Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: S-1/A Form S-1 Prestwick Pharmaceuticals, Inc. HTML 74K
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Inc.
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Michael R. Lincoln, Esq.
Aaron J. Velli, Esq.
Darren K. DeStefano, Esq.
Brian F. Leaf, Esq.
Cooley Godward LLP
One Freedom Square, Reston Town Center
11951 Freedom Drive Reston, VA20190-5656
Tel: (703) 456-8000
Fax: (703) 456-8100
Jeffrey S. Marcus, Esq.
Michael G. Kalish, Esq.
Morrison & Foerster LLP
1290 Avenue of the Americas New York, New York10104-0050
Tel: (212) 468-8000
Fax: (212) 468-7900
Approximate date of commencement of proposed sale to the
public: As soon as practicable after the effective date of
this registration statement.
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. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
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. o
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. o
If delivery of the prospectus is expected to be made pursuant to
Rule 434, check the following
box. o
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 Commission,
acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Pre-effective Amendment No. 1 to Registration
Statement on Form S-1 of Prestwick Pharmaceuticals, Inc.
(the “Company”) is being filed solely to file
Exhibit 10.8 hereto, which was previously omitted from the
Company’s initial filing of the Registration Statement on
April 22, 2005, as a result of technical difficulties
during transmission to the SEC’s EDGAR database.
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other expenses of issuance and
distribution.
The following table sets forth the costs and expenses, other
than the underwriting discounts and commissions, payable by the
registrant in connection with the sale of the common stock being
registered hereby. All amounts shown are estimates, except the
Securities and Exchange Commission registration fee, the NASD
filing fee and the Nasdaq National Market listing fee.
Securities and Exchange Commission registration fee
$
8,798
NASD filing fee
7,000
Nasdaq National Market listing fee
100,000
Blue Sky qualification fees and expenses*
Printing and engraving expenses*
Legal fees and expenses*
Accounting fees and expenses*
Transfer agent and registrar fees and expenses*
Miscellaneous expenses*
Total*
$
* To be completed by
amendment.
Item 14. Indemnification of
directors and officers.
We are incorporated under the laws of the State of Delaware.
Section 145 of the Delaware General Corporation Law
provides that a Delaware corporation may indemnify any persons
who are, or are threatened to be made, parties 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 such corporation), by
reason of the fact that such person was an officer, director,
employee or agent of such corporation, or is or was serving at
the request of such person as an officer, director, employee or
agent of another corporation or enterprise. The indemnity may
include 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, provided that such person acted in good faith and in
a manner he or she reasonably believed to be in or not opposed
to the corporation’s best interests and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe that his or her conduct was illegal. A Delaware
corporation may indemnify any persons who are, or are threatened
to be made, a party to any threatened, pending or completed
action or suit by or in the right of the corporation by reason
of the fact that such person was a director, officer, employee
or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection with the
defense or settlement of such action or suit, provided such
person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation’s best
interests, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is
successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him or
her against the expenses which such officer or director has
actually and reasonably incurred. Our amended and restated
bylaws, which will become effective upon the completion of this
offering, provide for the indemnification of our directors and
officers to the fullest extent permitted under the Delaware
General Corporation Law.
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Part II
Section 102 of the Delaware General Corporation Law permits
a corporation to provide in its certificate of incorporation
that a director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duties as a director, except for
liability:
--
for any transaction from which the
director derives an improper personal benefit;
--
for acts or omissions not in good
faith or that involve intentional misconduct or a knowing
violation of law;
--
for acts related to unlawful stock
repurchases, redemptions or other distributions or payment of
dividends; or
--
for any breach of a
director’s duty of loyalty to the corporation or its
stockholders.
Our amended and restated certificate of incorporation and
amended and restated bylaws include such a provision. Expenses
incurred by any officer or director in defending any such
action, suit or proceeding in advance of its final disposition
shall be paid by us upon delivery to us of an undertaking, by or
on behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified by us.
Section 174 of the Delaware General Corporation Law
provides, among other things, that a director, who willfully or
negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for
such actions. A director who was either absent when the unlawful
actions were approved, or dissented at the time, may avoid
liability by causing his or her dissent to such actions to be
entered in the books containing minutes of the meetings of the
board of directors at the time such action occurred or
immediately after such absent director receives notice of the
unlawful acts.
As permitted by the Delaware General Corporation Law, we have
entered into indemnity agreements with each of our directors,
which require us to indemnify such persons against any and all
expenses (including attorneys’ fees), witness fees,
damages, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in
connection with any action, suit or proceeding, whether actual
or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director, an
officer or an employee of ours or any of its affiliated
enterprises, provided that such person acted in good faith and
in a manner such person reasonably believed to be in or not
opposed to our best interests and, with respect to any criminal
proceeding, had no cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for
indemnification thereunder.
At present, there is no pending litigation or proceeding
involving any of our directors or executive officers as to which
indemnification is required or permitted, and we are not aware
of any threatened litigation or proceeding that may result in a
claim for indemnification.
We have an insurance policy covering our officers and directors
with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
We have entered into an underwriting agreement, which provides
that the underwriters are obligated, under some limited
circumstances, to indemnify our directors, officers and
controlling persons against specified liabilities, including
liabilities under the Securities Act.
II- 2
Part II
Reference is made to the following documents filed as exhibits
to this registration statement regarding relevant
indemnification provisions described above and elsewhere herein:
The following list sets forth information regarding all
securities sold by us since our inception in November 2002.
(1) In December 2002, we issued
6,000,000 shares of restricted common stock to our
affiliate Prestwick Scientific Capital, Inc. in exchange for
Prestwick Scientific Capital’s contribution of assets to us.
(2) In December 2002, we issued and
sold 1,250,000 shares of restricted common stock to our
founder at a purchase price of $0.037 per share for
aggregate consideration of $46,250.
(3) In December 2002, we issued and
sold $2,000,000 in aggregate principal amount of convertible
promissory notes and warrants to purchase an aggregate of
400,000 shares of our common stock at $1.00 per share
to institutional and accredited investors. These convertible
promissory notes converted into shares of our Series A-1
Preferred Stock as part of the transaction described in
paragraph 4 below.
(4) In February 2003, we issued and
sold an aggregate of 10,065,999 shares of Series A-1
Preferred Stock and warrants to
purchase 5,032,996 shares of our common stock to
institutional and accredited investors at a purchase price of
$1.00 per unit for aggregate consideration of $10,066,002.
Each unit consisted of one share of Series A-1 Preferred
Stock and a warrant to purchase 0.5 shares of common stock.
Upon completion of this offering, these shares of
Series A-1 Preferred Stock will convert into
10,065,999 shares of common stock.
(5) In November and December 2003,
we issued and sold an aggregate of 13,030,570 shares of
Series A-2 Preferred Stock to institutional and accredited
investors at a purchase price of $1.00 per share for
aggregate consideration of $13,030,570. Upon completion of this
offering, these shares will convert into 13,030,570 shares
of common stock.
(6) In October and November 2004,
we issued and sold $8,142,824 in aggregate principal amount of
convertible promissory notes and warrants to purchase an
aggregate of 814,284 shares of our common stock at
$0.273 per share to institutional and accredited investors.
These convertible promissory notes converted into shares of our
Series B Preferred Stock as part of the transaction
described in paragraph 7 below.
(7) In November 2004, we issued and
sold a total of 27,482,730 shares of Series B
preferred stock to institutional and accredited investors at a
purchase price of $1.3463 per share for aggregate
consideration of $36,999,999. Upon completion of this offering,
these shares will convert into 27,482,730 shares of common
stock.
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Part II
(8) From our inception through
March 31, 2005, we have granted options to
purchase 12,488,493 shares of common stock to
employees, directors and consultants under our 2003 Equity
Incentive Plan at exercise prices ranging from $0.037 to
$0.37 per share. Of the 12,488,493 options granted,
9,065,500 remain outstanding, 678,008 shares of common
stock have been purchased pursuant to the exercises of stock
options for aggregate consideration of $140,810 and
2,744,985 shares have been cancelled and returned to the
2003 Equity Incentive Plan option pool.
(9) From November 2004 to March
2005, we issued an aggregate of 4,834,825 shares of common
stock upon exercise of certain of the warrants described in
paragraphs 3, 4 and 6, at exercise prices ranging from
$0.001 to $1.00 per share, for aggregate consideration of
$567,381.
The offer, sale, and issuance of the securities described in
paragraph 1 was deemed to be exempt from registration under
the Securities Act in reliance on Section 4(2) of the
Securities Act in that the issuance of securities to the
recipients did not involve a public offering. The recipients of
securities in such transaction represented their intention to
acquire the securities for investment only and not with a view
to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the share certificates
issued in such transaction. Each of the recipients of securities
in the transaction described in paragraph 1 were accredited
or sophisticated persons and had adequate access, through
employment, business or other relationships, to information
about us.
The offers, sales, and issuances of the preferred stock
described in paragraphs 2, 3, 4, 5, 6, 7 and 9
were deemed to be exempt from registration under the Securities
Act in reliance on Rule 506 of Regulation D in that
the issuance of securities to the accredited investors did not
involve a public offering. The purchasers of securities in each
such transaction represented their intention to acquire the
securities for investment only and not with a view to or for
sale in connection with any distribution thereof and appropriate
legends were affixed to the share certificates and warrants
issued in such transactions. Each of the recipients of
securities in the transactions described in paragraphs 2,
3, 4, 5, 6, 7 and 9 were accredited investors under
Rule 501 of Regulation D.
The offers, sales and issuances of the options and common stock
described in paragraph 8 were deemed to be exempt from
registration under the Securities Act in reliance on
Rule 701 in that the transactions were under compensatory
benefit plans and contracts relating to compensation as provided
under such rule. The recipients of such options and common stock
were our employees, directors or bona fide consultants and
received the securities under our 2003 Equity Incentive Plan.
Appropriate legends were affixed to the securities issued in
these transactions. Each of the recipients of securities in
these transactions had adequate access, through employment,
business or other relationships, to information about us.
Item 16. Exhibits and financial
statement schedules.
Form of Stock Option Agreement under Amended and Restated 2003
Equity Incentive Plan.
10.3#†
2005 Non-Employee Directors’ Stock Plan.
10.4#†
Form of Stock Option Agreement Under 2005 Non-Employee
Directors’ Stock Plan.
10.5+
Form of Indemnification Agreement by and between the Registrant
and each of its directors.
10.6+
Asset Purchase and Subscription Agreement dated
December 13, 2002 by and among the Registrant, Prestwick
Scientific Capital and Prestwick Companies, Inc.
# Indicates management contract
or compensatory plan.
* Confidential treatment has been requested with respect
to certain portions of this exhibit. Omitted portions have been
filed separately with the Securities and Exchange Commission.
(b) Financial Statement
Schedules.
No financial statement schedules are provided, because the
information called for is not required or is shown either in the
consolidated financial statements or the notes thereto.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes to provide to the
underwriters at the closing specified in the Underwriting
Agreement, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
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 Securities and Exchange 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this Registration Statement as
of the time it was declared effective; and
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus 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.
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Part II
Signatures
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Pre-effective
Amendment No. 1 to Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
District of Columbia, on April 22, 2005.
PRESTWICK PHARMACEUTICALS, INC.
By:
/s/ Kathleen E.
Clarence-Smith
Kathleen E. Clarence-Smith
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Pre-effective Amendment No. 1 to the
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature
Title
Date
/s/ Kathleen E.
Clarence-Smith
Kathleen
E. Clarence-Smith, M.D., Ph.D.
Chief Executive Officer, Founder and Director
(Principal Executive Officer)
Form of Stock Option Agreement under Amended and Restated 2003
Equity Incentive Plan.
10.3#†
2005 Non-Employee Directors’ Stock Plan.
10.4#†
Form of Stock Option Agreement Under 2005 Non-Employee
Directors’ Stock Plan.
10.5+
Form of Indemnification Agreement by and between the Registrant
and each of its directors.
10.6+
Asset Purchase and Subscription Agreement dated
December 13, 2002 by and among the Registrant, Prestwick
Scientific Capital and Prestwick Companies, Inc.
# Indicates management contract
or compensatory plan.
* Confidential treatment has
been requested with respect to certain portions of this exhibit.
Omitted portions have been filed separately with the Securities
and Exchange Commission.
II- 9
Dates Referenced Herein and Documents Incorporated by Reference