Form S-8 - Securities to be offered to employees in employee benefit plans

 

As filed with the U.S. Securities and Exchange Commission on July 12, 2024

Registration No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

Aptevo Therapeutics Inc.

(Exact name of registrant as specified in its charter)

Delaware		81-1567056
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

2401 4th Avenue, Suite 1050

Seattle, WA 98121

(Address of principal executive offices) (Zip code)

 

 

Aptevo Therapeutics Inc. Second Amended and Restated 2018 Stock Incentive Plan

(Full title of the plan)

 

 

SoYoung Kwon

Senior Vice President and General Counsel

Aptevo Therapeutics Inc.

2401 4th Avenue, Suite 1050

Seattle, WA 98121

[phone]

(Name and address of agent for service) (Telephone number, including area code, of agent for service)

 

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. 

 

 

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EXPLANATORY NOTE

On August 9, 2018, Aptevo Therapeutics Inc. (the "Company" or the "Registrant") filed a registration statement on Form S-8 (File No. 333-226717) (the "Initial Registration Statement") with the Securities and Exchange Commission (the "Commission") to register 4,749 (adjusted for 1-for-14 reverse stock split effective March 26, 2020, and 1-for-44 reverse stock split effective March 5, 2024) shares of the Company's common stock, par value $0.001 per share ("Common Stock"), for issuance or sale pursuant to the Aptevo Therapeutics Inc. 2018 Stock Incentive Plan. On June 7, 2022, the Company filed a registration statement on Form S-8 (File No. 333-365468) with the Commission to register 11,363 shares (adjusted for 1-for-44 reverse stock split effective March 5, 2024) of the Company's Common Stock for issuance or sale pursuant to the Company's Amended and Restated 2018 Stock Incentive Plan (the "Current Plan").

 

The Company’s board of directors adopted, subject to approval by stockholders, the Second Amended and Restated 2018 Stock Incentive Plan (the “Second Amended Plan”), which the Company’s stockholders approved at the Company’s 2024 annual meeting of stockholders held on June 7, 2024. The Second Amended Plan made the following amendments, among others, to the Current Plan:

•

Increased authorized pool of shares. The Second Amended Plan increased the number of shares authorized for issuance under the Current Plan by 165,000 shares of Common Stock.

•

No liberal share recycling of options or stock appreciation rights. Shares underlying options and stock appreciation rights issued under the Second Amended Plan are not recycled into the share pool under the Second Amended Plan if they are withheld in payment of the exercise price of the award or to satisfy tax withholding obligations in respect of such awards.

•

Restrictions on Dividends and Dividend Equivalents. The Second Amended Plan prohibits participants from receiving current dividends or dividend equivalents that are paid before the underlying award vests and is paid.

•

Enhanced clawback provisions. The Second Amended Plan includes recoupment, or “clawback” provision set forth in the Current Plan, under which any award agreement may provide for the cancellation or forfeiture of an award or the forfeiture and repayment to the Company of any gain related to an award, or other provisions intended to have a similar effect, upon such terms and conditions as may be determined by the Committee (as defined below) in accordance with any Company clawback policy (or successor policy) or otherwise, including as required by the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, or other applicable law, regulation or stock exchange listing requirement. This clawback provision also provides that participants in the Second Amended Plan agree to and acknowledge that they are obligated to cooperate with, and provide any and all assistance necessary to, the Company to recover or recoup any award or amount paid under the Second Amended Plan that becomes subject to clawback pursuant to any applicable law, government regulation, stock exchange listing requirement or policy of the Company, including, but not limited to, submitting documentation necessary to recover or recoup any such award.

•

New Term. The Second Amended Plan also provides that awards may be granted pursuant to the Second Amended Plan until April 15, 2034.

The Company is filing this registration statement on Form S-8 (this “Registration Statement”) solely for the purpose of registering the 165,000 additional shares of Common Stock authorized for issuance under the Second Amended Plan. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also includes an indeterminate number of additional shares of Common Stock that may become issuable under the Second Amended Plan by reason of anti-dilution and other adjustments.

Pursuant to General Instruction E of Form S-8, this Registration Statement hereby incorporates by reference the contents of the previously filed registration statements on Form S-8 filed with the Commission on August 8, 2018 (File No. 333-226717) and on June 7, 2022 (File No. 333-365468), and the information required by Part II is omitted, except as supplemented by the information set forth below.

 

 

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PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation Of Certain Documents By Reference

The following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:

(a) the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed on March 5, 2024, including the portions of the Company’s Definitive Proxy Statement on Schedule 14A filed on April 23, 2024, that are incorporated by reference in the Annual Report on Form 10-K;
 

(b) the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed on May 8, 2024;

 

(c) the Company’s Current Reports on Form 8-K filed on February 6, 2024, March 5, 2024, March 7, 2024, April 15, 2024, June 10, 2024, July 1, 2024 and July 1, 2024.

 

(d) the description of the Registrant’s Common Stock which is contained in Exhibit 4.8 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023; and

(e) all other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after 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 have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. 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 herein or in any subsequently filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

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Item 8. Exhibits

Exhibit Number		Description
3.1(1)		Amended and Restated Certificate of Incorporation of Aptevo Therapeutics Inc.
3.2(2)		Certificate of Amendment of Amended and Restated Certificate of Incorporation of Aptevo Therapeutics Inc.
3.3(3)		Certificate of Designation of Series A Junior Participating Preferred Stock of Aptevo Therapeutics Inc.
3.4(4)		Certificate of Amendment of Amended and Restated Certificate of Incorporation of Aptevo Therapeutics, Inc.
3.5(5)		Amended and Restated Bylaws of Aptevo Therapeutics Inc.
4.1(6)		Form of Common Stock Certificate
5.1		Opinion of Paul Hastings LLP, legal counsel of Registrant
23.1		Consent of Moss Adams LLP
23.2		Consent of Paul Hastings LLP, legal counsel of Registrant (included in Exhibit 5.1)
24.1		Power of Attorney (see signature page hereto).
99.1(7)		Second Amended and Restated 2018 Stock Incentive Plan
107		Filing Fee Table
(1)	Previously filed as Exhibit 3.1 of the Registrant’s Form 8-K filed on August 2, 2016, File No. 001-37746 and incorporated herein by reference.
(2)	Previously filed as Exhibit 3.1 of the Registrant’s Form 8-K filed on March 27, 2020, File No. 001-37746 and incorporated herein by reference.
(3)	Previously filed as Exhibit 3.1 of the Registrant’s Form 8-K filed on November 9, 2020, File No. 001-37746 and incorporated herein by reference.
(4)	Previously filed as Exhibit 3.1 of the Registrant’s Form 8-K filed on March 5, 2024, File No. 001-37746 and incorporated herein by reference.
(5)	Previously filed as Exhibit 3.2 of the Registrant’s Form 8-K filed on August 2, 2016, File No. 001-37746 and incorporated herein by reference.
(6)	Previously filed as Exhibit 4.1 of the Registrant’s Form 10 filed on June 29, 2016, File No. 001-37746 and incorporated herein by reference.
(7)	Previously filed as Appendix A of the Registrant’s Definitive Proxy Statement on Schedule 14A filed on April 23, 2024, File No. 001-37746 and incorporated herein by reference.

 

 

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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 Seattle, State of Washington, on this 12th day of July, 2024.

	Aptevo Therapeutics Inc.
	By:	/s/ Marvin L. White
		Marvin L. White President and Chief Executive Officer

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Marvin L. White, Daphne Taylor, and SoYoung Kwon and each of them, each with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any amendments to this registration statement, and to sign any registration statement for the same offering covered by this registration statement, including post-effective amendments or registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming that each of said such attorneys-in-fact and agents or his or her substitute or substitutes, may 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 on the 12th day of July, 2024..

 

 

Signatures		Title
/s/Marvin L. White		President, Chief Executive Officer and Director
Marvin L. White		(Principal Executive Officer)
/s Daphne Taylor		Senior Vice President and Chief Financial Officer
Daphne Taylor		(Principal Financial and Accounting Officer)
/s/John E. Niederhuber, M.D.		Chairman of the Board of Directors
John E. Niederhuber, M.D.
/s/Daniel J. Abdun-Nabi		Director
Daniel J. Abdun-Nabi
/s/Grady Grant, III		Director
Grady Grant, III
/s/Zsolt Harsanyi, Ph. D.		Director
Zsolt Harsanyi, Ph. D.
/s/Barbara Lopez Kunz		Director
Barbara Lopez Kunz

 

 

 

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EXHIBIT 5.1

July 12, 2024

Aptevo Therapeutics Inc.

2401 4th Avenue, Suite 1050

Seattle, Washington 98121

Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to Aptevo Therapeutics Inc., a Delaware corporation (the “Company”), in connection with the preparation of the registration statement on Form S-8 to be filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) on or about the date hereof (the “Registration Statement”) to effect registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 165,000 shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (“Common Stock”), reserved for issuance under the Company’s Second Amended and Restated 2018 Stock Incentive Plan (the “Second Amended Plan”) as a result of an increase of the number of shares available for grant and issuance under the Second Amended Plan, which was adopted by the Company’s board of directors and approved by the Company’s stockholders at the Company’s 2024 annual meeting of stockholders held on June 7, 2024.

As such counsel and for purposes of our opinion set forth below, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such documents, resolutions, certificates and instruments of the Company and corporate records furnished to us by the Company, and have reviewed certificates of public officials, statutes, records and such other instruments and documents as we have deemed necessary or appropriate as a basis for the opinion set forth below, including, without limitation:

(i)

the Registration Statement;

(ii)

the Amended and Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”), as certified by an officer of the Company on July 12, 2024;

(iii)

the Amended and Restated Bylaws of the Company as presently in effect, as certified by an officer of the Company on July 12, 2024;

(iv)

the Second Amended Plan;

(v)

a certificate, dated as of July 11, 2024, from the Office of the Secretary of State of the State of Delaware, certifying as to the existence and good standing of the Company in the State of Delaware (the “Good Standing Certificate”);

(vi)

the resolutions adopted by the board of directors of the Company regarding the Second Amended Plan, and other matters related thereto, as certified by an officer of the Company on July 12, 2024; and

(vii)

the Certificate of Inspector of Election for the 2024 annual meeting of stockholders of the Company approving the Second Amended Plan, and other matters related thereto, as certified by an officer of the Company on July 12, 2024.

In addition to the foregoing, we have made such investigations of law as we have deemed necessary or appropriate as a basis for the opinion set forth in this opinion letter.

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In such examination and in rendering the opinion expressed below, we have assumed, without independent investigation or verification: (i) the genuineness of all signatures on all agreements, instruments, corporate records, certificates and other documents submitted to us; (ii) the authenticity and completeness of all agreements, instruments, corporate records, certificates and other documents submitted to us as originals; (iii) that all agreements, instruments, corporate records, certificates and other documents submitted to us as certified, electronic, facsimile, conformed, photostatic or other copies conform to originals thereof, and that such originals are authentic and complete; (iv) the legal capacity, competency and authority of all individuals executing all agreements, instruments, corporate records, certificates and other documents; (v) the due authorization, execution and delivery of all agreements, instruments, corporate records, certificates and other documents by all parties thereto (other than the Company); (vi) that no documents submitted to us have been amended or terminated orally or in writing except as has been disclosed to us in writing; (vii) that the statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for the purposes of this opinion letter are true and correct on and as of the date hereof; (viii) that there has not been any change in the good standing status of the Company from that reported in the Good Standing Certificate; and (ix) that each of the officers and directors of the Company has properly exercised his or her fiduciary duties. As to all questions of fact material to this opinion letter, and as to the materiality of any fact or other matter referred to herein, we have relied (without independent investigation or verification) upon representations and certificates or comparable documents of officers and representatives of the Company. We have also assumed that the individual issuances, grants, awards or grants of purchase rights under the Second Amended Plan will be duly authorized by all necessary corporate action of the Company and duly issued, granted or awarded and exercised in accordance with the requirements of law, the Second Amended Plan and the agreements, forms of instrument, awards and grants duly adopted thereunder. We have also assumed that upon the issuance of any Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Certificate of Incorporation.

Based upon the foregoing, and in reliance thereon, and subject to the assumptions, limitations, qualifications and exceptions set forth herein, we are of the opinion that the Shares are duly authorized and, when issued and sold as described in the Registration Statement and in accordance with the Second Amended Plan and the applicable award agreements or forms of instrument evidencing purchase rights thereunder (including the receipt by the Company of the full consideration therefor), will be validly issued, fully paid and nonassessable.

Without limiting any of the other assumptions, limitations, qualifications and exceptions stated elsewhere herein, we express no opinion with regard to the applicability or effect of the laws of any jurisdiction other than the General Corporation Law of the State of Delaware, as in effect on the date of this opinion letter.

This opinion letter deals only with the specified legal issues expressly addressed herein, and you should not infer any opinion that is not explicitly stated herein from any matter addressed in this opinion letter.

This opinion letter is rendered solely in connection with the preparation and filing of the Registration Statement. This opinion letter is rendered as of the date hereof, and we assume no obligation to advise you or any other person with regard to any change after the date hereof in the circumstances or the law that may bear on the matters set forth herein even if the change may affect the legal analysis or a legal conclusion or other matters in this opinion letter.

We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the Commission thereunder.

Very truly yours,

/s/ Paul Hastings LLP
 

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Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Aptevo Therapeutics Inc. of our report dated March 5, 2024, relating to the consolidated financial statements of Aptevo Therapeutics Inc. (the “Company”) (which report expresses an unqualified opinion and includes an explanatory paragraph relating to going concern uncertainty), appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

 

 

/s/ Moss Adams LLP

 

Seattle, Washington

July 12, 2024

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Exhibit 107

Calculation of Filing Fee Table

Form S-8

(Form Type)

Aptevo Therapeutics Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

 

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered	Proposed Maximum Offering Price Per Share	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.001 par value per share, reserved for issuance under the Second Amended and Restated 2018 Stock Incentive Plan	Rule 457(c) and Rule 457(h)	165,000	$0.31	$51,150	0.00014760	$7.55
Total Offering Amounts					$51,150		$7.55
Total Fee Offsets							$ -
Net Fee Due							$7.55

 

(1)

In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement on Form S-8 (the “Registration Statement”) shall be deemed to cover any additional shares of Common Stock, $0.001 par value per share (the “Common Stock”) of Aptevo Therapeutics Inc. (the “Company”) that become issuable under the Second Amended and Restated 2018 Stock Incentive Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of the Company’s Common Stock, as applicable.

(2)

Represents shares of Common Stock being registered for the first time pursuant to the Second Amended and Restated 2018 Stock Incentive Plan.

(3)

Estimated in accordance with Rules 457(c) and 457(h) of the Securities Act based upon the average of the high and low sale prices of the Common Stock as reported on the Nasdaq Stock Market on July 8, 2024.

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