As filed with the Securities and Exchange Commission on August 7, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FibroGen, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
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77-0357827 |
(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
409 Illinois St.
San Francisco, CA 94158
(415) 978-1200
(Address of principal executive offices)
2014 Equity Incentive Plan
2014 Employee Stock Purchase Plan
(Full titles of the plans)
Thane Wettig
Interim Chief Executive Officer
FibroGen, Inc.
409 Illinois Street
San Francisco, CA 94158
(415) 978-1200
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Nancy Wojtas
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94304
(650) 843-5000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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☐ |
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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. ☐
EXPLANATORY NOTE
FibroGen, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 for the purpose of registering (a) an additional 3,766,643 shares of its common stock, par value $0.01 per share (the “Common Stock”), issuable to eligible persons under the Registrant’s 2014 Equity Incentive Plan (“2014 EIP”), and (b) an additional 941,660 shares of its Common Stock, issuable to eligible persons under the Registrant’s 2014 Employee Stock Purchase Plan (“2014 ESPP”), in each case which Common Stock is in addition to the shares of Common Stock registered on the Registrant’s Forms S-8 filed with the Securities and Exchange Commission (the “Commission”) filed on November 18, 2014 (File No. 333-200348), September 27, 2016 (File No. 333-213816), March 1, 2017 (File No. 333-216369), August 9, 2019 (File No. 333-233204), August 9, 2021 (File No. 333-258655), and August 8, 2022 (File No. 333-266667) (the “Prior Registration Statements”).
INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENT ON FORM S-8
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 fiscal year ended December 31, 2022, filed on February 27, 2023 (the “2022 Form 10-K”); |
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The information specifically incorporated by reference into the 2022 Form 10-K from the Registrant’s definitive proxy statement on Schedule 14A, filed with the Commission on April 27, 2023 and the Supplement thereto on Schedule 14A filed with the Commission on May 31, 2023; |
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The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2023 filed with the Commission on May 8, 2023; |
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The Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2023 filed with the Commission on August 7, 2023; |
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The Registrant’s Current Reports on Form 8-K, filed with the Commission on May 1, 2023, May 18, 2023, June 7, 2023, June 9, 2023, June 26, 2023, July 19, 2023 and July 25, 2023; and |
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The description of the Registrant’s Common Stock contained in the Registrant’s registration statement on Form 8-A filed with the Commission on November 12, 2014, including any amendments or reports filed for the purpose of updating such description, including Exhibit 4.4 to our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on March 2, 2020. |
Pursuant to General Instruction E to Form S-8, the contents of the Prior Registration Statements are incorporated herein by reference and made a part hereof.
All other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (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) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered 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 the filing of such reports and 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 subsequently filed document that 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 8. |
EXHIBITS |
(1) |
Previously filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-36740), filed with the Securities and Exchange Commission (the “Commission”) on November 21, 2014, and incorporated by reference herein. |
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(2) |
Previously filed as Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-199069), filed with the Commission on October 23, 2014, and incorporated by reference herein. |
(3) |
Previously filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File No. 001-36740), filed with the Commission on November 21, 2014, and incorporated by reference herein. |
(4) |
Previously filed as Exhibit 10.4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-199069), filed with the Commission on November 12, 2014, and incorporated by reference herein. |
(5) |
Previously filed as Exhibit 10.5 to the Registrant’s Registration Statement on Form S-1 (File No. 333-199069), filed with the Commission on November 12, 2014, and incorporated by reference herein. |
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 San Francisco, State of California, on this 7th day of August, 2023.
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FIBROGEN, INC. |
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By: |
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/s/ Thane Wettig |
Name: |
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Thane Wettig |
Title: |
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Interim Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Thane Wettig and Juan Graham, jointly and 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) 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 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 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 their or his substitutes or 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 in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Thane Wettig Thane Wettig |
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Interim Chief Executive Officer (Principal Executive Officer) |
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August 7, 2023 |
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/s/ Juan Graham Juan Graham |
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Senior Vice President, Finance and Chief Financial Officer (Principal Financial and Accounting Officer) |
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August 7, 2023 |
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/s/ James A. Schoeneck James A. Schoeneck |
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Chairman of the Board and Director |
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August 7, 2023 |
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/s/ Suzanne Blaug Suzanne Blaug |
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Director |
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August 7, 2023 |
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/s/ Aoife Brennan Aoife Brennan, M.B., B.Ch. |
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Director |
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August 7, 2023 |
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/s/ Benjamin F. Cravatt Benjamin F. Cravatt, Ph.D. |
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Director |
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August 7, 2023 |
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/s/ Jeffrey L. Edwards Jeffrey L. Edwards |
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Director |
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August 7, 2023 |
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/s/ Jeffrey W. Henderson Jeffrey W. Henderson |
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Director |
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August 7, 2023 |
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/s/ Maykin Ho Maykin Ho, Ph.D. |
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Director |
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August 7, 2023 |
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/s/ Gerald Lema Gerald Lema |
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Director |
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August 7, 2023 |
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John T. McKenna
T: +1 650 843 5059
jmckenna@cooley.com
August 7, 2023
FibroGen, Inc.
409 Illinois Street
San Francisco, CA 94158
Ladies and Gentlemen:
We have acted as counsel to FibroGen, Inc., a Delaware corporation (the “Company”) in connection with the filing of a Registration Statement on Form S-8 (the “Registration Statement”) with the U.S. Securities and Exchange Commission (the “Commission”) covering the offering of up to 4,708,303 shares (the “Shares”) of the Company’s Common Stock, par value $0.01 per share (“Common Stock”), including (a) 3,766,643 shares of Common Stock issuable pursuant to the Company’s 2014 Equity Incentive Plan (the “2014 Plan”) and (b) 941,660 shares of Common Stock issuable pursuant to the Company’s 2014 Employee Stock Purchase Plan (together with the 2014 Plan, the “Plans”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Plans, (c) the Company’s certificate of incorporation and bylaws, each as currently in effect and (d) such other records, documents, certificates, memoranda and other 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 by 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 Plans, and the Registration Statement and related prospectus, 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).
This opinion is limited to the matters expressly set forth in this letter, and no opinion 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 undertake no obligation or responsibility to update or supplement this letter to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
Cooley LLP 3175 Hanover Street Palo Alto, CA 94304-1130
t: (650) 843-5000 f: (650) 849-7400 cooley.com
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Page Two
August 7, 2023
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 Securities Exchange Commission thereunder.
Very truly yours,
Cooley LLP
By: /s/ John T. McKenna
John T. McKenna
Cooley LLP 3175 Hanover Street Palo Alto, CA 94304-1130
t: (650) 843-5000 f: (650) 849-7400 cooley.com
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of FibroGen, Inc. of our report dated February 27, 2023 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in FibroGen, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2022.
/s/ PricewaterhouseCoopers LLP
San Jose, California
August 7, 2023
Exhibit 107
Calculation of Filing Fee Table
Form S-8 (Form Type)
FibroGen, 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 Share |
Proposed Maximum Aggregate Offering Price
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Fee Rate |
Amount of Registration Fee |
Equity |
2014 Equity Incentive Plan Common Stock, $0.01 par value per share |
457(c) and 457(h)(2) |
3,766,643 (3) |
$1.8875 (2) |
$7,109,538.66 |
.00011020 |
$783.47 |
Equity |
2014 Employee Stock Purchase Plan Common Stock, $0.01 par value per share |
457(c) and 457(h)(4) |
941,660(5) |
$1.6044 (4) |
$1,510,775.76 |
.00011020 |
$166.49 |
Total Offering Amounts |
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$8,620,314.43 |
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$949.96 |
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Total Fees Previously Paid |
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— |
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Total Fee Offsets |
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—(6) |
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Net Fee Due |
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$949.96 |
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