As filed with the Securities and Exchange Commission on April 10, 2015 Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NewLink Genetics Corporation
(Exact name of registrant as specified in its charter)
Delaware | 42-1491350 | |
(State or other jurisdiction of Incorporation or organization) | (I.R.S. Employer Identification No.) | |
2503 South Loop Drive
Ames, IA 50010
(515) 296-5555
(Address of principal executive offices)
2009 Equity Incentive Plan, as amended
2010 Non-Employee Directors' Stock Aware Plan, as amended
2010 Employee Stock Purchase Plan, as amended
(Full title of the plans)
CHARLES J. LINK, JR.
Chief Executive Officer
NewLink Genetics Corporation
2503 South Loop Drive
Ames, IA 50010
(515) 296-5555
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
James C. T. Linfield, Esq.
Cooley LLP
380 Interlocken Crescent, Suite 900
Broomfield, CO 80021
(720) 566-4000
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 | o | Accelerated filer | þ | |
Non-accelerated filer | o | (Do not check if a smaller reporting company) | Smaller reporting company | o |
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 |
Common Stock, par value $0.01 per share | 2,533,215 shares | $52.72 | $133,551,094.80 | $15,518.64 |
(1) | Pursuant to Rule 416(a) of 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 that become issuable under the plan as set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrant's Common Stock. |
(2) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) of the Securities Act. The price per share and aggregate offering price are based upon the average of the high and low prices of Registrant's Common Stock (the “Common Stock”) on February 27, 2015 as reported on the NASDAQ Global Market. |
The chart below details the calculation of the registration fee:
Title of Securities to be Registered | Number of Shares | Offering Price Per Share | Aggregate Offering Price | Amount of Registration Fee | |||||
Common Stock, par value $0.01 per share, reserved for future issuance under the 2009 Equity Incentive Plan | 2,185,595 | $ | 52.72 | $ | 115,224,568.40 | $13,389.09 | |||
Common Stock, par value $0.01 per share, reserved for future issuance under the 2010 Non-Employee Directors’ Stock Award Plan | 161,905 | $ | 52.72 | 8,535,631.60 | 991.84 | ||||
Common Stock, par value $0.01 per share, reserved for future issuance under the 2010 Employee Stock Purchase Plan | 185,715 | $ | 52.72 | 9,790,894.80 | 1,137.70 | ||||
Total | 2,533,215 | $ | 133,551,094.80 | $15,518.64 | |||||
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering an additional (i) 2,185,595 shares of the Registrant’s Common Stock to be issued pursuant to the Registrant’s 2009 Equity Incentive Plan; (ii) 161,905 shares of the Registrant’s Common Stock to be issued pursuant to the Registrant’s 2010 Non-Employee Directors’ Stock Award Plan; and (iii) 185,715 shares of the Registrant’s Common Stock to be issued pursuant to the Registrant’s 2010 Employee Stock Purchase Plan.
INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENT ON FORM S-8 NO. 333-178032
The contents of Registration Statement on Form S-8 No. 333-178032 filed with the Securities and Exchange Commission on November 17, 2011 are incorporated by reference herein.
EXHIBITS
Incorporated by Reference | |||||||||||
Exhibit No. | Description | Form | Filing Date | Number | Filed Herewith | ||||||
4.1 | Amended and Restated Certificate of Incorporation | 8-K | 11/18/2011 | 3.1 | |||||||
4.2 | Certificate of Amendment to Restated Certificate of Incorporation | 8-K | 5/14/2013 | 3.1 | |||||||
4.3 | Amended and Restated Bylaws | 8-K | 11/18/2011 | 3.2 | |||||||
4.4 | Form of Common Stock Certificate of the Registrant | S-1/A | 10/26/2011 | 4.1 | |||||||
5.1 | Opinion of Cooley LLP | X | |||||||||
23.1 | Consent of KPMG LLP, independent registered public accounting firm | X | |||||||||
23.2 | Consent of Cooley LLP (included in Exhibit 5.1) | X | |||||||||
24.1 | Power of Attorney (see signature page of this registration statement) | X | |||||||||
99.1 | 2009 Equity Incentive Plan As Amended | S-1 | 12/21/2010 | 10.6 | |||||||
99.2 | 2010 Non-Employee Directors' Stock Award Plan As Amended | 10-Q | 8/5/2014 | 10.3 | |||||||
99.3 | 2010 Employee Stock Purchase Plan As Amended | 8-K | 5/14/2013 | 10.2 | |||||||
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Ames, State of Iowa, on April 10, 2015.
NewLink Genetics Corporation
By: /s/Charles J. Link
Charles J. Link, Jr., M.D.
Chief Executive Officer, Chairman of the Board
POWER OF ATTORNEY
Know All Persons By These Presents, that each person whose signature appears below constitutes and appoints Charles Link, Jr. and John B. Henneman, III and each of them, his or her true and lawful attorneys-in-fact and agents, 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 and 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 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 any of them, or their or his substitutes or 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.
Signature | Title | Date |
/s/Charles J. Link Charles J. Link, Jr. | Chief Executive Officer, Chairman of the Board and Director (Principal Executive Officer) | April 10, 2015 |
/s/John B. Henneman, III John B. Henneman, III | Chief Financial Officer and Secretary (Principal Financial Officer) | April 10, 2015 |
/s/Carl W. Langren Carl W. Langren | Vice President, Finance (Principal Accounting Officer) | April 10, 2015 |
/s/Thomas A. Raffin Thomas A. Raffin | Director | April 10, 2015 |
/s/Ernest J. Talarico Ernest J. Talarico, III | Director | April 10, 2015 |
/s/Lota Zoth Lota Zoth | Director | April 10, 2015 |
/s/Joseph Saluri Joseph Saluri | Director | April 10, 2015 |
/s/Paul R. Edick Paul R. Edick | Director | April 10, 2015 |
EXHIBIT INDEX
Incorporated by Reference | |||||||||||
Exhibit No. | Description | Form | Filing Date | Number | Filed Herewith | ||||||
4.1 | Amended and Restated Certificate of Incorporation | 8-K | 11/18/2011 | 3.1 | |||||||
4.2 | Certificate of Amendment to Restated Certificate of Incorporation | 8-K | 5/14/2013 | 3.1 | |||||||
4.3 | Amended and Restated Bylaws | 8-K | 11/18/2011 | 3.2 | |||||||
4.4 | Form of Common Stock Certificate of the Registrant | S-1/A | 10/26/2011 | 4.1 | |||||||
5.1 | Opinion of Cooley LLP | X | |||||||||
23.1 | Consent of KPMG LLP, independent registered public accounting firm | X | |||||||||
23.2 | Consent of Cooley LLP (included in Exhibit 5.1) | X | |||||||||
24.1 | Power of Attorney (see signature page of this registration statement) | X | |||||||||
99.1 | 2009 Equity Incentive Plan As Amended | S-1 | 12/21/2010 | 10.6 | |||||||
99.2 | 2010 Non-Employee Directors' Stock Award Plan As Amended | 10-Q | 8/5/2014 | 10.3 | |||||||
99.3 | 2010 Employee Stock Purchase Plan As Amended | 8-K | 5/14/2013 | 10.2 | |||||||
Exhibit 5.1
April 10, 2015
NewLink Genetics Corporation
2503 South Loop Drive
Ames, IA 50010
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection with the filing by NewLink Genetics Corporation (the “Company”) of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of 2,533,215 shares of the Company's Common Stock, $0.01 par value (the “Shares”), pursuant to its 2009 Equity Incentive Plan (the “2009 Plan”), its 2010 Non-Employee Directors’ Stock Award Plan (the “Directors’ Plan”) and its 2010 Employee Stock Purchase Plan (the “Purchase Plan,” and together with the 2009 Plan and the Directors’ Plan, the “Plans”).
In connection with this opinion, we have examined and relied upon the Registration Statement and the related prospectuses, the Company's Amended and Restated Certificate of Incorporation as currently in effect and Amended and Restated Bylaws as currently in effect, the Plans and 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, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, and the due execution and delivery of all documents, where due execution and delivery are a prerequisite to the effectiveness 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.
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 Plans, the Registration Statement and related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to 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,
Cooley LLP
By: /s/ James C.T. Linfield
James C.T. Linfield, Partner
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
NewLink Genetics Corporation:
We consent to the use of our report dated March 16, 2015, with respect to the consolidated balance sheets of NewLink Genetics Corporation and subsidiaries as of December 31, 2014 and 2013, and the related consolidated statements of operations, equity, and cash flows for each of the years in the three-year period ended December 31, 2014, and the effectiveness of internal control over financial reporting as of December 31, 2014, incorporated herein by reference.
/s/KPMG LLP
Des Moines, Iowa
April 10, 2015