As filed with the Securities and Exchange Commission on June 19, 2009

Registration No. 333-156035

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

POST-EFFECTIVE AMENDMENT ON FORM S-8
TO FORM S-4

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

INOVIO BIOMEDICAL CORPORATION

(Exact name of registrant as specified in its charter)

 

 

11494 Sorrento Valley Road

San Diego, California 92121

(858) 597-6006

(Address of principal executive offices, including zip code and telephone number)

 

Viral Genomics, Inc. Equity Compensation Plan

(Full title of the Plans)

 

 

Dr. J. Joseph Kim, Chief Executive Officer

Dr. Avtar Dhillon, President and Chairman of Board of Directors
Inovio Biomedical Corporation
11494 Sorrento Valley Road

San Diego, California 92121

(858) 597-6006

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

 

Copy to:

 

Steven G. Rowles, Esq.

J. Nathan Jensen, Esq.

Morrison & Foerster LLP

12531 High Bluff Drive, Suite 100

San Diego, California 92130

858-720-5100

 

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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer  o		Accelerated filer  o
Non-accelerated filer  o (Do not check if a smaller reporting company)		Smaller reporting company  x

 

 

EXPLANATORY NOTE

 

This Post-Effective Amendment on Form S-8 to Form S-4 Registration Statement relates to the offering of 9,082,680 shares of the Registrant’s Common Stock ($0.001 par value per share) issuable pursuant to the exercise of options outstanding under the Viral Genomics, Inc. Equity Compensation Plan.  Pursuant to the Amended and Restated Agreement and Plan of Merger (the “Merger Agreement”) by and among Inovio Biomedical Corporation, Inovio Acquisition, LLC and VGX Pharmaceuticals, Inc., the Registrant assumed all of the outstanding options to purchase stock of VGX Pharmaceuticals, Inc. and, as a result of such assumption, such stock options now reflect the right to acquire shares of the Registrant’s Common Stock, subject to appropriate adjustments to the number of shares and exercise price of each such option.  The shares of the Registrant’s Common Stock issuable upon exercise of such options were previously registered on the S-4 Registration Statement. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional securities that may be offered or issued in connection with any stock dividend, stock split, recapitalization or other similar transaction.

 

 

 

PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

 

Item 1.        Plan Information.

 

Not required to be filed with this Registration Statement.

 

Item 2.        Registrant Information and Employee Plan Annual Information.

 

Not required to be filed with this Registration Statement.

 

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 (the “Commission”) are incorporated by reference herein:

 

a.             The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008, which includes audited financial statements for the Registrant’s fiscal year ended December 31, 2008.

 

b.             All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the audited financial statements referred to in (a) above.

 

c.             The description of the Registrant’s Common Stock contained in the Registrant’s registration statement filed under Section 12 of the Exchange Act, as modified by the Registrant’s Current Report on Form 8-K filed June 18, 2009.

 

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers 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 a document 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 in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.  Any 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.

 

Under Section 145 of the Delaware General Corporation Law (the “DGCL”), a corporation has the power to indemnify its directors and officers under certain prescribed circumstances and, subject to certain limitations, against certain costs and expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred in connection with any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, to which any of them is a party by reason of his being a director or officer of the corporation if it is determined that he acted in accordance with the applicable standard of conduct set forth in such statutory provision. The Registrant’s Certificate of Incorporation provides that, pursuant to

 

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the DGCL, its directors shall not be liable for monetary damages for breach of the directors’ fiduciary duty of care to us and our stockholders. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director’s duty of loyalty to the Registrant of its stockholders, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of the law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.

 

Section 7 of the Registrant’s Bylaws provides that the Registrant will indemnify, to the fullest extent authorized by the DGCL, each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Registrant, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer against all expenses, liability and loss reasonably incurred or suffered by such person in connection therewith. The Registrant also has directors’ and officers’ liability insurance.

 

Item 7.        Exemption From Registration Claimed.

 

Not applicable.

 

Item 8.        Exhibits.

 

5.1           Opinion of Morrison & Foerster LLP

 

10.62*     Viral Genomics, Inc. Equity Compensation Plan (filed as Exhibit 10.62 to the Registrant’s Registration Statement on Form S-4 (Registration No. 333-156035)).

 

23.1         Consent of Independent Registered Public Accounting Firm

 

23.2         Consent of Morrison & Foerster LLP (contained in Exhibit 5.1)

 

24.1         Power of Attorney (see Signature Page)

 

*              Indicates management contract or compensatory plan or arrangement.

 

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 of 1933;

 

(ii)  To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or them 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 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.

 

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(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:

 

(A) Paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; and

 

(B) Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

 

(C) Provided further, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is for an offering of asset-backed securities on Form S-1 or Form S-3, and the information required to be included in a post-effective amendment is provided pursuant to Item 1100(c) of Regulation AB.

 

(2)           That, for the purpose of determining any liability under the Securities Act of 1933, 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.

 

(4)           If the registrant is a foreign private issuer, to file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering.  Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.  Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.

 

(b)           The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.

 

(c)           Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of the 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 Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

 

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 the City of San Diego, State of California, on June 19, 2009.

 

		INOVIO BIOMEDICAL CORPORATION
		By:	/s/ J. Joseph Kim
			Dr. J. Joseph Kim
			Chief Executive Officer
			(Principal Executive Officer)

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, Avtar Dhillon and Peter Kies as his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on June 19, 2009.

 

Signature		Title
/s/ Avtar Dhillon		President and Chairman of the Board of Directors
Dr. Avtar Dhillon
/s/ J. Joseph Kim		Chief Executive Officer and Director
Dr. J. Joseph Kim		(Principal Executive Officer)
/s/ Peter Kies		Chief Financial Officer
Peter Kies		(Principal Financial and Accounting Officer)
/s/ Simon Benito		Director
Simon Benito
/s/ Morton Collins		Director
Dr. Morton Collins
/s/ Tee Khiang Ng		Director
Tee Khiang Ng

 

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EXHIBIT INDEX

 

Exhibit Number		Document
5.1		Opinion of Morrison & Foerster LLP
10.62*		Viral Genomics, Inc. Equity Compensation Plan (filed as Exhibit 10.62 to the Registrant’s Registration Statement on Form S-4 (Registration No. 333-156035))
23.1		Consent of Independent Registered Public Accounting Firm
23.2		Consent of Morrison & Foerster LLP (contained in Exhibit 5.1)
24.1		Power of Attorney (see Signature Page)

 

*Indicates management contract or compensatory plan or arrangement.

 

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