As filed with the Securities and Exchange Commission on March 27, 2017
Registration No. 333-         

 

UNITED STATES 
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM S-8
 
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
 
PhaseRx, Inc.

(Exact name of registrant as specified in its charter)
 
Delaware	 	20-4690620	
(State or other jurisdiction of incorporation or organization)	 	(I.R.S. Employer Identification No.)	
 
410 W. Harrison Street, Suite 300
Seattle, WA 98119
(Address of principal executive offices) (Zip Code)
 
PhaseRx, Inc. 2016 Long-Term Incentive Plan

(Full title of the Plan)

Robert W. Overell, Ph.D.
President and Chief Executive Officer
PhaseRx, Inc.
410 W. Harrison Street, Suite 300
Seattle, WA 98119

(Name and address of agent for service)
 
(206) 805-6300

 (Telephone number, including area code, of agent for service)
 
Copy to:
 
Rick A. Werner, Esq.	
Haynes and Boone, LLP	
30 Rockefeller Plaza, 26th Floor	
New York, New York 10112	
Telephone: (212) 659-7300	
Facsimile: (212) 884-8234	
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer ☐	Accelerated filer ☐	
Non-accelerated filer ☐  (Do not check if a smaller reporting company)	Smaller reporting company☒	

 

 
CALCULATION OF REGISTRATION FEE

Title of each class of securities to be registered	Amount to be registered (1)	Proposed maximum offering price per share	Proposed maximum aggregate offering price	Amount of registration fee (4)	
Common Stock, par value $0.0001:	584,516 (2)	 1.4763(3)	$862,921(3) 	$100.01	

	(1)	Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the number of shares registered hereunder includes such additional number of shares of common stock, par value $0.0001 per share of the registrant (“Common Stock”), as are required to prevent dilution resulting from a stock split, stock dividend or similar transaction.	

	(2)	Represents shares of Common Stock added to the PhaseRx, Inc. 2016 Long-Term Incentive Plan (the “Plan”) pursuant to an “evergreen” provision, which allows for an annual increase in the number of shares of Common Stock available for issuance thereunder, and that are reserved for issuance pursuant to future awards under the Plan.	
 
	(3)	Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act, and based upon the average of the high and low sale prices for the registrant’s common stock as reported on the NASDAQ Capital Market on March 23, 2017.	
  
	(4)	Amount of the registration fee was calculated in accordance with Section 6(b) and Rule 457 under the Securities Act and was determined by multiplying the aggregate offering price by 0.0001159.	

 

EXPLANATORY NOTE
 
At the time the Plan was amended and restated, it reserved a total of 1,532,299 shares of Common Stock for issuance thereunder. Additionally, the Plan includes an “evergreen” provision that provides for an annual increase in the total number of shares of Common Stock reserved for issuance thereunder on January 1of each year, beginning in calendar year 2017. Pursuant to the “evergreen” provision, the annual increase in the number of shares of Common Stock shall be equal to the lowest of: (i) five percent (5%) of the number of shares of Common Stock outstanding as of December 31of the preceding calendar year; and (ii) an amount determined by the Company’s board of directors.
 
As a result of the “evergreen” provision, effective January 1, 2017, 584,516 shares of Common Stock were added to the total number of shares of Common Stock reserved for issuance under the Plan. This Registration Statement on Form S-8 (this “Registration Statement”) is being filed for the purpose of registering the 584,516 shares of Common Stock that may be issued under the Plan pursuant to the “evergreen” provision, consisting of 584,516 shares of Common Stock reserved for issuance pursuant to future awards under the Plan.
 
Except as otherwise set forth below, the contents of the Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “SEC”) on August 12, 2016 (File No. 333-213103) are incorporated herein by reference as permitted by General Instruction E of Form S-8.
 
PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
ITEM 3.	INCORPORATION OF DOCUMENTS BY REFERENCE.	
 
The following documents filed by the registrant with the Securities and Exchange Commission are hereby incorporated into this registration statement by reference:
 
 	(a)	The registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed with the Securities and Exchange Commission on March 27, 2017;	
 	 	 	
 	(b)	The registrant’s Current Reports on Form 8-K filed with the Securities and Exchange Commission on March 6, 2017;	
 	 	 	
 	(c)	The description of the registrant’s Common Stock which is contained in the registrant’s Registration Statement on Form 8-A filed on May 10, 2016 (File No. 001-37772) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.	
 
In addition, all documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, subsequent to the date of this registration statement (other than any such documents or portions thereof that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, unless otherwise indicated therein, including any exhibits included with such Items), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents.

 

 
Any statement contained in this registration statement or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained or incorporated by reference herein or in any subsequently filed document which is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
 
ITEM 8.	EXHIBITS.	
 
The list of exhibits is set forth under “Exhibit Index” at the end of this registration statement and is incorporated herein by reference.

 

SIGNATURES
 
The Registrant . 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 Seattle, Washington on March 27, 2017.
 
 	PHASERX, INC.	
 	 	 	
 	By:	 /s/ Robert W. Overell	
 	 	Name:	Robert W. Overell, Ph.D.	
 	 	Title:	Chief Executive Officer and President	
 
POWER OF ATTORNEY
 
Each person whose signature appears below constitutes and appoints Robert W. Overell, Ph.D. with full power to act alone and without the others, his or her true and lawful attorney-in-fact, with full power of substitution, and with the authority to execute in the name of each such person, any and all amendments (including without limitation, post-effective amendments) to this registration statement, to sign any and all additional registration statements relating to the same offering of securities as this registration statement that are filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file such registration statements with the Securities and Exchange Commission, together with any exhibits thereto and other documents therewith, necessary or advisable to enable the registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same deems appropriate.
 
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/ Robert W. Overell	 	Chief Executive Officer, President and Director	 	March 27, 2017	
Robert W. Overell, Ph.D.	 	(principal executive officer and principal financial officer)	 	 	
 	 	 	 	 	
/s/ Shing-Yin Tsui	 	Senior Vice President, Finance and Secretary	 	March 27, 2017	
Shing-Yin (Helen) Tsui	 	(principal accounting officer)	 	 	
 	 	 	 	 	
/s/ Steven Gillis	 	Director, Chairman of the Board	 	March 27, 2017	
Steven Gillis, Ph.D.	 	 	 	 	
 	 	 	 	 	
/s/ Peggy V. Phillips	 	Director	 	March 27, 2017	
Peggy V. Phillips	 	 	 	 	
 	 	 	 	 	
/s/ Brian G. Atwood	 	Director	 	March 27, 2017	
Brian G. Atwood	 	 	 	 	
 	 	 	 	 	
 /s/ John A. Schmidt, Jr.	 	Director	 	March 27, 2017	
John A. Schmidt, Jr., M.D.	 	 	 	 	
 	 	 	 	 	
/s/ Paul H. Johnson	 	Director	 	March 27, 2017	
Paul H. Johnson, Ph.D.	 	 	 	 	
 	 	 	 	 	
/s/ Michelle Griffin	 	Director	 	March 27, 2017	
Michelle Griffin	 	 	 	 	

 

EXHIBIT INDEX
 
Exhibit
Number	 	Exhibit Description	 	Filed
with
this
Report	 	Incorporated by
Reference
herein from
Form or
Schedule	 	Filing
Date	 	SEC
File/Reg
Number	
 	 	 	 	 	 	 	 	 	 	 	
4.1	 	Fourth Amended and Restated Certificate of Incorporation of PhaseRx, Inc.	 	 	 	Form 8-K
(Exhibit 3.1)	 	05/23/16	 	001-37772	
 	 	 	 	 	 	 	 	 	 	 	
4.2	 	Amended and Restated Bylaws of PhaseRx, Inc.	 	 	 	Form 8-K
(Exhibit 3.2)	 	05/23/16	 	001-37772	
 	 	 	 	 	 	 	 	 	 	 	
4.3	 	Form of Common Stock Certificate	 	 	 	Form S-1/A
(Exhibit 4.1)	 	05/02/16	 	333-210811	
5.1*	 	Opinion of Haynes and Boone, LLP	 	X	 	 	 	 	 	 	

23.1*	 	Consent of Haynes and Boone, LLP (included in the opinion filed as Exhibit 5.1)	 	X	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	
23.2*	 	Consent of Peterson Sullivan LLP, independent registered public accounting firm	 	X	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	
24.1*	 	Power of Attorney (included on the signature page to this Registration Statement on Form S-8)	 	X	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	
99.1	 	PhaseRx, Inc. 2016 Long-Term Incentive Plan.
 	 	 	 	Form 8-K
(Exhibit 10.1)	 	05/23/16	 	001-37772	

* Filed herewith.

 

Exhibit 5.1 
 
March 27, 2017
 
PhaseRx, Inc.
410 W. Harrison Street, Suite 300
Seattle, WA 98119
 
	Re:	PhaseRx, Inc. Registration Statement on Form S-8	
 
Ladies and Gentlemen:
 
We have acted as counsel to PhaseRx, Inc., a Delaware corporation (the “ Company ”), with respect to certain legal matters in connection with the preparation of the Company’s Registration Statement on Form S-8 (the “ Registration Statement ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), filed with the Securities and Exchange Commission (the “ Commission ”) on the date hereof. The Registration Statement relates to the registration of 584,516 shares (the “ Shares ”) of the Company’s common stock, $0.0001 par value per share (the “ Common Stock ”), for issuance upon the exercise of stock options or reserved for issuance pursuant to future awards under the PhaseRx, Inc. 2016 Long-Term Incentive Plan (the “ Plan ”).
 
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
 
The opinions expressed herein are limited exclusively to the General Corporation Law of the State of Delaware (the “ DGCL ”) and applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the DGCL and such provisions of the Delaware Constitution and we have not considered, and express no opinion on, any other laws or the laws of any other jurisdiction.
 
In rendering the opinion set forth herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Fourth Amended and Restated Certificate of Incorporation (the “ Certificate of Incorporation ”) and the Amended and Restated Bylaws (the “ Bylaws ”) of the Company, each as amended and/or restated as of the date hereof; (ii) certain resolutions of the board of directors of the Company related to the filing of the Registration Statement, the assumption of the Plan and the issuance of the Shares; (iii) the Plan; (iv) the Registration Statement and all exhibits thereto; (v) the specimen Common Stock certificate; (vi) a certificate executed by an officer of the Company, dated as of the date hereof; and (vii) such other records, documents and instruments as we considered appropriate for purposes of the opinion stated herein.
 
In making the foregoing examinations, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents submitted to us as certified, conformed or photostatic copies thereof and the authenticity of the originals of such latter documents. As to all questions of fact material to the opinion stated herein, we have, without independent third party verification of their accuracy, relied in part, to the extent we deemed reasonably necessary or appropriate, upon the representations and warranties of the Company contained in such documents, records, certificates, instruments or representations furnished or made available to us by the Company.

 
 
We have also assumed that, at the time of the issuance of the Shares: (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and will remain effective, (ii) no stop order of the Commission preventing or suspending the use of the prospectus described in the Registration Statement will have been issued, (iii) the prospectus described in the Registration Statement and any required prospectus supplement will have been delivered to the recipient of the Shares as required in accordance with applicable law, (iv) the resolutions of the board of directors of the Company referred to above will not have been modified or rescinded, (v) the Company will receive consideration for the issuance of the Shares required by the Plan and that is at least equal to the par value of the Common Stock, (vi) all requirements of the DGCL, the Certificate of Incorporation and the Bylaws will be complied with when the Shares are issued, (vii) sufficient shares of Common Stock will be authorized for issuance under the Certificate of Incorporation of the Company that have not otherwise been issued or reserved for issuance and (viii) neither the issuance nor sale of the Shares will result in a violation of any agreement or instrument then binding upon the Company or any order of any court or governmental body having jurisdiction over the Company.
 
Based on the foregoing, and subject to the assumptions, qualifications, limitations, and exceptions set forth herein, we are of the opinion that upon the issuance of the Shares in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and non-assessable.
 
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to all references to us in the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder. This opinion is given as of the date hereof and we assume no obligation to update or supplement such opinion after the date hereof to reflect any facts or circumstances that may thereafter come to our attention or any changes that may thereafter occur.

Very truly yours,
 
/s/ Haynes and Boone, LLP
 
Haynes and Boone, LLP

 

 

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement on Form S-8 of PhaseRx, Inc. of our report dated March 27, 2017, on our audit of the consolidated balance sheets of PhaseRx, Inc. as of December 31, 2016 and 2015, and the related consolidated statements of operations, comprehensive loss, stockholders' equity (deficit), and cash flows for the years then ended, appearing in the Annual Report on Form 10-K of PhaseRX, Inc. for the year ended December 31, 2016.

 
/S/ PETERSON SULLIVAN LLP
  
Seattle, Washington
March 27, 2017