As
filed with the Securities and Exchange Commission on August 23, 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
PURE
BIOSCIENCE, Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
33-0530289 |
| (State
or other jurisdiction of |
|
(I.R.S.
Employer |
| incorporation
or organization) |
|
Identification
No.) |
1725
Gillespie Way
El Cajon, California |
|
92020 |
| (Address
of Principal Executive Offices) |
|
(Zip
Code) |
Pure
Bioscience, Inc. Restricted Stock Units Agreements (Non-Employee Director)
Pure
Bioscience, Inc. Stock Option Agreements (Non-Employee Director)
Pure
Bioscience, Restricted Stock Units (Employees and Consultants)
(Full
title of the plans)
Henry
R. Lambert
Chief
Executive Officer
1725
Gillespie Way
El
Cajon, California 92020
(619)
596-8600 |
|
Jeffrey
C. Thacker, Esq.
Ryan
J. Gunderson, Esq.
Gunderson
Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
3570
Carmel Mountain Rd., Suite 200
San
Diego, CA 92130
Tel:
(858) 436-8000 |
(Name,
address, telephone number,
including area code, of agent for service) |
|
(Copy
to) |
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. (Check one)
| Large
accelerated filer [ ] |
Accelerated
filer [ ] |
Non-accelerated
filer [ ]
|
Smaller
reporting company [X]
|
| |
|
|
|
| |
|
(Do not check if a 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.
[ ]
CALCULATION
OF REGISTRATION FEE
Title of securities to be
registered |
|
Amount to be
registered (1) |
|
|
Proposed
maximum offering
price
per share (2) |
|
|
Proposed maximum
aggregate offering
price (2) |
|
|
Amount of
registration fee |
|
| Common Stock, $0.01 par value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Restricted Stock Units Agreements (Non-Employee Director) |
|
|
150,000 |
|
|
$ |
1.19 |
|
|
$ |
178,500 |
|
|
$ |
20.69 |
|
| Stock Option Agreements (Non-Employee Director) |
|
|
200,000 |
|
|
$ |
1.19 |
|
|
$ |
238,000 |
|
|
$ |
27.58 |
|
| Restricted Stock Units Agreements (Employees and Consultants) |
|
|
500,000 |
|
|
$ |
1.19 |
|
|
$ |
595,000 |
|
|
$ |
68.96 |
|
| Total |
|
|
850,000 |
|
|
|
1.19 |
|
|
$ |
1,011,500 |
|
|
$ |
117.23 |
|
(1)
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration
Statement also covers an indeterminate number of shares of Common Stock that may be offered or issued by reason of stock splits,
stock dividends or similar transactions.
(2)
Estimated in accordance with Rule 457(c) promulgated under the Securities Act solely for the purpose of calculating the amount
of the registration fee on the basis of the average of the high and low price per share of the Registrant’s Common Stock
as reported on the OTCQB on August 18, 2017.
This
registration statement shall become effective upon filing in accordance with Rule 462 under the Securities Act.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
As
permitted by the rules of the Securities and Exchange Commission (the “Commission”), this registration statement omits
the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered
to the participants covered by this registration statement as required by Rule 428(b) promulgated under the Securities Act. Such
documents are not being filed with the Commission as part of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. Such documents and the documents incorporated by reference in this registration statement
pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents which have been or will be filed by the Registrant with the Securities and Exchange Commission (the “Commission”)
are incorporated herein by reference:
| |
(a) |
the
Registrant’s Annual Report on Form 10-K for the fiscal year ended July 31, 2016, filed on October 27, 2016; |
| |
|
|
| |
(b) |
the
Registrant’s quarterly report on Form 10-Q for the quarter ended October 31, 2016 filed on December 14, 2016; |
| |
|
|
| |
(c) |
the
Registrant’s quarterly report on Form 10-Q for the quarter ended January 31, 2017 filed on March 2, 2017; |
| |
|
|
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(d) |
the
Registrant’s quarterly report on Form 10-Q for the quarter ended April 30, 2017 filed on June 8, 2017; |
| |
|
|
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(e) |
the
Registrant’s current reports on Form 8-K filed on December 7, 2016, January 20, 2017, January 24, 2017, June 23, 2017
and July 28, 2017; |
| |
|
|
| |
(f) |
the
Registrant’s definitive proxy statement on Schedule 14A filed on December 8, 2016; and |
| |
|
|
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(g) |
the
description of Common Stock of the Registrant contained or incorporated in the registration statements filed by the Registrant
under the Exchange Act, including any amendments or reports filed for the purpose of updating such description. |
All
documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates
that all securities offered 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 of this Registration Statement from the date of filing of such
documents, except as to any portion of any such report or other document furnished under Items 2.02 or 7.01 of Form 8-K that is
not deemed filed under such provisions.
For
the purposes of this registration statement, any statement contained in a report or 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.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Section
102(b)(7) of the Delaware General Corporation Law allows a corporation to provide in its certificate of incorporation that a director
of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit.
Section
145(a) of the Delaware General Corporation Law provides 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) by reason of the fact that such 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 enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action,
suit or proceeding if he or she 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, with respect to any criminal action or proceeding, had no cause to believe his or her
conduct was unlawful.
Section
145(b) of the Delaware General Corporation Law provides 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 procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against
expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement
of such action or suit if he or she acted under similar standards, except that no indemnification may be made in respect of 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 in which such action or suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified for such expenses
which the court shall deem proper.
Section
145 of the Delaware General Corporation Law further provides that: (i) to the extent that a former or present director or officer
of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or
in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him or her in connection therewith; (ii) indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and (iii) the corporation may
purchase and maintain insurance on behalf of any present or former director, officer, employee or agent of the corporation or
any person who at the request of the corporation was serving in such capacity for another entity against any liability asserted
against such person and incurred by him or her in any such capacity or arising out of his or her status as such, whether or not
the corporation would have the power to indemnify him or her against such liabilities under Section 145.
Article
10 of the Registrant’s Certificate of Incorporation, as amended, specifies that a director of the Registrant shall not be
personally liable to the Registrant or to any stockholders for monetary damages for breach of fiduciary duties as a director,
except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation
Law.
Article
9 of the Registrant’s Bylaws, as amended, state that the Registrant shall indemnify, to the fullest extent permitted by
applicable law, 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 authorized by reason of the fact that such person is or was a director, officer, employee or agent of the Registrant
or is or was serving at the request of the Registrant.
The
Registrant has entered into indemnification agreements with its directors and officers. Subject to certain limited exceptions,
under these agreements, the Registrant will be obligated, to the fullest extent not prohibited by the Delaware General Corporation
Law, to indemnify such directors and officers against all expenses, judgments, fines and penalties incurred in connection with
the defense or settlement of any actions brought against them by reason of the fact that they were directors or officers of the
Registrant. The Registrant also maintains liability insurance for its directors and officers in order to limit its exposure to
liability for indemnification of such persons.
We
have been advised that in the opinion of the Commission indemnification for liabilities arising under the Securities Act 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 is asserted by one of our directors, officers, or controlling persons in connection with the securities
being registered, we will, unless in the opinion of our legal counsel the matter has been settled by controlling precedent, submit
the question of whether such indemnification is against public policy to a court of appropriate jurisdiction. We will then be
governed by the court’s decision.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
See
Exhibit Index, which is incorporated here by reference.
Item
9. 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;
(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 this 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 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.
Paragraphs
(a)(l)(i) and (a)(l)(ii) above do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this 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.
(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 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 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 El Cajon, State of California, on August 23, 2017.
| |
PURE
BIOSCIENCE, INC. |
| |
|
|
| |
By: |
/s/
HENRY R. LAMBERT |
| |
|
Henry
R. Lambert |
| |
|
Chief
Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Henry R. Lambert and Mark
S. Elliott, and each of them, his or her true and lawful attorney-in-fact and agent, 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 or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his or her 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/
HENRY R. LAMBERT |
|
Chief
Executive Officer and Director |
|
August
23, 2017 |
| Henry
R. Lambert |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
MARK S. ELLIOTT |
|
Vice
President, Finance |
|
August
23, 2017 |
| Mark
S. Elliott |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
DAVE J. PFANZELTER |
|
Chairman
of the Board |
|
August
23, 2017 |
| Dave
J. Pfanzelter |
|
|
|
|
| |
|
|
|
|
| /s/
GARY D. COHEE |
|
Director |
|
August
23, 2017 |
| Gary
D. Cohee |
|
|
|
|
| |
|
|
|
|
| /s/
WILLIAM OTIS |
|
Director |
|
August
23, 2017 |
| William
Otis |
|
|
|
|
| |
|
|
|
|
| /s/
TOM Y. LEE |
|
Director |
|
August
23, 2017 |
| Tom
Y. Lee |
|
|
|
|
| |
|
|
|
|
| /s/
JANET RISI FIELD |
|
Director |
|
August
23, 2017 |
| Janet
Risi Field |
|
|
|
|
EXHIBIT
INDEX
EXHIBIT
NUMBER |
|
DESCRIPTION |
| |
|
|
| 4.1 |
|
Certificate
of Incorporation of Pure Bioscience, Inc. (incorporated by reference to Exhibit 3.1 to the Annual Report on Form 10-K, filed
with the SEC on October 29, 2012) |
| |
|
|
| 4.2 |
|
Certificate
of Amendment to Certificate of Incorporation of Pure Bioscience, Inc. (incorporated by reference to Exhibit 3.1.1 to the Annual
Report on Form 10-K, filed with the SEC on October 29, 2012) |
| |
|
|
| 4.3 |
|
Bylaws
of Pure Bioscience, Inc. (incorporated by reference to Exhibit 3.2 to the Annual Report on Form 10-K, filed with the SEC on
October 29, 2012) |
| |
|
|
| 4.4 |
|
Amendment
to the Bylaws of Pure Bioscience, Inc. (incorporated by reference to Exhibit 3.2.1 to the Annual Report on Form 10-K, filed
with the SEC on October 29, 2012) |
| |
|
|
| 4.5 |
|
Wharton
Capital Markets LLC Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, filed with the SEC
on March 16, 2012) |
| |
|
|
| 4.6 |
|
Form
of Underwriter’s Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, filed with the
SEC on September 13, 2012) |
| |
|
|
| 4.7 |
|
Form
of Common Stock Purchase Warrant (incorporated by reference to Exhibit 10.5 of the Current Report on Form 8-K filed with the
SEC on June 29, 2012) |
| |
|
|
| 4.8 |
|
Form
of Common Stock Purchase Warrant (incorporated by reference to Exhibit 10.2 of the Current Report on Form 8-K filed with the
SEC on July 6, 2012) |
| |
|
|
| 4.9 |
|
Morrison
& Foerster LLP Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, filed with the SEC
on January 31, 2013) |
| |
|
|
| 4.10 |
|
Form
of Investor Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, filed with the SEC April
23, 2013) |
| |
|
|
| 4.11 |
|
Warrant,
dated February 3, 2012, issued by PURE Bioscience, Inc. to Wharton Capital Markets LLC (incorporated by reference to Exhibit
4.1 of the Quarterly Report on Form 10-Q filed with the SEC on March 16, 2012) |
| |
|
|
| 4.12 |
|
Form
of Investor Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, filed with the SEC August
27, 2014) |
| |
|
|
| 4.13 |
|
Form
of Five-Year Warrant (incorporated by reference to Exhibit 4.11 to the Annual Report on Form 10-K for the year ended July
31, 2015, filed with the SEC October 26, 2015) |
| |
|
|
| 4.15 |
|
Form
of Investor Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, filed with the SEC December
7, 2016) |
| |
|
|
| 4.16 |
|
Form
of Placement Agent Warrant (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K, filed with the SEC
December 7, 2016) |
| |
|
|
| 5.1 |
|
Opinion
of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, counsel for the Registrant, regarding the legal validity
of the shares of Common Stock being registered on this Registration Statement (filed herewith) |
| |
|
|
| 23.1 |
|
Consent
of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (contained in Exhibit 5.1) |
| |
|
|
| 23.2 |
|
Consent
of Independent Registered Public Accounting Firm (filed herewith) |
| |
|
|
| 24.1 |
|
Power
of Attorney (included in the signature page to this Registration Statement) |
| |
|
|
| 99.1 |
|
Pure
Bioscience, Inc. Form of Restricted Stock Units Agreements (Non-Employee Director) (filed herewith) |
| |
|
|
| 99.2 |
|
Pure
Bioscience, Inc. Form of Stock Option Agreement (Non-Employee Director) (filed herewith) |
| |
|
|
| 99.3 |
|
Pure
Bioscience, Inc. Form of Restricted Stock Units Agreement (Employee) (filed herewith) |
| |
|
|
| 99.4 |
|
Pure
Bioscience, Inc. Form of Restricted Stock Units Agreement (Consultant) (filed herewith) |
| |
|
|
