As filed with the Securities and Exchange Commission on February 28, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Lyell Immunopharma, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 83-1300510 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
201 Haskins Way
South San Francisco, California 94080
(650) 695-0677
(Address of principal executive offices, including zip code)
Lyell Immunopharma, Inc. 2021 Equity Incentive Plan
(Full titles of the plans)
Lynn Seely, M.D.
President and Chief Executive Officer
Lyell Immunopharma, Inc.
201 Haskins Way
South San Francisco, California 94080
(650) 695-0677
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Dave Peinsipp Chadwick Mills Cooley LLP 3 Embarcadero Center, 20th Floor San Francisco, CA 94111 (415) 693-2000 |
Rahsaan W. Thompson Chief Legal Officer Lyell Immunopharma, Inc. 201 Haskins Way South San Francisco, California 94080 (650) 695-0677 |
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. ☐
EXPLANATORY NOTE
REGISTRATION OF ADDITIONAL SHARES
Pursuant to General Instruction E of Form S-8, Lyell Immunopharma, Inc. (the Registrant) is filing this Registration Statement on Form S-8 with the Securities and Exchange Commission (the Commission) for the purpose of registering 12,478,367 additional shares of its Common Stock under the 2021 Equity Incentive Plan (the 2021 Plan), pursuant to the provisions of the 2021 Plan providing for an automatic increase in the number of shares of Common Stock reserved and available for issuance under the 2021 Plan on January 1, 2023. In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of the Form S-8 has been omitted from this Registration Statement.
The Registrant previously registered shares of its Common Stock for issuance under the 2021 Plan on a Registration Statement on Form S-8 filed with the Commission on June 21, 2021 (File No. 333-257249) and on March 29, 2022 (File No. 333-263952) (collectively, the Prior Registration Statements). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Prior Registration Statements referenced above except as set forth below.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
(a) The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on February 28, 2023 (the 2022 Form 10-K).
(b) The description of the Registrants Common Stock which is contained in the Registrants Registration Statement on Form 8-A filed on June 14, 2021 (File No. 001-40502) under the Securities Exchange Act of 1934, as amended (the Exchange Act), as updated by Exhibit 4.3 to the 2022 Form 10-K, including any amendment or report filed for the purpose of updating such description.
(c) 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.
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 corporations board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act of 1933, as amended (the Securities Act). The Registrants amended and restated certificate of incorporation permits indemnification of the Registrants directors, officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law, and the Registrants amended and restated bylaws provide that the Registrant will indemnify its directors and executive officers and permit the Registrant to indemnify its other officers, employees and other agents, in each case to the maximum extent permitted by the Delaware General Corporation Law.
The Registrant has entered into indemnification agreements with its directors and officers, whereby it has agreed to indemnify its directors and officers to the fullest extent permitted by law, including indemnification against expenses and liabilities incurred in legal proceedings to which the director or officer was, or is threatened to be made, a party by reason of the fact that such director or officer is or was a director, officer, employee or agent of the Registrant, provided that such director or officer acted in good faith and in a manner that the director or officer reasonably believed to be in, or not opposed to, the best interest of the Registrant. At present, there is no pending litigation or proceeding involving a director or officer of the Registrant regarding which indemnification is sought, nor is the registrant aware of any threatened litigation that may result in claims for indemnification.
The Registrant maintains insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his or her capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
* | Filed herewith. |
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 South San Francisco, State of California, on February 28, 2023.
LYELL IMMUNOPHARMA, INC. | ||
By: | /s/ Lynn Seely | |
Lynn Seely, M.D. | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Lynn Seely, Charles Newton and Rahsaan Thompson, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him or her and in their name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), 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 or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his, her or their substitute or substitutes, 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 dates indicated.
Signature |
Title |
Date | ||
/s/ Lynn Seely Lynn Seely, M.D. |
President, Chief Executive Officer and Director (Principal Executive Officer) |
February 28, 2023 | ||
/s/ Charles Newton Charles Newton |
Chief Financial Officer (Principal Financial and Accounting Officer) |
February 28, 2023 | ||
/s/ Richard D. Klausner Richard D. Klausner, M.D. |
Chair of the Board of Directors | February 28, 2023 | ||
/s/ Hans Bishop Hans Bishop |
Director | February 28, 2023 | ||
/s/ Otis Brawley Otis Brawley, M.D. |
Director | February 28, 2023 | ||
/s/ Catherine Friedman Catherine Friedman |
Director | February 28, 2023 | ||
/s/ Elizabeth Nabel Elizabeth Nabel, M.D. |
Director | February 28, 2023 | ||
/s/ Robert Nelsen Robert Nelsen |
Director | February 28, 2023 | ||
/s/ William Rieflin William Rieflin |
Director | February 28, 2023 |
Exhibit 5.1
David G. Peinsipp
T: +1 415 693 2177
dpeinsipp@cooley.com
February 28, 2023
Lyell Immunopharma, Inc.
201 Haskins Way,
South San Francisco, CA 94080
Ladies and Gentlemen:
We have acted as counsel to Lyell Immunopharma, Inc., a Delaware corporation (the Company), in connection with the filing of a registration statement on Form S-8 (the Registration Statement) with the Securities and Exchange Commission (the Commission) covering the offering of up to 12,478,367 shares (the Shares) of the Companys common stock, par value $0.0001 per share, issuable pursuant to the Companys 2021 Equity Incentive Plan (the Plan).
In connection with this opinion, we have examined and relied upon (i) the Registration Statement and related prospectuses, (ii) the Companys certificate of incorporation and bylaws, each as currently in effect, (iii) the Plan, and (iv) 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 of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials and the due authorization, execution and delivery by all persons other than by the Company of all documents where authorization, execution and delivery are prerequisites to the effectiveness thereof. 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 Plan, 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).
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.
Cooley LLP 3 Embarcadero Center 20th Floor San Francisco, CA 94111-4004
t: +1 415 693 2000 f: +1 415 693 2222 cooley.com
Lyell Immunopharma, Inc.
February 28,2023
P age Two
Very truly yours, | ||
Cooley LLP | ||
By: | /s/ David G. Peinsipp | |
David G. Peinsipp |
Cooley LLP 3 Embarcadero Center 20th Floor San Francisco, CA 94111-4004
t: +1 415 693 2000 f: +1 415 693 2222 cooley.com
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Lyell Immunopharma, Inc. 2021 Equity Incentive Plan of our reports dated February 28, 2023, with respect to the consolidated financial statements of Lyell Immunopharma, Inc. and the effectiveness of internal control over financial reporting of Lyell Immunopharma, 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 Mateo, California
February 28, 2023
Exhibit 107
CALCULATION OF FILING FEE TABLES
Form S-8
Lyell Immunopharma, Inc.
Table 1: Newly Registered Securities
Security Type |
Security Class Title |
Fee Calculation Rule |
Amount to be Registered (1) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Fee Rate | Amount of Registration Fee | |||||||
Equity | Common Stock, $0.0001 par value per share, reserved for issuance pursuant to the Registrants 2021 Equity Incentive Plan | 457(c) and 457(h) | 12,478,367(2) | $2.29(3) | $28,575,460 | .0001120 | $3,150 | |||||||
Total Offering Amounts | $28,575,460 | $3,150 | ||||||||||||
Total Fee Offsets | N/A | |||||||||||||
Net Fee Due | $3,150 |
(1) | Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of Common Stock of Lyell Immunopharma, Inc. (the Registrant) that become issuable under the Registrants 2021 Equity Incentive Plan (the 2021 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 Registrants Common Stock, as applicable. |
(2) | Represents shares of Common Stock that were added to the shares reserved for future issuance under the 2021 Plan on January 1, 2023, pursuant to an evergreen provision contained in the 2021 Plan. Pursuant to such provision, the number of shares reserved for issuance under the 2021 Plan will automatically increase on January 1 of each year for a period of 10 years, beginning on January 1, 2022 and ending on (and including) January 1, 2031, in an amount equal to five percent (5%) of the total number of shares of the Registrants Common Stock outstanding on December 31 of the preceding calendar year; provided, however, that the Companys board of directors may act prior to January 1st of a given year to provide that the increase for such year will be a lesser number of shares of Common Stock. |
(3) | Estimated in accordance with Rules 457(c) and 457(h) solely for the purpose of calculating the registration fee on the basis of $2.29 per share, which is the average of the high and low selling prices per share of the Registrants Common Stock on February 24, 2023 as reported on the Nasdaq Global Select Market. |