As filed with the Securities and Exchange Commission on August 8, 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
Arbutus Biopharma Corporation
(Exact name of registrant as specified in its charter)
| British Columbia, Canada | 98-0597776 | ||||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | ||||
701 Veterans Circle Warminster, Pennsylvania | 18974 | ||||
| (Address of Principal Executive Offices) | (Zip Code) | ||||
Arbutus Biopharma Corporation 2016 Omnibus Share and Incentive Plan
(Full title of the plan)
Michael J. McElhaugh
Interim President and Chief Executive Officer
Arbutus Biopharma Corporation
701 Veterans Circle
Warminster, Pennsylvania 18974
(Name and address of agent for service)
(267) 469-0914
(Telephone number, including area code, of agent for service)
With Copies to:
Steven J. Abrams, Esq. Stephen M. Nicolai, Esq. Hogan Lovells US LLP 1735 Market Street, 23rd Floor Philadelphia, PA 19103 (267) 675-4600 | J. Christopher Naftzger General Counsel and Chief Compliance Officer Arbutus Biopharma Corporation 701 Veterans Circle Warminster, Pennsylvania 18974 (267) 469-0914 | R. Hector MacKay-Dunn, K.C. Farris LLP 2500-700 West Georgia Street Vancouver, British Columbia Canada V7Y 1B3 (604) 684-9151 | ||||||
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
This registration statement on Form S-8 (this “Registration Statement”) is being filed by Arbutus Biopharma Corporation (the “Registrant”) to register 9,500,000 additional common shares of the Registrant, without par value (the “Common Shares”), issuable under the Arbutus Biopharma Corporation 2016 Omnibus Share and Incentive Plan, as supplemented and amended (the “2016 Plan”)
Pursuant to General Instruction E to Form S-8, this Registration Statement incorporates by reference the contents of the following registration statements previously filed with the Securities and Exchange Commission (the “Commission”): (i) the registration statement on Form S-8 filed by the Registrant on June 20, 2016 (File No. 333-212115) relating to the 2016 Plan; (ii) the registration statement on Form S-8 filed by the Registrant on June 24, 2020 (File No. 333-239407) relating to the 2016 Plan; (iii) the registration statement on Form S-8 filed by the Registrant on August 5, 2021 (File No. 333-258494) relating to the 2016 Plan; (iv) the registration statement on Form S-8 filed by the Registrant on August 4, 2022 (File No. 333-266527) relating to the 2016 Plan; and (v) the registration statement on Form S-8 filed by the Registrant on August 3, 2023 (File No. 333-273647) relating to the 2016 Plan, in each case, except to the extent supplemented, amended or superseded by the information set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. | ||||
The following documents of the Registrant filed with the Commission are incorporated by reference in this Registration Statement as of their respective dates:
(a)the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the Commission on March 5, 2024;
(b)the Registrant’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2024 and June 30, 2024, filed with the Commission on May 2, 2024 and August 8, 2024, respectively;
(c)the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on April 10, 2024, to the extent incorporated by reference into the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023;
(d)the Registrant’s Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such reports that are related to such items) filed with the Commission on January 4, 2024, January 8, 2024, February 29, 2024, April 4, 2024, May 2, 2024, May 2, 2024, May 22, 2024, May 28, 2024, June 5, 2024, June 6, 2024 and August 1, 2024; and
(e)the description of the Common Shares contained in the Registrant’s registration statement on Form 8-A (File No. 001-34949) filed with the Commission on November 4, 2010, as updated by Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, including any amendments or reports filed for the purpose of updating such description.
All reports and other documents filed by the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), but prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents, except for the documents, or portions thereof, that are “furnished” rather than filed with the Commission.
For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or 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 | |||||||
| 4.1 | ||||||||
| 4.2 | ||||||||
| 4.3 | ||||||||
| 5.1* | ||||||||
| 23.1* | ||||||||
| 23.2* | ||||||||
| 24.1 | ||||||||
| 107* | ||||||||
*Filed herewith.
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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 Township of Warminster, Commonwealth of Pennsylvania, on August 8, 2024.
| ARBUTUS BIOPHARMA CORPORATION | |||||||||||
| By: | /s/ Michael J. McElhaugh | ||||||||||
| Michael J. McElhaugh | |||||||||||
| Interim President and Chief Executive Officer | |||||||||||
POWER OF ATTORNEY
We, the undersigned officers and directors of Arbutus Biopharma Corporation, hereby severally constitute and appoint Michael J. McElhaugh and David C. Hastings, 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 Arbutus Biopharma Corporation 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 held on the dates indicated.
| Signature | Title | Date | ||||||||||||
| /s/ Michael J. McElhaugh | Interim President and Chief Executive Officer and Director | August 8, 2024 | ||||||||||||
| Michael J. McElhaugh | (Principal Executive Officer) | |||||||||||||
| /s/ David C. Hastings | Chief Financial Officer | August 8, 2024 | ||||||||||||
| David C. Hastings | (Principal Financial Officer and Principal Accounting Officer) | |||||||||||||
| /s/ Frank Torti, M.D. | Chairman | August 8, 2024 | ||||||||||||
| Frank Torti, M.D. | ||||||||||||||
| /s/ Daniel Burgess | Director | August 8, 2024 | ||||||||||||
| Daniel Burgess | ||||||||||||||
| /s/ Richard C. Henriques | Director | August 8, 2024 | ||||||||||||
| Richard C. Henriques | ||||||||||||||
| /s/ Keith Manchester, M.D. | Director | August 8, 2024 | ||||||||||||
| Keith Manchester, M.D. | ||||||||||||||
| /s/ James Meyers | Director | August 8, 2024 | ||||||||||||
| James Meyers | ||||||||||||||
| /s/ Melissa V. Rewolinski, Ph.D. | Director | August 8, 2024 | ||||||||||||
| Melissa V. Rewolinski, Ph.D. | ||||||||||||||
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of the Registrant, has signed this Registration Statement on August 8, 2024.
| By: | /s/ Michael J. McElhaugh | ||||||||||
| Michael J. McElhaugh | |||||||||||
| Interim President and Chief Executive Officer | |||||||||||
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Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Arbutus Biopharma Corporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | ||||||||||||||||
| Equity | Common Shares, without par value, issuable under the Arbutus Biopharma Corporation 2016 Omnibus Share and Incentive Plan | Other | 9,500,000(2) | $3.58(3) | $ 34,010,000(3) | 0.00014760 | $ | 5,019.88 | |||||||||||||||
| Total Offering Amounts | $ | 34,010,000 | $ | 5,019.88 | |||||||||||||||||||
| Total Fee Offsets | — | ||||||||||||||||||||||
| Net Fee Due | $ | 5,019.88 | |||||||||||||||||||||
| (1) | In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), 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 9,500,000 common shares, without par value (the “Common Shares”), of Arbutus Biopharma Corporation available for issuance under the Arbutus Biopharma Corporation 2016 Omnibus Share and Incentive Plan. | ||||
| (3) | Estimated solely for the purpose of calculating the registration fee under Rule 457(c) and (h) of the Securities Act on the basis of the average of the high and low sales price per Common Share on August 7, 2024, as reported on the Nasdaq Global Select Market. | ||||
Exhibit 5.1
August 8, 2024
Board of Directors
Arbutus Biopharma Corporation
701 Veterans Circle
Warminster, PA 18974
Dear Sirs/Mesdames:
Re: Arbutus Biopharma Corporation
We have acted as counsel for Arbutus Biopharma Corporation (the “Company”), a company existing under the Business Corporations Act (British Columbia), and have been asked to give this opinion in connection with the filing with the Securities and Exchange Commission of a registration statement on Form S-8 (the “Registration Statement”) covering an additional 9,500,000 common shares in the capital of the Company, without par value (the “Shares”), issuable pursuant to the Company’s 2016 Omnibus Share and Incentive Plan, as supplemented and amended (the “2016 Plan”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
In connection with the opinions hereinafter expressed, we have conducted or caused to be conducted such searches as we have considered necessary, advisable or relevant. We have also prepared or examined all such documents, corporate records of the Company, certificates of officers of the Company, resolutions of the board of directors of the Company and the shareholders of the Company, and other materials as we consider advisable or relevant. We have also examined such statutes, corporate and public records and other documents including certificates of public officials, and considered such matters of law, as we have deemed necessary as a basis for the opinions hereinafter expressed.
For the purposes of the opinions set for below, we have assumed, with respect to all documents examined by us, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic or original documents of all actual documents submitted to us as certified, conformed, telecopied or photostatic copies.
We are qualified to express opinions only with respect to the laws of the Province of British Columbia and the federal laws of Canada applicable therein. We express no opinion on the laws of any jurisdiction other than the Province of British Columbia and the federal laws of Canada applicable therein, all as at the date hereof.
Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when issued in accordance with the terms of the 2016 Plan, will be validly issued and outstanding as fully paid and non-assessable common shares of the Company.
We hereby consent to the use of our name in the Registration Statement relating to the Shares and to the filing, as an exhibit to the Registration Statement, of this opinion.
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This opinion is given solely in connection with the transactions referred to herein, and this opinion is limited to the matters expressly set forth herein, and no opinion has been implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we undertake no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in any law that may hereafter occur.
Yours truly,
/s/ FARRIS LLP
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 2016 Omnibus Share and Incentive Plan of Arbutus Biopharma Corporation of our report dated March 5, 2024 with respect to the consolidated financial statements of Arbutus Biopharma Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
August 8, 2024