agle-s8.htm

 

As filed with the Securities and Exchange Commission on March 7, 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

 

 

AEGLEA BIOTHERAPEUTICS, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

Delaware

 

46-4312787

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer
Identification No.)

 

901 S. MoPac Expressway

Barton Oaks Plaza One

Suite 250

Austin, TX 78746

(512) 942-2935

(Address of Principal Executive Offices)  (Zip Code)

 

2016 Equity Incentive Plan

2016 Employee Stock Purchase Plan

 

(Full Title of the Plans)

 

Anthony Quinn, M.B. Ch.B, Ph.D.

President and Chief Executive Officer

Aeglea BioTherapeutics, Inc.

901 S. MoPac Expressway

Barton Oaks Plaza One

Suite 250

Austin, TX 78746

(Name and Address of Agent for Service)

(512) 942-2935

(Telephone Number, including area code, of agent for service)

Copies to:

 

Robert A. Freedman, Esq.

Fenwick & West LLP

555 California Street

San Francisco, CA 94104

(415) 875-2300

 

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

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

Proposed Maximum

Aggregate Offering

Price

Amount of

Registration Fee

 

 

 

 

 

Common Stock, $0.0001 par value per share

 

 

 

 

2016 Equity Incentive Plan, as amended

2,725,205 (2)

$8.42 (3)

$22,946,227

$2,782

2016 Employee Stock Purchase Plan, as amended

241,400 (4)

$7.16 (5)

$1,728,424

$210

TOTAL

2,966,605

N/A

$24,674,651

$2,992

 

(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 that become issuable under the Registrant’s 2016 Equity Incentive Plan, as amended (the “2016 EIP”) and 2016 Employee Stock Purchase Plan, as amended (“2016 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that increases the number of the outstanding shares of the Registrant’s Common Stock.

 

(2)

Represents (a) 1,759,602 shares to be registered and available for grant under the 2016 EIP resulting from an increase in the number of authorized shares of Common Stock reserved for issuance thereunder pursuant to an amendment to the 2016 EIP approved by stockholders at a special meeting of stockholders held on October 8, 2018 and (b) 965,603 shares to be registered and available for grant under the 2016 EIP resulting from the annual 4% increase in the number of authorized shares available for issuance under the 2016 EIP.

 

(3)

Estimated in accordance with Rules 457(c) and 457(h) solely for the purpose of calculating the registration fee. The proposed maximum offering price per share of $8.42 was computed by averaging the high and low prices of a share of Registrant’s common stock as reported on The Nasdaq Global Market on March 5, 2019.

 

(4)

Represents 241,400 shares to be registered and available for grant under the 2016 ESPP resulting from the annual 1% increase in the number of authorized shares available for issuance under the 2016 ESPP.

 

(5)

Estimated in accordance with Rules 457(c) and 457(h) solely for the purpose of calculating the registration fee. The proposed maximum offering price per share of $8.42 was computed by averaging the high and low prices of a share of Registrant’s common stock as reported on The Nasdaq Global Market on March 5, 2019, multiplied by 85%, which is the percentage of the trading price per share applicable to purchasers under the 2016 ESPP.

 

 

 


 

 

EXPLANATORY NOTE

 

Aeglea BioTherapeutics, Inc. (the “Registrant”) is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register (a) 1,759,602 additional shares of Common Stock available for issuance under the Registrant’s 2016 Equity Incentive Plan, as amended (the “2016 EIP”), pursuant to an amendment approved by stockholders at a special meeting of stockholders held on October 8, 2018, (b) 965,603 additional shares of Common Stock available for issuance under the Registrant’s 2016 EIP, pursuant to the provision of the 2016 EIP providing for an annual 4% increase in the number of shares reserved for issuance, and (c) 241,400 additional shares of Common Stock available for issuance under the Registrant 2016 ESPP, pursuant to the provision of the 2016 ESPP providing for an annual 1% increase in the number of shares reserved for issuance.

 

In accordance with General Instruction E of Form S-8, and only with respect to the Common Stock issuable under the 2016 EIP and 2016 ESPP, this Registration Statement hereby incorporates by reference the contents of the Registrant’s Registration Statements on Form S-8 filed with the Commission on April 7, 2016 (Registration No. 333-210633), March 23, 2017 (Registration No. 333-216903) and March 13, 2018 (Registration No. 333-223614), to the extent not superseded hereby.


 


 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information required by Part I of Form S-8 (plan information and registrant information and employee plan annual information) will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933 (the “Securities Act”). Such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

PART II

Information Required in the Registration Statement

Item 3.Incorporation of Documents by Reference.

The following documents filed by the Registrant with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are incorporated herein by reference:

(a) the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018 filed with the Commission on March 7, 2019 pursuant to Section 13 of the Exchange Act;

(b) all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report on Form 10-K referred to in (a) above; and

(c) the description of the Registrant’s common stock contained in the Registrant’s registration statement on Form 8-A (File No. 001- 37722) filed on March 28, 2016 under Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.

All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and 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 into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein. Any statement contained 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 in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.

Item 4. Description of Securities.

 

Not applicable.

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

Item 6. Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended, or the Securities Act.

 


 

As permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:

 

any breach of the director’s duty of loyalty to the Registrant or its stockholders;

 

acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;

 

under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); or

 

any transaction from which the director derived an improper personal benefit.

As permitted by the Delaware General Corporation Law, the Registrant’s restated bylaws provide that:

 

the Registrant is required to indemnify its directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions;

 

the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law;

 

the Registrant is required to advance expenses, as incurred, to its directors and executive officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; and

 

the rights conferred in the restated bylaws are not exclusive.

 The Registrant has entered, and intends to continue to enter, into separate indemnification agreements with its directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s restated certificate of incorporation and restated bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director or executive officer of the Registrant regarding which indemnification is sought. The indemnification provisions in the Registrant’s restated certificate of incorporation, restated bylaws and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.

The Registrant currently carries liability insurance for its directors and officers. One of the Registrant’s directors, Armen Shanafelt, is also indemnified by his employer with regard to his service on the Registrant’s board of directors. See also the undertakings set out in response to Item 9 of this Registration Statement.

Item 7. Exemption From Registration Claimed.

Not applicable.

Item 8. Exhibits.

 

Exhibit

 

 

 

Incorporated by Reference

 

Filed

Number

 

Exhibit Description

 

Form

 

File No.

 

Exhibit

 

Filing Date

 

Herewith

 

 

 

 

 

 

 

 

 

 

 

 

 

  5.1

 

Opinion and Consent of Fenwick & West LLP.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

23.1

 

Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

23.2

 

Consent of Fenwick & West LLP (contained in Exhibit 5.1).

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

24.1

 

Power of Attorney (incorporated by reference to Page II-3 of this Registration Statement).

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

Exhibit

 

 

 

Incorporated by Reference

 

Filed

Number

 

Exhibit Description

 

Form

 

File No.

 

Exhibit

 

Filing Date

 

Herewith

 

99.1

 

 

2016 Equity Incentive Plan, as amended

 

 

10-Q

 

 

001-37722

 

 

10.2

 

 

11/8/2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

99.2

 

2016 Employee Stock Purchase Plan, as amended

 

 

 

 

 

 

 

 

 

X

 

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 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. 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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

 

(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) of this section 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 this 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 Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s 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 therein, 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 or controlling persons of the Registrant pursuant to the foregoing provisions , or otherwise, the Registrant

 


 

has been advised that, in the opinion of the 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.

 

 


 

SIGNATURES

Pursuant to the requirements of the Securities Act, 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 Austin, Texas, on this 7th day of March, 2019.

 

AEGLEA BIOTHERAPEUTICS, INC.

 

 

 

By:

 

/s/ Anthony Quinn, M.B. Ch.B, Ph.D.

 

 

Anthony Quinn, M.B. Ch.B, Ph.D.

 

 

President, Chief Executive Officer and Director

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Anthony Quinn and Charles N. York II, 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 (including post-effective amendments) to this Registration Statement on Form S-8, 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 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, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Anthony Quinn, M.B. Ch.B, Ph.D.

 

President, Chief Executive Officer and Director

 

March 7, 2019

Anthony Quinn, M.B. Ch.B, Ph.D.

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Charles N. York II

 

Chief Financial Officer and Vice President

 

March 7, 2019

Charles N. York II

 

(Principal Accounting Officer and

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Suzanne Bruhn, Ph.D.

 

Director

 

March 7, 2019

Suzanne Bruhn, Ph.D.

 

 

 

 

 

 

 

 

 

/s/ Russell J. Cox

 

Director

 

March 7, 2019

Russell J. Cox

 

 

 

 

 

 

 

 

 

/s/ Sandesh Mahatme, LLM

 

Director

 

March 7, 2019

Sandesh Mahatme, LLM

 

 

 

 

 

 

 

 

 

/s/ Armen Shanafelt, Ph.D.

 

Director

 

March 7, 2019

Armen Shanafelt, Ph.D.

 

 

 

 

 

 

 

 

 

/s/ Ivana Magovcevic-Liebisch, Ph.D., J.D.

 

Director

 

March 7, 2019

Ivana Magovcevic-Liebisch, Ph.D., J.D.

 

 

 

 

 

 

 

 

 

/s/ V. Bryan Lawlis, Ph.D.

 

Director

 

March 7, 2019

V. Bryan Lawlis, Ph.D.