As filed with the Securities and Exchange Commission on March 9, 2023
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
The Securities Act of 1933
ALX ONCOLOGY HOLDINGS INC.
(Exact name of Registrant as specified in its charter)
(State or other jurisdiction of
incorporation or organization)
323 Allerton Avenue
South San Francisco, California 94080
(Address of principal executive offices, including zip code)
Amended and Restated 2020 Equity Incentive Plan
(Full title of the plan)
Jaume Pons, Ph.D.
Chief Executive Officer
ALX Oncology Holdings Inc.
323 Allerton Avenue
South San Francisco, California 94080
(Name, address and telephone number, including area code, of agent for service)
Kenneth A. Clark
Michael E. Coke
Christina L. Poulsen
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
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. ☐
INFORMATION REQUIRED IN THE PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the Registration Statement) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the Securities Act) and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
ALX Oncology Holdings Inc. (the Registrant) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the Commission):
(1) The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March 9, 2023;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act) since the end of the fiscal year covered by the Registrants Annual Report referred to in (1) above (other than the portions of these documents not deemed to be filed); and
(3) The description of the Registrants common stock contained in the Companys Registration Statement on Form 8-A (File No. 001-39386) filed with the Commission on July 13, 2020, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into 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 for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which 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.
Item 5. Interests of Named Experts and Counsel.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a corporations board of directors to grant, and authorizes a court to award, indemnity to officers, directors, and other corporate agents, provided that the person acted in good faith and in a manner the person reasonably believed to be in the corporations best interests, and, with respect to any criminal action, had no reasonable cause to believe the persons actions were unlawful. The Delaware General Corporation Law further provides that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporations bylaws, any agreement, a vote of stockholders or otherwise.
The Registrants amended and restated certificate of incorporation to be in effect upon the completion of this offering contains provisions that limit the liability of its directors for monetary damages to the fullest extent permitted by the Delaware General Corporation Law. Consequently, the Registrants directors will not be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for the following:
any breach of their duty of loyalty to the Registrant or its stockholders;
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or
any transaction from which they derived an improper personal benefit.
Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission, or claim that occurred or arose prior to that amendment or repeal. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of the Registrants directors will be further limited to the greatest extent permitted by the Delaware General Corporation Law.
In addition, the Registrants amended and restated bylaws provide that the Registrant will indemnify, to the fullest extent permitted by law, any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that they are or were one of the Registrants directors or officers or is or was serving at the Registrants request as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. The Registrants amended and restated bylaws provide that the Registrant may indemnify to the fullest extent permitted by law any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is or was one of the Registrants employees or agents or is or was serving at the Registrants request as an employee or agent of another corporation, partnership, joint venture, trust, or other enterprise. The Registrants amended and restated bylaws also provide that the Registrant must advance expenses incurred by or on behalf of a director or officer in advance of the final disposition of any action or proceeding, subject to limited exceptions.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except (1) for any breach of the directors duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for payments of unlawful dividends or unlawful stock repurchases or redemptions or (4) for any transaction from which the director derived an improper personal benefit. The Registrants amended and restated certificate of incorporation to be in effect upon the completion of this offering provides that the Registrants directors shall not be personally liable to it or its stockholders for monetary damages for breach of fiduciary duty as a director and that if the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Registrants directors shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Section 174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
Further, as permitted by the Delaware General Corporation Law, the Registrant has entered into separate indemnification agreements with each of its directors and certain executive officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements require the Registrant, among other things, to indemnify its directors and executive officers against certain liabilities that may arise by reason of their status or service.
The Registrant has obtained insurance policies under which, within the limits and subject to the limitations of the policies, coverage is provided to the Registrants directors and executive officers against certain expenses in connection with the defense of, and certain liabilities arising from claims made by reason of breach of fiduciary duty or other wrongful acts as a director or executive officer, including claims relating to public securities matters, and to the Registrant with respect to payments that may be made by the Registrant to these directors and executive officers pursuant to its indemnification obligations or otherwise as a matter of law. The coverage provided by these policies may apply whether or not the Registrant would have the power to indemnify such person against such liability under the provisions of the Delaware General Corporation Law.
These indemnification provisions and the indemnification agreements entered into between the Registrant and the Registrants directors and executive officers may be sufficiently broad to permit indemnification of the Registrants directors and executive officers for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption from Registration Claimed.
Item 8. Exhibits.
|4.1(1)||Specimen common stock certificate of the Registrant.|
|4.2(2)||Amended and Restated 2020 Equity Incentive Plan and forms of agreements thereunder.|
|5.1||Opinion of Wilson Sonsini Goodrich & Rosati, P.C.|
|23.1||Consent of KPMG LLP, Independent Registered Public Accounting Firm.|
|23.2||Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1).|
|24.1||Power of Attorney (contained on signature page hereto).|
|107.1||Filing Fee Table.|
Incorporated by reference to Exhibit 4.2 filed with the Registrants Registration Statement on Form S-1 (Registration No. 333-239490), filed with the Commission on June 26, 2020.
Incorporated by reference to Exhibit 10.2 filed with the Registrants Registration Statement on Form S-1/A (Registration No. 333-239490), filed with the Commission on July 13, 2020.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
To include any prospectus required by Section 10(a)(3) of the Securities Act;
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective Registration Statement; and
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
For the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
It will remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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 South San Francisco, California, on the 9th day of March 2023.
|ALX ONCOLOGY HOLDINGS INC.|
|By:||/s/ Jaume Pons|
|Jaume Pons, Ph.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 Jaume Pons, Ph.D. and Peter Garcia, and each of them, as such individuals true and lawful attorney in fact and agent with full power of substitution, for such individual in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (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 attorney in fact, proxy and agent 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or the individuals substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated:
|/s/ Jaume Pons||President, Chief Executive Officer and Director||March 9, 2023|
|Jaume Pons, Ph.D.||(Principal Executive Officer)|
|/s/ Peter Garcia||Chief Financial Officer||March 9, 2023|
|Peter Garcia||(Principal Financial Officer)|
|/s/ Shelly Pinto||Vice President, Finance and Chief Accounting Officer||March 9, 2023|
|Shelly Pinto||(Principal Accounting Officer)|
|/s/ Corey Goodman||Executive Chairman of the Board of Directors||March 9, 2023|
|Corey Goodman, Ph.D.|
|/s/ Itziar Canamasas||Director||March 9, 2023|
|Itziar Canamasas, Ph.D.|
|/s/ Scott Garland||Director||March 9, 2023|
|/s/ Rekha Hemrajani||Director||March 9, 2023|
|/s/ Jason Lettmann||Director||March 9, 2023|
|/s/ Jack Nielsen||Director||March 9, 2023|
|/s/ Sophia Randolph||Director||March 9, 2023|
|Sophia Randolph, M.D., Ph.D.|
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
March 9, 2023
ALX Oncology Holdings Inc.
323 Allerton Avenue
South San Francisco, California 94080
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the Registration Statement) to be filed by ALX Oncology Holdings Inc., a Delaware corporation (the Company), with the Securities and Exchange Commission on or about the date hereof, relating to the registration under the Securities Act of 1933, as amended, of 1,634,456 shares of common stock, par value $0.001 per share (the Common Stock), reserved for issuance pursuant to the Companys Amended and Restated 2020 Equity Incentive Plan (which plan is referred to herein as the Plan and which shares of Common Stock are referred to herein as the Shares).
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plan and pursuant to the agreements that accompany the Plan, will be legally and validly issued, fully paid, and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto.
|Very truly yours,|
WILSON SONSINI GOODRICH & ROSATI
|/s/ Wilson Sonsini Goodrich & Rosati, P.C.|
55 Second Street
San Francisco, CA 94105
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 9, 2023, with respect to the consolidated financial statements of ALX Oncology Holdings Inc., incorporated herein by reference.
/s/ KPMG LLP
San Francisco, California
March 9, 2023
Calculation of Filing Fee Table
ALX ONCOLOGY HOLDINGS INC.
(Exact name of registrant as specified in its charter)
Table 1 Newly Registered Securities
|Equity||Common Stock, $0.001
par value per share,
reserved for issuance
pursuant to the Amended
and Restated 2020
Equity Incentive Plan
|1,634,456 (2)||$6.39 (3)||$10,444,174||0.0001102||$1,151|
|Total Offering Amount||$ 10,444,174||$1,151|
|Total Fee Offsets|||
|Net Fee Due||$1,151|
Represents shares of common stock, par value $0.001 per share (Common Stock) of ALX Oncology Holdings Inc. (the Registrant) available for issuance pursuant to awards granted pursuant to the Registrants Amended and Restated 2020 Equity Incentive Plan (the 2020 Plan). In addition, pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of the Registrants Common Stock that become issuable under the 2020 Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrants receipt of consideration that results in an increase in the number of the outstanding shares of common stock.
Reflects an automatic increase on January 1, 2023 to the number of shares of Common Stock reserved for issuance pursuant to future awards under the 2020 Plan, which annual increase is provided for in the 2020 Plan.
Estimated in accordance with paragraphs (c) and (h) of Rule 457 of the Securities Act solely for the purpose of calculating the registration fee on the basis of $6.39 per share, which is the average of the high and low prices of the Registrants Common Stock, as reported on the Nasdaq Global Select Market, on March 2, 2023.