TCON TRACON Pharmaceuticals Inc

As filed with the Securities and Exchange Commission on March 7, 2024

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

TRACON PHARMACEUTICALS, INC.

(Exact name of registrant as specified in its charter)

Delaware		34-2037594
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

4350 La Jolla Village Drive, Suite 800 San Diego, California		92122
(Address of Principal Executive Offices)		(Zip Code)

 

 

Amended and Restated 2015 Equity Incentive Plan

Amended and Restated 2015 Employee Stock Purchase Plan

(Full titles of the plans)

Charles P. Theuer, M.D., Ph.D.

President and Chief Executive Officer

TRACON Pharmaceuticals, Inc.

4350 La Jolla Village Drive, Suite 800

San Diego, California 92122

(858) 550-0780

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

Copies to:

Scott B. Brown, CPA Chief Financial Officer TRACON Pharmaceuticals, Inc. 4350 La Jolla Village Drive, Suite 800 San Diego, California 92122 (858) 550-0780	Matthew T. Browne Cooley LLP 10265 Science Center Drive San Diego, California 92121 (858) 550-6000

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. 

 

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EXPLANATORY NOTE

 

This Registration Statement on Form S-8 (the “Registration Statement”) is being filed by TRACON Pharmaceuticals, Inc. (the “Registrant”) for the purpose of registering (i) an additional 2,213,498 shares of Registrant’s Common Stock, par value $0.001 per share (“Common Stock”), under the Registrant’s Amended and Restated 2015 Equity Incentive Plan, as amended (the “2015 Plan”), pursuant to the provisions of the 2015 Plan providing for an automatic increase in the number of shares of Common Stock reserved and available for issuance under the 2015 Plan on January 1, 2024, and (ii) 250,000 additional shares of Common Stock under the Registrant’s Amended and Restated 2015 Employee Stock Purchase Plan, as amended (the “2015 ESPP”) pursuant to the provisions of the 2015 ESPP providing for an automatic increase in the number of shares of Common Stock reserved and available for issuance under the 2015 ESPP on January 1, 2024. These additional shares of Common Stock are securities of the same class as other securities for which a registration statement of the Registrant on Form S-8 relating to the 2015 Plan and 2015 ESPP are effective. In accordance with General Instruction E to Form S-8, the contents of the Registrant’s registration statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on January 30, 2015 (File No. 333-201808), February 19, 2016 (File No. 333-209592), March 1, 2017 (File No. 333-216347), March 1, 2018 (File No. 333-223333), March 1, 2019 (File No. 333-229988), February 28, 2020 (File No. 333-236732), February 25, 2021 (File No. 333-253546), July 22, 2021 (File No. 333-258077), March 16, 2022 (File No. 333-263591), and March 8, 2023 (File No. 333-270372) are hereby incorporated by reference.

 

INCORPORATION OF DOCUMENTS BY REFERENCE

 

Item 3. Incorporation of Certain Documents by Reference.

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed by the Registrant with the Commission:

(a) the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 5, 2024; and

(b) the description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-36818), filed with the Commission under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on January 27, 2015, including any amendments or reports filed for the purpose of updating such description, including Exhibit 4.2 to the Registrant's Annual Report on Form 10-K referenced in (a) above.

In addition, all other reports or documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information that the Registrant discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K (and corresponding information furnished under Item 9.01 or included as an exhibit thereto or incorporated therein by reference) that it may from time to time furnish to the Commission will be incorporated by reference into, or otherwise included in, this Registration Statement.

Any statement, including financial statements, contained 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 herein or therein 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.

 

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Item 8. Exhibits.

 

Exhibit Number		Description of Document
4.1(1)		Amended and Restated Certificate of Incorporation.
4.2(2)		Certificate of Amendment to the Amended and Restated Certificate of Incorporation of TRACON Pharmaceuticals, Inc.
4.3(1)		Amended and Restated Bylaws.
4.4(3)		Form of Common Stock Certificate.
5.1		Opinion of Cooley LLP.
23.1		Consent of Independent Registered Public Accounting Firm.
23.2		Consent of Cooley LLP (included in Exhibit 5.1).
24.1		Power of Attorney (included on signature page).
99.1(4)		TRACON Pharmaceuticals, Inc. 2015 Equity Incentive Plan and Forms of Stock Option Grant Notice, Stock Option Agreement, Notice of Exercise and Restricted Stock Unit Agreement thereunder, as amended June 28, 2021.
99.2(5)		TRACON Pharmaceuticals, Inc. Amended and Restated 2015 Employee Stock Purchase Plan, as amended June 10, 2021.
107		Filing Fee Table.

 

(1)	Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on February 4, 2015.
(2)	Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 20, 2023.
(3)	Incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No. 333-201280), as amended.
(4)	Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on June 30, 2021.
(5)	Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed with the SEC on June 11, 2021.

 

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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 San Diego, State of California, on this 7th day of March, 2024.

 

	TRACON PHARMACEUTICALS, INC.
	By:	/s/ Charles P. Theuer, M.D., Ph.D.
		Charles P. Theuer, M.D., Ph.D.  President and Chief Executive Officer

 

POWER OF ATTORNEY

 

Know All Persons By These Presents, that each person whose signature appears below constitutes and appoints Dr. Charles P. Theuer, M.D., Ph.D., and Scott B. Brown, CPA, M.S., and each of them, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Charles P. Theuer, M.D., Ph.D.		President, Chief Executive Officer and Member of the Board of Directors		March 7, 2024
Charles P. Theuer, M.D., Ph.D.		(Principal Executive Officer)
/s/ Scott B. Brown, CPA		Chief Financial Officer		March 7, 2024
Scott B. Brown, CPA		(Principal Accounting and Financial Officer)
/s/ Lisa Johnson-Pratt, M.D.		Member of the Board of Directors		March 7, 2024
Lisa Johnson-Pratt, M.D.
/s/ Carol Lam, J.D.		Member of the Board of Directors		March 7, 2024
Carol Lam, J.D.
/s/ William R. LaRue		Member of the Board of Directors		March 7, 2024
William R. LaRue
/s/ Martin A. Mattingly, Pharm.D.		Member of the Board of Directors		March 7, 2024
Martin A. Mattingly, Pharm.D.
/s/ Saundra Pelletier		Member of the Board of Directors		March 7, 2024
Saundra Pelletier
/s/ J. Rainer Twiford, J.D., Ph.D.		Member of the Board of Directors		March 7, 2024
J. Rainer Twiford, J.D., Ph.D.
/s/ Stephen T. Worland, Ph.D.		Member of the Board of Directors		March 7, 2024
Stephen T. Worland, Ph.D.

 

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Matthew Browne +1 858 550 6045 mbrowne@cooley.com

 

March 7, 2024

TRACON Pharmaceuticals, Inc.

4350 La Jolla Village Drive, Suite 800

San Diego, California 92122

 

Ladies and Gentlemen:

We have acted as counsel to TRACON Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) covering the offering of up to 2,463,498 shares (the “Shares”) of the Company’s Common Stock, par value $0.001 per share (“Common Stock”), consisting of (a) 2,213,498 shares of Common Stock issuable pursuant to the Company’s Amended and Restated 2015 Equity Incentive Plan (the “Incentive Plan”) and (b) 250,000 shares of Common Stock issuable pursuant to the Company’s Amended and Restated 2015 Employee Stock Purchase Plan (together with the Incentive Plan, the “Plans”).

 

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and the related prospectuses, (b) the Plans, (c) the Company’s certificate of incorporation and bylaws, each as currently in effect, and (d) such other records, documents, opinions, certificates, memoranda and instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and the related prospectuses, will be validly issued, fully paid and nonassessable (except as to Shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

This opinion is limited to the matters expressly set forth in this letter, and no opinion should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we have no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.

We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.

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Sincerely,

Cooley LLP

 

 

 

By: /s/ Matthew Browne

Matthew Browne

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Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Amended and Restated 2015 Equity Incentive Plan and the Amended and Restated 2015 Employee Stock Purchase Plan of TRACON Pharmaceuticals, Inc. of our report dated March 5, 2024, with respect to the consolidated financial statements of TRACON Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

 

 

 

/s/ Ernst & Young LLP

San Diego, California

March 5, 2024

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Calculation of Filing Fee Table

 

Form S-8

(Form Type)

 

TRACON Pharmaceuticals, 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	Proposed Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.001 par value per share, to be issued pursuant to the Amended and Restated 2015 Equity Incentive Plan	Other(2)	2,213,498(2)	$0.18(4)	$401,750	0.0001476	$59.30
Equity	Common Stock, $0.001 par value per share, to be issued pursuant to the Amended and Restated 2015 Employee Stock Purchase Plan	Other(3)	250,000(3)	$0.15(5)	$38,569	0.0001476	$5.69
Total Offering Amounts					$440,319		—
Total Fee Offsets							—
Net Fee Due							$64.99

 

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