As filed with the Securities and Exchange Commission
on August 13, 2021
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SELLAS
LIFE SCIENCES GROUP, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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20-8099512
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(State or other jurisdiction of Incorporation or organization)
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(I.R.S. Employer Identification No.)
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7 Times Square, Suite
2503
New York, New York
10036
(Address of principal executive offices) (Zip code)
SELLAS Life Sciences Group, Inc. 2019 Equity
Incentive Plan
SELLAS Life Sciences Group, Inc. 2021 Employee
Stock Purchase Plan
(Full title of the plan)
Angelos M. Stergiou, M.D., Sc.D. h.c.
President and Chief Executive Officer
SELLAS Life Sciences Group, Inc.
7 Times Square, Suite 2503
New York, New York 10036
(Name and address of agent for service)
(646) 200-5278
(Telephone number, including area code, of agent
for service)
Copies to:
Joel I. Papernik, Esq.
Daniel A. Bagliebter, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C.
666 Third Avenue
New York, NY 10017
(212) 935-3000
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.
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Large accelerated filer ¨
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Accelerated filer ¨
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Non-accelerated filer x
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Smaller reporting company x
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Emerging growth company ¨
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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 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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2019
Equity Incentive Plan (2021 Increase)
(Common
stock, par value $0.0001 per share)
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712,727
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(2)
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$
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9.59
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(4)
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$
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6,835,051.93
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$
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745.70
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2021
Employee Stock Purchase Plan
(Common
stock, par value $0.0001 per share)
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300,000
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(3)
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$
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9.59
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(4)
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$
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2,877,000
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$
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313.88
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Total
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1,012,727
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$
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9,712,051.93
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$
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1,059.58
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(1) 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 common
stock that become issuable under the above-named plans by reason of any stock dividend, stock split, recapitalization or any other similar
transaction effected without receipt of consideration which results in an increase in the number of SELLAS Life Sciences Group, Inc.’s
(the “Registrant”) outstanding shares of common stock, par value $0.0001 per share (the “Common Stock”).
(2) Represents an additional number of shares
to be automatically added annually to the shares authorized for issuance under the Registrant’s 2019 Equity Incentive Plan (the
“2019 Plan”) on the first day of each fiscal year, during the period beginning in fiscal year 2020 and ending on the second
day of fiscal year 2023, in an amount equal to the lesser of (a) 5% of the total number of shares of Common Stock outstanding at the end
of the prior fiscal year and (b) a number of shares of Common Stock designated by action of the Registrant’s board of directors
(or a committee thereof).
(3) Represents shares of Common Stock reserved
for issuance under the Registrant’s 2021 Employee Stock Purchase Plan (the “ESPP”).
(4) Pursuant to Rule 457(h) and Rule 457(c), the
offering price is estimated solely for the purpose of calculating the registration fee. The proposed maximum offering price per share
is estimated to be $9.59, based on the average of the high and low sales prices per share of the Registrant’s Common Stock as reported
by Nasdaq on August 11, 2021.
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 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.
PART II
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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ITEM 3.
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INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents (File No. 001-33958) filed
by the Registrant with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration
Statement:
(a) The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the Commission on March 23, 2021;
(b) The
Registrant’s Quarterly Reports on Form 10-Q for the quarter ended March 31, 2021, filed with the Commission on May 13, 2021 and
for the quarter ended June 30, 2021, filed with the Commission on August 12, 2021;
(c) The
Registrant’s Current Reports on Form 8-K and amendments on Form 8-K/A as filed with the Commission on January 14, 2021, January 28, 2021, February 4, 2021, June 2, 2021, June 4, 2021, June 9, 2021, June 14, 2021 and July 7, 2021 (except for the information furnished
under Items 2.02 or 7.01 and the exhibits furnished thereto), and any 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 Registrant’s Annual Report referred to in (a) above (other than the portions
of these documents not deemed to be filed); and
(d) The
description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A filed with the
Commission on February 8, 2008, including all amendments and reports filed for the purpose of updating such description.
All reports and other documents subsequently filed
by the Registrant 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) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that also
is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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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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None.
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ITEM 6.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Under Section 145 of the Delaware General Corporation
Law the Registrant has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including
liabilities under the Securities Act. The Registrant’s Amended and Restated Certificate of Incorporation, as amended, provides that
the Registrant shall indemnify its directors to the fullest extent under applicable law. Pursuant to Delaware law, this includes elimination
of liability for monetary damages for breach of the directors’ fiduciary duty of care to the Registrant and its stockholders. However,
the Registrant’s directors may be personally liable for liability for: any breach of duty of loyalty to the Registrant or to its
stockholders; acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; unlawful payment
of dividends or unlawful stock repurchases or redemptions under Section 174 of the Delaware General Corporation Law; or any transaction
from which the director derived an improper personal benefit. In addition, the Registrant’s
Amended and Restated Bylaws provide that the Registrant shall indemnify its directors and officers to the fullest extent not prohibited
by Delaware law or any other applicable law, subject to limited exceptions; may indemnify its other employees and agents as set forth
in Delaware law or any other applicable law; shall advance expenses to its directors and officers
as incurred in connection with legal proceedings against them for which they may be indemnified; and the rights conferred in the Amended
and Restated Bylaws are not exclusive.
The Registrant has entered into indemnification
agreements with each of its directors and executive officers. These agreements, among other things,
require the Registrant to indemnify each director and officer to the fullest extent permitted by Delaware law, including indemnification
for expenses such as attorneys’ fees, judgments, fines and settlement amounts incurred by the director or officer in any action
or proceeding, including any action by or in the right of the Registrant, arising out of the person’s services as a director or
officer of the Registrant, any subsidiary of the Registrant or any other company or enterprise to which the person provides services at
the Registrant’s request. Such indemnification agreements contain provisions which are in some respects broader than the
specific indemnification provisions contained in Delaware law. The Registrant also maintains directors’
and officers’ insurance providing indemnification against certain liabilities for certain of its directors, officers, affiliates,
partners and employees.
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ITEM 7.
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EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
Exhibit
Number
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4.1
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Composite Amended and Restated Certificate of Incorporation of the Registrant (formerly, Galena Biopharma, Inc.) amended as of December 27, 2017 (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K filed with the Commission on April 13, 2018).
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4.2
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.3 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 23, 2021).
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4.3
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Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to the Registrant’s Current Report on Form 8-K filed with the Commission on January 5, 2018).
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5.1*
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Opinion of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
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23.1*
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Consent of Moss Adams LLP, independent registered public accounting firm to the Registrant.
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23.2*
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. (included in Exhibit 5.1 hereto).
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24.1*
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Power of Attorney (included on the signature page hereto).
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99.1
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SELLAS Life Sciences Group, Inc. 2019 Equity Incentive Plan (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement on Form S-8 filed with the Commission on March 13, 2020).
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*Filed Herewith
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1.
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The undersigned registrant hereby undertakes:
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(a) 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.
(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)(i) and (a)(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.
(b) 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 herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) 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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2.
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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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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3.
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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 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 the City
of New York, State of New York, on August 13, 2021.
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SELLAS LIFE SCIENCES GROUP, INC.
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By:
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/s/ Angelos M. Stergiou
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Angelos M. Stergiou, M.D., Sc.D. h.c.
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President and Chief Executive Officer
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POWER OF ATTORNEY
Know
All Persons By These Presents, that each person whose signature appears below constitutes and appoints Angelos M. Stergiou
and Barbara A. Wood, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them,
or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ Angelos M. Stergiou
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President and Chief Executive Officer, Director
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August 13, 2021
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Angelos M. Stergiou, M.D., Sc.D. h.c.
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(Principal Executive and Principal Financial Officer)
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/s/ John T. Burns
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Vice President, Finance and Corporate Controller, Chief Accounting Officer
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August 13, 2021
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John T. Burns
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(Principal Accounting Officer)
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/s/ Jane Wasman
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Chair of the Board of Directors
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August 13, 2021
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Jane Wasman
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/s/ David A. Scheinberg
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Director
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August 13, 2021
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David A. Scheinberg, M.D., Ph.D.
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/s/ Robert L. Van Nostrand
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Director
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August 13, 2021
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Robert L. Van Nostrand
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/s/ John Varian
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Director
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August 13, 2021
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John Varian
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Exhibit 5.1
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Chrysler Center
666 Third Avenue
New York, NY 10017
212 935 3000
mintz.com
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August 13, 2021
SELLAS Life Sciences Group, Inc.
7 Times Square, Suite 2503
New York, New York 10036
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Re:
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Registration Statement on Form S-8; 1,012,727 shares of common stock of SELLAS Life Sciences Group, Inc., par value $0.0001 per share
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Ladies and Gentlemen:
We have acted as legal counsel to SELLAS Life Sciences Group, Inc.,
a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange
Commission (the “Commission”) of a Registration Statement on Form S-8 (the “Registration Statement”),
pursuant to which the Company is registering the issuance under the Securities Act of 1933, as amended (the “Securities Act”),
of an aggregate of 1,012,727 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share
(the “Common Stock”), that may be issued pursuant to (i) the Company’s 2019 Equity Incentive Plan and (ii) the
Company’s 2021 Employee Stock Purchase Plan, as amended (collectively, the “Plans”). This opinion is being rendered
in connection with the filing of the Registration Statement with the Commission. All capitalized terms used herein and not otherwise defined
shall have the respective meanings given to them in the Registration Statement.
In connection with this opinion, we have examined the Company’s
Amended and Restated Certificate of Incorporation and the Company’s Amended and Restated Bylaws, each as currently in effect; such
other records of the corporate proceedings of the Company as we have deemed relevant; and the Registration Statement and the exhibits
thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. In addition,
we have assumed that the Company will receive any required consideration in accordance with the terms of the Plans.
Our opinion is limited to the General Corporation Law of the State
of Delaware, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect
to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction.
Based upon the foregoing, we are of the opinion that the Shares, when
issued and delivered in accordance with the terms of the Plans, will be validly issued, fully paid and non-assessable.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules,
regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent
legal or factual developments which might affect any matters or opinions set forth herein.
Boston London Los
Angeles New York San Diego San
Francisco Washington
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
AND POPEO, P.C.
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MINTZ
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August 13, 2021
Page 2
We understand that you wish to file this opinion with the Commission
as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under
the Securities Act, and we hereby consent thereto. In giving this consent, we do not 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 promulgated thereunder.
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Very truly yours,
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/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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MINTZ, LEVIN, COHN, FERRIS,
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GLOVSKY AND POPEO, P.C.
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