Securities Registration: Employee Benefit Plan (s-8)
01 October 2022 - 6:07AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on September 30, 2022
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
moonlake
IMMUNOTHERAPEUTICs
(Exact
name of registrant as specified in its charter)
Cayman
Islands |
|
N/A |
(State
or Other Jurisdiction of
Incorporation or Organization) |
|
(I.R.S.
Employer Identification No.) |
Dorfstrasse
29
6300
Zug
Switzerland
41
415108022
(Address
of Principal Executive Offices, Zip Code)
MoonLake
Immunotherapeutics 2022 Equity Incentive Plan
(Full title of the plans)
Walkers
Corporate Limited
190
Elgin Avenue
George
Town, Grand Cayman
KY1-9008,
Cayman Islands
+1
(302) 338-9130
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Nicolas
Mosimann
Emanuel
Dettwiler
Kellerhals
Carrard Basel KIG
Henric
Petri-Strasse 35
P.O.
Box 257
CH-4010
Basel, Switzerland
+41
58 200 30 00 |
Sean
Feller
Gibson,
Dunn & Crutcher LLP
2029
Century Park East
Los
Angeles, CA 90067-3026
(310)
551 - 8746 |
Bicrom
Das
Walkers
(Cayman) LLP
190
Elgin Avenue
George
Town, Grand Cayman
KYI-9001
Cayman
Islands
+1
345 949 0100 |
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. ☐
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information*
Not required
to be filed with this registration statement.
Item
2. Registrant Information and Employee Plan Annual Information*
Not required
to be filed with this registration statement.
| * | Documents
containing the information specified in Part I of Form S-8 have been and/or will be sent
or given to employees as specified by Rule 428(b)(1) of the Securities Act. In accordance
with the instructions of Part I of Form S-8, such documents will not be filed with the Commission
either as part of this Registration Statement on Form S-8 (the “Registration Statement”)
or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
These documents and the documents incorporated by reference pursuant to Item 3 of Part II
of this Registration Statement, taken together, constitute the prospectus as required by
Section 10(a) of the Securities Act. |
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The
following documents filed by MoonLake Immunotherapeutics (the “Registrant”) with the Securities and Exchange Commission (the
“Commission”) are incorporated by reference herein and shall be deemed to be a part hereof:
| ● | the
Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on February 17, 2022; |
| ● | the
Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2022 and June 30, 2022 and filed on May 16, 2022 and August 12, 2022, respectively; |
| ● | the
Current Reports on Form 8-K filed on February 25, 2022, March 24, 2022, March 31, 2022, April 11, 2022 (as amended on Form 8-K/A filed on May 16, 2022), and June 17, 2022; |
| ● | The
description of the Registrant’s Common Stock contained in the Registrant’s Registration
Statement on Form 8-A (File No. 001-39630) filed with the Commission on October 19, 2020,
pursuant to Rule 12g-3 promulgated under the Exchange Act, as updated by Exhibit 4.5 to the
Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed on February 17, 2022, including any amendment or report filed for the purpose of updating such description. |
In
addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that all securities being offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the dates of filing
of such 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 other
subsequently filed document that 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.
Item 4.
Description of Securities.
Not
applicable.
Item 5.
Interests of Named Experts and Counsel.
Not
applicable.
Item 6.
Indemnification of Directors and Officers.
The
Registrant is incorporated in the Cayman Islands. Cayman Islands law does not limit the extent to which a company’s memorandum
and articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be
held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against willful default, willful
neglect, civil fraud or the consequences of committing a crime. The MAA provides for indemnification of the Registrant’s officers
and directors to the maximum extent permitted by law, including for any liability incurred in their capacities as such, except through
their own actual fraud, willful default or willful neglect. The Registrant purchased a policy of directors’ and officers’
liability insurance that insures the Registrant’s officers and directors against the cost of defense, settlement or payment of
a judgment in some circumstances and insures the Registrant against their obligations to indemnify their officers and directors.
The
Registrant has entered into indemnification agreements with each of their directors and executive officers that obligate the Registrant
to indemnify, hold harmless, exonerate, and to advance expenses as incurred, to the fullest extent permitted under applicable law, from
damage arising from the fact that such person is or was an officer or director of MoonLake Immunotherapeutics or its subsidiaries.
The
indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire
under any statute, the Registrant’s amended and restated certificate of incorporation, the Registrant’s amended and restated
bylaws, any agreement, any vote of shareholders or disinterested directors or otherwise.
The
Registrant’s indemnification obligations may discourage shareholders from bringing a lawsuit against its officers or directors
for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against
the Registrant’s officers and directors, even though such an action, if successful, might otherwise benefit the Registrant and
its shareholders. Furthermore, a shareholder’s investment may be adversely affected to the extent the Registrant pays the costs
of settlement and damage awards against its officers and directors pursuant to these indemnification provisions. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers, or control persons, in the opinion of the SEC,
such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7.
Exemption from Registration Claimed.
Not
applicable.
Item 8.
Exhibits.
Exhibit No. |
| Exhibit Description |
|
| |
3.1 |
| Memorandum and Articles of Association of MoonLake Immunotherapeutics (incorporated by reference to Exhibit 3.1 of the Company’s Form 8-K, filed with the SEC on April 11, 2022). |
4.1 |
| Investment Agreement, dated as of October 4, 2021, by and among Helix Acquisition Corp., MoonLake Immunotherapeutics AG and the existing shareholders and option rights holders of MoonLake Immunotherapeutics AG (incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K, filed with the SEC on October 4, 2021). |
4.2 |
| Amended and Restated Shareholders’ Agreement, dated as of April 5, 2022, by and among MoonLake Immunotherapeutics, MoonLake Immunotherapeutics AG and the investors signatory thereto (incorporated by reference to Exhibit 10.2 of the Company’s Form 8-K, filed with the SEC on April 11, 2022). |
4.3 |
| Amended and Restated Registration Rights Agreement, dated as of April 5, 2022, by and among MoonLake Immunotherapeutics, Helix Holdings LLC and the holders signatory thereto (incorporated by reference to Exhibit 10.5 of the Company’s Form 8-K, filed with the SEC on April 11, 2022). |
5.1* |
| Opinion of Walkers (Cayman) LLP |
10.1 |
| MoonLake Immunotherapeutics 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.8 of the Company’s Form 8-K, filed with the SEC on April 11, 2022). |
10.2 |
| Employee Stock Option Plan of MoonLake Immunotherapeutics AG, dated July 23, 2021 (incorporated by reference to Exhibit 10.25 of the Company’s Form S-1/A, filed with the SEC on March 8, 2022). |
10.3 |
| Employee Stock Option Plan of MoonLake Immunotherapeutics AG, dated December 14, 2021 (incorporated by reference to Exhibit 10.27 of the Company’s Form S-1/A, filed with the SEC on March 8, 2022). |
10.4* |
| Employee Stock Option Plan of MoonLake Immunotherapeutics AG, dated June 22, 2022. |
10.5 |
| Employee Share Participation Plan of MoonLake Immunotherapeutics AG, dated July 23, 2021 (incorporated by reference to Exhibit 10.24 of the Company’s Form S-1/A, filed with the SEC on March 8, 2022). |
10.6 |
| Employee Share Participation Plan of MoonLake Immunotherapeutics AG, dated December 14, 2021 (incorporated by reference to Exhibit 10.26 of the Company’s Form S-1/A, filed with the SEC on March 8, 2022). |
10.7* |
| Employee Share Participation Plan of MoonLake Immunotherapeutics AG, dated June 22, 2022. |
23.1* |
| Consent of Walkers (Cayman) LLP (included in Exhibit 5.1). |
23.2* |
| Consent of WithumSmith+Brown, PC. |
23.3* |
| Consent of Baker Tilly US, LLP. |
107.1* |
| Filing Fee Table. |
Item
9. Undertakings.
(a) The undersigned
Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
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 Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement;
(2)
That, 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; and
(3)
To 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.
(b) The undersigned
Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s 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.
(c) 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, 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 Zug, Switzerland, on 30th of September, 2022.
|
MOONLAKE IMMUNOTHERAPEUTICS, INC. |
|
|
|
|
By: |
/s/ Matthias
Bodenstedt |
|
Name: |
Matthias Bodenstedt |
|
Title: |
Chief Financial Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Dr. Jorge Santos da
Silva and Matthias Bodenstedt, and each of them severally, as his or her true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution for him or her and in his or her name, place, and stead in any and all capacities to sign any and
all amendments (including post-effective amendments and amendments filed pursuant to Rule 462(b) under the Securities Act of 1933) to
this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact and agents, 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 of his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
and on the date indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Dr.
Jorge Santos da Silva |
|
|
|
|
Dr. Jorge Santos da Silva |
|
Chief Executive Officer;
Director |
|
September
30, 2022 |
|
|
(Principal Executive
Officer) |
|
|
|
|
|
|
|
/s/ Matthias
Bodenstedt |
|
Chief Financial Officer |
|
|
Matthias Bodenstedt |
|
(Principal Financial and Accounting Officer) |
|
September
30, 2022 |
|
|
|
|
|
/s/ Simon
Sturge |
|
|
|
|
Simon Sturge |
|
Chairperson; Director |
|
September
30, 2022 |
|
|
|
|
|
/s/ Dr.
Kara Lassen |
|
|
|
|
Dr. Kara Lassen |
|
Director |
|
September
30, 2022 |
|
|
|
|
|
/s/ Spike
Loy |
|
|
|
|
Spike Loy |
|
Director |
|
September
30, 2022 |
|
|
|
|
|
/s/ Catherine
Moukheibir |
|
|
|
|
Catherine Moukheibir |
|
Director |
|
September
30, 2022 |
|
|
|
|
|
/s/ Dr.
Andrew Phillips |
|
|
|
|
Dr. Andrew Phillips |
|
Director |
|
September
30, 2022 |
|
|
|
|
|
/s/ Dr.
Ramnik Xavier |
|
|
|
|
Dr. Ramnik Xavier |
|
Director |
|
September
30, 2022 |
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements
of Section 6(a) of the Securities Act of 1933, the undersigned has signed this Registration Statement, solely in its capacity as the duly
authorized representative of MoonLake Immunotherapeutics, in San Francisco, California on the 30th day of September 2022.
|
MOONLAKE IMMUNOTHERAPEUTICS |
|
|
|
By: |
/s/
Spike Loy |
|
Name: |
Spike Loy |
|
Title: |
Director |
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