As filed with the Securities and Exchange Commission
on March 1, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ardelyx, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
26-1303944 |
|
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
400
Fifth Ave., Suite 210, Waltham, Massachusetts 02451
(510) 745-1700
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
2014 Equity Incentive Award Plan
2016 Employee Commencement Incentive Plan
(Full Title of the Plan)
Elizabeth Grammer
Chief Legal and Administrative Officer
Ardelyx, Inc.
400 Fifth Avenue, Suite 210
Waltham, MA 02451
(510) 745-1700
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Mark V. Roeder, Esq.
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025
Telephone: (650) 328-4600
Facsimile: (650) 463-2600
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 |
x |
|
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. ¨![](https://content.edgar-online.com/edgar_conv_img/2022/03/01/0001104659-22-028658_image_002.jpg)
This registration statement will become effective
upon filing in accordance with Rule 462 under the Securities Act. Proposed sale to take place as soon after the effective date of
the registration statement as awards under the plans are exercised and/or vest.
REGISTRATION OF ADDITIONAL
SECURITIES
By a registration statement on Form S-8
filed with the Securities and Exchange Commission (the “SEC”) on July 14, 2014, File No. 333-197408 (the “Original
Registration Statement”), Ardelyx, Inc. (the “Registrant”) registered 1,646,134 shares of common stock, par value
$0.0001 per share (the “Common Stock”) issuable under the Ardelyx, Inc. 2014 Equity Incentive Award Plan (the “2014
Plan”) and 202,762 shares of Common Stock issuable under the Ardelyx, Inc. 2014 Employee Stock Purchase Plan (the “ESPP”).
The Original Registration Statement also registered 880,497 shares of Common Stock issuable under the Ardelyx, Inc. 2008 Stock Incentive
Plan, as amended (the “2008 Plan”), which shares become available for issuance under the 2014 Plan to the extent awards under
the 2008 Plan are forfeited or lapse unexercised and are not issued under the 2008 Plan.
By a registration statement on Form S-8
filed with the Securities and Exchange Commission (the “SEC”) on November 10, 2016, File No. 333-214538 (the
“2016 Original Registration Statement”), the Registrant registered 1,000,000 shares of common stock, par value $0.0001 per
share (the “Common Stock”) issuable under the Ardelyx, Inc. 2016 Employment Commencement Incentive Plan (the “2016
Plan”).
By the registration statements on Form S-8
listed in the table below filed with the SEC, the Registrant registered the following additional shares of Common Stock issuable under
the 2014 Plan, the ESPP and the 2016 Plan:
| |
| |
| |
Additional Shares Registered | |
Filing Date | |
SEC File Number | |
Description | |
2014 Plan | | |
ESPP | | |
2016 Plan | |
March 11, 2015 | |
333-202663 | |
“2015 Registration Statement” | |
| 743,569 | | |
| 185,892 | | |
| - | |
March 10, 2016 | |
333-210079 | |
“2016 Registration Statement” | |
| 1,038,595 | | |
| - | | |
| - | |
February 21, 2017 | |
333-216154 | |
“2017 Registration Statement” | |
| 1,892,376 | | |
| - | | |
| - | |
March 16, 2018 | |
333-223694 | |
“2018 Registration Statement” | |
| 1,901,339 | | |
| - | | |
| - | |
March 8, 2019 | |
333-230156 | |
“2019 Registration Statement” | |
| 2,490,417 | | |
| 622,604 | | |
| - | |
March 10, 2020 | |
333-237057 | |
"2020 Registration Statement" | |
| 3,552,709 | | |
| - | | |
| - | |
March 12, 2021 | |
333-254187 | |
"2021 Registration Statement" | |
| 3,743,999 | | |
| 935,999 | | |
| 457,767 | |
The Registrant is hereby registering an additional
5,207,301 shares of Common Stock issuable under the 2014 Plan, which shares are now available for grant due to automatic annual increase
provision in the plan. The Registrant is also hereby registering an additional 2,000,000 shares of Common Stock issuable under the 2016
Plan, which shares are now available for grant following the action of the Board of Directors on January 6, 2022.
Pursuant to Instruction E of Form S-8,
the contents of the Original Registration Statement, the 2015 Registration Statement, the 2016 Registration Statement, the 2017 Registration
Statement, the 2018 Registration Statement the 2019 Registration Statement, the 2020 Registration Statement and the 2021 Registration
Statement are incorporated by reference in this registration statement on Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8
is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and
regulations of the SEC.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
In this registration statement, Ardelyx, Inc.
is sometimes referred to as “Registrant,” “we,” “us” or “our.”
Item 3. Incorporation of Documents by Reference.
The SEC allows us to “incorporate by reference”
the information we file with them, which means that we can disclose important information to you by referring to those documents. The
information incorporated by reference is considered to be part of this registration statement, and later information filed with the SEC
will update and supersede this information. We hereby incorporate by reference into this registration statement the following documents
previously filed with the SEC:
All documents that the Registrant subsequently
files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to the
registration statement which indicates that all of the shares of Common Stock offered have been sold or which deregisters all of such
shares 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 the filing of such documents; except as to any portion of any future annual or quarterly report to stockholders, or document
or current report furnished under any current or future items of Form 8-K (including current Items 2.02 and 7.01, and exhibits
furnished on such form that relate to such items), in each case, that is not deemed filed under such provisions. For the purposes of this
registration statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Under no circumstances will any information filed
under current Items 2.02 or 7.01 of Form 8-K, and exhibits furnished on such form that relate to such items, be deemed incorporated
herein by reference unless such Form 8-K expressly provides to the contrary.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 102 of the Delaware
General Corporation Law, we have adopted provisions in our amended and restated certificate of incorporation and bylaws that limit or
eliminate the personal liability of our directors for a breach of their fiduciary duties of care as directors. The duty of care generally
requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material information
reasonably available to them. Consequently, a director will not be personally liable to us or our stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability for:
| • | any breach of the director’s duty of loyalty to us or our stockholders; |
| • | any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
| • | any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or |
| • | any transaction from which the director derived an improper personal benefit. |
These limitations of liability do not affect the
availability of equitable remedies such as injunctive relief or rescission. Our amended and restated certificate of incorporation also
authorizes us to indemnify our officers, directors and other agents to the fullest extent permitted under Delaware law.
As permitted by Section 145 of the Delaware
General Corporation Law, our amended and restated bylaws provide that:
| • | we may indemnify our directors, officers and employees to the fullest extent permitted by the Delaware General Corporation Law, subject
to limited exceptions; |
| • | we may advance expenses to our directors, officers and employees in connection with a legal proceeding to the fullest extent permitted
by the Delaware General Corporation Law, subject to limited exceptions; and |
| • | the rights provided in our amended and restated bylaws are not exclusive. |
Our amended and restated certificate of incorporation
and our amended and restated bylaws provide for the indemnification provisions described above and elsewhere herein. We have also entered
into separate indemnification agreements with our directors and officers which may be broader than the specific indemnification provisions
contained in the Delaware General Corporation Law. These indemnification agreements generally require us, among other things, to indemnify
our officers and directors against liabilities that may arise by reason of their status or service as directors or officers, other than
liabilities arising from willful misconduct. These indemnification agreements also generally require us to advance any expenses incurred
by the directors or officers as a result of any proceeding against them as to which they could be indemnified. In addition, we have purchased
a policy of directors’ and officers’ liability insurance that insures our directors and officers against the cost of defense,
settlement or payment of a judgment in some circumstances. These indemnification provisions and the indemnification agreements may be
sufficiently broad to permit indemnification of our officers and directors for liabilities, including reimbursement of expenses incurred,
arising under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Incorporated
by Reference |
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|
Exhibit
Number |
|
Exhibit Description |
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Form |
|
Date |
|
Exhibit
Number |
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Filed
Herewith |
4.1 |
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Amended and Restated Certificate of Incorporation. |
|
8-K |
|
June 24,
2014 |
|
3.1 |
|
|
4.2 |
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Amended and Restated Bylaws. |
|
8-K |
|
June 24,
2014 |
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3.2 |
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4.3 |
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Form of Common Stock Certificate. |
|
S-1/A |
|
June 18,
2014 |
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4.2 |
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5.1 |
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Opinion
of Latham & Watkins LLP. |
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|
X |
23.1 |
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Consent
of Independent Registered Public Accounting Firm. |
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X |
23.2 |
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Consent
of Latham & Watkins LLP (included in Exhibit 5.1). |
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X |
24.1 |
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Power of Attorney (included on signature page hereto). |
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X |
99.1(#) |
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Ardelyx, Inc. 2014 Equity Incentive Award Plan |
|
S-8 |
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July 14,
2014 |
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99.3 |
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99.2(#) |
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Ardelyx, Inc. 2016 Employment Commencement Incentive Plan |
|
S-8 |
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November 10,
2016 |
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99.1 |
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99.3(#) |
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Form of Stock Option Grant Notice and Stock Option Agreement under the Ardelyx, Inc. 2014 Equity Incentive Award Plan |
|
S-1/A |
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June 9,
2014 |
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10.6(b) |
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|
99.4(#) |
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Form of Restricted Stock Award Agreement and Restricted Stock Unit Award Agreement under the Ardelyx, Inc. 2014 Equity Incentive Award Plan |
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S-1/A |
|
June 9,
2014 |
|
10.6(c) |
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|
107.1 |
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Filing
Fee Table. |
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|
X |
![](https://content.edgar-online.com/edgar_conv_img/2022/03/01/0001104659-22-028658_image_002.jpg)
#Indicates management contract or compensatory plan.
Item 9. Undertakings.
(a) The 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(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) and
(a)(1)(ii) do not apply if the registration statement is on Form S-8 and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(1) 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.
(2) 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.
(b) The 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
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 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 SEC 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 Fremont, California, on February 28, 2022.
|
ARDELYX, INC. |
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By: |
/s/ Michael Raab |
|
Name: |
Michael Raab |
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Title: |
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
individual whose signature appears below constitutes and appoints Michael Raab and Justin Renz, and each of them, as attorneys-in-fact,
each with the power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
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|
/s/ Michael Raab |
|
President,
Chief Executive Officer and
Director
(principal executive officer) |
|
February 28, 2022 |
Michael Raab |
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|
/s/ Justin Renz |
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Chief Financial Officer
(principal financial officer and principal
accounting officer) |
|
February 28, 2022 |
Justin Renz |
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/s/ David Mott |
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Chairman of the Board of Directors |
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February 28, 2022 |
David Mott |
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/s/ Robert Bazemore |
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Director |
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February 28, 2022 |
Robert Bazemore |
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/s/ William Bertrand, Jr. |
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Director |
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February 28, 2022 |
William Bertrand, Jr. |
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/s/ Muna Bhanji |
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Director |
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February 28, 2022 |
Muna Bhanji |
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/s/ Geoffrey A. Block |
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Director |
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February 28, 2022 |
Geoffrey A. Block |
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/s/ Onaiza Cadoret-Manier |
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Director |
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February 28, 2022 |
Onaiza Cadoret-Manier |
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/s/ Jan M. Lundberg |
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Director
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February 28, 2022 |
Jan M. Lundberg, Ph.D. |
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/s/ Richard Rodgers |
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Director |
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February 28, 2022 |
Richard Rodgers |
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