As filed with the Securities and Exchange
Commission on February 27, 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
PASSAGE
BIO, INC.
(Exact name of Registrant as specified in
its charter)
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Delaware
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82-2729751
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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Two Commerce Square
2001 Market Street, 28th Floor
Philadelphia, PA
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19103
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(Address of Principal Executive Offices)
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(Zip Code)
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2020 Equity Incentive Plan
2020 Employee Stock Purchase Plan
2018 Equity Incentive Plan
(Full title of the plans)
Bruce Goldsmith, Ph.D.
Chief Executive Officer
Passage Bio, Inc.
Two Commerce Square
2001 Market Street, 28th Floor
Philadelphia, PA 19103
(267) 866-0311
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Please send copies of all communications
to:
Effie Toshav, Esq.
Robert A. Freedman, Esq.
Matthew Rossiter, Esq.
Ryan Mitteness, Esq.
Fenwick & West LLP
555 California Street, 12th
Floor
San Francisco, California 94104
(415) 875-2300
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).
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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
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Smaller
reporting
company
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x
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Emerging growth
company
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x
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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. ¨
CALCULATION OF REGISTRATION FEE
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Title of Each Class 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
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Common Stock, $0.0001 par value per share
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— To be issued or outstanding under the 2020 Equity Incentive Plan
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5,362,823(2)
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$18.00(3)
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$96,530,814
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$12,530
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— To be issued under the 2020 Employee Stock Purchase Plan
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434,000(4)
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$15.30(5)
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$6,640,200
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$862
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— Outstanding under the 2018 Equity Incentive Plan
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4,985,797(6)
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$8.37(7)
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$41,731,121
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$5,417
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Total
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10,782,620
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$144,902,135
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$18,809
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without the Registrant’s receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.
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(2)
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Shares
of common stock reserved for issuance under the 2020 Equity Incentive Plan (“2020 Plan”) consists
of (a) 2,878,027 shares of common stock reserved for issuance under the 2020 Plan, (b) 1,061,973 shares of common stock
subject to issuance upon the exercise of stock options outstanding under the 2020 Plan as of the date of this Registration
Statement, and (c) 1,422,823 shares of common stock previously reserved but unissued under the 2018 Equity Incentive Plan
(“2018 Plan”) that are now available for issuance under the 2020 Plan. Any such shares of common
stock that (i) are subject to options under the 2018 Plan that cease to be subject to such options by forfeiture or
otherwise, (ii) were or are issued under the 2018 Plan pursuant to the exercise of options and are forfeited or repurchased
at the original issue price, or (iii) are subject to options under the 2018 Plan and are used to pay the exercise price of an
option or withheld to satisfy tax withholding obligations relating to any awards will be available for future grant and
issuance under the 2020 Plan. See footnote 6 below.
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(3)
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Calculated solely for the purpose of this offering under Rules 457(h) and 457(c) of the Securities Act on the basis of the initial public offering price of $18.00.
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(4)
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Represents shares of common stock reserved for issuance under the 2020 Employee Stock Purchase Plan (“Purchase Plan”).
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(5)
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Calculated solely for the purpose of this offering under Rule 457(h) of the Securities Act and on the basis of the initial public offering price per share of the Registrant’s common stock, multiplied by 85%, which is the percentage of the trading price per share applicable to purchasers under the Purchase Plan.
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(6)
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Represents shares subject to issuance upon the exercise of stock options outstanding under the 2018 Plan as of the date of this Registration Statement. Any such shares of common stock that (i) are subject to options under the 2018 Plan that cease to be subject to such options by forfeiture or otherwise, (ii) were or are issued under the 2018 Plan pursuant to the exercise of options and are forfeited or repurchased at the original issue price, or (iii) are subject to options under the 2018 Plan and are used to pay the exercise price of an option or withheld to satisfy tax withholding obligations relating to any awards will be available for issuance under the 2020 Plan. See footnote 2 above.
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(7)
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Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the weighted average exercise price for stock options outstanding under the 2018 Plan.
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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 on Form S-8 (the “Registration Statement”)
and has been or will be sent or given to participating service providers in accordance with Rule 428 of the Securities Act
of 1933, as amended (the “Securities Act”), and the instructions to Form S-8. In accordance with the
rules and regulations of the Securities and Exchange Commission (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 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents
filed by Passage Bio, Inc. (the “Registrant”) with the Commission pursuant to the Securities Act and
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:
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(a)
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the Registrant’s prospectus to be filed pursuant to Rule 424(b) under the Securities Act
relating to the Registration Statement on Form S-1, as amended (File No. 333-236214), which contains audited financial statements
for the Registrant’s latest fiscal year for which such statements have been filed; and
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(b)
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the description of the Registrant’s
common stock contained in the Registrant’s registration statement on Form 8-A
(File No. 001-39231) filed with the Commission on February 18, 2020 under Section
12(b) of the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
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All documents filed
by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration
Statement and 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 into this Registration
Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set
forth therein. 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 in any subsequently
filed document, which also is deemed to be incorporated by reference herein, modifies or supersedes such statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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The Registrant is incorporated
under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law (the “DGCL”)
authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain
circumstances and subject to certain limitations. The terms of Section 145 of the DGCL are sufficiently broad to permit indemnification
under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.
As permitted by the
DGCL, the Registrant’s restated certificate of incorporation to be effective in connection with the completion of the Registrant’s
initial public offering contains provisions that limit the liability of its directors for monetary damages to the fullest extent
permitted by the DGCL for any breach of fiduciary duties as a director, except liability for the following:
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any breach of the director’s duty of loyalty to the Registrant or its stockholders;
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acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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under Section 174 of the DGCL (regarding unlawful dividends, stock purchases or redemptions); or
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any transaction from which the director derived an improper personal benefit.
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As permitted by the
DGCL, the Registrant’s restated bylaws to be effective in connection with the completion of the Registrant’s initial
public offering, provide that:
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the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the DGCL, subject to certain very limited exceptions;
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the Registrant may indemnify its other employees and agents as set forth in the DGCL;
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the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the DGCL, subject to certain very limited exceptions; and
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the rights conferred in the restated bylaws are not exclusive.
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In addition, the Registrant
intends to enter into indemnity agreements with each of its current directors and executive officers. These agreements will provide
for the indemnification of directors and executive officers for all reasonable expenses and liabilities incurred in connection
with any action or proceeding brought against them by reason of the fact that they are or were agents of the Registrant.
The Registrant currently
carries liability insurance for its directors and executive officers for securities matters.
Certain of the Registrant’s
directors are also indemnified by their employers with regard to their service on the Registrant’s board of directors.
See also the undertakings
set out in response to Item 9 hereof.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
The following exhibits
are filed herewith:
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A.
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The undersigned Registrant hereby undertakes:
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(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 the 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 percent 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) 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 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; and
(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.
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B.
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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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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C.
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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 hereby, 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, 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 Philadelphia, Commonwealth of Pennsylvania, on this 27th day of February, 2020.
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PASSAGE BIO, INC.
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By:
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/s/ BRUCE GOLDSMITH
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Bruce Goldsmith, Ph.D.
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Chief Executive Officer and President
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below hereby constitutes and appoints Bruce Goldsmith, Jill Quigley and Edgar Cale, and each of them, as
his or her true and lawful attorney-in-fact and agent with the full power of substitution, for him or her 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, granting
unto said attorney-in-fact and agent 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 for all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her 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 on behalf of the Registrant in the capacities
and on the date indicated.
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Name
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Title
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Date
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/s/ BRUCE GOLDSMITH
Bruce Goldsmith, Ph.D.
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Chief Executive Officer and Director
(Principal Executive Officer)
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February
27, 2020
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/s/ RICHARD MORRIS
Richard Morris
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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February
27, 2020
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/s/ TADATAKA YAMADA
Tadataka Yamada, M.D.
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Chair of the Board of Directors
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February
27, 2020
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/s/ ATHENA COUNTOURIOTIS
Athena Countouriotis, M.D.
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Director
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February
27, 2020
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/s/ PATRICK HERON
Patrick Heron
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Director
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February
27, 2020
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/s/ SAQIB ISLAM
Saqib Islam
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Director
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February
27, 2020
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/s/ SANDIP KAPADIA
Sandip Kapadia
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Director
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February
27, 2020
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/s/ LIAM RATCLIFFE
Liam Ratcliffe M.D., Ph.D.
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Director
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February
27, 2020
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/s/ STEPHEN SQUINTO
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Director
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February
27, 2020
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Stephen Squinto, Ph.D.
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/s/ TOM WOIWODE
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Director
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February
27, 2020
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Tom Woiwode, Ph.D.
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EXHIBIT 5.1
February 27, 2020
Passage Bio, Inc.
2001 Market Street, 28th Floor
Philadelphia, PA 19103
Ladies and Gentlemen:
At your request, as
your counsel, we have examined the Registration Statement on Form S-8 (the “Registration Statement”)
to be filed by Passage Bio, Inc., a Delaware corporation (the “Company”) with the Securities and Exchange
Commission (the “Commission”) on or about February 27, 2020 in connection with the registration under
the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 10,782,620 shares (the
“Shares”) of the Company’s Common Stock, $0.0001 par value per share (the “Common Stock”),
subject to issuance by the Company (a) upon the exercise or settlement of awards granted or to be granted under the 2020 Equity
Incentive Plan (the “2020 Plan”), (b) upon the exercise of outstanding stock options granted under the
2018 Equity Incentive Plan, as amended to date (the “2018 Plan”) and (c) pursuant to purchase rights
to acquire shares of Common Stock to be granted under the Company’s 2020 Employee Stock Purchase Plan (the “Purchase
Plan”). The plans referred to in clauses (a) through (c) above are collectively referred to in this letter as
the (“Plans”).
At your request we
are providing this letter to express our opinion on the matters set forth below in this letter (“our opinion”).
In connection with
our opinion, we have examined such matters of fact as we have deemed necessary, which included examination of originals or copies
of: (a) the Company’s current Certificate of Incorporation and Bylaws, as amended (collectively, the “Charter
Documents”), the Plans, the Registration Statement and the exhibits thereto, (b) certain corporate proceedings
of the Company’s Board of Directors (the “Board”) and the Company’s stockholders relating
to adoption or approval of the Company Charter Documents, the Plans, the reservation of the Shares for sale and issuance, the filing
of the Registration Statement and the registration of the Shares under the Securities Act and documents regarding the Company’s
outstanding and reserved capital stock and other securities and (c) such other documents as we have deemed advisable, and
we have examined such questions of law as we have considered necessary.
In our examination
of documents for purposes of this opinion, we have assumed, and express no opinion as to, the authenticity and completeness of
all documents submitted to us as originals, the genuineness of signatures on documents reviewed by us, the conformity to originals
and the completeness of all documents submitted to us as copies, the legal capacity of all parties executing any documents (other
than the Company), the lack of any undisclosed termination or modification or waiver of any document, the absence of any extrinsic
agreements or documents that might change or affect the interpretation or terms of documents, and the due authorization, execution
and delivery of all documents by each party thereto other than the Company. We have also assumed that any certificates or instruments
representing the Shares, when issued, will be executed by the Company and by officers of the Company duly authorized to do so.
In rendering our opinion, we have also relied upon a Certificate of Good Standing dated February 26, 2020 issued by the Delaware
Secretary of State with respect to the Company and representations and certifications made to us by the Company, including without
limitation representations in a Management Certificate addressed to us of even date herewith that the Company has available a sufficient number
of authorized shares of Common Stock that are not currently outstanding or reserved for issuance under other outstanding securities
or plans of the Company, to enable the Company to issue and deliver all of the Shares as of the date of this letter.
We render this opinion
only with respect to, and we express no opinion herein concerning the application or effect of the laws of any jurisdiction other
than, the existing Delaware General Corporation Law now in effect. We express no opinion with respect to the securities or “blue
sky” laws of any state.
Based upon, and
subject to, the foregoing, it is our opinion that when the 10,782,620 Shares of Common Stock that may be issued and sold by
the Company (a) upon the exercise or settlement of awards granted or to be granted under the 2020 Plan, (b) upon
the exercise of outstanding stock options granted under the 2018 Plan and (c) pursuant to purchase rights to acquire
shares of Common Stock to be granted under the Purchase Plan, have been issued and sold by the Company against the
Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share) in
accordance with the terms (including, without limitation, payment and authorization provisions) of the applicable Plan, and
have been duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the
holders thereof, such Shares will be validly issued, fully paid and non-assessable.
We consent to the
use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration
Statement, the prospectuses constituting a part thereof and any amendments thereto. We do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder. This opinion is intended solely for use in connection with issuance and sale of the Shares subject to the
Registration Statement and is not to be relied upon for any other purpose. In providing this letter, we are opining only as to
the specific legal issues expressly set forth above, and no opinion shall be inferred as to any other matter or matters. This opinion
is rendered on, and speaks only as of, the date of this letter first written above, and does not address any potential change in
facts or law that may occur after the date of this opinion letter. We assume no obligation to advise you of any fact, circumstance,
event or change in the law or the facts that may hereafter be brought to our attention, whether or not such occurrence would affect
or modify any of the opinions expressed herein.
Very truly yours,
/s/ Fenwick & West
LLP
FENWICK & WEST
LLP