As filed with the Securities and Exchange Commission on May 16, 2023.

Registration No. 333-_____

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Ambrx Biopharma Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Cayman Islands   Not Applicable
(State or other jurisdiction of
incorporation or organization)		   (I.R.S. Employer
Identification No.)

 

10975 North Torrey Pines Road
La Jolla, CA		   92037
(Address of principal executive offices)   (Zip Code)

Share Options Granted as

Employment Inducement Awards Outside of a Plan

Ordinary Shares Granted as

Compensation in Lieu of Cash

(Full title of the plan)

 

Daniel J. O’Connor
Chief Executive Officer
Ambrx Biopharma Inc.
10975 North Torrey Pine Road

La Jolla, CA 92037

(858) 875-2400

  

With a copy to:

Matthew W. Mamak, Esq.

Alston & Bird LLP
90 Park Avenue
New York, New York 10016
(212) 210-9400

(Name, address, and telephone number 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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting 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.  ☒

 

 

 

EXPLANATORY NOTE

This Registration Statement on Form S-8 (this “Registration Statement”) is being filed by Ambrx Biopharma Inc. (the “Registrant” or the “Company”) for the purpose of registering (i) 5,200,000 ordinary shares (an equivalent of 742,857 American Depositary Shares (“ADSs”)) in connection with the grant of share options to purchase 5,200,000 ordinary share of the Registrant as employment inducement awards outside of a plan, and (ii) 105,000 ordinary shares (an equivalent of 15,000 ADSs) in connection with the election by Daniel J. O’Connor, President and Chief Executive Officer of the Registrant, to receive, in lieu of cash, a designated percentage of his salary in the form of ordinary shares of the Company.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

(a) The documents containing the information specified in Part I of this Registration Statement will be sent or given to recipients of the awards as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

(b) Upon written or oral request, Ambrx Biopharma Inc. will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to participants pursuant to Rule 428(b). Requests for the above-mentioned information should be directed to Daniel J. O’Connor, Chief Executive Officer, at the address and telephone number on the cover of this Registration Statement.

PART II

INFORMATION REQUIRED IN REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are hereby incorporated by reference into this Registration Statement:

(1) The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March  30, 2023;

(2) The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the Commission on May 11, 2023;

(3) The Company’s Current Reports on Form 8-K filed with the Commission on January 30, 2023, February  6, 2023, February  17, 2023, February  24, 2023, March  1, 2023, March  6, 2023, March  13, 2023, and May 4, 2023; and

(4) The description of the Registrant’s ordinary shares in the registration statement on Form 8-A filed with the Commission on June  15, 2021, as amended on March 16, 2023, including any amendments or reports filed for the purpose of updating such description.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.

Any statement contained in this Registration Statement, in an amendment hereto or 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 amendment to this Registration Statement or in any document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement, except as to specific section of such statements as set forth therein.

Under no circumstances shall any information furnished on Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.

Item 4. Description of Securities.

Not applicable.

Item 5. Interests of Named Experts and Counsel.

None.

Item 6. Indemnification of Directors and Officers.

Cayman Islands law does not limit the extent to which a company’s memorandum and articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime.

The memorandum and articles of association that the Registrant has adopted provide that the Registrant shall indemnify its directors and officers (each an indemnified person) against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by such indemnified person, other than by reason of such person’s own dishonesty, willful default or fraud, in or about the conduct of the Registrant’s business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of his or her duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by such indemnified person in defending (whether successfully or otherwise) any civil proceedings concerning the Registrant or its affairs in any court whether in the Cayman Islands or elsewhere.

The Registrant has entered into indemnification agreements with each of its directors and executive officers. Under these agreements, the Registrant agreed to indemnify its directors and executive officers against certain liabilities and expenses incurred by such persons in connection with claims made by reason of their being a director or officer of the Registrant.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

See Exhibit Index, which is incorporated here by reference.

Item 9. Undertakings.

(a) The undersigned Company hereby undertakes:

(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 this 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 this Registration Statement;

(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above 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 Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.

(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.

(b) The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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.

(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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.

EXHIBIT INDEX

TO

REGISTRATION STATEMENT ON FORM S-8

 

          Incorporated by Reference  

Exhibit

Number

    Description    Schedule
Form		      File
Number		      Exhibit      Filing Date  
    4.1    Amended and Restated Memorandum and Articles of Association of the Registrant, as currently in effect.      F-1        333-256639        3.2        5/28/2021  
    4.2    Deposit Agreement between the Registrant and JPMorgan Chase Bank, N.A., as depositary and holders and beneficial owners of the American Depositary Shares.      F-1        333-256639        4.4        5/28/2021  
    4.3    Form of American Depositary Receipt (included in Exhibit 4.2).      F-1        333-256639        4.3        5/28/2021  
    4.4    Registrant’s Specimen Certificate for Ordinary Shares.      F-1/A        333-256639        4.1        6/14/2021  
    5.1+    Opinion of Maples and Calder (Hong Kong) LLP, regarding the validity of the ordinary shares being registered.            
  23.1+    Consent of Deloitte & Touche LLP, an independent registered public accounting firm.            
  23.2+    Consent of Maples and Calder (Hong Kong) LLP (included in Exhibit 5.1).            
  24.1+    Power of Attorney (included on the signature page of this Form S-8).            
107+    Filing Fee Exhibit            

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 San Diego, State of California, on May 16, 2023.

 

AMBRX BIOPHARMA INC.
By:   /s/ Daniel J. O’Connor
Name:   Daniel J. O’Connor
Title:   Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears below constitutes and appoints Daniel J. O’Connor and Sonja Nelson, and each of them, 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 or 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, 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 any of 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.

 

Signature

   

Title

  

Date

/s/ Daniel J. O’Connor

Daniel J. O’Connor

   

Chief Executive Officer, President and Director

(Principal Executive Officer)

   May 16, 2023

/s/ Sonja Nelson

Sonja Nelson

   

Chief Financial Officer

(Principal Financial and Accounting Officer)

   May 16, 2023

/s/ Katrin Rupalla, Ph.D.

Katrin Rupalla, Ph.D.

    Chairperson of the Board of Directors   May 16, 2023

/s/ Xiaowei Chang, C.F.A.

Xiaowei Chang, C.F.A.

    Director   May 16, 2023

/s/ Kate Hermans

Kate Hermans

    Director   May 16, 2023

/s/ Janet Loesberg, Pharm.D.

Janet Loesberg, Pharm.D.

    Director   May 16, 2023

/s/ Paul Maier

Paul Maier

    Director   May 16, 2023

SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE

Pursuant to the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Ambrx Biopharma Inc., has signed this registration statement in La Jolla, California on May 16, 2023.

 

Authorized U.S. Representative
Ambrx Biopharma Inc.
By:   /s/ Daniel O’Connor
Name:   Daniel O’Connor
Title:   President and Chief Executive Officer

Exhibit 5.1

 

LOGO

Ref: VSL/742877-000002/26294723v2

Ambrx Biopharma Inc.

10975 North Torrey Pines Road

La Jolla, CA

USA

May 16, 2023

Dear Sirs

Ambrx Biopharma Inc. (the “Company”)

We have acted as Cayman Islands legal counsel to the Company in connection with a registration statement on Form S-8 to be filed with the Securities and Exchange Commission (the “Commission”) on May 16, 2023 (the “Registration Statement”, which term does not include any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto) relating to the registration under the United States Securities Act of 1933, as amended, (the “Securities Act”) of ordinary shares, par value US$0.0001 per share in the capital of the Company (the “Shares”), issuable pursuant to share options granted as employment inducement awards outside of a share incentive plan and Shares granted as compensation in lieu of cash.

For the purposes of giving this opinion, we have examined copies of the Registration Statement. We have also reviewed copies of the amended and restated memorandum and articles of association of the Company adopted by special resolution passed on 1 April 2021 and conditional upon and effective immediately prior to the completion of the Company’s initial public offering of Shares represented by American depositary shares (the “Memorandum and Articles”), the written resolutions of the board of directors of the Company dated May 11, 2023 (the “Resolutions”).

Based upon, and subject to, the assumptions and qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:

 

1.

The Shares to be issued by the Company and registered under the Registration Statement have been duly and validly authorised.

 

2.

When issued and paid for in accordance with the Resolutions, and when appropriate entries are made in the register of members (shareholders) of the Company, the Shares will be validly issued, fully paid and non-assessable.

In this opinion letter, the phrase “non-assessable” means, with respect to the issuance of Shares, that a shareholder shall not, in respect of the relevant Shares and in the absence of a contractual arrangement, or an obligation pursuant to the memorandum and articles of association, to the contrary, have any obligation to make further contributions to the Company’s assets (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil).

These opinions are subject to the qualification that under the Companies Act (As Revised) of the Cayman Islands (the “Companies Act”), the register of members of a Cayman Islands company is by statute regarded as prima facie evidence of any matters which the Companies Act directs or authorises to be inserted therein. A third party interest in the shares in question would not appear. An entry in the register of members may yield to a court order for rectification (for example, in the event of fraud or manifest error).

These opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Cayman Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations.

We have also relied upon the assumptions, which we have not independently verified, that (a) all signatures, initials and seals are genuine, (b) copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals, (c) where a document has been provided to us in draft or undated form, it will be duly executed, dated and unconditionally delivered in the same form as the last version provided to us, (d) the Memorandum and Articles remain in full force and effect and are unamended, (e) the Resolutions were duly passed in the manner prescribed in the memorandum and articles of association of the Company effective at the relevant time and have not been amended, varied or revoked in any respect, (f) there is nothing under any law (other than the laws of the Cayman Islands) which would or might affect the opinions set out above, and (g) upon the issue of any Shares, the Company will receive consideration which shall be not less than the par value of such Shares.

We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement and any amendments thereto. In giving such consent, we do not consider that we are “experts” within the meaning of such term as used in the Securities Act, or the rules and regulations of the Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.

Yours faithfully

/s/ Maples and Calder (Hong Kong) LLP                            

Maples and Calder (Hong Kong) LLP

 

2

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 report dated March 30, 2023, relating to the financial statements of Ambrx Biopharma Inc., appearing in the Annual Report on Form 10-K of Ambrx Biopharma Inc. for the year ended December 31, 2022.

/s/ Deloitte & Touche LLP

San Diego, California

May 16, 2023

Exhibit 107

Calculation of Filing Fee Table

Form S-8

(Form Type)

Ambrx Biopharma Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

               
Security Type  

Security

Class

Title(1)

  

Fee

Calculation

Rule

  

Amount

Registered(2)

  

Proposed

Maximum

Offering

Price Per

Unit

  

Maximum

Aggregate

Offering

Price

  

Fee

Rate

  

Amount of

Registration

Fee

               
Equity   Ordinary Shares   Rule 457(c) and Rule 457(h)   5,200,000(3)   $1.60(4)   $8,320,000.00(4)   0.00011020   $916.86
               
Equity   Ordinary Shares   Rule 457(c) and Rule 457(h)   105,000(5)   $1.60(4)   $168,000.00(4)   0.00011020   $18.51
         
Total Offering Amounts     $8,488,000.00     $935.37
         
Total Fee Offsets         —
         
Net Fee Due               $935.37

 

(1)

These ordinary shares, par value $0.0001 per share (“Ordinary Shares”), may be represented by the American Depositary Shares (“ADSs”) of Ambrx Biopharma Inc. (the “Registrant”), each of which represents seven Ordinary Shares. The Registrant’s ADSs issuable upon deposit of the Ordinary Shares registered hereby have been registered under a separate registration statement on Form F-6, as amended (File No. 333-256765).

(2)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement on Form S-8 (this “Registration Statement”) shall also cover any additional securities that may be offered or issued in connection with any stock dividend, stock split, recapitalization or other similar transaction

(3)

Represents 5,200,000 Ordinary Shares (an equivalent of 742,856 ADSs) reserved for future issuance pursuant to share options granted as an employment inducement awards outside of a plan.

(4)

Estimated solely for the purpose of calculating the registration fee, and is based upon the price of $1.60 per Ordinary Share (or $11.23 per ADS), which was the average of the high and low prices of the Registrant’s ADSs as reported on the Nasdaq Global Select Market on May 12, 2023.

(5)

Represents 105,000 Ordinary Shares (an equivalent of 15,000 ADSs) reserved for future issuance pursuant to ordinary shares granted as compensation in lieu of cash.