Securities Registration: Employee Benefit Plan (s-8)
14 Septiembre 2020 - 4:18PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on
September 14, 2020
Registration No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF
1933
Humanigen, Inc.
(Exact name of registrant as
specified in its charter)
|
Delaware
|
|
77-0557236
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(IRS employer identification
number)
|
533 Airport Boulevard, Suite
400
Burlingame, CA 94010
(Address of principal executive
offices)
Humanigen, Inc. 2020 Omnibus
Incentive Compensation Plan
(Full title of the Plan)
Cameron Durrant, M.D.
Chief Executive Officer
Humanigen, Inc.
533 Airport Boulevard, Suite
400
Burlingame, CA 94010
(650) 243-1000
(Name, address and telephone
number of Agent for Service)
Copy to:
Kevin L. Vold, Esq.
Polsinelli PC
1401 Eye Street, NW, Suite
800
Washington, D.C. 20005
(202) 783-3300
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. (Check one):
|
Large accelerated filer o
|
|
Accelerated filer o
|
|
Non-accelerated filer x
|
|
Smaller reporting company x
Emerging growth company o
|
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(2)
|
|
|
Proposed
Maximum
Aggregate
Offering
Price
|
|
|
Amount of
Registration
Fee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock, $0.001 par value per share
|
|
7,000,000
|
|
$9.95
|
|
|
$69,650,000
|
|
|
$9,040.57
|
|
(1) Consists of shares of common stock, $0.001 par value
per share of the Registrant, or Common Stock, authorized for issuance under the Humanigen, Inc. 2020 Omnibus Incentive Compensation
Plan and reflects a reverse stock split effective September 11, 2020. Pursuant to Rule 416 of the Securities Act of 1933,
as amended (the “Securities Act”), this registration statement also covers any additional shares of common stock which
become issuable under the above-named plan by reason of any share dividend, share split, recapitalization or any other similar
transaction without receipt of consideration which results in an increase in the number of shares or common stock outstanding.
(2) Estimated pursuant to Rule 457(c) and Rule 457(h)
of the Securities Act solely for the purpose of calculating the registration fee. The price per share is based on the average of
the high and low sales price on the OTCQB Venture Market on September 14, 2020.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information
specified in Part I will be sent or given to employees and other individuals participating in the Humanigen, Inc. 2020 Omnibus
Incentive Compensation Plan (the “Plan”) in accordance with Rule 428(b)(1) under the Securities Act of 1933, as amended,
or the Securities Act. Such information 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 Securities and Exchange Commission, or
the SEC, and the instructions to Form S-8, such documents are not being filed with the SEC 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.
|
Humanigen, Inc., or the Company,
hereby incorporates by reference into this Registration Statement the following documents filed by it with the SEC:
|
|
(a)
|
the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 16,
2020 (File No. 001-35798);
|
|
|
(b)
|
the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020, filed with the SEC on May
15, 2020, and the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2020, filed with the SEC
on August 14, 2020;
|
|
|
(c)
|
our Current Reports on Form 8-K, filed with the SEC on January 31, 2020; March 20, 2020; March 23, 2020; April 6, 2020; April
29, 2020; May 7, 2020; June 4, 2020; July 6, 2020; July 10, 2020; July 30, 2020; August 3, 2020; September 4, 2020; and September
11, 2020 (except, with respect to each of the foregoing, for portions of such reports which were deemed to be furnished and not
filed); and
|
|
|
(d)
|
the description of the Company’s common stock contained in Exhibit 4.5 to the Company’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2019, filed with the SEC on March 16, 2020, including any other amendments or reports filed
for the purpose of updating such description.
|
All reports and other documents subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the
Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold
or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents. Unless specifically stated to the contrary, none of the information that the
Company discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K that the Company has or may from time to time furnish
to the Commission will be incorporated by reference into, or otherwise be included in, 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 for 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.
|
|
Item 5.
|
Interests of Named Experts and Counsel.
|
Not applicable.
|
|
Item 6.
|
Indemnification of Directors and Officers.
|
Section 102(b)(7) of the Delaware
General Corporation Law, or the DGCL, provides that a Delaware corporation, in its certificate of incorporation, may limit the
personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duties as
a director, except for liability for any:
|
|
·
|
transaction from which the director derived an improper personal benefit;
|
|
|
·
|
act or omission not in good faith or that involved intentional misconduct or a knowing violation
of law;
|
|
|
·
|
unlawful payment of dividends or redemption of shares; or
|
|
|
·
|
breach of the director’s duty of loyalty to the corporation or its stockholders.
|
Section 145(a) of the DGCL provides,
in general, that a Delaware corporation may indemnify any person who was or is a party, or is 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 corporation) because that person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation
or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with such action, so long as the person acted in good faith
and in a manner he or she reasonably believed was in or not opposed to the corporation’s best interests, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides,
in general, that a Delaware corporation may indemnify any person who was or is a party, or is threatened to be made a party, to
any threatened, pending or completed action or suit by or in the right of the corporation to obtain a judgment in its favor because
the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or other enterprise. The indemnity may include expenses (including
attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action,
so long as the person acted in good faith and in a manner the person reasonably believed was in or not opposed to the corporation’s
best interests, except that no indemnification shall be permitted without judicial approval if a court has determined that the
person is to be liable to the corporation with respect to such claim. Section 145(c) of the DGCL further provides that, if a present
or former director or officer has been successful in defense of any action referred to above, the corporation must indemnify such
officer or director against the expenses (including attorneys’ fees) he or she actually and reasonably incurred in connection
with such action.
Section 145(g) of the DGCL provides,
in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of
another corporation or other enterprise against any liability asserted against and incurred by such person, in any such capacity,
or arising out of his or her status as such, whether or not the corporation could indemnify the person against such liability under
Section 145 of the DGCL.
The Company’s Amended and Restated
Certificate of Incorporation, as amended, eliminates the personal liability of its directors to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, with certain limited exceptions set forth therein. The Company’s
Amended and Restated Bylaws provide for the indemnification of its directors and officers to the fullest extent permitted by the
DGCL.
The Company maintains an insurance
policy that covers certain liabilities of its directors and officers arising out of claims based on acts or omissions in their
capacities as directors or officers.
In addition, the Company has entered
into separate indemnification agreements with its directors and officers, pursuant to which the Company has agreed to indemnify
its directors and officers against certain liabilities and expenses incurred by such persons in connection with claims by reason
of their being such a director or officer.
Certain of the Company’s non-employee
directors may, through their relationships with their employers, also be insured and/or indemnified against certain liabilities
incurred in their capacity as members of the Company’s board of directors.
The foregoing descriptions are only
general summaries.
|
|
Item 7.
|
Exemption from Registration Claimed.
|
Not applicable.
The exhibits below represent a complete list of exhibits filed or
incorporated by reference as part of this Registration Statement.
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 of 1933;
(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 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) above 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 Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining
any liability under the Securities Act of 1933, 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 of 1933, each filing of the Registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 of 1933 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 of 1933 and will be governed
by the final adjudication of such issue.
SIGNATURE
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 Burlingame, State of California on September 14, 2020.
|
|
Humanigen, Inc.
|
|
|
|
|
|
By:
|
/s/ Cameron Durrant
|
|
|
|
Cameron Durrant, M.D., MBA
|
|
|
|
Chairman of the Board and Chief Executive Officer
|
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears
below constitutes and appoints Cameron Durrant, Timothy Morris and David Tousley, and each of them, his or her true and lawful
attorneys-in-fact and agents, 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, without limitation, 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 Exchange Commission, under the Securities Act of 1933, 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, as fully to
all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents 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, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Cameron Durrant
|
|
|
|
|
|
Cameron Durrant, M.D., MBA
|
|
Chairman of the Board and Chief Executive Officer
(Principal Executive Officer)
|
|
September 14, 2020
|
|
|
|
|
|
|
|
/s/ Timothy Morris
|
|
|
|
|
|
Timothy Morris, CPA
|
|
Chief Operating Officer and Chief Financial Officer
(Principal Financial Officer)
|
|
September 14, 2020
|
|
|
|
|
|
|
|
/s/ David Tousley
|
|
|
|
|
|
David Tousley, MBA, CPA
|
|
Chief Accounting and Administrative Officer,
Corporate Secretary and Treasurer
(Principal Accounting Officer)
|
|
September 14, 2020
|
|
|
|
|
|
|
|
/s/ Ronald Barliant
|
|
|
|
|
|
Ronald Barliant, JD
|
|
Director
|
|
September 14, 2020
|
|
|
|
|
|
|
|
/s/ Rainer Boehm
|
|
|
|
|
|
Rainer Boehm, M.D.
|
|
Director
|
|
September 14, 2020
|
|
|
|
|
|
|
|
/s/ Cheryl Buxton
|
|
|
|
|
|
Cheryl Buxton
|
|
Director
|
|
September 14, 2020
|
|
|
|
|
|
|
|
/s/ Robert G. Savage
|
|
|
|
|
|
Robert G. Savage, MBA
|
|
Director
|
|
September 14, 2020
|
Humanigen (CE) (USOTC:HGEN)
Gráfica de Acción Histórica
De Jun 2024 a Jul 2024
Humanigen (CE) (USOTC:HGEN)
Gráfica de Acción Histórica
De Jul 2023 a Jul 2024
