Form S-3/A - Registration statement under Securities Act of 1933: [Amend]

As filed with the Securities and Exchange Commission on January 26, 2024

Registration No. 333-275445

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 1

to

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Inovio Pharmaceuticals, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		33-0969592
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

660 W. Germantown Pike, Suite 110

Plymouth Meeting, PA

[phone]

(Address, including zip code, and telephone number, including area code of registrant’s principal executive offices)

 

 

Jacqueline E. Shea

President and Chief Executive Officer

Inovio Pharmaceuticals, Inc.

660 West Germantown Pike, Suite 110

Plymouth Meeting, Pennsylvania 19462

[phone]

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

 

 

Copies to:

Brian F. Leaf

Jeffrey Libson

Darah Protas

Cooley LLP

One Freedom Square, Reston Town Center

11951 Freedom Drive

Reston, Virginia 20190

[phone]

 

 

From time to time after the effective date of this Registration Statement

(Approximate date of commencement of proposed sale to the public)

 

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:  ☐

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box:  ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  ☐

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  ☐

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.  ☐

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

 

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EXPLANATORY NOTE

The Registrant is filing this Amendment No. 1 (this “Amendment”) to its Registration Statement on Form S-3 (File No. 333-275445) (the “Registration Statement”) as an exhibits-only filing to update the amount of unsold securities to be included in the Registration Statement pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended, and to update the amount of new securities to be registered on the Registration Statement. Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 16 of Part II of the Registration Statement, the signature page and the filed exhibits, which include an updated consent of Ernst & Young LLP and an updated filing fee table.

Except as described above, no other changes have been made to the Registration Statement, and accordingly the prospectus included in Part I of the Registration Statement, and all items of Part II, other than Item 16, have been omitted.

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PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 16. Exhibits

 

Exhibit Number		Description of Document
1.1*		Form of Underwriting Agreement.
3.1		Certificate of Incorporation with all amendments (incorporated by reference to Exhibit 3.1 of the registrant’s Form S-3 registration statement filed on July 23, 2014).
3.2		Certificate of Amendment to Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K filed on January 25, 2024)
3.3		Amended and Restated Bylaws of Inovio Pharmaceuticals, Inc. dated August  10, 2011 (incorporated by reference to Exhibit 3.2 to the registrant’s Form 8-K current report filed on August 12, 2011).
4.1		Reference is made to Exhibits  3.1, 3.2 and 3.3 above.
4.2		Indenture, dated as of February  19, 2019, by and between the registrant and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 to the registrant’s current report on Form 8-K filed with the SEC on February 20, 2019).
4.3		Form of Note representing the registrant’s 6.50% Convertible Senior Notes due 2024 (included as Exhibit A to the Indenture filed as Exhibit 4.1).
4.4		Description of the Registrant’s Securities Registered Pursuant to Section  12 of the Securities Exchange Act of 1934, as amended (incorporated by reference to Exhibit 4.9 to the registrant’s annual report on Form 10-K filed with the SEC on March 12, 2020).
4.5***		Form of Indenture, between the Registrant and one or more trustees to be named.
4.6*		Form of Debt Securities.
4.7***		Form of Common Stock Warrant Agreement and Warrant Certificate.
4.8***		Form of Preferred Stock Warrant Agreement and Warrant Certificate.
4.9***		Form of Debt Securities Warrant Agreement and Warrant Certificate.
4.10*		Form of Specimen Preferred Stock Certificate and Certificate of Designations of Preferred Stock.
5.1***		Opinion of Cooley LLP.
23.1		Consent of Ernst & Young LLP, independent registered public accounting firm.
23.2***		Consent of Cooley LLP (included in Exhibit 5.1).
24.1***		Power of Attorney (included on signature page).
25.1**		Statement of Eligibility of Trustee under the Indenture.
107		Filing Fee Table

 

 

*	To be filed, if applicable, by amendment or by a report filed under the Exchange Act and incorporated herein by reference.

**	To be filed, if applicable, in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder.

***	Previously filed.

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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-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, City of Plymouth Meeting, Commonwealth of Pennsylvania, on this 26th day of January, 2024.

 

INOVIO PHARMACEUTICALS, INC.
By:		/s/ Jacqueline E. Shea
		Jacqueline E. Shea President and Chief Executive Officer

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/ Jacqueline E. Shea Jacqueline E. Shea		President, Chief Executive Officer and Director (Principal Executive Officer)		January 26, 2024
* Simon X. Benito		Chairman of the Board of Directors		January 26, 2024
/s/ Peter Kies Peter Kies		Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)		January 26, 2024
* Ann C. Miller		Director		January 26, 2024
* Roger D. Dansey		Director		January 26, 2024
* Jay Shepard		Director		January 26, 2024
* David B. Weiner		Director		January 26, 2024
* Wendy L. Yarno		Director		January 26, 2024
* Lota S. Zoth		Director		January 26, 2024

 

*By:		/s/ Peter Kies
		Peter Kies
		Attorney-in-Fact

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in Amendment No. 1 to the Registration Statement (Form S-3 No. 333-275445) of Inovio Pharmaceuticals, Inc. for the registration of common stock, preferred stock, debt securities and warrants of our report dated March 1, 2023, with respect to the consolidated financial statements of Inovio Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Diego, California

January 26, 2024

Exhibit 107

Calculation of Filing Fee Tables

Form S-3

(Form Type)

Inovio Pharmaceuticals, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered and Carry Forward Securities

 

		Security Type		Security Class Title		Fee Calculation or Carry Forward Rule		Amount Registered		Proposed Maximum Offering Price Per Unit		Maximum Aggregate Offering Price		Fee Rate		Amount of Registration Fee		Carry Forward Form Type		Carry Forward File Number		Carry Forward Initial Effective Date		Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward
Newly Registered Securities
Fees to Be Paid		Debt		Debt Securities		(1)		(1)		(1)		(1)		(1)		(1)		—		—		—		—
Fees to Be Paid		Equity		Common Stock, $0.001 par value per share		(1)		(1)		(1)		(1)		(1)		(1)		—		—		—		—
Fees to Be Paid		Equity		Preferred Stock, $0.001 par value per share		(1)		(1)		(1)		(1)		(1)		(1)		—		—		—		—
Fees to Be Paid		Other		Warrants		(1)		(1)		(1)		(1)		(1)		(1)		—		—		—		—
Fees to Be Paid		Unallocated (Universal) Shelf		Unallocated (Universal) Shelf		457(o)		(1)		(1)		$5,521,500 (1)(2)		$147.60 per $1,000,000		$814.98		—		—		—		—
Fees Previously Paid		Unallocated (Universal) Shelf		Unallocated (Universal) Shelf		457(o)		(1)		(1)		$162,052,305 (1)(2)		$147.60 per $1,000,000		$23,918.92		—		—		—		—
Carry Forward Securities
Carry Forward Securities		Debt		Debt Securities		415(a)(6)		(2)										S-3		333-252256		January 20, 2021
Carry Forward Securities		Equity		Common Stock, $0.001 par value per share		415(a)(6)		(2)										S-3		333-252256		January 20, 2021
Carry Forward Securities		Equity		Preferred Stock, $0.001 par value per share		415(a)(6)		(2)										S-3		333-252256		January 20, 2021
Carry Forward Securities		Other		Warrants		415(a)(6)		(2)										S-3		333-252256		January 20, 2021
Carry Forward Securities		Unallocated (Universal) Shelf		Unallocated (Universal) Shelf		415(a)(6)		(2)		$132,426,195 (2)						S-3		333-252256				January 20, 2021		$12,276.91
		Total Offering Amounts										$300,000,000 (1)(2)				$24,733.90
		Total Fees Previously Paid														$23,918.92
		Total Fee Offsets														—
		Net Fee Due														$814.98

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(1)

Pursuant to Instruction 2.A(iii)(b) of Item 16(b) of Form S-3, this information is not required to be included. An indeterminate aggregate initial offering price or number or amount of the securities of each identified class is being registered as may from time to time be offered under this registration statement at indeterminate prices, along with an indeterminate number or amount of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold under this registration statement, as shall have an aggregate initial offering price up to $300,000,000. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or pursuant to anti-dilution provisions of any of the securities. Separate consideration may or may not be received for securities that are issuable upon conversion, exercise or exchange of other securities. In addition, the total amount to be registered and the proposed maximum aggregate offering price are estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.

(2)

Pursuant to Rule 415(a)(6) under the Securities Act, the securities registered pursuant to this registration statement include $132,426,195 of unsold securities (the “Unsold Securities”) previously registered pursuant to the Registration Statement on Form S-3 (File No. 333-252256), as amended by Post-Effective Amendments No. 1 and No. 2, each filed on March 1, 2023, and Post-Effective Amendment No. 3, filed on March 28, 2023, which was originally filed and became effective on January 21, 2021 (the “Prior Registration Statement”). In connection with the filing of Post-Effective Amendment No. 1 the Prior Registration Statement, the registrant paid a filing fee of $12,276.91 associated with the offering of the Unsold Securities (based on the filing fee rate in effect at the time of the filing of Post-Effective Amendment No. 1 to the Prior Registration Statement). The filing fee associated with the offering of the Unsold Securities is hereby carried forward to be applied to the Unsold Securities registered hereunder, and no additional filing fee is due with respect to the Unsold Securities in connection with the filing of this Registration Statement. The registrant is also registering new securities on this registration statement with an aggregate initial offering price of $167,573,805 (the “New Securities”), which aggregate offering price is not specified as to each class of securities. The registrant previously paid a registration fee of $23,918.92 in respect of the New Securities with a proposed maximum aggregate offering price of $162,052,305 in connection with the initial filing of this registration statement, and an additional filing fee of $814.98 with respect to the New Securities is being paid concurrently with the filing of this Amendment No. 1 to the registration statement.

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