Securities Registration: Employee Benefit Plan (s-8)
13 Noviembre 2017 - 4:11PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on November 13, 2017
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MELINTA THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
Delaware
|
|
45-4440364
|
|
(State of incorporation)
|
|
(I.R.S. Employer Identification No.)
|
300 George Street
Suite 301
New Haven,
Connecticut 06511
(Address, including zip code, of registrant’s principal executive offices)
Melinta Therapeutics, Inc. 2011 Equity Incentive Plan
Employment Inducement Grants For Daniel Mark Wechsler
(Full title of the plans)
Daniel Mark Wechsler
Chief
Executive Officer
Melinta Therapeutics, Inc.
300 George Street
Suite
301
New Haven, Connecticut 06511
(Name, address, including zip code, and telephone number, including area code, of agent for service)
COPIES TO:
Kenneth
E. Eheman, Esq.
Alexander M. Donaldson, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Telephone: (919)
781-4000
Facsimile: (919)
781-4865
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) (Check one):
|
|
|
|
|
|
|
|
|
Large accelerated filer
|
|
☒
|
|
Accelerated filer
|
|
☐
|
|
|
|
|
|
|
Non-accelerated filer
|
|
☐ (Do not check if smaller reporting company)
|
|
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. ☐
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
Title of
securities to be registered
|
|
Amount
to be
registered
|
|
Proposed
maximum
offering
price
per share
|
|
Proposed
maximum
aggregate
offering price
|
|
Amount of
registration fee
|
|
Common Stock, $0.001 par value per share
|
|
732,499
(1)(2)(3)
|
|
$25.80
(4)
|
|
$18,898,474
(4)
|
|
$2,352.86
|
|
Common Stock, $0.001 par value per share
|
|
734,642
(5)
|
|
$11.70
(6)
|
|
$8,595,311
(6)
|
|
$1,070.12
|
|
Total
|
|
1,467,141
|
|
|
|
$27,493,785
|
|
$3,422.98
|
|
|
|
|
|
(1)
|
Pursuant to the Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), dated as of August 8, 2017, amended on September 6, 2017 and October 24, 2017, by and among Melinta
Therapeutics, Inc., f/k/a Cempra, Inc. (the “Company”), Castle Acquisition Corp., a wholly owned subsidiary of the Company, and Melinta Subsidiary Corp., f/k/a Melinta Therapeutics, Inc. (“Melinta”), the Company assumed certain
of the outstanding and unexercised options, whether or not vested, to purchase shares of common stock of Melinta granted under the Melinta 2011 Equity Incentive Plan (the “2011 Plan”), subject to their respective continued vesting
schedules and conditions. The assumed options became exercisable solely to purchase shares of common stock of the Company, with appropriate adjustments to the number of shares into which the assumed options are exercisable and the exercise price of
such options in accordance with the terms of the Merger Agreement.
|
|
(2)
|
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminable number of additional shares of the Company’s common
stock that may become issuable under the 2011 Plan as a result of any future stock splits, stock dividends or similar adjustments of the Company’s outstanding common stock.
|
|
(3)
|
Represents shares of common stock of the Company subject to outstanding vested and unvested options as of November 3, 2017 under the 2011 Plan.
|
|
(4)
|
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under the Securities Act. The offering price per share and aggregate offering price are based upon the weighted
average exercise price for shares subject to the outstanding vested and unvested options granted pursuant to the 2011 Plan.
|
|
(5)
|
Represents shares of common stock of the Company issuable pursuant to the option and restricted stock unit inducement grants made to Daniel Mark Wechsler, the Company’s Chief Executive Officer, in accordance with
the provisions set forth in that certain employment agreement by and between Melinta and Daniel Mark Wechsler, dated October 30, 2017, in accordance with the inducement grant exception under NASDAQ Listing Rule 5635(c)(4). In addition, pursuant
to Rule 416(a) under the Securities Act, this Registration Statement also covers an indeterminable number of additional shares of the Company’s common stock that may become issuable under the employment inducement grants as a result of any
future stock splits, stock dividends or similar adjustments of the Company’s outstanding common stock.
|
|
(6)
|
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act. The offering price per share and aggregate offering price are based upon
the average of the high and low sales prices of the common stock of the Company as reported on the NASDAQ on November 9, 2017.
|
EXPLANATORY NOTE
This Registration Statement on Form
S-8
is filed by Melinta Therapeutics, Inc., f/k/a Cempra, Inc.
(the “Company”) in connection with that certain Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), dated as of August 8, 2017, amended on September 6, 2017 and October 24, 2017, by and among
the Company, Castle Acquisition Corp., a wholly owned subsidiary of the Company (“Merger Sub”), and Melinta Subsidiary Corp., f/k/a Melinta Therapeutics, Inc. (“Melinta”). On November 3, 2017 (the “Effective Time”),
Merger Sub merged with and into Melinta with Melinta surviving as a wholly-owned subsidiary of the Company. At the Effective Time, the Company changed its name from Cempra, Inc. to Melinta Therapeutics, Inc. and Melinta changed its name from Melinta
Therapeutics, Inc. to Melinta Subsidiary Corp. Under the Merger Agreement, each option to purchase Melinta common stock granted under the Melinta 2011 Equity Incentive Plan (the “2011 Plan”), that was outstanding and unexercised, whether
or not vested, immediately prior to the Effective Time was assumed by the Company and converted into an option to purchase shares of common stock of the Company, on the same terms and conditions as the Melinta stock option. The number of shares of
Company common stock subject to each such converted Melinta stock option equals (a) the number of shares of Melinta common stock that were subject to such Melinta option, as of immediately prior to the Effective Time, multiplied by (B) the
Exchange Ratio (as defined below) and rounding the resulting number down to the nearest whole number of shares of Company common stock. The
per-share
exercise price for the Company common stock issuable upon
exercise of each Melinta option assumed by the Company shall be determined by dividing (A) the per share exercise price of such Melinta option, as of immediately prior to the Effective Time, by (B) the Exchange Ratio and rounding the
resulting exercise price up to the nearest whole cent. The “Exchange Ratio” is equal to 0.0229, which equals the fraction obtained by dividing 11,439,706, which is the total number of shares issued to former Melinta stockholders by the
Company in the merger, by 499,341,433, which is the aggregate number of shares of Melinta common stock outstanding immediately prior to the Effective Time on a fully-diluted basis as calculated under the treasury stock method (with the per share
price of Melinta common stock, for purposes of the treasury stock method, being determined by the volume weighted average trading price of the Company’s common stock on the NASDAQ Global Market as quoted on Bloomberg for the ten trading days
preceding the Effective Time). This Registration Statement relates to the 732,499 shares of Company common stock issuable pursuant to such converted Melinta stock options outstanding as of November 3, 2017 under the 2011 Plan, after giving effect to
the
5-to-1
reverse stock split effected immediately prior to the Effective Time.
In addition, this Registration Statement registers 734,642 shares of common stock of the Company (after giving effect to the
5-to-1
reverse stock split effected immediately prior to the Effective Time) that may be issued upon the exercise of the stock options and the settlement of restricted stock
units granted to Daniel Mark Wechsler, the Company’s Chief Executive Officer, in accordance with the provisions set forth in that certain employment agreement by and between Melinta and Daniel Mark Wechsler, dated October 30, 2017, in
accordance with the inducement grant exception under NASDAQ Marketplace Rule 5635(c)(4).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this Registration Statement have been or will be sent or given to
participating employees as specified in Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”), in accordance with the rules and regulations of the United States Securities and Exchange Commission (the
“Commission”). Such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
|
Item 3.
|
Incorporation of Documents by Reference
|
The following documents heretofore filed by the
Company with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:
(a) The Company’s Annual Report on Form
10-K
for the fiscal year ended
December 31, 2016, filed with the Commission pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on February 28, 2017;
2
(b) The Company’s Amendment No. 1 to its Annual Report on Form
10-K/A
for the fiscal year ended December 31, 2016, filed with the Commission pursuant to Section 13 of the Exchange Act on April 13, 2017;
(c) The Company’s Quarterly Report on Form
10-Q
for the quarter ended
March 31, 2017 filed with the Commission pursuant to Section 13 of the Exchange Act on April 28, 2017;
(d) The Company’s Quarterly Report on Form
10-Q
for the quarter ended
June 30, 2017 filed with the Commission pursuant to Section 13 of the Exchange Act on August 9, 2017;
(e) The Company’s Quarterly Report on Form
10-Q
for the quarter ended
September 30, 2017 filed with the Commission pursuant to Section 13 of the Exchange Act on November 2, 2017;
(f) The Company’s Current Reports on Form
8-K
or portions thereof, filed
pursuant to Section 13 of the Exchange Act on February 24, March 13, March 28, April 28 (second Form
8-K
filed that day to report an Item 5.02 matter), June 28, August 10,
September 7, September 28, October 31, November 1, November 3, and November 9, 2017; and
(g) The description of the Company’s common stock contained in the registration statement on Form
8-A
(File
No. 333-177261)
filed with the Commission on January 24, 2012, including any amendment or report filed for the purpose of updating such description.
All documents filed, but not furnished, by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
hereof and prior to the filing of a post-effective amendment that indicates that all securities offered under this Registration Statement have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such documents. In no event, however, will any of the information, including exhibits, that the Company discloses under Item 2.02 and Item 7.01 of any report on Form
8-K
that has been or may from time to time be furnished to the Commission be incorporated by reference into or otherwise become a part of this Registration Statement.
Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof 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. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
|
Item 4.
|
Description of Securities
|
Not applicable.
|
Item 5.
|
Interests of Named Experts and Counsel
|
Not applicable.
|
Item 6.
|
Indemnification of Directors and Officers
|
Section 145 of the Delaware General
Corporation Law (the “DGCL”) provides, in effect, that any person made a party to any action by reason of the fact that he is or was a director, officer, employee or agent of the Company may and, in certain cases, must be indemnified by
the Company against, in the case of a
non-derivative
action, judgments, fines, amounts paid in settlement and reasonable expenses (including attorneys’ fees) incurred by him as a result of such action,
and in the case of a derivative action, against expenses (including attorneys’ fees), if in either type of action he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. This
indemnification does not apply, in a derivative action, to matters as to which it is adjudged that the director, officer, employee or agent is liable to the Company, unless upon court order it is determined that, despite such adjudication of
liability, but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for expenses, and, in a
non-derivative
action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
3
Section 145 also gives a corporation power to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper. Section 145 further provides that, to the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense
of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
Section 145 also authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
The Company’s certificate of incorporation provides that no director of the Company shall be liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL.
The Company’s
certificate of incorporation also provides that the Company has the power to indemnify to the fullest extent permitted by Delaware law any and all of its current and former directors, officers, employees or agents, or any person who may have served
at the Company’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise.
All of the Company’s directors and officers are covered by insurance policies maintained by the Company against certain liabilities for
actions taken in their capacities as such, including liabilities under the Securities Act.
|
Item 7.
|
Exemption From Registration Claimed
|
Not applicable.
The following exhibits are filed as part of this Registration Statement:
4
(a) The undersigned registrant hereby undertakes as follows:
(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 Securities
Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment thereof), which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
(iii) to include any
material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with, or furnished to, the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities 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.
(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 offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement related to the securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial bona fide offering thereof.
(c) 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 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 NEXT PAGE IS THE
SIGNATURE PAGE]
5
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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 New Haven, State of Connecticut, on
the 13th day of November 2017.
|
|
|
|
|
MELINTA THERAPEUTICS, INC.
|
|
|
|
|
By:
|
|
/s/ Daniel Mark Wechsler
|
|
|
|
Daniel Mark Wechsler
|
|
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
We, the undersigned officers and directors of Melinta Therapeutics, Inc., do hereby constitute and appoint Daniel Mark Wechsler and Paul
Estrem, or either of them, our true and lawful
attorneys-in-fact
and agents, each with full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite are necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said
attorney-in-fact
and
agents, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of
the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
/s/ Daniel Mark Wechsler
|
|
Daniel Mark Wechsler
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
November 13, 2017
|
|
|
|
|
|
/s/ Paul Estrem
|
|
Paul Estrem
Executive Vice President and Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
November 13, 2017
|
|
|
|
|
|
/s/ Kevin T. Ferro
|
|
Kevin T. Ferro
Chairman of the Board
|
|
November 13, 2017
|
|
|
|
|
|
/s/ James J. Galeota, Jr.
|
|
James J. Galeota, Jr.
Director
|
|
November 13, 2017
|
|
|
|
|
|
/s/ Cecilia Gonzalo
|
|
Cecilia Gonzalo
Director
|
|
November 13, 2017
|
|
|
|
|
|
/s/ David Gill
|
|
David Gill
Director
|
|
November 13, 2017
|
|
|
|
|
|
/s/ John H. Johnson
|
|
John H. Johnson
Director
|
|
November 13, 2017
|
|
|
|
|
|
/s/ Thomas P. Koestler
|
|
Thomas P. Koestler
Director
|
|
November 13, 2017
|
|
|
|
|
|
/s/ Garheng Kong
|
|
Garheng Kong
Director
|
|
November 13, 2017
|
|
|
|
|
|
|
|
David Zaccardelli
Director
|
|
November , 2017
|
6
Cempra (NASDAQ:CEMP)
Gráfica de Acción Histórica
De Abr 2024 a May 2024
Cempra (NASDAQ:CEMP)
Gráfica de Acción Histórica
De May 2023 a May 2024
