As filed with the Securities and Exchange Commission on March 28, 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

PDS Biotechnology Corporation
(Exact name of registrant as specified in its charter)

Delaware
  
26-4231384
(State or other jurisdiction of incorporation or organization)
  
(I.R.S. Employer Identification No.)

303A College Road East
Princeton, NJ
  
08540
(Address of Principal Executive Offices)
  
(Zip Code)

PDS Biotechnology Corporation 2019 Inducement Plan, as amended
(Full title of the plans)

Frank Bedu-Addo, Ph.D.
President and Chief Executive Officer
PDS Biotechnology Corporation
303A College Road East
Princeton, NJ 08540
(800) 208-3343
(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, 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 ☐
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. ☐

Part II

Information Required In The Registration Statement

This Registration Statement relates to the registration of an additional 1,000,000 shares (the “Shares”) of the Registrant’s Common Stock. The Shares are securities of the same class and relate to the same employee benefit plan, the PDS Biotechnology Corporation 2019 Inducement Plan, which was amended effective as of January 22, 2024 (in the form attached hereto as Exhibit 99.1) (the “Inducement Plan”), as those registered pursuant to the Registrant’s registration statements on Form S-8, previously filed with the Securities and Exchange Commission on November 14, 2019 (Registration No. 333-234693), November 15, 2021 (Registration No. 333-261072), and August 24, 2022 (Registration No. 333-267042).

In accordance with General Instruction E of Form S-8, the contents of the Registrant’s registration statements on Form S-8 filed with the Securities and Exchange Commission on November 14, 2019 (Registration No. 333-234693), November 15, 2021 (Registration No. 333-261072), and August 24, 2022 (Registration No. 333-267042) are incorporated herein by reference (solely to the extent the contents of such registration statement relate to the Inducement Plan) and the information required by Part II is omitted, except as supplemented by the information set forth below.

Item 8.
Exhibits.

Exhibit
No.
Description
Eighth Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the Commission on October 6, 2015).
Certificate of Amendment of the Eighth Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the Commission on March 18, 2019).
Certificate of Amendment of the Eighth Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed with the Commission on March 18, 2019).
Third Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the Commission on March 15, 2022).
Form of Certificate of Common Stock (incorporated by reference to Exhibit 4.1 to the Registrant’s Pre-Effective Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333- 206416) filed with the Commission on September 21, 2015).
Opinion of DLA Piper LLP (US).
Consent of KPMG LLP.
Consent of DLA Piper LLP (US) (included in Exhibit 5.1).
Power of Attorney (contained on the signature page hereto).
PDS Biotechnology Corporation 2019 Inducement Plan, as amended (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the Commission on January 22, 2024).
Filing Fee Table
*
Filed herewith
 
SIGNATURE

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 with respect to the PDS Biotechnology Corporation 2019 Inducement Plan, as amended, to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Princeton, State of New Jersey, on March 28, 2024.

 
PDS Biotechnology Corporation
     
 
By:
/s/ Frank Bedu-Addo
 
Name:
Frank Bedu-Addo
 
Title:
President and Chief Executive Officer

POWER OF ATTORNEY

The officers and directors of PDS Biotechnology Corporation whose signatures appear below hereby constitute and appoint Frank Bedu-Addo and Lars Boesgaard, and each of them, their true and lawful attorneys and agents, with full power of substitution, each with power to act alone, to sign and execute on behalf of the undersigned this Registration Statement on Form S-8 with respect to the PDS Biotechnology Corporation 2019 Inducement Plan, as amended, and any amendment or amendments thereto, and each of the undersigned does hereby ratify and confirm all that each attorney and agent, or his or her substitutes, shall do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

Signature
  
Title
  
Date
         
/s/ Frank Bedu-Addo
  
President, Chief Executive Officer and Director
  
March 28, 2024
Frank Bedu-Addo
  
(Principal Executive Officer)
    
         
/s/ Lars Boesgaard
  
Chief Financial Officer
  
March 28, 2024
Lars Boesgaard
  
(Principal Financial and Accounting Officer)
    
         
/s/ Stephen Glover
  
Director
  
March 28, 2024
Stephen Glover
        
         
/s/ Kamil Ali-Jackson
  
Director
  
March 28, 2024
Kamil Ali-Jackson
        
         
/s/ Otis W. Brawley
  
Director
  
March 28, 2024
Otis W. Brawley
        
         
/s/ Gregory Freitag
  
Director
  
March 28, 2024
Gregory Freitag
        
         
/s/ Ilian Iliev
  
Director
  
March 28, 2024
Ilian Iliev
        
         
/s/ Richard Sykes
  
Director
  
March 28, 2024
Sir Richard Sykes
        


Exhibit 5.1
DLA Piper LLP (US)
 
One Liberty Place
1650 Market Street, Suite 5000
Philadelphia, PA 19103-7300
www.dlapiper.com
March 28, 2024
PDS Biotechnology Corporation
303A College Road East
Princeton, NJ 08540

RE: PDS Biotechnology Corporation - Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to PDS Biotechnology Corporation, a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the registration of an aggregate of 1,000,000 shares (the “Plan Shares”) of the Company’s common stock, par value $0.00033 per share, issuable under the PDS Biotechnology Corporation 2019 Inducement Plan, as amended (the “Plan”).

In connection with this opinion letter, we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of the Eighth Amended and Restated Certificate of Incorporation, as amended and the Third Amended and Restated Bylaws of the Company and such other documents, records and other instruments as we have deemed appropriate for purposes of the opinion set forth herein.

We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile or photostatic copies and the authenticity of the originals of all documents submitted to us as copies.

Based upon the foregoing, we are of the opinion that the Plan Shares have been duly authorized and, when and to the extent issued in accordance with the terms of the Plan and any award agreement entered into under the Plan, the Plan Shares will be validly issued, fully paid and nonassessable.

The opinion expressed herein is limited to the Delaware General Corporation Law.

We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the U.S. Securities and Exchange Commission thereunder.

Very truly yours,
  
/s/ DLA Piper LLP (US)
  


Exhibit 23.1

Consent of Independent Registered Public Accounting Firm
 
We consent to the use of our report dated March 28, 2024, with respect to the consolidated financial statements of PDS Biotechnology Corporation, incorporated herein by reference.

 /s/ KPMG LLP
 
Short Hills, New Jersey
March 28, 2024


Exhibit 107

Calculation of Filing Fee Tables
Form S-8
(Form Type)

PDS Biotechnology Corporation
(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
    
Maximum
Aggregate
Offering Price
    
Fee Rate
    
Amount of
Registration
Fee
  
Equity
Common Stock, par value
$0.00033
Rule 457(c) and Rule
457(h)
    
1,000,000
(2) 
  
$
4.7175
(3) 
  
$
4,717,500.00
(3) 
  
$
0.00014760
    
$
696.30
  
Total Offering Amounts
            
$
4,717,500.00
            
$
696.30
  
Total Fee Offsets(4)
                              
-
  
Net Fee Due
                            
$
696.30
  

(1)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 shall cover any additional shares of common stock, $0.00033 par value per share (“Common Stock”) of the Registrant that become issuable under the PDS Biotechnology Corporation 2019 Inducement Plan, as amended (the “Inducement Plan”) by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock.

(2)
Represents an increase in the number of shares of Common Stock reserved for issuance under the Inducement Plan, pursuant to an amendment to the Inducement Plan effective as of January 22, 2024.

(3)
Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high ($4.87) and low ($4.565) prices of the Registrant’s Common Stock as reported on Nasdaq on March 22, 2024.

(4)
The Registrant does not have any fee offsets.