As filed with the Securities and Exchange Commission on November 13, 2020

Registration No. 333-239161            

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Post-Effective Amendment No. 1 to

Form S-1

on Form S-3

REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933

 

Humanigen, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware	2834	77-0557236
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification No.)

 

533 Airport Boulevard, Suite 400

Burlingame, California 94010

(650) 243-3100

(Address, including zip code, and telephone number, including area code,

of principal executive offices)

 

Cameron Durrant, M.D.

Chief Executive Officer

Humanigen, Inc.

533 Airport Boulevard, Suite 400

Burlingame, California 94010

(650) 243-3100

(Address, including zip code, and telephone number, including area code, of agent for service)

 

Copies to:

 

Kevin L. Vold

Polsinelli PC

1401 Eye Street, NW, Suite 800

Washington, DC 20005

Telephone: (202) 783-3300

Facsimile: (202) 783-3535

 

Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  o

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  þ

 

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

 

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  o

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  o

 

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 þ	Smaller reporting company þ
	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. ☐

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission acting pursuant to said Section 8(a) may determine.

 

 

 

EXPLANATORY NOTE

 

Humanigen, Inc. (the “Company”) previously filed and obtained effectiveness of a registration statement with the Securities and Exchange Commission (the “SEC”) on Form S-1 (Registration No. 333-239161), to register for resale by the selling shareholders named in the prospectus forming a part thereof up to 82,563,584 shares of common stock of the Company, par value $0.001 per share (the “common stock”). These shares were sold by the Company in a private placement on June 2, 2020 and the resale registration was required pursuant to the terms of the private placement.

 

This Post-Effective Amendment No. 1 to Form S-1 on Form S-3 (“Post-Effective Amendment No. 1”) is being filed by the Company to convert the Form S-1 into a registration statement on Form S-3.

 

No additional securities are being registered under this Post-Effective Amendment No. 1. All applicable registration fees were paid at the time of the original filing of the Registration Statement.

 

The Company completed a l-for-5 reverse stock split on September 11, 2020. Unless indicated otherwise, all share and per share information presented in the prospectus forming a part of Post-Effective Amendment No. 1 reflects the completion of the reverse stock split. With the exception of the financial statements included in the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 10, 2020, the Company’s historical financial statements incorporated by reference into this prospectus do not reflect the reverse stock split.

 

 

The information in this prospectus is not complete and may be changed. The selling stockholders may not sell these securities until the Securities and Exchange Commission declares this registration statement effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

 

PRELIMINARY PROSPECTUS

SUBJECT TO COMPLETION

DATED NOVEMBER 13, 2020

 

 

 

10,403,037 Shares of Common Stock

 

This prospectus relates to the resale or other disposition, from time to time, by the selling stockholders named in this prospectus or their pledgees, donees, transferees, or other successors in interest of up to 10,403,037 shares of our common stock issued pursuant to a June 1, 2020 securities purchase agreement.

 

The selling stockholders may offer and sell any of the shares from time to time in a number of different ways and at varying prices, and may engage a broker, dealer or underwriter to sell the shares. Information regarding the selling stockholders and the times and manner in which they may offer and sell the shares under this prospectus is provided under “Selling Stockholders” and “Plan of Distribution” in this prospectus.

 

We are not selling any common stock under this prospectus and we will not receive any of the proceeds from the sale of any shares of common stock by the selling stockholders. All expenses of registration incurred in connection with this offering are being borne by us. All selling and other expenses incurred by the selling stockholders will be borne by the selling stockholders.

 

Our common stock is currently listed on the Nasdaq Capital Market under the symbol “HGEN.” We completed a l-for-5 reverse stock split on September 11, 2020. Unless we indicate otherwise, all share and per share information presented in this prospectus reflects the completion of the reverse stock split. With the exception of the financial statements included in our Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission, or the SEC, on November 10, 2020, our historical financial statements incorporated by reference into this prospectus do not reflect the reverse stock split. On November 12, 2020, the last reported sale price per share of our common stock on the Nasdaq Capital Market was $8.65.

 

Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 4 of this prospectus. You should read this prospectus and the documents incorporated by reference herein carefully before making a decision to purchase our securities.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

 

 

The date of this prospectus is                                           , 2020.

 

 

TABLE OF CONTENTS

 

ABOUT THIS PROSPECTUS	1
PROSPECTUS SUMMARY	2
RISK FACTORS	4
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS	5
DETERMINATION OF MARKET PRICE	7
USE OF PROCEEDS	7
SELLING STOCKHOLDERS	8
PLAN OF DISTRIBUTION	11
LEGAL MATTERS	13
EXPERTS	13
WHERE YOU CAN FIND MORE INFORMATION	13
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE	13

 

ABOUT THIS PROSPECTUS

 

This prospectus forms a part of a registration statement that we filed with the SEC. Under this process, the selling stockholders may from time to time, in one or more offerings, sell the common stock described in this prospectus. Before purchasing any securities, you should carefully read both this prospectus and any applicable prospectus supplement, together with the additional information described under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”

 

We have not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus or any applicable prospectus supplement prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and any applicable prospectus supplement to this prospectus is accurate as of the date on the respective covers of such documents, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement, or any sale or issuance of a security, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed materially since those dates. You should rely only on the information contained or incorporated by reference in this prospectus or any applicable prospectus supplement.

 

When we refer to “Humanigen,” “we,” “our,” “us” and the “Company” in this prospectus, we mean Humanigen, Inc. and its subsidiaries on a consolidated basis, unless otherwise specified. References to “you” refer to a prospective investor.

 

This prospectus and any applicable prospectus supplement may include trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and trade names included in this prospectus are the property of their respective owners.

 

 

 

 

 

 

RISK FACTORS

 

Investing in our common stock involves a high degree of risk. You should carefully consider the risks and uncertainties discussed under the heading “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, our Quarterly Report on Form 10-Q for the quarter ended June 30, 2020, and our Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, together with all of the other information contained in this prospectus and in our filings with the SEC that we have incorporated by reference into this prospectus before deciding to invest in our common stock. If any such risks actually occur, our business, prospects, operating results and financial condition could suffer materially. In such event, the trading price of our common stock could decline and you might lose all or part of your investment.

 

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This prospectus, any applicable prospectus supplement and the documents incorporated by reference herein and therein, may contain forward-looking statements that are based on management’s beliefs and assumptions and on information currently available to management. They can be identified by the use of forward-looking words, such as “anticipate,” “believe,” “could,” “estimate,” “expects,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “will,” “would” or the negative of these terms or other comparable expressions that convey uncertainty of future events or outcomes, although not all forward-looking statements contain these terms.

 

Forward-looking statements may include, but are not limited to, statements regarding our expectations for our clinical development programs that may be ongoing from time to time, the potential approval of any of our product candidates by the FDA or any other national entity, the manufacture and commercialization of any product candidate, and any statement that contains forward-looking words and other similar expressions.

 

The forward-looking statements included in this prospectus, any applicable prospectus supplement and the documents incorporated by reference herein and therein reflect our current expectations and beliefs, and we do not undertake publicly to update or revise these statements, even if experience or future changes make it clear that any projected results expressed in this prospectus, any applicable prospectus supplement and the documents incorporated by reference herein and therein will not be realized. In addition, the inclusion of any statement in this prospectus, any applicable prospectus supplement, and the documents incorporated by reference herein and therein does not constitute an admission by us that the events or circumstances described in such statement are material. Furthermore, we wish to caution and advise readers that these statements are based on assumptions that may not materialize and may involve risks and uncertainties, many of which are beyond our control that could cause actual events or performance to differ materially from those contained or implied in these forward-looking statements.

 

Among the factors that could cause actual results to differ materially are the factors discussed under “Risk Factors” in our most recent Annual Report on Form 10-K, and each subsequently filed Quarterly Report on Form 10-Q. Some additional factors that could cause actual results to differ include:

 

·

the evolution of scientific discovery around the coronavirus, COVID-19 and the lung dysfunction resulting in some patients may indicate that cytokine storm is caused by or results from something other than elevated GM-CSF levels;

 

·

the enrollment, timing and results of our Phase 3 trial of lenzilumab for the prevention and treatment of cytokine storm in COVID-19 pneumonia;

 

·

the enrollment, timing and results of the ACTIV-5/BET sponsored by NIH for the use of lenzilumab and remdesivir in COVID-19 patients;

 

·

the possibility that FDA might not grant an EUA for lenzilumab or, if one were granted, that its duration might be shorter than anticipated or the EUA might be conditioned to a greater degree than anticipated;

 

·

the duration and impact of COVID-19;

 

·

our ability to research, develop and commercialize our product candidates, including our ability to do so before our competitors develop and receive FDA approval for treatments or vaccines for COVID-19;

 

·

our ability to execute our strategy and business plan focused on developing our proprietary monoclonal antibody portfolio and our GM-CSF knockout gene-editing CAR-T platform;

 

·

our ability to attract and retain other collaborators with development, regulatory and commercialization expertise to pursue the other initiatives in our development pipeline;

 

·

our ability to successfully pursue the Kite collaboration;

 

·

the initiation and successful completion of the GvHD study in the UK with the IMPACT Partnership;

 

 

·

our ability to attain the additional financing we will need to pursue our development initiatives, reserve and fund sufficient manufacturing capacity and commercialize our product candidates on favorable terms or at all;

 

·

our ability to successfully maintain the listing of our common stock on the Nasdaq Capital Market;

 

·

the timing of the initiation, enrollment and completion of planned clinical trials;

 

·

our ability to timely source adequate supply of our development and if approved, commercial products from third-party manufacturers on which we depend;

 

·

the potential, if any, for future development of any of our present or future products;

 

·

increasing levels of market acceptance of CAR-T therapies and stem cell transplants and the development of a market for lenzilumab in these therapies;

 

·

our ability to successfully progress, partner or complete further development of our programs;

 

·

the potential timing and outcomes of development, preclinical and clinical studies of lenzilumab, ifabotuzumab, HGEN005, any of our CAR-T projects and the uncertainties inherent in development, preclinical and clinical testing;

 

·

our ability to identify and develop additional uses for our products;

 

·

our ability to attain market exclusivity and/or to obtain, maintain, protect and enforce our intellectual property and to operate our business without infringing, misappropriating or otherwise violating, the intellectual property rights of others;

 

·

the outcome of pending, threatened or future litigation;

 

·

acquisitions or in-licensing transactions that we may pursue may fail to perform as expected;

 

·

our ability to obtain and maintain regulatory approval of our product candidates, and any related restrictions;

 

·

limitations and/or warnings in the label of an approved product candidate or one that is granted an EUA;

 

·

changes in the regulatory landscape that may prevent us from pursuing or realizing any of the expected benefits from the various regulatory incentives, or the imposition of regulations that affect our products;

 

·

the success, progress, timing and costs of our efforts to evaluate or consummate various strategic alternatives if in the best interests of our stockholders; and

 

·

the accuracy of our estimates regarding expenses, future revenues, capital requirements and needs for additional financing.

 

Should one or more known or unknown risks or uncertainties materialize, or should underlying assumptions prove inaccurate, actual results could differ materially from past results and those anticipated, estimated, projected or implied by these forward-looking statements. You should consider these factors and the other cautionary statements made in this prospectus, any applicable prospectus supplement or the documents we incorporate by reference herein or therein as being applicable to all related forward-looking statements wherever they appear in this prospectus, any applicable prospectus supplement or the documents incorporated by reference. While we may elect to update forward-looking statements wherever they appear in this prospectus, any applicable prospectus supplement or the documents incorporated by reference, we do not assume, and specifically disclaim, any obligation to do so, whether as a result of new information, future events or otherwise, except as required by law. Because of these uncertainties, you should not place undue reliance on these forward-looking statements.

 

 

DETERMINATION OF MARKET PRICE

 

The selling stockholders will determine at what price it may sell the offered shares, and such sales may be made at prevailing market prices or at privately negotiated prices. See “Plan of Distribution” for more information.

 

USE OF PROCEEDS

 

This prospectus relates to shares of our common stock that may be offered and sold from time to time by the selling stockholders. We will receive no proceeds from the sale of shares of common stock by any selling stockholder in this offering.

 

 

SELLING STOCKHOLDERS

 

This prospectus relates to the resale or other disposition, from time to time, by the selling stockholders named below or their pledgees, donees, transferees, or other successors in interest of up to 10,403,037 shares of our common stock issued pursuant to the Purchase Agreement, as further described below.

 

On June 1, 2020, we entered into a securities purchase agreement (the “Purchase Agreement”) with the selling stockholders to complete a private placement (the “Private Placement”) of our common stock. The closing of the Private Placement occurred on June 2, 2020 (the “Closing Date”). At the closing, we issued and sold 16,505,743 shares of our common stock to accredited investors at a purchase price of $4.35 per share.

 

On the Closing Date, we and the selling stockholders also entered into a registration rights agreement (the “Registration Rights Agreement”) pursuant to which we agreed to prepare and file the registration statement of which this prospectus forms a part (the “Resale Registration Statement”). The Registration Rights Agreement includes customary indemnification rights in connection with the Resale Registration Statement.

 

The Purchase Agreement also required us to use our commercially reasonable efforts to achieve a listing of our common stock on a national securities exchange, subject to certain limitations set forth in the Purchase Agreement. On September 18, 2020, our common stock commenced trading on the Nasdaq Capital Market under the symbol “HGEN.”

 

The table below sets forth, to our knowledge, information concerning the beneficial ownership of shares of our common stock by the selling stockholders as of October 31, 2020. The percentages of shares owned before and after the offering are based on 51,616,508 shares of common stock outstanding as of October 31, 2020, which includes the shares of common stock offered by this prospectus.

 

The information in the table below with respect to the selling stockholders has been obtained from the selling stockholders. When we refer to the “selling stockholders” in this prospectus, we mean the selling stockholders listed in the table below as offering shares, as well as their respective pledgees, donees, transferees or other successors-in-interest. The selling stockholders may sell all, some or none of the shares of common stock subject to this prospectus. See “Plan of Distribution.”

 

Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to shares. Unless otherwise indicated below, to our knowledge, each selling stockholder named in the table has sole voting and investment power with respect to the shares of common stock beneficially owned by it, except to the extent authority is shared by spouses under applicable law. The inclusion of any shares in this table does not constitute an admission of beneficial ownership for any selling stockholder named below. None of the selling stockholders has held any position or office, or has otherwise had a material relationship, with us or any of our subsidiaries within the past three years, other than as described below.

 

		Shares of Common Stock Beneficially Owned Prior to Offering								Number of Shares of Common Stock Being Offered				Shares of Common Stock to be Beneficially Owned After Offering(1)
Name of Selling Stockholder		Number				Percentage								Number				Percentage
Entities affiliated with Venrock Healthcare Capital Partners(2)			136,528				*				136,528				—				*
Entities affiliated with Valiant Capital Management, L.P. (3)			7,074,220				13.7	%			5,402,298				1,671,922				3.2	%
Valiant Employee Investment Fund, LLC			860,261				1.7	%			632,183				228,078				*
Citadel Multi-Strategy Equities Master Fund Ltd.(4)			861,403				1.7	%			861,403				—				*
TMJ & Associates LLC (5)			1,970,114				3.8	%			1,770,114				200,000				*
Oren Eisner			31,108				*				22,988				8,120				*
Manouchehr Graham Taraz			40,000				*				22,988				17,012				*
Peter Hirsch			17,241				*				17,241				—				*
Jeff Paley			94,747				*				5,747				89,000				*
First Light Focus Fund, LP (6)			377,853				*				377,853				—				*
KPM Tech Co., Ltd(7)			459,770				*				459,770				—				*
Telcon RF Pharmaceutical, Inc.(8)			459,770				*				459,770				—				*
Roger Griggs			11,494				*				11,494				—				*
Steven J. Lerner			54,737				*				54,737				—				*
Coleman Wortham, III			80,000				*				43,103				36,897				*
Kevin Penn			20,002				*				20,002				—				*
J. Adam Abram Revocable Trust (9)			8,426				*				8,426				—				*
Sallie Shuping Russell			8,510				*				8,510				—				*
Blair Levin			14,367				*				14,367				—				*

 

 

Ken Eudy			9,578				*				9,578				—				*
Magellan Partners I, LLC (10)			8,620				*				8,620				—				*
Magellan's Compass I LP (11)			8,620				*				8,620				—				*
The H. Stewart Parker Living Trust (12)			4,620				*				4,620				—				*
Ronald J. Bernstein			6,453				*				6,453				—				*
Beauregard Holdings LLC (13)			600				*				600				—				*
Ted D Meisel Trust dated 10/16/2000 (14)			5,620				*				5,620				—				*
AT Investors, LLC (15)			8,620				*				8,620				—				*
The Shlain Family Trust (16)			13,578				*				9,578				4,000				*
Charles Froland			8,812				*				8,812				—				*
Paul Gilbert			2,394				*				2,394				—				*

_____________

* Represents less than 1%

 

(1)

We do not know when or in what amounts a selling stockholder may offer shares for sale. The selling stockholders might not sell any or might sell all of the shares offered by this prospectus. Because the selling stockholders may offer all or some of the shares pursuant to this offering, and because there are currently no agreements, arrangements or understandings with respect to the sale of any of the shares, we cannot estimate the number of the shares that will be held by the selling stockholders after completion of the offering. However, for purposes of this table, we have assumed that, after completion of the offering, none of the shares covered by this prospectus will be held by the selling stockholders.

 

(2)

The shares purchased in the Private Placement consist of: (i) 36,084 shares purchased by Venrock Healthcare Capital Partners II, L.P. (“VHCP II”); (ii) 14,625 shares purchased by VHCP Co-Investment Holdings II, LLC (“Co-Invest II”); (iii) 78,023 shares purchased by Venrock Healthcare Capital Partners III, L.P. (“VHCP III”); and (iv) 7,796 shares purchased by VHCP Co-Investment Holdings III, LLC (“Co-Invest III”) (collectively, the “VHCP Funds”). VHCP Management III, LLC (“VHCPM III”) is the sole general partner of VHCP III and the sole manager of Co-Invest III and may be deemed to have beneficial ownership of the shares held by VHCP III and Co-Invest III. VHCP Management II, LLC (“VHCPM II”) is the sole general partner of VHCP II and the sole manager of Co-Invest II and may be deemed to have beneficial ownership of the shares held by VHCP II and Co-Invest II. Dr. Bong Koh and Nimish Shah are the voting members of VHCPM III and VHCPM II.

 

(3)

The shares purchased in the Private Placement consist of: (i) 1,825,977 shares purchased by Valiant Capital Partners, LP (“VCP”) and (ii) 3,576,321 shares purchased by Valiant Capital Master Fund, LP (“VCMF”). Valiant Capital Management, LP is the general partner and investment adviser of VCP and the investment adviser of VCMF, and has the authority to vote the shares on behalf of both VCP and VCMF. Christopher R. Hansen is the founder, President and portfolio manager of Valiant Capital Management, LP and, as such, he has ultimate ownership and authority over voting and investment decisions of the shares. As a result, Mr. Hansen may be deemed to have beneficial ownership of the shares held by VCP and VCMF.

 

(4)

Citadel Advisors LLC (“Citadel Advisors”), acts as the portfolio manager of Citadel Multi-Strategy Equities Master Fund Ltd. (“Citadel”). Citadel Advisors Holdings LP (“CAH”) is the sole member of Citadel Advisors. Citadel GP LLC (“CGP”) is the general partner of CAH. Mr. Kenneth Griffin is the President and Chief Executive Officer of CGP and owns a controlling interest in CGP and may be deemed to share voting and dispositive power over the shares held by Citadel. The address for this entity is c/o Citadel Advisors LLC, 601 Lexington Avenue, New York, NY 10022.

 

(5)

As the managing member of TMJ & Associates LLC (“TMJ”), Jeffrey Talpins may be deemed to beneficially own and share voting and dispositive power over the shares held by TMJ.

 

(6)

First Light Asset Management, LLC is the investment advisor for First Light Focus Fund, LP. (“First Light”). First Light Focus Fund GP, LLC is the general partner of First Light. Mathew P. Arens is the chief executive officer of the managing member of First Light Focus Fund GP, LLC. Mr. Arens and each of the foregoing entities disclaim beneficial ownership of the shares held by First Light except to the extent of any pecuniary interest therein.

 

(7)

JiHoon Kim is the Chief Executive Officer of KPM Tech Co. (“KPM Tech”), Ltd and may be deemed to beneficially own and have voting and dispositive power over the shares held by KPM Tech. As previously disclosed, on November 3, 2020, the Company entered into a License Agreement (the “License Agreement”) with KPM Tech and its affiliate, Telcon RF Pharmaceutical, Inc. (“Telcon RF”). Pursuant to the License Agreement, among other things, the Company granted KPM Tech and Telcon RF a license under certain patents and other intellectual property to develop and commercialize lenzilumab for treatment of COVID-19 pneumonia, in South Korea and the Philippines, subject to certain reservations and limitations. For additional information regarding the License Agreement, please see the Company’s Current Report on Form 8-K filed with the SEC on November 4, 2020.

 

(8)

JiHoon Kim is the Chief Executive Officer of Telcon RF, and may be deemed to beneficially own and have voting and dispositive power over the shares held by Telcon RF.

 

(9)

Jonathan Adam Abram is the trustee of the J. Adam Abram Revocable Trust and may be deemed to beneficially own and share voting and dispositive power over the shares held by the J. Adam Abram Revocable Trust.

 

 

(10)

Alfred Childers is the investment manager of Magellan Partners I, LLC (“Magellan”), and Bruce Boucher serves as the manager of Magellan. Each of Messrs. Childers and Boucher may be deemed to beneficially own and share voting and dispositive power over the shares held by Magellan.

 

(11)

As the limited partner of Magellan's Compass I LP (“MCLP”), Dr. W. Lowry Caudill may be deemed to beneficially own and share voting and dispositive power over the shares held by MCLP.

 

(12)

H. Stewart Parker is the trustee of The H. Stewart Parker Living Trust and may be deemed to beneficially own and share voting and dispositive power over the shares held by The H. Stewart Parker Living Trust.

 

(13)

Stuart Lipton may be deemed to beneficially own and share voting and dispositive power over the shares held by Beauregard Holdings LLC.

 

(14)

Ted Meisel is the trustee of the Ted D Meisel Trust dated 10/16/2000 and may be deemed to beneficially own and share voting and dispositive power over the shares held by the Ted D Meisel Trust dated 10/16/2000.

 

(15)

Arthur H. Bilger may be deemed to beneficially own and share voting and dispositive power over the shares held by AT Investors, LLC.

 

(16)

Dr. Jordan Shlain is the trustee of The Shlain Family Trust and may be deemed to beneficially own and share voting and dispositive power over the shares held by The Shlain Family Trust.

 

 

PLAN OF DISTRIBUTION

 

The selling stockholders, which as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares of common stock or interests in shares of common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.

 

The selling stockholders may use any one or more of the following methods when disposing of shares or interests therein:

 

·

ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

·

block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;

·

purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

·

through an exchange distribution in accordance with the rules of the Nasdaq Capital Market;

·

privately negotiated transactions;

·

short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the SEC;

·

through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;

·

broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;

·

a combination of any such methods of sale; and

·

any other method permitted pursuant to applicable law.

 

The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act, amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus, provided that our prior written consent will be required prior to an assignment of a selling stockholders rights under the Registration Rights Agreement to a non-affiliate. The selling stockholders also may transfer the shares of common stock to an “affiliate” (as such term is defined in Rule 405 promulgated under the Securities Act) or in other circumstances with our prior written consent, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

 

In connection with the sale of our common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).

 

The aggregate proceeds to the selling stockholders from the sale of the common stock offered by them will be the purchase price of the common stock less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.

 

The selling stockholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act of 1933, provided that they meet the criteria and conform to the requirements of that rule.

 

The selling stockholders and any underwriters, broker-dealers or agents that participate in the sale of the common stock or interests therein may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. Selling stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act.

 

To the extent required, the shares of our common stock to be sold, the names of the selling stockholders, the respective purchase prices and public offering prices, the names of any agent, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.

 

 

In order to comply with the securities laws of some states, if applicable, the common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.

 

We have advised the selling stockholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares in the market and to the activities of the selling stockholders and their affiliates. In addition, to the extent applicable, we will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the selling stockholders for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling stockholders may indemnify any broker-dealer that participates in transactions involving the sale of the shares against certain liabilities, including liabilities arising under the Securities Act.

 

We have agreed to indemnify the selling stockholders against liabilities, including liabilities under the Securities Act and state securities laws, relating to the registration of the shares offered by this prospectus.

 

We have agreed with the selling stockholders to use reasonable best efforts to cause the registration statement of which this prospectus constitutes a part to become effective and to remain continuously effective until the earlier of (1) the date on which all of the shares covered by this prospectus have been sold or (2) the date on which all of the shares covered by this prospectus may be sold pursuant to Rule 144 promulgated under the Securities Act without limitation as to volume or the manner of such sale.

 

 

LEGAL MATTERS

 

The legal validity of the securities offered by this prospectus have been passed upon for us by Polsinelli PC, Washington, D.C.

 

EXPERTS

 

The consolidated financial statements of Humanigen, Inc. incorporated in this prospectus by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2019 have been audited by HORNE LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available over the Internet at the SEC’s website at www.sec.gov. The SEC maintains a website that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC at http://www.sec.gov.

 

Our website address is www.humanigen.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus or incorporated by reference into this prospectus or any applicable prospectus supplement, and you should not consider information on our website to be part of this prospectus or any applicable prospectus supplement. We have included our website address as an inactive textual reference only.

 

This prospectus and any applicable prospectus supplement are part of a registration statement that we filed with the SEC. This prospectus and any applicable prospectus supplement omit some information contained in the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits in the registration statement for further information about us and our consolidated subsidiary and the securities being offered. Statements in this prospectus and in any applicable prospectus supplement concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements.

 

INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

 

The SEC allows us to incorporate by reference much of the information we file with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus or any applicable prospectus supplement is considered to be part of this prospectus and any prospectus supplement. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus and any applicable prospectus supplement. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus, any prospectus supplement or in any document previously incorporated by reference herein or therein have been modified or superseded. This prospectus incorporates by reference the documents listed below (File No. 001-35798) and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering of the securities offered hereby is terminated or completed:

 

·

our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on March 16, 2020;

·

our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2020, filed with the SEC on May 15, 2020;

·

our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2020, filed with the SEC on August 14, 2020;

·

our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2020, filed with the SEC on November 10, 2020;

·

our Current Reports on Form 8-K, filed with the SEC on January 31, 2020; March 20, 2020; March 23, 2020; April 6, 2020; April 29, 2020; May 7, 2020; June 4, 2020; July 6, 2020; July 10, 2020; July 30, 2020; August 3, 2020; September 4, 2020; September 11, 2020; September 21, 2020; October 7, 2020; November 4, 2020; and November 6, 2020; and

·

the description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on September 15, 2020, including any amendments or reports filed for the purpose of updating such description.

 

In addition, all reports and other documents we may file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration statement of which this prospectus forms a part, and prior to effectiveness of such registration statement, shall be deemed to be incorporated by reference into this prospectus.

 

 

You may request a free copy of these filings (other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing) by writing or telephoning us as follows:

 

Humanigen, Inc.

Attention: Corporate Secretary

533 Airport Boulevard, Suite 400

Burlingame, CA 94010

(650) 243-3100

 

 

 

 

 

 

 

 

 

 

 

PROSPECTUS

 

 

10,403,037 Shares of Common Stock

 

 

 

 

 

 

, 2020

 

 

 

 

 

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION

 

The following table sets forth the estimated costs and expenses in connection with the sale and distribution of the securities being registered, all of which have been or will be paid by us.

 

SEC Registration Fee		$	32,900.43
Accounting Fees and Expenses		$	20,000.00
Legal Fees and Expenses		$	385,000.00
Miscellaneous Fees and Expenses		$	42,099.57
Total		$	480,000.00

 

ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS

 

Section 102(b)(7) of the Delaware General Corporation Law, or the DGCL, provides that a Delaware corporation, in its certificate of incorporation, may limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:

 

·

transaction from which the director derived an improper personal benefit;

·

act or omission not in good faith or that involved intentional misconduct or a knowing violation of law;

·

unlawful payment of dividends or redemption of shares; or

·

breach of the director’s duty of loyalty to the corporation or its stockholders.

 

Section 145(a) of the DGCL provides, in general, that a Delaware corporation may indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) because that person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, so long as the person acted in good faith and in a manner he or she reasonably believed was in or not opposed to the corporation’s best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

 

Section 145(b) of the DGCL provides, in general, that a Delaware corporation may indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action or suit by or in the right of the corporation to obtain a judgment in its favor because the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action, so long as the person acted in good faith and in a manner the person reasonably believed was in or not opposed to the corporation’s best interests, except that no indemnification shall be permitted without judicial approval if a court has determined that the person is to be liable to the corporation with respect to such claim. Section 145(c) of the DGCL further provides that, if a present or former director or officer has been successful in defense of any action referred to above, the corporation must indemnify such officer or director against the expenses (including attorneys’ fees) he or she actually and reasonably incurred in connection with such action.

 

Section 145(g) of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise against any liability asserted against and incurred by such person, in any such capacity, or arising out of his or her status as such, whether or not the corporation could indemnify the person against such liability under Section 145 of the DGCL.

 

 

Our Charter eliminates the personal liability of our directors to the Company and our stockholders for monetary damages for breach of fiduciary duty as a director, with certain limited exceptions set forth therein. Our Amended and Restated Bylaws provide for the indemnification of our directors and officers to the fullest extent permitted by the DGCL.

 

We maintain an insurance policy that covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.

 

Certain of our non-employee directors may, through their relationships with their employers, also be insured and/or indemnified against certain liabilities incurred in their capacity as members of our board of directors.

 

The foregoing descriptions are only general summaries.

 

ITEM 16. EXHIBITS

 

(a)

Exhibits

 

EXHIBIT INDEX

 

				Incorporated by Reference
Exhibit No.		Exhibit Description		Form+		Date		Number		Filed Herewith
2.1		Findings of Fact, Conclusions of Law, and Order Confirming Second Amended Chapter 11 Plan of Reorganization of the Registrant.		8-K		June 22, 2016		2.1
3.1		Amended and Restated Certificate of Incorporation of the Registrant.		8-K		July 6, 2016		3.1
3.1.1		Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant.		8-K		August 7, 2017		3.1
3.1.2		Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant, as amended.		8-K		February 28, 2018		3.1
3.1.3		Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant, as amended		8-K		September 11, 2020		3.1
3.2		Second Amended and Restated Bylaws of the Registrant.		8-K		August 7, 2017		3.2
5.1		Opinion of Polsinelli PC.		S-1 (File No. 333-239161)		June 15, 2020		5.1
10.1		Securities Purchase Agreement, dated as of June 1, 2020, by and among Humanigen, Inc. and the investors party thereto.		S-1 (File No. 333-239161)		June 15, 2020		10.20
10.2		Registration Rights Agreement, dated as of June 2, 2020, by and among Humanigen, Inc. and the investors party thereto.		S-1 (File No. 333-239161)		June 15, 2020		10.21
23.1		Consent of Horne LLP.								X
23.2		Consent of Polsinelli PC (included in Exhibit 5.1)		S-1 (File No. 333-239161)		June 15, 2020		5.1
24.1		Power of Attorney		S-1 (File No. 333-239161)		June 15, 2020		24.1

 

+ Unless otherwise indicated, File No. is 001-035798.

 

 

ITEM 17. 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 of 1933;

 

(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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 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), (a)(1)(ii), and (a)(1)(iii) above 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 Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.

 

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(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.

 

(5) That, for the purpose of determining liability under the Securities Act to any purchaser:

 

(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

 

(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

 

(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.

 

(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.

 

 

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-3 and has duly caused this Post-Effective Amendment on Form S-3 to the Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Burlingame, State of California on November 13, 2020.

 

		Humanigen, Inc.
		/s/ Cameron Durrant, M.D., MBA
		By: Cameron Durrant, M.D., MBA
		Chairman of the Board and Chief Executive Officer

 

 

 

Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment on Form S-3 to the Registration Statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Cameron Durrant
Cameron Durrant, M.D., MBA		Chairman of the Board and Chief Executive Officer (Principal Executive Officer)		November 13, 2020
/s/ Timothy Morris
Timothy Morris, CPA		Chief Operating Officer and Chief Financial Officer (Principal Financial Officer)		November 13, 2020
/s/ David Tousley				November 13, 2020
David Tousley, MBA, CPA		Chief Accounting and Administrative Officer, Corporate Secretary and Treasurer (Principal Accounting Officer)
*
Ronald Barliant, JD		Director		November 13, 2020
*
Rainer Boehm, M.D.		Director		November 13, 2020
*
Robert G. Savage, MBA		Director		November 13, 2020
*
Cheryl Buxton		Director		November 13, 2020

 

 

 

* Pursuant to Power of Attorney

 

By:	/s/ Cameron Durrant
	Cameron Durrant, M.D., MBA
	As Attorney-in-Fact

 

 

II-5

 

 

 

Exhibit 23.1

 

 

 

Consent of Independent Registered Public Accounting Firm

 

 

 

We consent to the incorporation by reference in this Post-Effective Amendment on Form S-3 to the Registration Statement on Form S-1 of Humanigen, Inc., of our report dated March 16, 2020, relating to the consolidated financial statements of Humanigen, Inc. appearing in the Prospectus, which is part of this Registration Statement.

 

We also consent to the reference to our firm under the heading "Experts" in such Prospectus.

 

 

/s/ HORNE LLP

 

 

Ridgeland, Mississippi

November 13, 2020

 

 

 

 

SEC Filings