As filed with the Securities and Exchange Commission on December 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
SPERO
THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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46-4590683
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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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675 Massachusetts Avenue, 14
th
Floor
Cambridge, Massachusetts 02139
(Address, Including Zip Code, of Principal Executive Offices)
SPERO THERAPEUTICS, INC. 2017 STOCK INCENTIVE PLAN, AS AMENDED
(Full Title of the Plan)
Ankit Mahadevia, M.D., Chief Executive Officer and President
Spero Therapeutics, Inc.
675 Massachusetts Avenue, 14
th
Floor
Cambridge, Massachusetts 02139
(857) 242-1600
(Name,
Address and Telephone Number, Including
Area Code, of Agent for Service)
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 definition of “large accelerated filer,” “accelerated filer” and “smaller reporting 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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☒ (do not check if a smaller reporting company)
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Smaller reporting company
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☐
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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
(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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2,696,401 shares
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$5.90-$11.63
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$21,978,413.61
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$2,736.32
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(1)
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The number of shares of common stock, par value $0.001 per share (“Common Stock”), stated above consists of the aggregate number of shares which may be sold upon the exercise of options or issuance of
stock-based awards which have been granted and/or may hereafter be granted under the Spero Therapeutics, Inc. 2017 Stock Incentive Plan, as amended (the “Plan”). The maximum number of shares which may be sold upon the exercise of such
options or issuance of stock-based awards granted under the Plan is subject to adjustment in accordance with certain anti-dilution and other provisions of the Plan. Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as amended
(the “Securities Act”), this Registration Statement covers, in addition to the number of shares stated above, an indeterminate number of shares which may be subject to grant or otherwise issuable after the operation of any such
anti-dilution and other provisions.
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(2)
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This calculation is made solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(c) and (h) under the Securities Act as follows: (a) in the case of shares of
Common Stock which may be purchased upon exercise of outstanding options, the fee is calculated on the basis of the price at which the options may be exercised; and (b) in the case of shares of Common Stock for which options or stock-based
awards have not yet been granted and the purchase price of which is therefore unknown, the fee is calculated on the basis of the average of the high and low sale prices per share of the Common Stock on The Nasdaq Global Select Market as of a date
(December 11, 2017) within five business days prior to filing this Registration Statement.
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Securities
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Number of Shares
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Offering Price
Per Share
(2)
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Aggregate
Offering Price
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Shares issuable upon the exercise of outstanding options
granted under the Plan
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2,011,296
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$5.90-$11.63
(2)(a)
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$14,558,726.46
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Shares reserved for future grant under the Plan
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685,105
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$10.83
(2)(b)
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$7,419,687.15
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Proposed Maximum Aggregate Offering Price
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$21,978,413.61
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Registration Fee
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$2,736.32
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EXPLANATORY NOTE
In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission, the information
specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of Common Stock pursuant to the Plan. The documents containing the information specified in Part I will be delivered to the participants in the
Plan covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Certain Documents by Reference.
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The following documents filed by the
Registrant with the Commission are incorporated herein by reference:
(a) The Registrant’s Prospectus dated
November 2, 2017 filed with the Commission pursuant to Rule 424(b) of the Securities Act in connection with the Registrant’s Registration Statement on
Form S-1
(File No. 333-220858).
(b) The Registrant’s Quarterly Report on
Form 10-Q
for the quarter
ended September 30, 2017 filed with the Commission on December 14, 2017.
(c) The Registrant’s
Current Report on
Form 8-K
filed with the Commission on November 6, 2017.
(d) The description of the Common Stock contained in the Registrant’s Registration Statement on
Form 8-A
(File No. 001-38266)
filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), filed with the Commission on
October 30, 2017, including any amendment or report filed for the purpose of updating such description.
All reports and other
documents filed by the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein and to be part hereof from the date of filing of such reports and documents.
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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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Incorporated by reference from the
Registrant’s Registration Statement on Form S-1, as amended (File No. 333-220858).
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Item 7.
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Exemption from Registration Claimed
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Not applicable.
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4.3
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Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on
Form 8-K
(File No. 001-38266)
filed with the Commission on November 6, 2017).
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5.1*
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Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to the legality of shares being registered.
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23.1*
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in opinion of counsel filed as Exhibit 5.1).
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23.2*
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.
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24.1*
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Power of Attorney to file future amendments (set forth on the signature page of this Registration Statement).
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99.1
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Spero Therapeutics, Inc. 2017 Stock Incentive Plan, as amended (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly
Report on
Form 10-Q
(File No. 001-38266)
filed with the Commission on December 14, 2017).
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99.2
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Form of Stock Option Agreement under the Spero Therapeutics, Inc. 2017 Stock Incentive Plan, as amended (incorporated by reference to Exhibit
10.2 to the Registrant’s Quarterly Report on
Form 10-Q
(File No. 001-38266)
filed with the Commission on December 14, 2017).
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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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents 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)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on
Form S-3,
Form
S-8
or
Form F-3,
and the information required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
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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 of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this 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 of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 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 Cambridge, Massachusetts, on December 13, 2017.
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SPERO THERAPEUTICS, INC.
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By:
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/s/ Ankit Mahadevia, M.D.
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Ankit Mahadevia, M.D.
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Chief Executive Officer and President
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SIGNATURES AND POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Ankit Mahadevia, M.D. and Joel Sendek, and each of them singly, his true
and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-8 of Spero Therapeutics, Inc., and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to the
attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that the attorneys-in-fact and agents or any of each of them or their 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 dates indicated.
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Signature
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Title
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Date
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/s/ Ankit Mahadevia, M.D.
Ankit Mahadevia, M.D.
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Chief Executive Officer and President and Director
(Principal Executive Officer)
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December 13, 2017
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/s/ Joel Sendek
Joel Sendek
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Chief Financial Officer and Treasurer
(
Principal Financial Officer and Principal
Accounting Officer
)
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December 13, 2017
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/s/ Casper Breum
Casper Breum
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Director
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December 13, 2017
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/s/ Milind Deshpande, Ph.D.
Milind Deshpande, Ph.D.
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Director
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December 13, 2017
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/s/ Jean-François Formela, M.D.
Jean-François Formela, M.D.
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Director
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December 13, 2017
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/s/ Vikas Goyal
Vikas Goyal
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Director
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December 13, 2017
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/s/ Frank Thomas
Frank Thomas
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Director
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December 13, 2017
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/s/ Patrick Vink, M.D.
Patrick Vink, M.D.
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Director
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December 13, 2017
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4
Exhibit 5.1
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One Financial Center
Boston, MA 02111
617-542-6000
617-542-2241 fax
www.mintz.com
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December 14, 2017
Spero Therapeutics, Inc.
675 Massachusetts Avenue, 14th Floor
Cambridge, Massachusetts 02139
Ladies and Gentlemen:
We have acted as legal counsel to Spero Therapeutics, 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 2,696,401 shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (“Common Stock”), in accordance with the terms
of the Company’s 2017 Stock Incentive Plan, as amended (the “Plan”). 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 Amended and Restated Bylaws, each as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company’s officers 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 copies, the authenticity of the originals of such copies, and
the truth and correctness of any representations and warranties contained therein. In addition, we have assumed that the Company will receive any required consideration in accordance with the terms of the Plan.
Our opinion expressed herein 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.
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.
Based upon the foregoing, we are of the opinion that the Shares, when issued and
delivered in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable.
M
INTZ
, L
EVIN
, C
OHN
, F
ERRIS
,
G
LOVSKY
AND
P
OPEO
, P.C.
December 14, 2017
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, Glovsky and Popeo, P.C.
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