As filed with the Securities and Exchange Commission on June 27, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
ARVINAS, INC.
(Exact Name of Registrant as Specified in Its Charter)
__________________
| Delaware | 47-2566120 | |||||||
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification No.) | |||||||
5 Science Park 395 Winchester Ave. New Haven, Connecticut | 06511 | |||||||
| (Address of Principal Executive Offices) | (Zip Code) | |||||||
Inducement Stock Option Award (June 2024)
Inducement Restricted Stock Unit Award (June 2024)
(Full Title of the Plans)
John Houston, Ph.D.
President and Chief Executive Officer
Arvinas, Inc.
5 Science Park
395 Winchester Ave.
New Haven, Connecticut 06511
(Name and Address of Agent for Service)
(203) 535-1456
(Telephone Number, Including Area Code, of Agent for Service)
__________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||||||||||||||||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||||||||||||||||
| Emerging growth company | ☐ | |||||||||||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Item 1 is omitted from this registration statement and included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).
Item 2. Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is omitted from this registration statement and included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the “Commission”). The following documents, which are on file with the Commission, are incorporated in this registration statement by reference:
(a) The registrant’s latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the registrant’s latest fiscal year for which such statements have been filed;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above; and
(c) The description of the registrant’s common stock contained in the registrant’s registration statement on Form 8-A as filed with the Commission on September 21, 2018, as the description therein has been updated and superseded by the description of the registrant’s capital stock contained in Exhibit 4.4 to the registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2019, as filed with the Commission on March 16, 2020, and including any amendments and reports filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The following summary is qualified in its entirety by reference to the complete Delaware General Corporation Law (“DGCL”) and the registrant’s certificate of incorporation and bylaws.
Section 102 of the DGCL permits a corporation to eliminate the personal liability of its directors or officers to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director or officer, except (1) where the director or officer breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct, knowingly violated a law or obtained an improper personal benefit, (2) where any director authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law, or (3) for any officer, in any action by or in the right of the corporation. The registrant’s certificate of incorporation provides that no director shall be personally liable to the registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
The registrant’s certificate of incorporation provides that it will indemnify each person who was or is a party or 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 registrant) by reason of the fact that he or she is or was, or has agreed to become, a director or officer of the registrant, or is or was serving, or has agreed to serve, at the registrant’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the registrant’s best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. The registrant’s certificate of incorporation also provides that it will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of the registrant to procure a judgment in the registrant’s favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director or officer of the registrant, or is or was serving, or has agreed to serve, at the registrant’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the registrant’s best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to the registrant, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the registrant against all expenses (including attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If the registrant does not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
The registrant has entered into indemnification agreements with all of its directors and executive officers. In general, these agreements provide that the registrant will indemnify the director or executive officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or officer of the registrant or in connection with their service at the registrant’s request for another corporation or entity. The indemnification agreements also provide for procedures that will apply in the event that a director or executive officer makes a claim for indemnification and establish certain presumptions that are favorable to the director or executive officer.
The registrant maintains a general liability insurance policy which covers certain liabilities of the directors and officers of the registrant arising out of claims based on acts or omissions in their capacities as directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The following exhibits are incorporated herein by reference:
| Exhibit No. | Description | |||||||
| 4.1 (1) | ||||||||
| 4.2 (2) | ||||||||
| 5.1 * | ||||||||
| 23.1 * | ||||||||
| 23.2 * | ||||||||
| 24.1 * | ||||||||
| 99.1 (3) | ||||||||
| 99.2 (4) | ||||||||
107 * | ||||||||
| (1) | Previously filed with the Securities and Exchange Commission on October 1, 2018 as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-38672) and incorporated herein by reference. | ||||
| (2) | Previously filed with the Securities and Exchange Commission on June 21, 2023 as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-38672) and incorporated herein by reference. | ||||
| (3) | Previously filed with the Securities and Exchange Commission on January 16, 2024 as Exhibit 99.3 to the Registrant’s Registration Statement on Form S-8 (File No. 333-276519) and incorporated herein by reference. | ||||
| (4) | Previously filed with the Securities and Exchange Commission on January 16, 2024 as Exhibit 99.4 to the Registrant’s Registration Statement on Form S-8 (File No. 333-276519) and incorporated herein by reference. | ||||
*Filed herewith
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(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.
2. 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.
3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 New Haven, State of Connecticut, on this 27th day of June, 2024.
ARVINAS, INC. | ||||||||
| By: | /s/ John Houston, Ph.D. | |||||||
| John Houston, Ph.D. | ||||||||
| President and Chief Executive Officer | ||||||||
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Arvinas, Inc., hereby severally constitute and appoint John Houston, Ph.D. and Andrew Saik, and each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration Statement on Form S-8 filed herewith and any and all amendments to said Registration Statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Arvinas, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
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.
| Signature | Title | Date | ||||||||||||
| /s/ John Houston, Ph.D. | President, Chief Executive Officer and Chairman of the Board of Directors (principal executive officer) | June 27, 2024 | ||||||||||||
| John Houston, Ph.D. | ||||||||||||||
| /s/ Andrew Saik | Chief Financial Officer and Treasurer (principal financial officer) | June 27, 2024 | ||||||||||||
| Andrew Saik | ||||||||||||||
| /s/ David Loomis | Vice President and Chief Accounting Officer (principal accounting officer) | June 27, 2024 | ||||||||||||
| David Loomis | ||||||||||||||
| /s/ Sunil Agarwal, M.D. | Director | June 27, 2024 | ||||||||||||
| Sunil Agarwal, M.D. | ||||||||||||||
| /s/ Linda Bain | Director | June 27, 2024 | ||||||||||||
| Linda Bain | ||||||||||||||
| /s/ Everett Cunningham | Director | June 27, 2024 | ||||||||||||
| Everett Cunningham | ||||||||||||||
| /s/ Edward Kennedy, Jr. | Director | June 27, 2024 | ||||||||||||
| Edward Kennedy, Jr. | ||||||||||||||
| /s/ Briggs Morrison, M.D. | Director | June 27, 2024 | ||||||||||||
| Briggs Morrison, M.D. | ||||||||||||||
| /s/ Leslie Norwalk, Esq. | Director | June 27, 2024 | ||||||||||||
| Leslie Norwalk, Esq. | ||||||||||||||
| /s/ Laurie Smaldone Alsup, M.D. | Director | June 27, 2024 | ||||||||||||
| Laurie Smaldone Alsup, M.D. | ||||||||||||||
| /s/ John Young | Director | June 27, 2024 | ||||||||||||
| John Young | ||||||||||||||
Exhibit 107
Calculation of Filing Fee Tables
| Form S-8 | ||
| (Form Type) | ||
| Arvinas, Inc. | ||
| (Exact Name of Registrant as Specified in its Charter) | ||
Table 1—Newly Registered Securities
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered (1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | ||||||||||||||||
| Equity | Common Stock, $0.001 par value per share | Other | 94,418 shares (2) | $24.36 (3) | $2,300,022.48 (3) | $147.60 per $1,000,000 | $339.48 | ||||||||||||||||
| Equity | Common Stock, $0.001 par value per share | Other | 61,409 shares (4) | $24.36 (3) | $1,495,923.24 (3) | $147.60 per $1,000,000 | $220.80 | ||||||||||||||||
| Total Offering Amounts | $3,795,945.72 | $560.28 | |||||||||||||||||||||
| Total Fee Offsets | $0.00 | ||||||||||||||||||||||
| Net Fee Due | $560.28 | ||||||||||||||||||||||
| (1) | In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. | ||||
| (2) | Consists of shares issuable under a new hire inducement stock option award granted on June 24, 2024 to an employee in accordance with Nasdaq Listing Rule 5635(c)(4), as an inducement material to such employee entering into employment with the registrant. | ||||
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the registrant’s common stock reported on the Nasdaq Global Select Market on June 25, 2024. | ||||
| (4) | Consists of shares issuable under a new hire inducement restricted stock unit award granted on June 24, 2024 to an employee in accordance with Nasdaq Listing Rule 5635(c)(4), as an inducement material to such employee entering into employment with the registrant. | ||||
Exhibit 5.1
+1 212 230 8800 (t) +1 212 230 8888 (f) wilmerhale.com | ||
June 27, 2024
Arvinas, Inc.
5 Science Park
395 Winchester Ave.
New Haven, CT 06511
Re: Registration Statement on Form S-8 Inducement Stock Option Award (June 2024) and Inducement Restricted Stock Unit Award (June 2024)
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to an aggregate of 155,827 shares (the “Shares”) of common stock, $0.001 par value per share (“Common Stock”), of Arvinas, Inc., a Delaware corporation (the “Company”), consisting of (i) 94,418 shares of Common Stock issuable pursuant to an inducement stock option agreement providing for an employee inducement grant between the Company and an employee, which was or will be entered into in connection with the commencement of such employee’s employment with the Company pursuant to Nasdaq Stock Market Rule 5635(c)(4) (the “Inducement Stock Option Award Agreement”), and (ii) 61,409 shares of Common Stock issuable pursuant to an inducement restricted stock unit agreement providing for an employee inducement grant between the Company and an employee, which was or will be entered into in connection with the commencement of such employee’s employment with the Company pursuant to Nasdaq Stock Market Rule 5635(c)(4) (the “Inducement Restricted Stock Unit Award Agreement”, together with the Inducement Stock Option Agreement, the “Inducement Award Agreements”).
We have examined the Certificate of Incorporation and Bylaws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the board of directors and stockholders of the Company, the Registration Statement, the Inducement Award Agreements and such other documents relating to the Company as we have deemed material for the purposes of this opinion.
June 27, 2024
Page 2
In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and sale of the Shares in accordance with the Inducement Award Agreements, as applicable, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.
We express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware.
It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Inducement Award Agreements, as applicable, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
| Very truly yours, | ||||||||
| By: | /s/ Wilmer Cutler Pickering Hale and Dorr LLP | |||||||
| WILMER CUTLER PICKERING HALE AND DORR LLP | ||||||||
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 27, 2024, relating to the consolidated financial statements of Arvinas, Inc. and subsidiaries (the “Company”), and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Arvinas, Inc. and subsidiaries for the year ended December 31, 2023.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
June 27, 2024