As filed with the Securities and Exchange
Commission on November 14, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
AmpliPhi Biosciences Corporation
(Exact name of registrant as specified
in its charter)
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Washington
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91-1549568
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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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3579 Valley Centre Drive, Suite 100
San Diego, California 92130
(Address of Principal Executive Offices)
(Zip Code)
AmpliPhi Biosciences Corporation 2016
Equity Incentive Plan
(Full title of the plan)
Paul C. Grint, M.D.
Chief Executive Officer
AmpliPhi Biosciences Corporation
3579 Valley Centre Drive, Suite 100
San Diego, California 92130
(Name and address of agent for service)
(858) 829-0829
(Telephone number, including area code,
of agent for service)
Copies to:
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Paul C. Grint, M.D.
AmpliPhi Biosciences Corporation
3579 Valley Centre Drive, Suite 100
San Diego, California 92130
(858) 829-0829
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Thomas A. Coll, Esq.
Asa M. Henin, Esq.
Cooley LLP
4401 Eastgate Mall
San Diego, California 92121
(858) 550-6000
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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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¨
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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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.
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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 (2)
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Proposed Maximum
Aggregate
Offering Price (2)
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Amount of
Registration Fee
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Common Stock issuable under the 2016 Equity Incentive Plan (par value $0.01 per share)
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800,000 shares (3)
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$0.94
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$752,000
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$93.62
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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 (“Common Stock”) that become issuable under the AmpliPhi Biosciences Corporation 2016 Equity Incentive
Plan (the “2016 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction.
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(2)
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This estimate is made pursuant to Rule 457(c) and
Rule 457(h)(1) of the Securities Act solely for purposes of calculating the registration fee. The price per share
and aggregate offering price are based upon the average of the high and low prices of the registrant’s Common Stock on November
10, 2017, as reported on the NYSE American.
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(3)
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Represents shares of Common Stock added to the shares
authorized for issuance under the registrant’s 2016 Plan pursuant to an amendment to such plan approved by the registrant’s
shareholders at the registrant’s 2017 Annual Meeting of Shareholders.
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INCORPORATION OF DOCUMENTS BY REFERENCE
This Registration Statement is being filed
for the purpose of increasing the number of securities of the same class as other securities for which Registration Statements
of the registrant on Form S-8 relating to the same employee benefit plan are effective.
The registrant previously registered shares
of its Common Stock for issuance under the 2016 Plan under Registration Statements on Form S-8 filed with the Securities and Exchange
Commission on June 22, 2016 (File No. 333-212183) and May 1, 2017 (File No. 333-217563). Pursuant to General Instruction E to Form
S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.
EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
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Amended and Restated Articles of Incorporation of the registrant, as amended (incorporated by reference to Exhibit 3.1 to the registrant’s Quarterly Report on Form 10-Q, filed on November 16, 2015).
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4.2
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Articles of Amendment to Articles of Incorporation of the registrant (incorporated by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K, filed on April 24, 2017).
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4.3
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Amended and Restated Bylaws of the registrant, as amended (incorporated by reference to Exhibit 3.2 to the registrant’s Quarterly Report on Form 10-Q, filed on November 16, 2015).
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4.4
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Form of Common Stock Certificate (incorporated by reference to Exhibit 4.4 to the registrant’s Registration Statement on Form S-8 (File No. 333-217563), filed on May 1, 2017).
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5.1
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Opinion of Cooley LLP.
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23.1
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Consent of Independent Registered Public Accounting Firm.
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23.2
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Consent of Cooley LLP (included in Exhibit 5.1).
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24.1
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Power of Attorney (included on signature page).
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99.1
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AmpliPhi Biosciences Corporation 2016 Equity Incentive Plan, as amended (incorporated by reference to Exhibit 99.1 to the registrant’s Current Report on Form 8-K, filed on September 11, 2017).
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99.2
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Form of Stock Option Grant Notice, Option Agreement and Notice of Exercise under the AmpliPhi Biosciences Corporation 2016 Equity Incentive Plan (incorporated by reference to Exhibit 99.2 to the registrant’s Registration Statement on Form S-8 (File No. 333-212183), filed on June 22, 2016).
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SIGNATURES
Pursuant to the requirements of the Securities
Act, 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 San Diego, State of California on November 14, 2017.
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AmpliPhi
Biosciences Corporation
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By:
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/s/ Paul C. Grint
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Paul C. Grint, M.D.
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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 Paul C. Grint,
M.D. and Steve R. Martin, and each of them, as 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
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 or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents,
or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, 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/ Paul C. Grint
Paul C. Grint, M.D.
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Chief Executive Officer and
Member of the Board of Directors
(Principal Executive Officer)
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November 14, 2017
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/s/ Steve R. Martin
Steve R. Martin
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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November 14, 2017
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/s/ Jeremy Curnock Cook
Jeremy Curnock Cook
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Chairman of the Board of Directors
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November 14, 2017
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/s/ Louis Drapeau
Louis Drapeau
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Member of the Board of Directors
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November 14, 2017
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/s/ Wendy S. Johnson
Wendy S. Johnson
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Member of the Board of Directors
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November 14, 2017
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/s/ Michael S. Perry, Ph.D.
Michael S. Perry, Ph.D.
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Member of the Board of Directors
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November 14, 2017
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/s/ Vijay B. Samant
Vijay B. Samant
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Member of the Board of Directors
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November 14, 2017
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Exhibit 5.1
Thomas A. Coll
+1 858 550 6013
collta@cooley.com
November 14, 2017
AmpliPhi Biosciences Corporation
3579 Valley Centre Drive
Suite 100
San Diego, CA 92130
Ladies and Gentlemen:
You have requested our opinion, as counsel
to AmpliPhi Biosciences Corporation, a Washington corporation (the “
Company
”), with respect to certain
matters in connection with the filing by the Company of a Registration Statement on Form S-8 (the “
Registration
Statement
”) with the Securities and Exchange Commission, covering the offering of up to 800,000 shares
of the Company’s Common Stock, $0.01 par value (the “
Shares
”), pursuant to the Company’s
2016 Equity Incentive Plan (the “
Plan
”).
In connection with this opinion, we have
examined and relied upon the Registration Statement and the related prospectus, the Plan, the Company’s articles of incorporation
and bylaws, as currently in effect, and the originals or copies certified to our satisfaction of such records, documents, certificates,
memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below.
We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals
of all documents submitted to us as copies thereof.
Our opinion is expressed only with respect
to the Washington Business Corporation Act.
On the basis of the foregoing, and in reliance
thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and
the related prospectus, will be validly issued, fully paid, and nonassessable (except as to Shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion
as an exhibit to the Registration Statement.
Sincerely,
Cooley LLP
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By:
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/s/ Thomas A. Coll
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Thomas A. Coll
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Cooley LLP 4401 Eastgate Mall San Diego,
CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com