Form S-8 Viking Therapeutics,

March 13, 2019 6:56 PM

 

As filed with the Securities and Exchange Commission on March 13, 2019

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

Viking Therapeutics, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware

 

46-1073877

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

12340 El Camino Real, Suite 250

San Diego, CA 92130

(Address of Principal Executive Offices)  (Zip Code)

 

 

2014 Equity Incentive Plan

2014 Employee Stock Purchase Plan, as amended

(Full titles of the plans)

 

Brian Lian, Ph.D.

President and Chief Executive Officer

Viking Therapeutics, Inc.

12340 El Camino Real, Suite 250

San Diego, CA 92130

(858) 704-4660

(Name, address and telephone number, including area code, of agent for service)

 

 

Copies to:

Jeffrey T. Hartlin, Esq.

Paul Hastings LLP

1117 S. California Avenue

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.

   

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered

Amount to be registered (1)

Proposed maximum

offering

price per share (2)

Proposed maximum

aggregate

offering price (2)

Amount of

registration fee

Common Stock, par value $0.00001 per share

 

 

 

 

-  Issuable under the 2014 Equity Incentive Plan

2,510,971(3)

$7.74

$19,434,915.54

$2,355.51

-  Issuable under the 2014 Employee Stock Purchase Plan, as amended

717,420(4)

$7.74

$5,552,830.80

$673.00

Total

3,228,391

$24,987,746.34

$3,028.51

 

(1)

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 Registrant’s Common Stock (“Common Stock”) that become issuable under the Viking Therapeutics, Inc. 2014 Equity Incentive Plan (the “2014 Plan”) and the Viking Therapeutics, Inc. 2014 Employee Stock Purchase Plan, as amended (the “2014 ESPP”), by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock.

(2)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) of the Securities Act.  The proposed maximum offering price per share and the proposed maximum aggregate offering price with respect to the shares are calculated based on $7.74 per share, the average of the high and low prices of the Common Stock, as reported on the Nasdaq Capital Market on March 11, 2019, a date within five business days prior to the filing of this Registration Statement.

(3)

Represents shares of Common Stock that were automatically added to the shares reserved for issuance under the 2014 Plan on January 1, 2019. The 2014 Plan provides that an additional number of shares will automatically be added annually to the shares authorized for issuance under the 2014 Plan on January 1st of each year commencing on January 1, 2016 and ending on (and including) January 1, 2024. The number of shares added each year will be equal to 3.5% of the total number of shares of Common Stock outstanding on December 31st of the preceding calendar year.

(4)

Represents shares of Common Stock that were automatically added to the shares reserved for issuance under the 2014 ESPP on January 1, 2019. The 2014 ESPP provides that an additional number of shares will automatically be added annually to the shares authorized for issuance under the 2014 ESPP on January 1st of each year commencing on January 1, 2016 and ending on (and including) January 1, 2024. The number of shares added each year will be equal to 1% of the total number of shares of Common Stock outstanding on December 31st of the preceding calendar year.


 


 

REGISTRATION OF ADDITIONAL SECURITIES

The Registrant has prepared this registration statement (this “Registration Statement”) in accordance with the requirements of Form S-8 under the Securities Act to register: (1) 2,510,971 additional shares of Common Stock issuable pursuant to the 2014 Plan, and (2) 717,420 additional shares of Common Stock issuable pursuant to the 2014 ESPP. The 2014 Plan and the 2014 ESPP, including the shares of Common Stock available for issuance pursuant thereto, have each been previously approved by the Registrant’s stockholders.

Pursuant to the Registration Statements on Form S-8 (File Nos. 333-203810, 333-211270, 333-216857 and 333-223503) filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on May 1, 2015, May 10, 2016, March 21, 2017 and March 7, 2018 (the “Prior Registration Statements”), the Registrant previously registered an aggregate of 3,849,133 shares of Common Stock under the 2014 Plan and an aggregate of 1,121,577 shares of Common Stock under the 2014 ESPP.

In accordance with General Instruction E to Form S-8, the contents of the Prior Registration Statements are hereby incorporated by reference.

 

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 hereby incorporated by reference into this Registration Statement:  

 

 

(a)

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018 filed with the Commission on March 13, 2019; [and]

 

(b)

The description of the Registrant’s common stock set forth in the Registration Statement on Form 8-A filed with the Commission on April 23, 2015 (File No. 001-37355) pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description.

All other reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act 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 of this Registration Statement from the date of the filing of such reports and documents, except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under Items 2.02 or 7.01 of Form 8-K that is not deemed filed under such provisions.

For the purposes of 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 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.

You should rely only on the information provided or incorporated by reference in this Registration Statement or any related prospectus. The Registrant has not authorized anyone to provide you with different information. You should not assume that the information in this Registration Statement or any related prospectus is accurate as of any date other than the date on the front of the document.

 

You may contact the Registrant in writing or orally to request copies of the above-referenced filings, without charge (excluding exhibits to such documents unless such exhibits are specifically incorporated by reference into the information incorporated into this Registration Statement). Requests for such information should be directed to:

Viking Therapeutics, Inc.

12340 El Camino Real, Suite 250

 


 

San Diego, CA 92130

(858) 704-4660

Attn: Chief Executive Officer

ITEM 8. EXHIBITS.

 

Exhibit Number

 

  Description

 

 

 

3.1

 

Amended and Restated Certificate of Incorporation (previously filed on July 1, 2014 as Exhibit 3.3 to the Registrant’s Registration Statement on Form S-1 (File No. 333-197182) and incorporated herein by reference).

 

 

 

3.2

 

Amended and Restated Bylaws (previously filed on July 1, 2014 as Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-197182) and incorporated herein by reference).

 

 

 

4.1

 

Form of Common Stock Certificate (previously filed on July 1, 2014 as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-197182) and incorporated herein by reference).

 

 

 

4.2

 

2014 Equity Incentive Plan (previously filed on March 2, 2015 as Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-197182) and incorporated herein by reference).

 

 

 

4.3

 

Form of Stock Option Award Agreement (2014 Equity Incentive Plan) (previously filed on July 1, 2014 as Exhibit 10.3 to the Registrant’s Registration Statement on Form S-1 (File No. 333-197182) and incorporated herein by reference).

 

 

 

4.4

 

Form of Restricted Stock Unit Award Agreement (2014 Equity Incentive Plan) (previously filed on July 1, 2014 as Exhibit 10.4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-197182) and incorporated herein by reference).

 

 

 

4.5

 

Form of Stock Appreciation Rights Award Agreement (2014 Equity Incentive Plan) (previously filed on July 1, 2014 as Exhibit 10.5 to the Registrant’s Registration Statement on Form S-1 (File No. 333-197182) and incorporated herein by reference).

 

 

 

4.6

 

Form of Restricted Stock Award Agreement (2014 Equity Incentive Plan) (previously filed on September 2, 2014 as Exhibit 10.23 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-197182) and incorporated herein by reference).

 

 

 

4.7

 

2014 Employee Stock Purchase Plan (previously filed on March 2, 2015 as Exhibit 10.22 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-197182) and incorporated herein by reference).

 

 

 

4.8

 

Amendment No. 1 to 2014 Employee Stock Purchase Plan (previously filed on November 24, 2015 as Exhibit 10.8 to the Registrant’s Registration Statement on Form S-1 (File No. 333-208182) and incorporated herein by reference).

 

 

 

4.9

 

Form of Warrant Agreement, including Form of Warrant Certificate to be issued by Viking Therapeutics, Inc. to the Investors (previously filed on April 1, 2016 as Exhibit 4.3 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-208182) and incorporated herein by reference).

 

 

 

4.10

 

Warrant to Purchase Common Stock, dated April 13, 2016, issued by Viking Therapeutics, Inc. to Ligand Pharmaceuticals Incorporated (previously filed on April 14, 2016 as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K and incorporated herein by reference).

 

 

 

 


 

4.11

 

Form of Common Stock Purchase Warrant issued by Viking Therapeutics, Inc. to purchasers in the June 2017 offering (previously filed on June 19, 2017 as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K and incorporated herein by reference).

 

 

 

5.1

 

Opinion of Paul Hastings LLP.

 

 

 

23.1

 

Consent of Marcum LLP, Independent Registered Public Accounting Firm.

 

 

 

23.2

 

Consent of Paul Hastings LLP is contained in Exhibit 5.1 to this Registration Statement.

 

 

 

24.1

 

Power of Attorney is contained on the signature page.

 

 

 

 


 

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 the City of San Diego, State of California, on March 13, 2019.

 

 

Viking Therapeutics, Inc.

 

 

 

 

 

By:

/s/ Brian Lian, Ph.D.

 

Name:

Brian Lian, Ph.D.

 

Title:

President and Chief Executive Officer

 

 

 

POWER OF ATTORNEY

 

Know All Persons By These Presents, that each person whose signature appears below constitutes and appoints Brian Lian, Ph.D. and Michael Morneau, and each or any one of them, as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his 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 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 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, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

SIGNATURE

 

TITLE

 

DATE

 

 

 

 

 

/s/ Brian Lian, Ph.D.

 

 

 

 

Brian Lian, Ph.D.

 

President, Chief Executive Officer and Director

 

March 13, 2019

 

 

(Principal Executive Officer)

 

 

/s/ Michael Morneau

 

 

 

 

Michael Morneau

 

Vice President, Finance and Administration

 

March 13, 2019

 

 

(Principal Financial and Accounting Officer)

 

 

/s/ Matthew W. Foehr

 

 

 

 

Matthew W. Foehr

 

Director

 

March 13, 2019

 

 

 

 

 

/s/ Lawson Macartney, DVM, Ph.D.

 

 

 

 

Lawson Macartney, DVM, Ph.D.

 

Director

 

March 13, 2019

 

 

 

 

 

/s/ Charles A. Rowland Jr.

 

 

 

 

Charles A. Rowland Jr.

 

Director

 

March 13, 2019

 

 

 

 

 

/s/ J. Matthew Singleton

 

 

 

 

J. Matthew Singleton

 

Director

 

March 13, 2019

 

 

 

 

 

/s/ Stephen W. Webster

 

 

 

 

Stephen W. Webster

 

Director

 

March 13, 2019

 

 

 

 

 

 

 

 

Exhibit 5.1

 

 

March 13, 2019

79891.00006

 

Viking Therapeutics, Inc.

12340 El Camino Real, Suite 250

San Diego, CA 92130

Re:

Registration Statement on Form S-8

 

Ladies and Gentlemen:

We have acted as counsel to Viking Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the registration statement on Form S-8 to be filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) on or about the date hereof (the “Registration Statement”) to effect registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 3,228,391 shares (the “Shares”) of the Company’s common stock, $0.00001 par value per share (“Common Stock”), comprised of: (i) 2,510,971 shares of Common Stock issuable upon the vesting and exercise of awards to be granted by the Company pursuant to the Company’s 2014 Equity Incentive Plan (the “Equity Plan”); and (ii) 717,420 shares of Common Stock issuable upon the exercise of purchase rights to be granted by the Company pursuant to the Company’s 2014 Employee Stock Purchase Plan, as amended by that certain Amendment No. 1 to 2014 Employee Stock Purchase Plan (the “ESPP” and, together with the Equity Plan, the “Plans”).  

 

As such counsel and for purposes of our opinion set forth below, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such documents, resolutions, certificates and instruments of the Company and corporate records furnished to us by the Company, and have reviewed certificates of public officials, statutes, records and such other instruments and documents as we have deemed necessary or appropriate as a basis for the opinion set forth below, including, without limitation:

 

 

(i)

the Registration Statement;

 

(ii)

the Amended and Restated Certificate of Incorporation of the Company, as certified by the Office of the Secretary of State of the State of Delaware on March 13, 2019;

 

(iii)

the Amended and Restated Bylaws of the Company as presently in effect, as certified by an officer of the Company on March 13, 2019;

 

(iv)

the Equity Plan and the forms of award agreements related thereto that were attached as exhibits to the Registration Statement or otherwise incorporated by reference into the exhibits of the Registration Statement;

 

(v)

the ESPP and the forms of instrument evidencing purchase rights related thereto;

 

(vi)

a certificate, dated as of March 13, 2019, from the Office of the Secretary of State of the State of Delaware, as to the existence and good standing of the Company in the State of Delaware (the “Good Standing Certificate”); and

 


 

Paul Hastings LLP  I  1117 S. California Avenue I  Palo Alto, California 94304

T: + 1.650.320.1800  I  www.paulhastings.com

 


 

Viking Therapeutics, Inc.

March 13, 2019

Page 2

 

(vii)

the resolutions adopted by the board of directors of the Company and by the stockholders of the Company regarding the Plans and other matters related thereto, as certified by an officer of the Company on March 13, 2019.  

In addition to the foregoing, we have made such investigations of law as we have deemed necessary or appropriate as a basis for the opinion set forth in this opinion letter.

 

In such examination and in rendering the opinion expressed below, we have assumed, without independent investigation or verification: (i) the genuineness of all signatures on all agreements, instruments, corporate records, certificates and other documents submitted to us; (ii) the authenticity and completeness of all agreements, instruments, corporate records, certificates and other documents submitted to us as originals; (iii) that all agreements, instruments, corporate records, certificates and other documents submitted to us as certified, electronic, facsimile, conformed, photostatic or other copies conform to originals thereof, and that such originals are authentic and complete; (iv) the legal capacity and authority of all persons or entities (other than the Company) executing all agreements, instruments, corporate records, certificates and other documents submitted to us; (v) the due authorization, execution and delivery of all agreements, instruments, corporate records, certificates and other documents by all parties thereto (other than the Company); (vi) that no documents submitted to us have been amended or terminated orally or in writing except as has been disclosed to us in writing; (vii) that the statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for the purposes of this opinion letter are true and correct; (viii) that there has not been any change in the good standing status of the Company from that reported in the Good Standing Certificate; and (ix) that each of the officers and directors of the Company has properly exercised his or her fiduciary duties. As to all questions of fact material to this opinion letter, and as to the materiality of any fact or other matter referred to herein, we have relied (without independent investigation or verification) upon representations and certificates or comparable documents of officers and representatives of the Company. Our knowledge of the Company and its legal and other affairs is limited by the scope of our engagement, which scope includes the delivery of this opinion letter. We do not represent the Company with respect to all legal matters or issues.  The Company may employ other independent counsel and, to our knowledge, handles certain legal matters and issues without the assistance of independent counsel. We have also assumed that the individual issuances, grants, awards or grants of purchase rights under the Plans will be duly authorized by all necessary corporate action of the Company and duly issued, granted or awarded and exercised in accordance with the requirements of law, the Plans and the agreements, forms of instrument, awards and grants duly adopted thereunder.

 

Based upon the foregoing, and in reliance thereon, and subject to the assumptions, limitations, qualifications and exceptions set forth herein, we are of the opinion that the Shares are duly authorized and, when issued and sold as described in the Registration Statement and in accordance with the Plans and the applicable award agreements or forms of instrument evidencing purchase rights thereunder (including the receipt by the Company of the full consideration therefor), will be validly issued, fully paid and nonassessable.

 

Without limiting any of the other limitations, exceptions and qualifications stated elsewhere herein, we express no opinion with regard to the applicability or effect of the laws of any jurisdiction other than the General Corporation Law of the State of Delaware, as in effect on the date of this opinion letter.

 

 

 

 


 


 

Viking Therapeutics, Inc.

March 13, 2019

Page 3

 

 

This opinion letter deals only with the specified legal issues expressly addressed herein, and you should not infer any opinion that is not explicitly stated herein from any matter addressed in this opinion letter.

 

This opinion letter is rendered solely in connection with the issuance and delivery of the Shares as described in the Registration Statement and in accordance with the terms of the Plans and the applicable award agreement or form of instrument evidencing purchase rights thereunder. This opinion letter is rendered as of the date hereof, and we assume no obligation to advise you or any other person with regard to any change after the date hereof in the circumstances or the law that may bear on the matters set forth herein even if the change may affect the legal analysis or a legal conclusion or other matters in this opinion letter.

 

We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ Paul Hastings LLP

 

 

 

 

 

Exhibit 23.1

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of Viking Therapeutics, Inc. on Form S-8 of our report dated March 13, 2019, with respect to our audits of the financial statements of Viking Therapeutics, Inc. as of December 31, 2018 and 2017 and for the years ended December 31, 2018 and 2017, appearing in the Annual Report on Form 10-K of Viking Therapeutics, Inc. for the year ended December 31, 2018.

 

 

 

/s/ Marcum LLP

 

Marcum llp

Costa Mesa, California

March 13, 2019

 

 

 

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