Securities Registration: Employee Benefit Plan (s-8)
14 6월 2018 - 5:09AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 13, 2018
Registration
No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
Under
The
Securities Act of 1933
VANDA PHARMACEUTICALS INC.
(Exact name of registrant as specified in its charter)
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Delaware
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03-0491827
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer
Identification No.)
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2200 Pennsylvania Avenue, N.W., Suite 300E
Washington, D.C. 20037
(Address of principal executive offices) (Zip Code)
VANDA
PHARMACEUTICALS INC. AMENDED AND RESTATED 2016 EQUITY INCENTIVE PLAN
(Full title of the Plan)
Mihael H. Polymeropoulos, M.D.
Chief Executive Officer
Vanda Pharmaceuticals Inc.
2200 Pennsylvania Avenue, N.W., Suite 300E
Washington, D.C. 20037
(Name and address of agent for service)
(202)
734-3400
(Telephone number, including area code, of agent for service)
Copies to:
Gregg
A. Griner, Esq.
Albert Vanderlaan, Esq.
Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
One Marina Park Drive, Suite 900
Boston, MA 02210
Telephone:
(617) 648-9100
Telecopy:
(617) 648-9199
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, smaller reporting company and emerging growth company in Rule
12b-2
of the Exchange Act.
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Large accelerated filer
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☒
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Accelerated filer
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☐
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Non-accelerated
filer
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☐
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Smaller reporting company
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☐
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Emerging growth company
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☐
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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 accountings standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
per Share(2)
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Proposed Maximum
Aggregate Offering
Price(2)
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Amount of
Registration Fee
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Stock Options and Common Stock, $0.001 par value
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2,400,000 shares
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$17.98
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$43,140,000.00
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$5,370.93
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(1)
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This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Amended and Restated 2016 Equity Incentive Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of Vanda Pharmaceuticals Inc.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act of 1933, as amended. The offering price per share and aggregate offering
price for the unissued stock options and shares of Common Stock are based upon the average of the high and low prices of the Registrants common stock as reported on The Nasdaq Global Market on June 7, 2018.
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PART II
Information Required in the Registration Statement
Item 3.
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Incorporation of Documents by Reference
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Vanda Pharmaceuticals Inc. (the
Registrant) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the SEC):
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(a)
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The Registrants Annual Report on Form
10-K
filed with the SEC for the fiscal year ended December 31, 2017;
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(b)
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The Registrants Quarterly Report on Form
10-Q
filed with the SEC for the fiscal quarter ended March 31, 2018;
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(c)
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The Registrants Current Reports on Form
8-K
filed with the SEC on January 8, 2018, February 14, 2018, March 1, 2018, March 5, 2018, March 14, 2018,
March 16, 2018, March 26, 2018, April 13, 2018, April 23, 2018, April 25, 2018, May 2, 2018, May 23, 2018, June 1, 2018 and June 13, 2018, in each case only to the extent filed and not furnished; and
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(d)
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The description of the Registrants outstanding Common Stock contained in the Registrants Registration Statement
No. 000-51863
on Form
8-A
filed with the SEC on March 28, 2006, pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the 1934 Act), including any amendment or report filed for the purpose of
updating such description.
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All reports and definitive proxy or information statements filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 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 deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be 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 that also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement.
Item 4.
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Description of Securities
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel
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Not applicable.
Item 6.
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Indemnification of Directors and Officers
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The Registrant is incorporated under the laws
of the State of Delaware. Section 145 of the Delaware General Corporation Law authorizes a court to award or a corporations Board of Directors to grant indemnification to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the 1933 Act). The Registrants Bylaws provide for indemnification of
its directors and officers to the maximum extent permitted by the Delaware General Corporation Law. The Registrants Certificate of Incorporation provides that, pursuant to Delaware law, its directors shall not be liable for monetary damages
for breach of their fiduciary duty as directors to the Registrant and its stockholders. This provision in the Certificate of Incorporation does not eliminate the fiduciary duty of the directors, 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 directors duty of
loyalty to the Registrant for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit
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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 directors
responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. The Registrant has entered into Indemnification Agreements with its directors and officers. The Indemnification Agreements provide the
Registrants directors and officers with further indemnification to the maximum extent permitted by the Delaware General Corporation Law.
Item 7.
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Exemption from Registration Claimed
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Not applicable.
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Exhibit Number
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Description
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4.1
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Form of Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.8 to Amendment No.
2 to the Registrants Registration Statement on Form
S-1
(File
No. 333-130759),
as filed on March 17, 2006, and incorporated herein by reference)
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4.2
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Form of Certificate of Designation of Series A Junior Participating Preferred Stock (filed as Exhibit
3.10 to the Registrants current report on
Form 8-K
(File
No. 001-34186)
as filed on September 25, 2008 and incorporated herein by reference)
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4.3
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Fourth Amended and Restated Bylaws of the Registrant, as amended and restated on December 17, 2015 (filed as Exhibit
3.1 to the Registrants current report on
Form 8-K
(File
No. 001-34186)
as filed on December 21, 2015 and incorporated herein by reference)
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4.4
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Specimen certificate representing the common stock of the Registrant (filed as Exhibit 4.4 to Amendment No.
2 to the Registrants Registration Statement on
Form S-1
(File
No. 333-130759),
as filed on March 17, 2006, and incorporated herein by reference)
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5.1*
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Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian LLP
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10.1*
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Vanda Pharmaceuticals Inc. Amended and Restated 2016 Equity Incentive Plan, effective as of June 13, 2018
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10.2
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Form of Notice of Stock Option Grant and Stock Option Agreement under Amended and Restated 2016 Equity Incentive Plan (filed as Exhibit 10.2
to the Registrants Registration Statement on
Form S-8
(File
No. 333-218774),
as originally filed on June 15, 2017, and incorporated herein by
reference)
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10.3
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Form of Restricted Stock Unit Award Agreement under Amended and Restated 2016 Equity Incentive Plan (filed as Exhibit
10.3 to the Registrants Registration Statement on
Form S-8
(File
No. 333-218774),
as originally filed on June
15, 2017, and incorporated herein by reference)
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10.4
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UK Sub Plan under Amended and Restated 2016 Equity Incentive Plan (filed as Exhibit
10.4 to the Registrants Registration Statement on
Form S-8
(File
No. 333-218774),
as originally filed on June
15, 2017, and incorporated herein by reference)
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10.5
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Form of Stock Option Grant and Stock Option Agreement under the UK Sub Plan (filed as Exhibit
10.5 to the Registrants Registration Statement on
Form S-8
(File
No. 333-218774),
as originally filed on June
15, 2017, and incorporated herein by reference)
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10.6
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Form of Restricted Stock Unit Award Agreement under the UK Sub Plan (filed as Exhibit
10.6 to the Registrants Registration Statement on
Form S-8
(File
No. 333-218774),
as originally filed on June
15, 2017, and incorporated herein by reference)
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23.1*
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Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (included in Exhibit 5)
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23.2*
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
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24*
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Power of Attorney. Reference is made to page II-5 of this Registration Statement
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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 1933 Act, (ii) to reflect in the
prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent
post-effective
amendment thereof) which, individually or in the
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aggregate, represent a fundamental change in the information set forth in this Registration Statement and (iii) to include any material information with respect to the plan of distribution
not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided
, however, that clauses (1)(i) and (1)(ii) shall not apply if the information required to be
included in a
post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that
are incorporated by reference in this Registration Statement; (2) that for the purpose of determining any liability under the 1933 Act 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; and (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 Registrants 2016 Equity Incentive Plan.
B. The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated
by reference in this 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 1933 Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the 1933 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 1933 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, 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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Washington,
D.C. on this 13
th
day of June, 2018.
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VANDA PHARMACEUTICALS INC.
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By:
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/s/ James P. Kelly
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James P. Kelly
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EVP, Chief Financial Officer, Treasurer and Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That
the undersigned officers and directors of Vanda Pharmaceuticals Inc., a Delaware corporation, do hereby constitute and appoint Mihael H. Polymeropoulos, M.D. and James P. Kelly, and either of them, the lawful
attorneys-in-fact
and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and either one of them, determine may be
necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration
Statement, to any and all amendments, both
pre-effective
and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with
this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either one of them, shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
IN WITNESS WHEREOF
, each of the undersigned has executed this Power of Attorney as
of the date indicated. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Mihael H. Polymeropoulos, M.D.
Mihael H. Polymeropoulos, M.D.
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President, Chief Executive Officer and
Director
(Principal Executive Officer)
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June 13, 2018
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/s/ James P. Kelly
James P. Kelly
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Executive Vice President, Chief Financial
Officer, Treasurer and
Secretary
(Principal Financial Officer and Principal
Accounting Officer)
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June 13, 2018
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/s/ H. Thomas Watkins
H. Thomas Watkins
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Director and Chairman of Board
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June 13, 2018
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/s/ Michael Cola
Michael Cola
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Director
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June 13, 2018
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/s/ Richard W. Dugan
Richard W. Dugan
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Director
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June 13, 2018
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/s/ Vincent J. Milano
Vincent J. Milano
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Director
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June 13, 2018
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Vanda Pharmaceuticals (NASDAQ:VNDA)
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Vanda Pharmaceuticals (NASDAQ:VNDA)
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