As filed with the Securities and Exchange Commission on May 15, 2018
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ARGOS THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
|(State or Other Jurisdiction of Incorporation or Organization)||(I.R.S. Employer Identification No.)|
4233 Technology Drive
Durham, North Carolina
|(Address of Principal Executive Offices)||(Zip Code)|
2014 Stock Incentive Plan, as amended
(Full Title of the Plan)
Jeffrey D. Abbey
Chief Executive Officer
Argos Therapeutics, Inc.
4233 Technology Drive
Durham, North Carolina 27704
(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 of the Exchange Act.
|Large accelerated filer ☐||Accelerated filer ☐|
|Non-accelerated filer ☐||Smaller reporting company ☒|
|(Do not check if a 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
|Amount to be
Offering Price Per Share
Aggregate Offering Price
|Common Stock, $0.001
par value per share
236,264 shares (2)
|(1)||In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.|
|(2)||Represents additional shares of Common Stock authorized for issuance under the 2014 Stock Incentive Plan, as amended.|
|(3)||Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the bid and asked price of the Registrant’s Common Stock as reported by the OTCQB® Venture Market on May 11, 2018.|
Statement of Incorporation by Reference
This registration statement on Form S-8 is being filed to register the offer and sale of an additional 236,264 shares of common stock, $0.001 par value per share, of Argos Therapeutics, Inc. (the “Registrant”) reserved on January 1, 2018 for issuance of awards granted under the Registrant’s 2014 Stock Incentive Plan, as amended, pursuant to the terms of such plan. In accordance with General Instruction E to Form S-8, this registration statement on Form S-8 hereby incorporates by reference the contents of the Registrant’s registration statement on Form S-8 filed with the Securities and Exchange Commission on April 11, 2014 (Registration No. 333-195223), the Registrant’s registration statement on Form S-8 filed with the Securities and Exchange Commission on November 16, 2015 (Registration No. 333-208055), the Registrant’s registration statement on Form S-8 filed with the Securities and Exchange Commission on March 31, 2016 (Registration No. 333-210522), the Registrant’s registration statement on Form S-8 filed with the Securities and Exchange Commission on March 28, 2017 (Registration No. 333-216985) and the Registrant’s registration statement on Form S-8 filed with the Securities and Exchange Commission on August 30, 2017 (Registration No. 333-220261), in each case except for Item 8, Exhibits.
Item 8. Exhibits
|4.1 (1)||Restated Certificate of Incorporation of the Registrant, as amended|
|4.2 (2)||Amended and Restated By-laws of the Registrant|
|5.1||Opinion of Wilmer Cutler Pickering Hale and Dorr LLP|
|23.1||Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1)|
|23.2||Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm|
|24.1||Power of attorney (included on the signature pages of this registration statement)|
|99.1 (3)||2014 Stock Incentive Plan, as amended|
|(1)||Previously filed with the Securities and Exchange Commission on April 2, 2018 as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K (File No. 001-35443) and incorporated herein by reference.|
|(2)||Previously filed with the Securities and Exchange Commission on February 18, 2014 as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K (File No. 001-35443) and incorporated herein by reference.|
|(3)||Previously filed with the Securities and Exchange Commission on August 2, 2017 as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 001-35443) and incorporated herein by reference.|
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 Durham, North Carolina, on this 15th day of May, 2018.
|ARGOS THERAPEUTICS, INC.|
|By:||/s/ Jeffrey D. Abbey|
|Jeffrey D. Abbey|
|President and Chief Executive Officer|
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Argos Therapeutics, Inc. hereby severally constitute and appoint Jeffrey D. Abbey, Richard D. Katz and Lori R. Harrelson, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Argos Therapeutics, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
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.
|/s/ Jeffrey D. Abbey||President, Chief Executive Officer and Director||May 15, 2018|
|Jeffrey D. Abbey||(Principal Executive Officer)|
|/s/ Richard D. Katz||Vice President and Chief Financial Officer||May 15, 2018|
|Richard D. Katz, M.D.||(Principal Financial Officer)|
|/s/ Lori R. Harrelson||Vice President of Finance||May 15, 2018|
|Lori R. Harrelson||(Principal Accounting Officer)|
|/s/ Hubert Birner||Director||May 15, 2018|
|Hubert Birner, Ph.D.|
|/s/ Robert F. Carey||Director||May 15, 2018|
|Robert F. Carey|
|/s/ Igor Krol||Director||May 15, 2018|
|/s/ Richard G. Morrison||Director||May 15, 2018|
|Richard G. Morrison|
|/s/ Irackly Mtibelishvily||Director||May 15, 2018|
May 15, 2018
Argos Therapeutics, Inc.
4233 Technology Drive
Durham, North Carolina 27704
|Re:||2014 Stock Incentive Plan, as amended|
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to an additional 236,264 shares of common stock, $0.001 par value per share (the “Shares”), of Argos Therapeutics, Inc., a Delaware corporation (the “Company”), issuable under the Company’s 2014 Stock Incentive Plan, as amended (the “Plan”).
We have examined the Certificate of Incorporation and By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and sale of the Shares in accordance with the Plan, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.
We express no opinion herein as to the laws of any state or jurisdiction other than the laws of the Commonwealth of Massachusetts, the General Corporation Law of the State of Delaware and the federal laws of the United States of America.
It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
|Very truly yours,|
|WILMER CUTLER PICKERING|
|HALE AND DORR LLP|
|By:||/s/ Stuart Falber|
|Stuart Falber, a Partner|
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Argos Therapeutics, Inc. of our report dated April 2, 2018 relating to the financial statements and financial statement schedule, which appears in Argos Therapeutics, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2017.
/s/ PricewaterhouseCoopers LLP
Raleigh, North Carolina
May 15, 2018