As filed with the Securities and Exchange Commission on August 8, 2013
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OncoGenex Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 95-4343413 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
1522 217th Place SE, Suite 100, Bothell, Washington 98021
(Address of Principal Executive Offices) (Zip Code)
OncoGenex Pharmaceuticals, Inc.
2010 Performance Incentive Plan
(Full title of the plan)
Scott Cormack
Chief Executive Officer
OncoGenex Pharmaceuticals, Inc.
1522 217th Place SE, Suite 100
Bothell, Washington 98021
(Name and address of agent for service)
(425) 686-1500
(Telephone number, including area code, of agent for service)
Copies to:
Alan C. Smith
James D. Evans
Fenwick & West LLP
1191 2nd Avenue, 10th Floor
Seattle, Washington, 98101
(206) 389-4510
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 | x | |||
Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered |
Amount to be registered(1) |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price |
Amount of registration fee | ||||
Common stock, $0.001 par value per share |
1,600,000(2) | $9.80(3) | $15,680,000(3) | $2,139(3) | ||||
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(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrants common stock that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrants receipt of consideration that results in an increase in the number of the outstanding shares of the Registrants common stock. |
(2) | Represents an additional 1,600,000 shares of common stock reserved for issuance under the Registrants 2010 Performance Incentive Plan. |
(3) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and (h) under the Securities Act of 1933, as amended, based on the average of the high and low prices of the Registrants common stock as reported by The NASDAQ Capital Market on August 5, 2013. |
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
Pursuant to General Instruction E of Form S-8, OncoGenex Pharmaceuticals, Inc. (the Registrant) is filing this Registration Statement with the Securities and Exchange Commission (the Commission) to register an additional 1,600,000 shares of common stock under the Registrants 2010 Performance Incentive Plan. This Registration Statement hereby incorporates by reference the contents of the Registrants registration statement on Form S-8 filed with the Commission on August 13, 2010 (Registration No. 333-168820).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
Exhibit Number |
Exhibit | |
4.1 | Second Amended and Restated Certificate of Incorporation of OncoGenex Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K filed with the Commission on May 29, 2013) | |
4.2 | Fifth Amended and Restated Bylaws of OncoGenex Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to the Registrants Quarterly Report on Form 10-Q filed with the Commission on August 2, 2012) | |
5.1 | Opinion of Fenwick & West LLP | |
23.1 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |
23.2 | Consent of Fenwick & West LLP (included in Exhibit 5.1) | |
24.1 | Power of Attorney (included on the signature page of this Form S-8) | |
99.1 | OncoGenex Pharmaceuticals, Inc. 2010 Performance Incentive Plan (incorporated by reference to Appendix A to the Registrants Definitive Proxy Statement on Schedule 14A as filed with the Commission on April 22, 2013) |
Item 9. Undertakings.
A. The undersigned Registrant 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;
(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, represent 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;
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Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
2. 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 herein, 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 Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act 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 Securities 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 Securities 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 the City of Vancouver, Province of British Columbia, on August 8, 2013.
ONCOGENEX PHARMACEUTICALS, INC. | ||
By: | /s/ Scott Cormack | |
Scott Cormack | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Scott Cormack and Susan Wyrick, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her 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 attorney-in-fact and agent 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her 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 date indicated.
Signature |
Title |
Date | ||
/s/ Scott Cormack Scott Cormack |
Director, President and Chief Executive Officer (Principal Executive Officer and Principal Financial Officer) |
August 8, 2013 | ||
/s/ Susan Wyrick Susan Wyrick |
Senior Director, Finance (Principal Accounting Officer) |
August 8, 2013 | ||
/s/ Neil Clendeninn Neil Clendeninn |
Director | August 8, 2013 | ||
/s/ Jack Goldstein Jack Goldstein |
Director | August 8, 2013 | ||
/s/ Martin Mattingly Martin Mattingly |
Director | August 8, 2013 | ||
/s/ Stewart Parker Stewart Parker |
Director | August 8, 2013 | ||
/s/ David Smith David Smith |
Director | August 8, 2013 |
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EXHIBIT INDEX
Exhibit Number |
Exhibit | |
4.1 | Second Amended and Restated Certificate of Incorporation of OncoGenex Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K filed with the Commission on May 29, 2013) | |
4.2 | Fifth Amended and Restated Bylaws of OncoGenex Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to the Registrants Quarterly Report on Form 10-Q filed with the Commission on August 2, 2012) | |
5.1 | Opinion of Fenwick & West LLP | |
23.1 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |
23.2 | Consent of Fenwick & West LLP (included in Exhibit 5.1) | |
24.1 | Power of Attorney (included on the signature page of this Form S-8) | |
99.1 | OncoGenex Pharmaceuticals, Inc. 2010 Performance Incentive Plan (incorporated by reference to Appendix A to the Registrants Definitive Proxy Statement on Schedule 14A as filed with the Commission on April 22, 2013) |
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