1    June 29, 2020   
 5.1    Opinion of Cooley LLP.                X
23.1    Consent of Independent Registered Public Accounting Firm.                X
23.2    Consent of Cooley LLP (included in Exhibit 5.1).                X

24.1    Power of Attorney (included on signature page hereto).    X
99.1    2024 Equity Incentive Award Plan.    X
99.2    Form of Stock Option Grant Notice and Stock Option Agreement under the 2024 Equity Incentive Award Plan.    X
99.3    Form of Restricted Stock Unit Award Grant Notice and Restricted Stock Unit Award Agreement under the 2024 Equity Incentive Award Plan.    X
107    Filing Fee Table.    X

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; and

 

  (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 Registration Statement is on Form S-8, and 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.

 

(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 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.

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 Redwood City, State of California on June 28, 2024.

 

Adverum Biotechnologies, Inc.
By:  

/s/ Laurent Fischer

  Laurent Fischer, M.D.
  President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Laurent Fischer and Linda Rubinstein, and each 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 on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission (the “SEC”), and generally to do all such things in their names and behalf in their capacities as officers and directors to enable the registrant to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of 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 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, as amended, this Registration Statement has been signed by the following persons in the capacities indicated.

 

SIGNATURE

   

TITLE

   

DATE

/s/ Laurent Fischer

    President, Chief Executive Officer and Director    June 28, 2024
Laurent Fischer, M.D.    (Principal Executive Officer)   

/s/ Linda Rubinstein

    Chief Financial Officer    June 28, 2024
Linda Rubinstein    (Principal Financial Officer and Principal Accounting Officer)   

/s/ Patrick Machado

    Chairman of the Board    June 28, 2024
Patrick Machado, J.D.      

/s/ Soo Hong

    Director    June 28, 2024
Soo Hong, M.B.A      

/s/ Szilárd Kiss

    Director    June 28, 2024
Szilárd Kiss, M.D.      

/s/ Mark Lupher

    Director    June 28, 2024
Mark Lupher, Ph.D.      

/s/ C. David Nicholson

    Director    June 28, 2024
C. David Nicholson, Ph.D.      

/s/ James Scopa

    Director    June 28, 2024
James Scopa, J.D., M.B.A.      

/s/ Dawn Svoronos

    Director    June 28, 2024
Dawn Svoronos      

/s/ Reed Tuckson

    Director    June 28, 2024
Reed Tuckson, M.D.      

/s/ Scott Whitcup

    Director    June 28, 2024
Scott Whitcup, M.D.