As filed with the Securities and Exchange Commission on August 10, 2022

Registration No. 333-266417

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 2

To

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Benitec Biopharma Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		2834		84-462-0206
(State or other jurisdiction of incorporation or organization)		(Primary Standard Industrial Classification Code Number)		(I.R.S. Employer Identification Number)

3940 Trust Way

Hayward, California 94545

(510) 780-0819

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Dr. Jerel Banks

Chief Executive Officer

3940 Trust Way

Hayward, California 94545

(510) 780-0819

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

 

 

Copies to:

 

Matthew S. O’Loughlin, Esq. Ben D. Orlanski, Esq. Louis Rambo, Esq. Proskauer Rose LLP 2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3010 (310) 557-2900 (310) 557-2193-Facsimile		Barry I. Grossman, Esq. Sarah Williams, Esq. Matthew Bernstein, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, NY 10105 (212) 370-1300 (212) 370-7889-Facsimile

 

 

Approximate date of commencement of proposed sale to public: As soon as practicable after this Registration Statement is declared effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

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.  ☐

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

EXPLANATORY NOTE

Benitec Biopharma Inc. is filing this Amendment No. 2 (this “Amendment”) to its Registration Statement on Form S-1 (File No. 333-266417) (the “Registration Statement”) as an exhibits-only filing. Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 16(a) of Part II of the Registration Statement, the signature page to the Registration Statement and the filed exhibits. The remainder of the Registration Statement is unchanged and has been omitted.

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 16.

Exhibits and Financial Statement Schedules.

 

(a)

Exhibits.

 

Exhibit Number		Exhibit
1.1**		Form of Underwriting Agreement
2.1		Amended and Restated Scheme Implementation Agreement (incorporated by reference to Exhibit  99.4 of the Current Report on Form 6-K of Benitec Biopharma Limited (File No. 001-37518)  furnished on March 18, 2020)
3.1		Amended and Restated Certificate of Incorporation of Benitec Biopharma Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 8-K filed on April 15, 2020)
3.2		Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Benitec Biopharma Inc., effective December 17,  2021 (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 8-K filed on December 21, 2021)
3.3		Amended and Restated Bylaws of Benitec Biopharma Inc. (incorporated by reference to Exhibit  3.2 to the Registrant’s Form 8-K filed on April 15, 2020)
4.1		Form of common stock certificate of Benitec Biopharma Inc. (incorporated by reference to Exhibit  4.1 to the Registrant’s Form 8-K filed on April 15, 2020)
4.2**		Form of Pre-Funded Warrant
4.3**		Form of Common Warrant
4.4		Form of Purchase Warrant (incorporated by reference to Exhibit 99.4 of the Current Report on Form 6-K of Benitec Biopharma Limited (File No. 001-37518) furnished on September 30, 2019)
4.5*		Form of Warrant Agency Agreement, by and between Benitec Biopharma Inc. and Computershare Trust Company, N.A., as warrant agent
5.1**		Opinion of Proskauer Rose LLP
10.1		Share Subscription Agreement, dated October  24, 2016, between Nant Capital, LLC and Benitec Biopharma Limited (incorporated by reference to Exhibit 10.1 to the Registration Statement on Form F-3  of Benitec Biopharma Limited (File No. 333-218400) filed with the SEC on June 1, 2017)
10.2		Commercial Lease Agreement between Hayward Point Eden I Limited Partnership and Benitec Biopharma Limited (incorporated by reference to Exhibit 10.5 to the Registration Statement on Form F-1 of Benitec Biopharma Limited (File No. 333-205135) filed with the SEC on June 22, 2015)
10.3†		Employment agreement between Megan Boston and Benitec Biopharma Limited dated July  11, 2018 (incorporated by reference to Exhibit 10.3 to the Registration Statement on Form S-1 of Benitec Biopharma Inc. (File No.  333-246314) filed with the SEC on August 14, 2020)
10.4†		Employment agreement between Dr. Jerel A. Banks and Tacere Therapeutics, Inc. dated September  11, 2018 (incorporated by reference to Exhibit 10.4 to the Registration Statement on Form S-1 of Benitec Biopharma Inc. (File No.  333-246314) filed with the SEC on August 14, 2020)
10.5		Research Collaboration Agreement, dated January  27, 2017, between Benitec Biopharma Limited and Nant Capital, LLC (incorporated by reference to Exhibit 10.3 to the Registration Statement on Form F-3  filed with the SEC on June 1, 2017)
10.6		Form of Securities Purchase Agreement, dated September  30, 2019, between Benitec Biopharma Limited and the Purchasers (incorporated by reference to Exhibit 99.2 to Form 6-K of Benitec Biopharma Limited (File No. 001-37518) filed with the SEC on September 30, 2019)

 

II-1

Exhibit Number		Exhibit
10.7†		Form of Indemnification Agreement (incorporated by reference to Exhibit 10.1 to the Registrant’s Form 8-K filed on April 15, 2020)
10.8†		Benitec Officers’ and Employees’ Share Option Plan (incorporated by reference to Exhibit 4.2 of the Registration Statement on Form  S-8 of Benitec Biopharma Limited (File No. 333-209398) filed on February 3, 2016)
10.9†		Form of Option Award Agreement under the Benitec Officers’ and Employees’ Share Option Plan (incorporated by reference to Exhibit 10.9 to the Registration Statement on Form S-1 of Benitec Biopharma Inc. (File No. 333-246314) filed with the SEC on August 14, 2020)
10.10†		Benitec Biopharma Inc. 2020 Equity and Incentive Compensation Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Form  8-K filed on December 14, 2020)
10.11†		First Amendment to Benitec Biopharma Inc. 2020 Equity and Incentive Compensation Plan, dated as of December  8, 2021 (incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed on October 22, 2021)
10.12†		Form of Evidence of Award of Option Right Pursuant to the Benitec Biopharma Inc. 2020 Equity Incentive and Compensation Plan (Executives)  (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on December 15, 2020)
10.13†		Form of Evidence of Award of Option Right Pursuant to the Benitec Biopharma Inc. 2020 Equity Incentive and Compensation Plan (Non-Employee Directors) (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form  8-K filed on December 15, 2020)
21.1		List of significant subsidiaries (incorporated by reference to Exhibit 21.1 to the Registrant’s Form 10-K filed on September 20, 2021)
23.1**		Consent of Baker Tilly US, LLP
23.2**		Consent of Proskauer Rose LLP (included in Exhibit 5.1)
24.1		Power of Attorney (included on signature page to the initial filing of this Registration Statement)
107**		Calculation of Filing Fee Table

 

*	Filed herewith.

**	Previously filed.

†	Indicates a management contract or compensatory plan.

 

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Signatures

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hayward, State of California, on August 10, 2022.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Dr. Jerel Banks Dr. Jerel Banks		Chief Executive Officer, Director (principal executive officer)		August 10, 2022
/s/ * Megan Boston		Executive Director, Director (principal accounting and financial officer)		August 10, 2022
/s/ * J. Kevin Buchi		Director		August 10, 2022
/s/ * Peter Francis		Director		August 10, 2022
/s/ * Edward Smith		Director		August 10, 2022

 

*By:		/s/ Dr. Jerel Banks
		Dr. Jerel Banks Attorney-in-fact

 

II-3