As filed with the Securities and Exchange Commission on August 6, 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
DYNAVAX TECHNOLOGIES CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware |
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33-0728374 (I.R.S. Employer Identification No.) |
2100 Powell Street, Suite 720
Emeryville, CA 94608
(510) 848-5100
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant’s Principal Executive Offices)
Dynavax Technologies Corporation 2018 Equity Incentive Plan
(Full Title of the Plan)
Ryan Spencer
Chief Executive Officer
Dynavax Technologies Corporation
2100 Powell Street, Suite 720
Emeryville, CA 94608
(510) 848-5100
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
Steven M. Przesmicki, Esq. Cooley LLP 10265 Science Center Drive San Diego, CA 92121 (858) 550-6000 |
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 |
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Accelerated filer |
Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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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.
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PART I
EXPLANATORY NOTE AND GENERAL INSTRUCTION E INFORMATION
This Registration Statement on Form S-8 is being filed by Dynavax Technologies Corporation (“Dynavax” or the “Company”) for the purpose of registering an additional 11,400,000 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable under the Company’s 2018 Equity Incentive Plan (the “2018 EIP”). The shares of the Company’s Common Stock previously reserved for issuance under the 2018 EIP were registered on the Registrant’s Registration Statements on Form S-8 (File Nos. 333-225525, 333-233247, 333-241674, and 333-265373) filed with the Securities and Exchange Commission (the “Commission”) on June 8, 2018, August 13, 2019, August 6, 2020, and June 2, 2022 (the “Prior Forms S-8”). This Registration Statement relates to securities of the same class as those to which the Prior Forms S-8 relate and is submitted in accordance with General Instruction E of Form S-8. Pursuant to General Instruction E of Form S-8, the contents of Prior Forms S-8 are incorporated by reference herein.
PART II
INFORMATION REQUIRED IN THE 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:
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the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on February 22, 2024; |
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the Registrant’s Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2024 and June 30, 2024, filed with the Commission on May 8, 2024 and August 6, 2024; |
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the Registrant’s Current Reports on Form 8-K, filed with the Commission on March 12, 2024, April 1, 2024, May 24, 2024 and August 2, 2024; |
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the information specifically incorporated by reference into the Registrant’s Annual Report on Form 10-K referred to above from the Registrant’s definitive proxy statement relating to the Registrant’s 2024 annual meeting of stockholders, filed with the Commission on April 11, 2024, including the Registrant’s definitive additional materials relating to the Registrant’s 2024 annual meeting of stockholders, filed with the Commission on April 26, 2024; and |
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the description of the Registrant’s common stock set forth in the Registrant’s registration statement on Form 8-A, filed with the Commission on February 6, 2004, including any amendments or reports filed for purpose of updating such description, including Exhibit 4.1 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on February 22, 2024. |
All reports and other documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (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, after the date of this Registration Statement and 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 a part of this Registration Statement from the date of filing such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes that statement. Any such statement so modified or superseded shall not constitute a part of this Registration Statement, except as so modified or superseded.
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Item 8. |
Exhibits |
* 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 City of Emeryville, State of California, on this 6th day of August, 2024.
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DYNAVAX TECHNOLOGIES CORPORATION |
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By: |
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/s/ RYAN SPENCER |
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Ryan Spencer |
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Chief Executive Officer and Director |
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(Principal Executive Officer) |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below does hereby constitute and appoint Ryan Spencer and Kelly MacDonald, and each of them, with full power of substitution and full power to act without the other, his or her true and lawful attorney-in-fact and agent to act for him or her and in their name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file this Registration Statement, 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 order to effectuate the same as fully, to all intents and purposes, as they or 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, 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 has been signed by the following persons in the capacities and on the dates indicated.
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Date |
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/s/ RYAN SPENCER |
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Chief Executive Officer |
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August 6, 2024 |
Ryan Spencer |
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(Principal Executive Officer) |
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/s/ KELLY MACDONALD |
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Chief Financial Officer |
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August 6, 2024 |
Kelly MacDonald |
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(Principal Financial Officer) |
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/s/ JUSTIN BURGESS |
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Chief Accounting Officer |
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August 6, 2024 |
Justin Burgess |
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(Principal Accounting Officer) |
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/s/ SCOTT MYERS |
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August 6, 2024 |
Scott Myers |
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Chairman of the Board |
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/s/ FRANCIS R. CANO |
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August 6, 2024 |
Francis R. Cano, Ph.D. |
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Director |
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/s/ JULIE EASTLAND |
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August 6, 2024 |
Julie Eastland |
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Director |
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/s/ DANIEL L. KISNER |
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August 6, 2024 |
Daniel L. Kisner, M.D. |
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Director |
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/s/ BRENT MACGREGOR |
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August 6, 2024 |
Brent MacGregor |
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Director |
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Signature |
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Date |
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/s/ PETER R. PARADISO |
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August 6, 2024 |
Peter R. Paradiso, Ph.D. |
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Director |
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/s/ PEGGY V. PHILLIPS |
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August 6, 2024 |
Peggy V. Phillips |
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Director |
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/s/ ELAINE D. SUN |
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August 6, 2024 |
Elaine D. Sun |
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Director |
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Exhibit 5.1
Steven M. Przesmicki
+1 858 550 6070
przes@cooley.com
August 6, 2024
Dynavax Technologies Corporation
2100 Powell Street, Suite 720
Emeryville, CA 94608
Re: Registration on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Dynavax Technologies Corporation, a Delaware corporation (the “Company”), in connection with the filing by the Company 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 11,400,000 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (“Common Stock”), issuable pursuant to the Company’s 2018 Equity Incentive Plan (the “2018 Plan”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and the related prospectuses, (b) the 2018 Plan, (c) the Company’s certificate of incorporation and bylaws, each as currently in effect, and (d) such other records, documents, opinions, certificates, memoranda, and 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 of all documents by all persons other than the Company 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 2018 Plan, the Registration Statement and the related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
Cooley LLP 10265 Science Center Dr, San Diego, CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com
This opinion is limited to the matters expressly set forth in this letter, and no opinion has been or should be 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 have 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 law that may hereafter occur.
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.
Sincerely,
Cooley LLP
By: /s/ STEVEN M. PRZESMICKI
Steven M. Przesmicki
Cooley LLP 10265 Science Center Dr, San Diego, CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com
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 Dynavax Technologies Corporation 2018 Equity Incentive Plan of our reports dated February 22, 2024, with respect to the consolidated financial statements of Dynavax Technologies Corporation and the effectiveness of internal control over financial reporting of Dynavax Technologies Corporation, included in its Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Francisco, California
August 6, 2024
Exhibit 107
Calculation of Filing Fee Table
Form
(Form Type)
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
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Security Type |
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Security Class Title |
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Fee Calculation Rule |
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Amount Registered(1) |
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Proposed Maximum Offering Price Per Unit |
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Proposed Maximum Aggregate Offering Price |
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Fee Rate |
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Amount of Registration Fee |
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$ |
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$ |
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$ |
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Total Offering Amounts |
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$ |
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$ |
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Total Fees Previously Paid |
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Total Fee Offsets |
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Net Fee Due |
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$ |
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(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Dynavax Technologies Corporation’s (the “Registrant”) common stock, par value $0.001 per share (the “Common Stock”), that become issuable under the Dynavax Technologies Corporation 2018 Equity Incentive Plan (as amended from time to time, the “2018 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock.
(2)