As filed with the U.S. Securities and Exchange Commission on April 10, 2019
Registration No. 333-229536
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Post-Effective Amendment No. 1
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VAXART, INC.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) |
2834 (Primary Standard Industrial Classification Code Number) |
59-1212264 (I.R.S. Employer Identification No.) |
290 Utah Ave
Suite 200
South San Francisco, California 94080
(650) 550-3500
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
Wouter W. Latour M.D.
President and Chief Executive Officer
290 Utah Ave
Suite 200
South San Francisco, California 94080
(650) 550-3500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to: | ||
John T. McKenna Josh Seidenfeld Cooley LLP 3175 Hanover Street Palo Alto, California 94304 (650) 843-5000 |
Gary Emmanuel Heidi Steele McDermott Will & Emery LLP 340 Madison Avenue New York, New York 10173 (212) 547-5400 |
Approximate date of commencement of proposed sale to 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, as amended, check the following box: ý
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, 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(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: ý (File No. 333-229536)
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 o | Accelerated Filer o | Non-accelerated Filer ý |
Smaller Reporting Company ý Emerging growth company o |
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 of 1933, as amended. o
This post-effective amendment shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(d) under the Securities Act of 1933, as amended
This Post-Effective Amendment No. 1 (this "Amendment") relates to the Registrant's Registration Statement on Form S-1 (File No. 333-229536), as amended, declared effective on April 8, 2019 by the Securities and Exchange Commission. The Registrant is filing this Amendment for the sole purpose of replacing Exhibit 5.1 to the Registration Statement. This Amendment does not modify any provision of Part I or Part II of the Registration Statement other than Item 16(a) of Part II as set forth below.
PART IIINFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
II-1
II-2
II-3
II-4
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Post-Effective Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, in the City of South San Francisco, State of California, on April 10, 2019.
VAXART, INC. | ||||
By: |
/s/ WOUTER W. LATOUR, M.D. Wouter W. Latour, M.D. President and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signatures
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Title
|
Date
|
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/s/ WOUTER W. LATOUR, M.D. Wouter W. Latour, M.D. |
President, Chief Executive Officer and Director (Principal Executive Officer and Principal Financial Officer) | April 10, 2019 | ||||
/s/ MARGARET A. ECHERD Margaret A. Echerd |
Vice President, Corporate Controller (Principal Accounting Officer) |
April 10, 2019 |
||||
* Richard J. Markham |
Chairman of the Board |
April 10, 2019 |
||||
* Michael J. Finney, Ph.D. |
Director |
April 10, 2019 |
||||
* Anne M. VanLent |
Director |
April 10, 2019 |
||||
* Geoffrey F. Cox, Ph.D. |
Director |
April 10, 2019 |
||||
* John P. Richard |
Director |
April 10, 2019 |
||||
By: |
/s/ WOUTER W. LATOUR, M.D. Wouter W. Latour, M.D. Attorney-in-Fact |
II-5
John T. McKenna
+1 650 843 5059
jmckenna@cooley.com
April 10, 2019
Vaxart, Inc.
290 Utah Ave
Suite 200
South San Francisco, CA 94080
Ladies and Gentlemen:
We have acted as counsel to Vaxart, Inc., a Delaware corporation, (the Company), in connection with the filing of a registration statement (No. 333-229536) on Form S-1 (the Registration Statement) with the Securities and Exchange Commission, including a related prospectus filed with the Registration Statement (the Prospectus), covering an underwritten public offering of:
(i) up to 2,289,091 shares (the Shares) of common stock of the Company, par value $0.10 per share (the Common Stock);
(ii) pre-funded warrants to purchase up to an aggregate of 8,165,455 shares of Common Stock (the Pre-Funded Warrants) and the shares of Common Stock issuable upon exercise thereunder; and
(iii) warrants to purchase up to 10,454,546 shares of Common Stock (the Common Warrants) and the shares of Common Stock issuable upon exercise thereunder;
including additional Shares and Common Warrants that may be sold pursuant to the exercise of an option to purchase additional Shares and/or Common Warrants. The Registration Statement also covers the issuance of warrants to purchase up to 731,818 shares of Common Stock being issued to the underwriters of the offering (the Representative Warrants) and the shares of Common Stock issuable upon exercise thereunder. The Pre-Funded Warrants, the Common Warrants, and the Representative Warrants are collectively referred to herein as the Warrants and the shares of Common Stock issuable upon exercise of the Warrants are referred to as the Warrants Shares. The Shares, the Warrants and the Warrant Shares are to be issued by the Company as described in the Registration Statement and the Prospectus.
In connection with this opinion, we have examined and relied upon the Registration Statement and Prospectus, the form of Pre-Funded Warrant, the form of Common Warrant, the form of Representative Warrant, the Companys Certificate of Incorporation, as amended, its Restated Bylaws and the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, and the conformity to originals of all documents submitted to us as copies thereof and the due execution and delivery of all documents by all persons other than the Company where due execution and delivery are a prerequisite to the effectiveness thereof. In addition, we have assumed that the Board of Directors of the Company or a pricing committee thereof has taken action to set the sale price of the Shares and Warrants and the exercise price of the Warrants.
With regard to our opinion regarding the Warrants and the Warrant Shares, we express no opinion to the extent that, notwithstanding its current reservation of shares of Common Stock, future issuances of securities, including the Warrant Shares, of the Company and/or antidilution adjustments to outstanding
Cooley LLP 3175 Hanover Street Palo Alto, CA 94304
t: (650) 843-5000 f: (650) 849-7400 cooley.com
Vaxart, Inc.
April 10, 2019
Page Two
securities, including the Warrants, of the Company cause the Warrants to be exercisable for more shares of Common Stock than the number that then remain authorized but unissued.
With regard to our opinion concerning the Warrants constituting valid and binding obligations of the Company:
(i) Our opinion is subject to, and may be limited by, (a) applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, debtor and creditor, and similar laws which relate to or affect creditors rights generally, and (b) general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing) regardless of whether considered in a proceeding in equity or at law.
(ii) Our opinion is subject to the qualification that the availability of specific performance, an injunction or other equitable remedies is subject to the discretion of the court before which the request is brought.
(iii) We express no opinion as to any provision of the Warrants that: (a) provides for liquidated damages, buy-in damages, monetary penalties, prepayment or make-whole payments or other economic remedies to the extent such provisions may constitute unlawful penalties, (b) relates to advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitations, trial by jury, or procedural rights, (c) restricts non-written modifications and waivers, (d) provides for the payment of legal and other professional fees where such payment is contrary to law or public policy, (e) relates to exclusivity, election or accumulation of rights or remedies, (f) authorizes or validates conclusive or discretionary determinations, or (g) provides that provisions of the Warrants are severable to the extent an essential part of the agreed exchange is determined to be invalid and unenforceable.
(iv) We express no opinion as to whether a state court outside of the State of New York or a federal court of the United States would give effect to the choice of New York law or jurisdiction provided for in the Warrants.
Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware and, as to the Warrants constituting valid and legally binding obligations of the Company, the laws of the State of New York. Our opinion is based on these laws as in effect on the date hereof. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that (i) the Shares, when sold in accordance with the Registration Statement and the Prospectus, will be validly issued, fully paid and nonassessable, (ii) provided that the Warrants have been duly executed and delivered by the Company to the purchasers thereof against payment therefor, the Warrants, when issued and sold as provided in the Registration Statement and the Prospectus will be valid and legally binding obligations of the Company, and (iii) the Warrant Shares, when issued and paid for in accordance with the terms of the Warrants, will be validly issued, fully paid and non-assessable.
Vaxart, Inc.
April 10, 2019
Page Three
We consent to the reference to our firm under the caption Legal Matters in the Prospectus included in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable law.
Sincerely,
Cooley LLP |
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/s/ John T. McKenna |
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John T. McKenna |
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