PASG Passage Bio Inc

 

As filed with the Securities and Exchange Commission on March 4, 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

 

PASSAGE BIO, INC.
(Exact name of Registrant as specified in its charter)

 

Delaware (State or other jurisdiction of incorporation or organization)

82-2729751 (I.R.S. Employer Identification Number)

 

One Commerce Square
2005 Market Street, 39th Floor
Philadelphia, Pennsylvania, 19103
(Address of Principal Executive Offices) (Zip Code)

 

2020 Equity Incentive Plan
(Full title of the plans)

 

William Chou, M.D.

Chief Executive Officer

Passage Bio, Inc.

One Commerce Square

2005 Market Street, 39th Floor

Philadelphia, PA 19103
(Name and Address of Agent for Service)

 

(267) 866-0311
(Telephone number, including area code, of agent for service)

 

Please send copies of all communications to:

Effie Toshav, Esq.

Robert A. Freedman, Esq.

Ryan Mitteness, Esq.

Fenwick & West LLP

401 Union Street, 5th Floor

Seattle, Washington 98101

(206) 389-4510

 

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	x	Smaller reporting company	x
		Emerging growth company	x

 

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. ¨

 

 

 

REGISTRATION OF ADDITIONAL SHARES
PURSUANT TO GENERAL INSTRUCTION E

 

Passage Bio, Inc. (the “Registrant”) is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register 2,747,206 additional shares of common stock available for issuance under the Registrant’s 2020 Equity Incentive Plan (the “2020 EIP”), pursuant to the provision of the 2020 EIP providing for an annual 5% automatic increase in the number of shares reserved for issuance.

 

In accordance with General Instruction E of Form S-8, and only with respect to the common stock issuable under the 2020 EIP, this Registration Statement hereby incorporates by reference the contents of the Registrant’s Registration Statements on Form S-8 filed with the Commission on February 27, 2020 (Registration No. 333-236734), March 5, 2021 (Registration No. 333-253922), March 3, 2022 (Registration No. 333-263252), and March 6, 2023 (Registration No. 333-270293) to the extent not superseded hereby.

 

 

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 pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

 

(a)

the Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 4, 2024 pursuant to Section 13 of the Exchange Act;

 

(b)

all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report on Form 10-K referred to in (a) above; and

 

(c)

the description of the Registrant’s common stock contained in the Registrant’s registration statement on Form 8-A (File No. 001-39231) filed with the Commission on February 18, 2020 under Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.

 

All documents and definitive proxy or information statements filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing 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 into this Registration Statement and to be a part hereof from the date of filing such documents, except as to documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission. Unless expressly incorporated into this Registration Statement, a report deemed to be furnished but not filed on Form 8-K prior or subsequent to the date hereof shall not be 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 in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.

 

 

Item 8. Exhibits

 

The following exhibits are filed herewith:

 

		Incorporated by Reference				Filed Herewith
Exhibit Number	Exhibit Description	Form	File No.	Exhibit	Filing Date
4.1	Restated Certificate of Incorporation, dated May 30, 2023	10-Q	001-39231	3.1	August 7, 2023
4.2	Amended and Restated Bylaws, dated December 1, 2022	8-K	001-39231	3.1	December 2, 2022
4.3	Form of Registrant’s Common Stock certificate	S-1/A	333-236214	4.1	February 18, 2020
5.1	Opinion of Fenwick & West LLP					X
23.1	Consent of Fenwick & West LLP (contained in Exhibit 5.1)					X
23.2	Consent of Independent Registered Public Accounting Firm					X
24.1	Power of Attorney (including on the signature page to this Registration Statement)					X
99.2	2020 Equity Incentive Plan and forms of award agreements thereunder	S-1/A	333-236214	10.3	February 18, 2020
107.1	Calculation of Registration Fees					X

 

 

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 Philadelphia, Commonwealth of Pennsylvania, on this 4^th day of March, 2024.

 

	PASSAGE BIO, INC.
	By:	/s/ WILLIAM CHOU
		William Chou M.D.
		Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints William Chou, M.D., Kathleen Borthwick and Edgar B. Cale, and each of them, as his or her true and lawful attorney-in-fact and agent with the full power of substitution, for him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, 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 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 might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her 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 has been signed by the following persons on behalf of the Registrant in the capacities and on the date indicated.

 

Name	Title	Date
/s/ WILLIAM CHOU	Chief Executive Officer and Director	March 4, 2024
William Chou, M.D.	(Principal Executive Officer)
/s/ KATHLEEN BORTHWICK	Chief Financial Officer	March 4, 2024
Kathleen Borthwick	(Principal Accounting and Financial Officer)
/s/ MAXINE GOWEN	Chair of the Board of Directors	March 4, 2024
Maxine Gowen, Ph.D.
/s/ ATHENA COUNTOURIOTIS	Director	March 4, 2024
Athena Countouriotis, M.D.
/s/ SAQIB ISLAM	Director	March 4, 2024
Saqib Islam
/s/ SANDIP KAPADIA	Director	March 4, 2024
Sandip Kapadia
/s/ DERRELL PORTER	Director	March 4, 2024
Derrell Porter, M.D.
/s/ DOLAN SONDHI	Director	March 4, 2024
Dolan Sondhi, Ph.D.

 

 

 

Exhibit 5.1

 

 

March 4, 2024

 

Passage Bio, Inc.

2005 Market Street, 39^th Floor

Philadelphia, Pennsylvania, 19103

 

Re: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

As counsel to Passage Bio, Inc., a Delaware corporation (the “Company”), we have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission (the “Commission”) on or about March 4, 2024 in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 2,747,206 shares (the “Shares”) of the Company’s Common Stock, $0.0001 par value per share, subject to issuance by the Company upon the exercise or settlement of awards granted or to be granted under the Company’s 2020 Equity Incentive Plan (the “Plan”).

 

As to matters of fact relevant to the opinions rendered herein, we have examined such documents, certificates and other instruments which we have deemed necessary or advisable, including a certificate addressed to us and dated the date hereof executed by the Company. We have not undertaken any independent investigation to verify the accuracy of any such information, representations or warranties or to determine the existence or absence of any fact, and no inference as to our knowledge of the existence or absence of any fact should be drawn from our representation of the Company or the rendering of the opinion set forth below. We have not considered parol evidence in connection with any of the agreements or instruments reviewed by us in connection with this letter.

 

In our examination of documents for purposes of this letter, we have assumed, and express no opinion as to, the genuineness and authenticity of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, that each document is what it purports to be, the conformity to originals of all documents submitted to us as copies or facsimile copies, the absence of any termination, modification or waiver of or amendment to any document reviewed by us (other than as has been disclosed to us), the legal competence or capacity of all persons or entities (other than the Company) executing the same and (other than the Company) the due authorization, execution and delivery of all documents by each party thereto. We have also assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies submitted for our examination.

 

 

The opinions in this letter are limited to the existing General Corporation Law of the State of Delaware now in effect. We express no opinion with respect to any other laws.

 

Based upon, and subject to, the foregoing, it is our opinion that the Shares, when issued and sold by the Company in accordance with the terms (including, without limitation, payment and authorization provisions) of the Plan and the applicable form of award agreement thereunder, against the Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share), and duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, will be validly issued, fully paid and non-assessable.

 

We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the prospectuses constituting a part thereof and any amendments thereto. We do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

This opinion is intended solely for your use in connection with the issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose. In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion shall be inferred as to any other matter or matters. This opinion is rendered on, and speaks only as of, the date of this letter first written above, and does not address any potential change in facts or law that may occur after the date of this opinion letter. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention, whether or not such occurrence would affect or modify any of the opinions expressed herein.

 

	Very truly yours,
	/s/ Fenwick & West llp
	FENWICK & WEST LLP

 

 

 

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the use of our report dated March 4, 2024, with respect to the financial statements of Passage Bio, Inc., incorporated herein by reference.

 

/s/ KPMG LLP

 

Philadelphia, Pennsylvania

March 4, 2024

 

 

 

Exhibit 107

 

Calculation Of Filing Fee Tables

 

Form S-8
(Form Type)

 

Passage Bio, Inc.

(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 stock, par value $0.0001 per share	Rule 457(c) and Rule 457(h)	2,747,206 (2)	$1.54(3)	$4,230,697.24	$0.00014760	$624.46
Total Offering Amounts							$624.46
Total Fee Offsets							-
Net Fee Due							$624.46

 

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.

(2)

Represents 2,747,206 additional shares of common stock reserved for issuance under the Registrant’s 2020 Equity Incentive Plan.

(3)

Estimated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of $1.54, the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq Stock Market on February 28, 2024.

 

 

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