As filed with the Securities and Exchange Commission on February 27, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TRACON PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
|
Delaware |
|
34-2037594 |
|
(State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
|
4350 La Jolla Village Drive, Suite 800 San Diego, California |
|
92122 |
|
(Address of Principal Executive Offices)
|
|
(Zip Code) |
2015 Equity Incentive Plan
2015 Employee Stock Purchase Plan
(Full titles of the plans)
Charles P. Theuer, M.D., Ph.D.
President and Chief Executive Officer
TRACON Pharmaceuticals, Inc.
4350 La Jolla Village Drive, Suite 800
San Diego, California 92122
(858) 550-0780
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
|
Scott B. Brown, CPA Chief Accounting Officer TRACON Pharmaceuticals, Inc. 4350 La Jolla Village Drive, Suite 800 San Diego, California 92122 (858) 550-0780 |
Sean M. Clayton Cooley LLP 4401 Eastgate Mall San Diego, California 92121 (858) 550-6000 |
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 (4) |
|
Proposed Maximum Offering Price (4) |
|
Amount of |
|
Common Stock, $0.001 par value per share, to be issued pursuant to the 2015 Equity Incentive Plan |
|
162,047 (2) |
|
$3.20 |
|
$518,550.40 |
|
$67.31 |
|
Common Stock, $0.001 par value per share, to be issued pursuant to the 2015 Employee Stock Purchase Plan |
|
36,692 (3) |
|
$3.20 |
|
$117,414.40 |
|
$15.24 |
|
|
||||||||
|
|
||||||||
|
(1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement includes such indeterminable number of additional shares of the registrant’s Common Stock (the “Common Stock”) as may be issued as a result of an adjustment to the shares by reason of a stock split, stock dividend or similar capital adjustment, as required by the plans. |
|
(3) |
Represents 36,692 shares of Common Stock that were automatically added to the shares authorized for issuance under the TRACON Pharmaceuticals, Inc. 2015 Employee Stock Purchase Plan (the “2015 ESPP”), on January 1, 2020 pursuant to an “evergreen” provision contained in the 2015 ESPP. Pursuant to such provision, on January 1 of each year until (and including) January 1, 2025, the number of shares authorized for issuance under the 2015 ESPP is automatically increased by a number equal to the least of: (a) 1.0% of the total number of shares of Common Stock outstanding on December 31 of the preceding calendar year; (b) 36,692 shares of Common Stock; or (c) a number of shares of Common Stock that may be determined each year by the registrant’s board of directors that is less than the preceding clauses (a) and (b). |
|
(4) |
This estimate is computed in accordance with Rule 457(h) and (c) under the Securities Act solely for the purpose of calculating the registration fee, and is based on the average of the high and low prices of the Common Stock on February 26, 2020 as reported on the Nasdaq Capital Market. |
INCORPORATION OF DOCUMENTS BY REFERENCE
This registration statement is being filed for the purpose of registering additional securities of the same class as other securities for which a registration statement of TRACON Pharmaceuticals, Inc. (the “Registrant”) on Form S-8 relating to the same employee benefit plans are effective. In accordance with General Instruction E to Form S-8, the contents of the Registrant’s registration statements on Form S-8 filed with the Securities and Exchange Commission on January 30, 2015 (File No. 333-201808), February 19, 2016 (File No. 333-209592), March 1, 2017 (File No. 333-216347), March 1, 2018 (File No. 333-223333), and March 1, 2019 (File No. 333-229988) are hereby incorporated by reference.
INDEX TO EXHIBITS
|
Exhibit Number |
Description of Document |
|
4.1(1) |
|
|
4.2(2) |
Certificate of Amendment of Amended and Restated Certificate of Incorporation |
|
4.3(3) |
|
|
4.4(4) |
|
|
4.5(5) |
|
|
4.6(6) |
|
|
4.7(6) |
|
|
4.8(7) |
|
|
4.9(8) |
|
|
5.1 |
|
|
23.1 |
|
|
23.2 |
|
|
24.1 |
|
|
99.1(9) |
|
|
99.2(10) |
TRACON Pharmaceuticals, Inc. 2015 Employee Stock Purchase Plan |
|
(1) |
Incorporated by reference to TRACON Pharmaceuticals, Inc.’s Current Report on Form 8-K, filed with the SEC on February 4, 2015. |
|
(2) |
Incorporated by reference to TRACON Pharmaceuticals, Inc.’s Current Report on Form 8-K, filed with the SEC on November 6, 2019. |
|
(3) |
Incorporated by reference to TRACON Pharmaceuticals, Inc.’s Current Report on Form 8-K, filed with the SEC on February 4, 2015. |
|
(4) |
Incorporated by reference to TRACON Pharmaceuticals, Inc.’s Registration Statement on Form S-1 (File No. 333-201280), as amended. |
|
(5) |
Incorporated by reference to TRACON Pharmaceuticals, Inc.’s Registration Statement on Form S-1 (File No. 333-201280), as amended. |
|
(6) |
Incorporated by reference to TRACON Pharmaceuticals, Inc.’s Quarterly Report on Form 10-Q, filed with the SEC on November 9, 2016. |
|
(7) |
Incorporated by reference to TRACON Pharmaceuticals, Inc.’s Current Report on Form 8-K, filed with the SEC on October 21, 2019. |
|
(8) |
Incorporated by reference to the TRACON Pharmaceuticals, Inc.’s Current Report on Form 8-K, filed with the SEC on March 23, 2018. |
|
(9) |
Incorporated by reference to the TRACON Pharmaceuticals, Inc.’s Current Report on Form 8-K, filed with the SEC on December 17, 2015. |
|
(10) |
Incorporated by reference to the TRACON Pharmaceuticals, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, filed with the SEC on May 14, 2015. |
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 San Diego, State of California, on this 27th day of February, 2020.
|
|
TRACON PHARMACEUTICALS, INC. |
|
|
|
|
|
|
|
By: |
/s/ Charles P. Theuer, M.D., Ph.D. |
|
|
|
Charles P. Theuer, M.D., Ph.D. President and Chief Executive Officer |
Know All Persons By These Presents, that each person whose signature appears below constitutes and appoints Dr. Charles P. Theuer, M.D., Ph.D. and Scott B. Brown, CPA, and each of them, as his or her true and lawful attorneys-in-fact and agents, each 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 report, 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either 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, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
|
/s/ Charles P. Theuer, M.D., Ph.D. |
|
President, Chief Executive Officer and Member of the Board of Directors |
|
February 27, 2020 |
|
Charles P. Theuer, M.D., Ph.D. |
|
(Principal Executive Officer and Principal Financial Officer) |
|
|
|
|
|
|
|
|
|
/s/ Scott B. Brown, CPA |
|
Chief Accounting Officer (Principal Accounting Officer) |
|
February 27, 2020 |
|
Scott B. Brown, CPA |
|
|
|
|
|
|
|
|
|
|
|
/s/ William R. LaRue |
|
Member of the Board of Directors |
|
February 27, 2020 |
|
William R. LaRue |
|
|
|
|
|
|
|
|
|
|
|
/s/ Martin A. Mattingly, Pharm.D. |
|
Member of the Board of Directors |
|
February 27, 2020 |
|
Martin A. Mattingly, Pharm.D. |
|
|
|
|
|
|
|
|
|
|
|
/s/ J. Rainer Twiford, J.D., Ph.D. |
|
Member of the Board of Directors |
|
February 27, 2020 |
|
J. Rainer Twiford, J.D., Ph.D. |
|
|
|
|
|
|
|
|
|
|
|
/s/ Paul Walker |
|
Member of the Board of Directors |
|
February 27, 2020 |
|
Paul Walker |
|
|
|
|
|
|
|
|
|
|
|
/s/ Stephen T. Worland, Ph.D. |
|
Member of the Board of Directors |
|
February 27, 2020 |
|
Stephen T. Worland, Ph.D. |
|
|
|
|
Exhibit 5.1
Sean M. Clayton
+1 858 550 6034
sclayton@cooley.com
February 27, 2020
TRACON Pharmaceuticals, Inc.
4350 La Jolla Village Drive, Suite 800
San Diego, California 92122
Ladies and Gentlemen:
You have requested our opinion, as counsel to TRACON Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 198,739 shares of the Company’s Common Stock, par value $0.001 per share (the “Shares”), including (i) 162,047 shares issuable pursuant to the Company’s 2015 Equity Incentive Plan (the “Incentive Plan”) and (ii) 36,692 shares issuable pursuant to the Company’s 2015 Employee Stock Purchase Plan (together with the Incentive Plan, the “Plans”).
In connection with this opinion, we have examined and relied upon the Registration Statement and related prospectuses, the Plans, the Company's Certificate of Incorporation and Bylaws, each as currently in effect, and originals or copies certified to our satisfaction of such records, documents, 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 thereof, the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness of such documents. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified 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 Plans, 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).
4401 Eastgate Mall, San Diego, CA 92121 T: (858) 550-6000 F: (858) 550-6420 www.cooley.com
|
|
|
|
|
|
|
February 27, 2020 TRACON Pharmaceuticals, Inc. Page 2 |
|
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Sincerely,
Cooley LLP
By: /s/ Sean M. Clayton
Sean M. Clayton
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2015 Equity Incentive Plan and 2015 Employee Stock Purchase Plan of TRACON Pharmaceuticals, Inc. of our report dated February 27, 2020, with respect to the consolidated financial statements of TRACON Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2019, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Diego, California
February 27, 2020