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vaxxs8posteffectiveam
 
 
 
 
As filed with the Securities and Exchange Commission on May 5,
 
2023
Registration No. 333-271486
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
POST EFFECTIVE AMENDMENT NO. 1
 
TO
FORM S-8
REGISTRATION
 
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
VAXXINITY,
 
INC.
(Exact name of registrant as specified in its charter)
 
 
Delaware
 
86-2083865
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification Number)
505 Odyssey Way
Merritt Island, FL 32953
(Address, including zip code, principal executive offices)
Vaxxinity,
 
Inc. 2021 Omnibus Incentive Compensation Plan
(Full title of the plan)
René Paula Molina
General Counsel and Secretary
Vaxxinity,
 
Inc.
505 Odyssey Way
Merritt Island, FL 32953
Telephone: (254)
 
244-5739
(Name, address and telephone number, including area code, of agent for service)
 
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.
☐
 
 
 
 
 
 
 
EXPLANATORY
 
NOTE
This Post-Effective
 
Amendment No. 1
 
on Form S-8 (the
 
“Registration Statement”) is
 
being filed to
 
include a signed
consent of Armanino LLP and a signed legal opinion and consent of Mintz, Levin, Cohn, Ferris, Glovsky
 
and Popeo,
P.C.
 
(“Mintz”).
 
The
 
Form
 
S-8
 
(Registration
 
No.
 
333-271486)
 
previously
 
filed
 
with
 
the
 
Securities
 
and
 
Exchange
Commission
 
on
 
April
 
28,
 
2023
 
(the
 
“Original
 
Filing”)
 
included
 
the
 
consent
 
of
 
Armanino
 
LLP,
 
the
 
Company’s
independent registered
 
public accounting firm
 
(the “Auditor Consent”),
 
as Exhibit 23.1
 
and the opinion
 
and consent
of Mintz
 
(the “Legal
 
Opinion”) as
 
Exhibit 5.1
 
but did
 
not include
 
the conformed
 
signatures of
 
Armanino LLP
 
and
Mintz in the Auditor Consent and the Legal Opinion, respectively.
 
Except
 
as
 
described
 
above,
 
this
 
Registration
 
Statement
 
does
 
not
 
update,
 
amend
 
or
 
modify
 
any
 
other
 
information,
statement or disclosure contained in the Original Filing. No additional securities are being registered, and registration
fees were paid upon filing of the Original Filing.
 
PART
 
II
INFORMATION REQUIRED
 
IN THE REGISTRATION
 
STATEMENT
 
Item 8. Exhibits.
 
Exhibit
Number
 
Exhibit Description
 
Incorporated by
Reference
 
 
Filed
Herewith
 
 
Form
 
 
Date
 
 
Numbe
r
 
5.1
 
 
 
 
 
 
X
 
23.1
 
 
 
 
 
 
X
 
23.2
 
 
 
 
 
 
X
 
24.1
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SIGNATURES
The Registrant.
 
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
Post-Effective
 
Amendment
 
No. 1
 
to the
 
above-referenced Registration
 
Statement to
 
be signed
 
on its
 
behalf by
 
the
undersigned, thereunto duly authorized, in Merritt Island, Florida
 
,
 
on May 5, 2023.
 
 
VAXXINITY,
 
INC.
By:
 
/s/ Mei Mei Hu
 
Name: Mei Mei Hu
 
Title: President and Chief Executive Officer
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.
 
Name
 
Title
 
Date
/s/ Mei Mei Hu
 
President, Chief Executive Officer,
 
and Director
 
May 5, 2023
Mei Mei Hu
 
(Principal Executive Officer)
 
/s/ Jason Pesile
 
Senior Vice President, Finance &
 
Accounting
 
May 5, 2023
Jason Pesile
 
(Principal Financial Officer and Principal Accounting Officer)
 
*
 
Executive Chairman
 
May 5, 2023
Louis Reese
 
 
*
 
Director
 
May 5, 2023
George Hornig
 
 
*
 
Director
 
May 5, 2023
Landon Ogilvie
 
 
*
 
Director
 
May 5, 2023
Gaby Toledano
 
 
*
 
Director
 
May 5, 2023
Peter Diamandis
 
 
*
 
Director
 
May 5, 2023
Katherine Eade
 
 
*
 
Director
 
May 5, 2023
Peter Powchik
 
 
*
 
Director
 
May 5, 2023
James Smith
 
 
*By:
 
/s/ René Paula Molina
René Paula Molina
Attorney-in-Fact
exhibit51
 
exhibit51p1i0
Exhibit 5.1
One Financial Center
Boston, MA 02111
617 542 6000
mintz.com
April 28, 2023
 
Vaxxinity,
 
Inc.
 
505 Odyssey Way
Merritt Island, FL 32953
Re:
 
Registration Statement on Form S-8
Ladies and Gentlemen:
 
We
 
have
 
acted
 
as
 
legal
 
counsel
 
to
 
Vaxxinity,
 
Inc.,
 
a
 
Delaware
 
corporation
 
(the
 
“Company”),
 
in
connection
 
with
 
the
 
preparation
 
and
 
filing
 
with
 
the
 
Securities
 
and
 
Exchange
 
Commission
 
(the
“Commission”) of a Registration
 
Statement on Form S-8
 
(the “Registration Statement”),
 
pursuant to which
the Company
 
is registering
 
the issuance
 
under the
 
Securities Act
 
of 1933,
 
as amended
 
(the “Securities
 
Act”),
of an
 
aggregate of
 
3,186,306 shares
 
(the “Shares”)
 
of the
 
Company’s
 
Class A
 
common stock,
 
par value
$0.0001 per share
 
(the “Class A
 
Common Stock”),
 
in accordance with
 
the terms of
 
the Vaxxinity,
 
Inc. 2021
Omnibus Incentive Compensation Plan (the “Plan”).
 
This opinion is being rendered in connection
 
with the
filing
 
of
 
the
 
Registration
 
Statement
 
with
 
the
 
Commission.
 
All
 
capitalized
 
terms
 
used
 
herein
 
and
 
not
otherwise defined shall have the respective meanings given to them in the
 
Registration Statement.
 
In connection with
 
this opinion, we
 
have examined the
 
Company’s Amended and Restated
 
Certificate
of Incorporation and Amended and Restated Bylaws, each as
 
currently in effect; such other records of the
corporate
 
proceedings
 
of
 
the
 
Company
 
and
 
certificates
 
of
 
the
 
Company’s
 
officers
 
as
 
we
 
have
 
deemed
relevant; and the Registration Statement and the exhibits thereto.
 
In our examination, we have assumed the
 
genuineness of all signatures, the legal capacity
 
of natural
persons, the
 
authenticity of
 
all documents
 
submitted to
 
us as
 
originals, the
 
conformity to
 
original documents
of all documents
 
submitted to us
 
as copies, the
 
authenticity of the
 
originals of such
 
copies, and the
 
truth and
correctness of any representations and warranties contained therein. In addition, we have assumed that the
Company will receive any required consideration in accordance with
 
the terms of the Plan.
 
Our opinion expressed herein is limited
 
to the General Corporation Law of
 
the State of Delaware and
we express
 
no opinion
 
with respect
 
to the
 
laws of
 
any other
 
jurisdiction. No
 
opinion is
 
expressed herein
with
 
respect
 
to
 
the
 
qualification
 
of
 
the
 
Shares
 
under the
 
securities or
 
blue
 
sky
 
laws
 
of
 
any
 
state
 
or
 
any
foreign jurisdiction.
 
Please note
 
that we are
 
opining only
 
as to the
 
matters expressly
 
set forth
 
herein, and
 
no opinion should
be inferred as to any
 
other matters. This opinion
 
is based upon currently
 
existing statutes, rules,
 
regulations
and judicial decisions, and we disclaim any obligation to advise
 
you of any
 
BOSTON
 
LOS
ANGELES
 
NEW
YORK
 
SAN
DIEGO
 
SAN
FRANCISCO
 
TORONTO
 
WASHINGTON
MINTZ,
LEVIN,
COHN,
FERRIS,
GLOVSKY
AND
POPEO,
P.C.
505271826
V
.1
 
exhibit51p2i0
MINTZ
April 28, 2023
 
Page 2
change in any of these sources of law or subsequent legal or factual
 
developments which might affect any
matters or opinions set forth herein.
 
Based
 
upon
 
the
 
foregoing,
 
we
 
are
 
of
 
the
 
opinion
 
that
 
the
 
Shares,
 
when
 
issued
 
and
 
delivered
 
in
accordance with the terms of the Plan, will be validly issued, fully
 
paid and non-assessable.
We understand that you
 
wish to
 
file this
 
opinion with
 
the Commission
 
as an
 
exhibit to
 
the Registration
Statement in accordance
 
with the requirements
 
of Item 601(b)(5)
 
of Regulation S-K
 
promulgated under the
Securities Act, and
 
we hereby consent thereto.
 
In giving this consent,
 
we do not admit
 
that we are
 
within
the category
 
of persons
 
whose consent
 
is required
 
under Section
 
7 of
 
the Securities
 
Act or
 
the rules
 
and
regulations of the Commission promulgated thereunder.
 
Very
 
truly yours,
 
/s/ MINTZ, LEVIN,
 
COHN, FERRIS,
 
GLOVSKY AND
 
POPEO,
P.C.
MINTZ, LEVIN,
 
COHN, FERRIS,
 
GLOVSKY AND
 
POPEO,
P.C.
BOSTON
 
LOS
ANGELES
 
NEW
YORK
 
SAN
DIEGO
 
SAN
FRANCISCO
 
TORONTO
 
WASHINGTON
MINTZ,
LEVIN,
COHN,
FERRIS,
GLOVSKY
AND
POPEO,
P.C.
505271826
V
.1
exhibit231
 
 
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
 
FIRM
We
 
hereby consent
 
to the incorporation
 
by reference in
 
this Registration Statement
 
on Form S-8
 
of our report
 
dated
March 27,
 
2023 relating
 
to the consolidated
 
financial statements,
 
which appears
 
in Vaxxinity
 
,
 
Inc.’s
 
Annual Report
on Form 10-K for the year ended December 31, 2022.
 
/s/ Armanino LLP
 
Armanino LLP
 
San Ramon, California
April 28, 2023