As filed with the Securities and Exchange Commission on June 27, 2019

Registration No. 333-

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

XOMA CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   52-2154066

(State or other jurisdiction of

Incorporation or organization)

 

(I.R.S. Employer

Identification No.)

2200 Powell Street, Suite 310

Emeryville, California 94608

(Address, including zip code, of Principal Executive Offices)

XOMA Corporation Amended and Restated 2010 Long Term Incentive and Stock Award Plan

(Full title of the plan)

Thomas Burns

Senior Vice President, Finance and Chief Financial Officer

XOMA Corporation

2200 Powell Street, Suite 310

Emeryville, California 94608

(510) 204-7200

(Name, address, and telephone number, including area code, of agent for service)

 

 

Copies to:

Michael E. Tenta

Cooley LLP

3175 Hanover Street

Palo Alto, CA 94306

(650) 843-5000

 

 

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.

 

Large accelerated filer   ☐    Accelerated filer   ☒
Non-accelerated filer   ☐    Smaller reporting company   ☒
Emerging growth company   ☐     

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

 

 

Title of securities

to be registered

 

Amount

to be

registered (1)

 

Proposed

maximum

offering price

per share (2)

 

Proposed

maximum

aggregate

offering price (2)

 

Amount of

registration fee

Amended and Restated 2010 Long Term Incentive and Stock Award Plan
Common Stock, $0.0075 par value per share 		  450,000 shares (3)   $16.93   $7,616,250.00   $923.09

 

 

(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 the Registrant’s common stock (“Common Stock”) that become issuable under the plan set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction that increases the number of the Company’s outstanding shares of Common Stock.

(2)

This estimate is made pursuant to Rule 457(h) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee. The offering price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock on June 21, 2019, as reported on the Nasdaq Stock Market.

(3)

Represents shares of Common Stock that were added to the number of shares authorized for issuance under the XOMA Corporation Amended and Restated 2010 Long Term Incentive and Stock Award Plan (the “2010 Plan”) upon approval of an amendment to the 2010 Plan by the Company’s stockholders at the Company’s 2019 Annual Meeting of Stockholders on May 16, 2019.

 

 

 

EXPLANATORY NOTE

The 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 on Form S-8 of the Registrant relating to the same employee and non-employee benefit plan set forth herein is effective.

PART II

INCORPORATION OF DOCUMENTS BY REFERENCE

This Registration Statement on Form S-8 is filed by XOMA Corporation, a Delaware corporation (“Registrant”), relating to 450,000 shares of Common Stock, issuable to eligible employees, directors and consultants of Registrant and its affiliates under the 2010 Plan. Registrant’s Form S-8 Registration Statements filed with the U.S. Securities and Exchange Commission on December  27, 2010 (File No 333- 171429), June 6, 2011 (File No.  333-174730), June 1, 2012 (File No.  333-181849), September 12, 2014 (File No.  333-198719), June 24, 2016 (File No.  333-212238) and May 31, 2017 (File No. 333-218378) relating to the 2010 Plan are each incorporated by reference herein.

Item 8. Exhibits.

 

          Incorporation By Reference

Exhibit
Number

  

Exhibit Description

   Form    SEC File No.    Exhibit    Filing Date
  4.1    Certificate of Incorporation of XOMA Corporation    8-K    000-14710    3.1    01/03/2012
  4.2    Certificate of Amendment of Certificate of Incorporation of XOMA Corporation    8-K    000-14710    3.1    05/31/2012
  4.3    Certificate of Amendment of Certificate of Incorporation of XOMA Corporation    8-K    000-14710    3.1    05/28/2014
  4.4    Certificate of Amendment to the Amended Certificate of Incorporation of XOMA Corporation    8-K    000-14710    3.1    10/18/2016
  4.5    Certificate of Designation of Preferences, Rights and Limitations of Series X Convertible Preferred Stock    8-K    000-14710    3.1    02/16/2017
  4.6    Certificate of Designation of Preferences, Rights and Limitations of Series Y Convertible Preferred Stock    8-K    000-14710    3.1    12/13/2018
  4.7    By-laws of XOMA Corporation    8-K    000-14710    3.2    01/03/2012
  4.8    Specimen of Common Stock Certificate    8-K    000-14710    4.1    01/03/2012
  5.1    Opinion of Cooley LLP            
23.1    Consent of Deloitte & Touche LLP, independent registered public accounting firm            
23.2    Consent of Ernst & Young LLP, independent registered public accounting firm            
23.3    Consent of Cooley LLP (included in Exhibit 5.1)            
24.1    Power of Attorney (included in Part II of this Registration Statement)            
99.1    XOMA Corporation Amended and Restated 2010 Long Term Incentive and Stock Award Plan    DEF 14A    000-14710    Appendix A    04/05/2019

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Company 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 Emeryville, State of California, on June 27, 2019.

 

XOMA CORPORATION
By:   /s/ James Neal
  James Neal
  Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James Neal and Thomas Burns, and each of them, as his true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him and in his name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), 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 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 of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ James Neal

J AMES N EAL

  

Chief Executive Officer and Director

(Principal Executive Officer)

  June 27, 2019

/s/ Thomas Burns

T HOMAS B URNS

  

Senior Vice President, Finance and Chief Financial Officer

(Principal Accounting and Financial Officer)

  June 27, 2019

/s/ W. Denman Van Ness

W. D ENMAN V AN N ESS

   Chairman the Board of Directors   June 27, 2019

/s/ Joseph M. Limber

J OSEPH M. L IMBER

   Director   June 27, 2019

/s/ Jack L. Wyszomierski

J ACK L. W YSZOMIERSKI

   Director   June 27, 2019

/s/ Matthew Perry

M ATTHEW P ERRY

   Director   June 27, 2019

/s/ Barbara Kosacz

B ARBARA K OSACZ

   Director   June 27, 2019

Exhibit 5.1

 

LOGO

Michael E. Tenta

+1 650 843 5636

mtenta@cooley.com

June 27, 2019

XOMA Corporation

2200 Powell Street

Suite 310

Emeryville, California 94608

Ladies and Gentlemen:

We have acted as counsel to XOMA Corporation, a Delaware corporation (the “ Company ”), in connection with the filing of a registration statement on Form S-8 (the “ Registration Statement ”) with the Securities and Exchange Commission covering the offering of 450,000 shares of the Company’s Common Stock, par value $0.0075 per share, (the “ Shares ”) pursuant to the Company’s Amended and Restated 2010 Long Term Incentive and Stock Award Plan (the “ Plan ”).

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Plan, (c) the Company’s Amended Certificate of Incorporation, as amended, and Bylaws, each as currently in effect, and (d) such other documents, records, 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. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought independently to verify such matters.

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

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, and the Registration Statement and related prospectuses, 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,

 

C OOLEY LLP
By:   /s/ Michael E. Tenta
  Michael E. Tenta

Cooley LLP    3175 Hanover Street    Palo Alto, CA    94304-1130

t: (650) 843-5000 f: (650) 849-7400 cooley.com

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports relating to the consolidated financial statements of XOMA Corporation and its subsidiaries, and the effectiveness of XOMA Corporation’s internal control over financial reporting dated March 7, 2019, appearing in the Annual Report on Form 10-K of XOMA Corporation for the year ended December 31, 2018.

/s/ Deloitte & Touche LLP

San Jose, California

June 27, 2019

Exhibit 23.2

Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the XOMA Corporation Amended and Restated 2010 Long Term Incentive and Stock Award Plan of XOMA Corporation of our report dated March 7, 2018, with respect to the consolidated financial statements of XOMA Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 2018, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Redwood City, California

June 27, 2019