As filed with the Securities and Exchange Commission on February 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
Inovio Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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33-0969592
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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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660 W. Germantown Pike, Suite 110
Plymouth Meeting, Pennsylvania
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19462
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(Address of principal executive offices)
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(Zip code)
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2016 Omnibus Incentive Plan
(Full title of plan)
J.
Joseph Kim, Ph.D.
President and Chief Executive Officer
Inovio Pharmaceuticals, Inc.
660 W. Germantown Pike, Suite 110
Plymouth Meeting, Pennsylvania 19462
(267)
440-4200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
John W. Kauffman, Esq.
Duane Morris LLP
30
South 17th Street
Philadelphia, PA 19103
(215)
979-1227
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated
filer” and “smaller reporting 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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☐
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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(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, $0.001 par
value
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6,000,000 shares
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(2)
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$38,940,000
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$4,513.15
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(1)
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This registration statement shall also cover any additional shares of Inovio Pharmaceuticals, Inc. common stock that become issuable under such plan being registered pursuant to this registration statement by reason of
any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration that results in an increase in the number of outstanding shares Inovio Pharmaceuticals, Inc. common stock.
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(2)
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Pursuant to Rule 457(h), the maximum aggregate offering price was calculated multiplying 6,000,000 shares times $6.49 per share based on the average of the high and low sales prices of Inovio Pharmaceuticals, Inc.
common stock on February 10, 2017, which is a date within five business days prior to the filing of this registration statement, as reported on the NASDAQ Stock Market.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
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Item 3
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Incorporation of Documents by Reference
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The following documents that we have filed
with the SEC (File No. 001-14888) are incorporated by reference into this registration statement:
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•
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Our Annual Report
on Form 10-K for
the year ended December 31, 2015, as filed with the SEC on March 14, 2016;
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•
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Our Quarterly Reports
on Form 10-Q for
the quarters ended March 31, 2016, June 30, 2016 and September 30, 2016, as filed with the SEC on May 9,
2016, August 8, 2016 and November 9, 2016, respectively;
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•
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Our Definitive Proxy Statement on Schedule 14A filed with the SEC on March 25, 2016;
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•
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Our Current Reports on Form
8-K
as filed with the SEC on March 15, 2016, March 18, 2016, May 17, 2016, June 17, 2016, August 3, 2016, October 14,
2016, October 24, 2016, November 9, 2016 and February 13, 2017, respectively; and
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•
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The description of our common stock contained in our registration statement filed pursuant to Section 12 of the Securities Exchange Act of 1934, or the Exchange Act, as modified by our reports we file under the
Exchange Act.
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All documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, or the Exchange Act, after the date of this registration statement and until the offering under this registration statement is completed will be deemed to be incorporated by reference into this registration statement and will be a part of this
registration statement from the date of the filing of the document. Any statement contained in a document incorporated or deemed to be incorporated by reference into this registration statement will be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement contained in this registration statement or in any other subsequently filed document that also is or is deemed to be incorporated by reference into this registration statement
conflicts with, negates, modifies or supersedes that statement. Any statement that is modified or superseded will not constitute a part of this registration statement, except as modified or superseded.
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Item 4
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Description of Securities
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No answer to this item is required because the class of
securities to which this registration statement relates is registered under Section 12 of the Exchange Act.
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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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Under Section 145 of the Delaware
General Corporation Law (the “DGCL”), a corporation has the power to indemnify its directors and officers under certain prescribed circumstances and, subject to certain limitations, against certain costs and expenses, including
attorneys’ fees, judgments, fines and
amounts paid in settlement, actually and reasonably incurred in connection with any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or
investigative, to which any of them is a party by reason of his being a director or officer of the corporation if it is determined that he acted in accordance with the applicable standard of conduct set forth in such statutory provision. Our Amended
and Restated Certificate of Incorporation provides that, pursuant to the DGCL, our directors shall not be liable for monetary damages for breach of the directors’ fiduciary duty of care to us and our stockholders. This provision in the Amended
and Restated Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of
non-monetary
relief will remain available
under Delaware law. In addition, each director will continue to be subject to liability for breach of the director’s duty of loyalty, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of the law,
for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director’s
responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.
Our bylaws provide that
we will indemnify, to the fullest extent authorized by the DGCL, each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director or officer of our company, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a
director or officer against all expenses, liability and loss reasonably incurred or suffered by such person in connection therewith. We also have directors’ and officers’ liability insurance.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have 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.
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Item 7
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Exemption from Registration Claimed
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Not applicable.
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Exhibit
No.
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Description of Exhibit
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5.1
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Opinion of Duane Morris LLP (filed herewith).
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23.1
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Consent of Independent Registered Public Accounting Firm (filed herewith).
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23.2
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Consent of Duane Morris LLP (included in Exhibit 5.1).
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24.1
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Powers of Attorney (included in signature pages)
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We hereby undertake:
(a) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration
statement 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;
(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 therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof; and
(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.
We hereby further undertake that, for purposes of determining any liability under the
Securities Act, each filing of our 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.
We hereby further undertake that, insofar as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers and controlling persons, we have 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 us of expenses incurred or paid by any of our directors, officers or controlling persons 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Plymouth Meeting, Pennsylvania, on
February 14, 2017.
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INOVIO PHARMACEUTICALS, INC.
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By:
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/s/ J. Joseph Kim
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J. Joseph Kim
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President and Chief Executive Officer
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Know all men by these presents, that each person whose signature appears below constitutes and appoints
J. Joseph Kim and Peter Kies, and each or either of them, as such person’s true and lawful
attorneys-in-fact
and agents, with full power of substitution, for such
person, and in such person’s name, place and stead, in any and all capacities to sign any or all amendments or 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 full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or any of them or their 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 has been signed by the following persons in the
capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Avtar Dhillon
Avtar Dhillon
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Chairman of the Board of Directors
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February 14, 2017
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/s/ J. Joseph Kim
J. Joseph Kim
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President, Chief Executive Officer and Director (principal executive officer)
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February 14, 2017
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/s/ Peter Kies
Peter Kies
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Chief Financial Officer (principal financial and accounting officer)
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February 14, 2017
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/s/ Simon X. Benito
Simon X. Benito
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Director
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February 14, 2017
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/s/ Angel Cabrera
Angel Cabrera
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Director
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February 14, 2017
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Signature
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Title
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Date
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/s/ Morton Collins
Morton Collins
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Director
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February 14, 2017
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/s/ Adel A.F. Mahmoud
Adel A.F. Mahmoud
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Director
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February 14, 2017
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/s/ David Weiner
David Weiner
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Director
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February 14, 2017
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/s/ Nancy J. Wysenski
Nancy J. Wysenski
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Director
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February 14, 2017
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EXHIBIT INDEX
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Exhibit
No.
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Description of Exhibit
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5.1
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Opinion of Duane Morris LLP (filed herewith).
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23.1
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Consent of Independent Registered Public Accounting Firm (filed herewith).
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23.2
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Consent of Duane Morris LLP (included in Exhibit 5.1).
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24.1
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Powers of Attorney (included in signature pages).
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Exhibit 5.1
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NEW YORK
LONDON
SINGAPORE
PHILADELPHIA
CHICAGO
WASHINGTON,
DC
SAN FRANCISCO
SILICON VALLEY
SAN DIEGO
SHANGHAI
BOSTON
HOUSTON
LOS ANGELES
HANOI
HO CHI MINH
CITY
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FIRM and AFFILIATE OFFICES
www.duanemorris.com
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ALLIANCE
WITH
MIRANDA & ESTAVILLO
SRI LANKA
ALLIANCE WITH
GOWERS
INTERNATIONAL
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Febuary 14, 2017
Board of Directors
Inovio Pharmaceuticals, Inc.
660 W. Germantown Pike, Suite 110
Plymouth Meeting, Pennsylvania
19462
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Re:
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Inovio Pharmaceuticals, Inc. (the “Corporation”)
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Registration Statement on Form
S-8
(the “Registration Statement”)
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2016 Omnibus Incentive Plan (the
“Plan”)
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Ladies and Gentlemen:
We have acted as counsel to the Company in connection with the preparation and filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of a Registration Statement relating to the offer and sale by the Company of up to 6,000,000 shares (the “Shares”) of common stock, $.001 par value, of the Company, issuable under the Plan.
As counsel to the Company, we have examined the proceedings taken by the Company in connection with the adoption of the Plan and the
authorization of the issuance of the Shares. For the purpose of the opinion rendered below, we have assumed that, in connection with the issuance of the Shares, the Company will receive consideration in an amount not less than the aggregate par
value of the Shares covered by each such issuance.
For purposes of rendering this opinion, we have examined originals or copies
(certified or otherwise identified to our satisfaction) of:
a. the Plan;
b. the Certificate of Incorporation of the Corporation, as amended, certified by the Secretary of State of the State of
Delaware;
c. the Amended and Restated
By-laws
of the Corporation, certified by the Secretary of the Corporation; and
d. resolutions of the Board of Directors and stockholders, certified by the Secretary of the Corporation.
We have also examined such other certificates of public officials, such certificates of officers of the Company and such other records,
agreements, documents and instruments as we have deemed relevant and necessary as a basis for the opinions hereafter set forth.
In such
examination, we have assumed: (i) the genuineness of all signatures, (ii) the legal capacity of all natural persons, (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity to original documents
of all documents submitted to us as certified, conformed or other copies and the authenticity of the originals of such documents and (v) that all records and other information made available to us by the Company on which we have relied are
complete in all material respects. As to all questions of fact material to this opinion, we have relied solely upon the above-referenced certificates or comparable documents, have not performed or had performed any independent research of public
records and have assumed that certificates of or other comparable documents from public officials dated prior to the date hereof remain accurate as of the date hereof.
Based upon the foregoing, we are of the opinion that the issuance of the Shares pursuant to the terms of the Plan, against receipt by the
Company of the consideration for the Shares in accordance with the Plan, will result in the Shares being legally issued, fully paid and
non-assessable.
The foregoing opinion is limited to the laws of the State of Delaware, and we do not express any opinion herein concerning any other law.
The opinion expressed herein is rendered as of the date hereof and is based on existing law, which is subject to change. Where our opinion
expressed herein refers to events to occur at a future date, we have assumed that there will have been no changes in the relevant law or facts between the date hereof and such future date. We do not undertake to advise you of any changes in the
opinion expressed herein from matters that may hereafter arise or be brought to our attention or to revise or supplement such opinion should the present laws of any jurisdiction be changed by legislative action, judicial decision or otherwise.
Our opinion expressed herein is limited to the matters expressly stated herein, and no opinion is implied or may be inferred beyond the
matters expressly stated.
We hereby consent to the use of this letter as an exhibit to the Registration Statement and to any and all
references to our firm in the Registration Statement. In giving this consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required
under Section 7 of the Securities Act.
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Sincerely,
/s/ Duane Morris LLP
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