Registration Statement for Securities to Be Issued in Business Combination Transactions (s-4/a)
11 Junio 2019 - 3:02PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 11,
2019
Registration No. 333-229660
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MYND ANALYTICS, INC.
(Exact name of registrant as specified
in its charter)
Delaware
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8090
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87-0419387
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(State or other jurisdiction of
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(Primary Standard Industrial
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(I.R.S. Employer
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incorporation or organization)
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Classification Code Number)
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Identification Number)
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26522 La Alameda, Suite 290
Mission Viejo, CA 92691
(949) 420-4400
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Patrick Herguth, Chief Executive
Officer
MYnd Analytics, Inc.
26522 La Alameda, Suite 290
Mission Viejo, CA 92691
(949) 420-4400
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Jeffrey
A. Baumel, Esq.
Ilan Katz, Esq.
Dentons US LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 768-6700
|
Yutaka
Niihara, M.D., M.P.H.
Chairman and Chief Executive
Officer
Emmaus Life Sciences, Inc.
21250 Hawthorne Boulevard, Suite
800
Torrance, California 90503
(310) 214-0065
|
Dale
E. Short, Esq.
General Counsel
Emmaus Life Sciences, Inc.
21250 Hawthorne Boulevard, Suite
800
Torrance, California 90503
(310) 214-0065
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement and the satisfaction or waiver of all other conditions
under the Merger Agreement described herein.
If the securities being registered on this Form are being offered
in connection with the formation of a holding company and there is compliance with General Instruction G, check the following
box:
☐
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) 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.
☐
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.
☐
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, 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 Transaction Act.
Large accelerated filer
☐
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Accelerated filer
☐
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Non-accelerated filer
☐
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Smaller reporting company
☒
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Emerging growth company
☐
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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 accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
If applicable, place an X in the box to designate the appropriate
rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender
Offer)
☐
EXPLANATORY NOTE
This Amendment No. 2 to the MYnd Analytics, Inc. Registration
Statement on Form S-4 (Registration No. 333-229660) originally filed with the Securities and Exchange Commission on February 13,
2019, as amended by Amendment No. 1 filed June 10, 2019, is being filed for the sole purpose of filing Exhibit 8.1 (and the related
consent included therein as Exhibit 23.3) and updating the Exhibit Index accordingly. This Amendment No. 2 does not relate to
the contents of the joint proxy statement/prospectus that forms a part of the Registration Statement and, accordingly, the joint
proxy statement/prospectus has not been included herein.
PART
II
INFORMATION
NOT REQUIRED IN PROXY STATEMENT/PROSPECTUS
Item
20. Indemnification of Directors and Officers
The
Registrant’s amended and restated certificate of incorporation contains provisions that eliminate, to the maximum extent
permitted by the General Corporation Law of the State of Delaware, the personal liability of the Registrant’s directors
and executive officers for monetary damages for breach of their fiduciary duties as directors or officers. The Registrant’s
amended and restated certificate of incorporation and amended and restated bylaws provide that the Registrant must indemnify its
directors and executive officers and may indemnify its employees and other agents to the fullest extent permitted by the General
Corporation Law of the State of Delaware.
Sections
145 and 102(b)(7) of the General Corporation Law of the State of Delaware provide that a corporation may indemnify any person
made a party to an action by reason of the fact that he or she was a director, executive officer, employee or agent of the corporation
or is or was serving at the request of a corporation against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such action if he or she acted in
good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except
that, in the case of an action by or in right of the corporation, no indemnification may generally be made in respect of any claim
as to which such person is adjudged to be liable to the corporation.
The
Registrant has entered into indemnification agreements with its directors and executive officers, in addition to the indemnification
provided for in its amended and restated certificate of incorporation and amended and restated bylaws, and intends to enter into
indemnification agreements with any new directors and executive officers in the future.
The
Registrant has purchased and intends to maintain insurance on behalf of any person who is or was a director or officer of the
Registrant against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity,
subject to certain exclusions.
Item
21. Exhibits and Financial Statement Schedules
(a)
Exhibit Index
A
list of exhibits filed with this registration statement on Form S-4 is set forth on the Exhibit Index and is incorporated herein
by reference.
(b)
Financial Statements
The
financial statements filed with this registration statement on Form S-4 are set forth on the Financial Statement Index and is
incorporated herein by reference.
Item
22. Undertakings
(a)
The undersigned registrant hereby undertakes as follows:
(1)
That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this
registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer
undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect
to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the
applicable form.
(2)
That every prospectus (i) that is filed pursuant to paragraph (a)(1) immediately preceding, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule
415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective,
and that, for purposes 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 respond to requests for information that is incorporated by reference into this joint proxy statement/prospectus/prospectus
pursuant to Item 4, 10(b), 11, or 13 of Form S-4, within one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent
to the effective date of the registration statement through the date of responding to the request.
(4)
To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved
therein, that was not the subject of and included in the registration statement when it became effective.
(b)
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.
EXHIBIT
INDEX
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Incorporation
by Reference
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Exhibit
Number
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Exhibit
Title
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Form
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File
No.
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Exhibit
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Filing
Date
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Filed
By
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2.1+
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Agreement
and Plan of Merger and Reorganization dated as of January 4, 2019, by and among MYnd Analytics, Inc., Athena Merger Subsidiary,
Inc. and Emmaus Life Sciences, Inc. (included as Annex A to the joint proxy statement/prospectus forming a part of this Registration
Statement)
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8-K
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001-35527
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2.1
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January
7, 2019
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MYnd
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2.2
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Amendment
No 1. to Agreement and Plan of Merger dated as of May 10, 2019, by and among MYnd Analytics, Inc., Athena Merger Subsidiary,
Inc. and Emmaus Life Sciences, Inc. (included as Annex A to the joint proxy statement/prospectus forming a part of this Registration
Statement).
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3.1
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Certificate
of Incorporation, as amended
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10-Q
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001-35527
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3.1
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February
20, 2018
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MYnd
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3.2
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Bylaws
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8-K
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000-26285
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3.1
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March
28, 2012
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MYnd
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3.3
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Form
of Certificate of Designation of Preferences, Rights of the Series A Preferred Stock
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8-K
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001-35527
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3.1
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April
3, 2018
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MYnd
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3.4
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Form
of Certificate of Designation of Preferences, Rights of Series A-1 Preferred Stock
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10-Q
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001-35527
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3.2
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May
14, 2018
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MYnd
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4.1†
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Amended
and Restated 2006 Stock Incentive Plan.
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Sch
14A
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000-26285
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Appendix A
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April
1, 2010
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MYnd
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4.2†
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Amended
and Restated 2012 Omnibus Incentive Compensation Plan.
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Sch
14A
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001-35527
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Annex
A
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November
2, 2018
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MYnd
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4.3
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Sample
Stock Certificate
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10-K
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001-35527
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4.3
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December
29, 2017
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MYnd
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4.4
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Form
of Restricted Share Agreement under the MYnd Analytics, Inc. Amended and Restated 2012 Omnibus Incentive Compensation Plan
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10-K
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001-35527
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4.4
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December
22, 2016
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MYnd
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4.5
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Form
of ISO Stock Option Award Certificate under the MYnd Analytics, Inc. Amended and Restated 2012 Omnibus Incentive Compensation
Plan
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10-K
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001-35527
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4.5
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December
22, 2016
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MYnd
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4.6
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Form
of NQSO Stock Option Award Certificate under the MYnd Analytics, Inc. Amended and Restated 2012 Omnibus Incentive Compensation
Plan
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10-K
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001-35527
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4.6
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December
22, 2016
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MYnd
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5.1*
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Legal
Opinion of Dentons US LLP
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8.1**
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Legal
Opinion of Dentons US LLP regarding tax matters.
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10.1
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Form
of Registration Rights Agreement, dated as of March 28, 2018, by and between the Company and the holder(s) signatory thereto
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8-K
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001-35527
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10.1
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April
3, 2018
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MYnd
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10.2
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Form
of Warrant, dated as of March 29, 2018, by and between the Company and the holder signatory thereto.
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8-K
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001-35527
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10.2
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April
3, 2018
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MYnd
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10.3
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Subscription
Agreement, dated as of March 29, 2018, by and between the Company and the investor(s) signatory thereto
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10-Q
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001-35527
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10.3
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May
14, 2018
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MYnd
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10.4
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Amendment
No. 1 to Subscription Agreement, dated as of March 29, 2018, by and between the Company and the investor(s) signatory thereto
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10-Q
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001-35527
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10.4
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May
14, 2018
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MYnd
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10.5†
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Amendment
to Chairman Services Agreement, effective as of April 16, 2018, by and between the Company and Robin Smith
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10-Q
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001-35527
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10.5
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May
14, 2018
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MYnd
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10.6†
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Second
Amendment to Chairman Services Agreement, effective as of April 24, 2018, by and between the Company and Robin Smith
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10-Q
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001-35527
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10.6
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May
14, 2018
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MYnd
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10.7†
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Amendment
to Chief Executive Officer Agreement, effective as of April 19, 2018, by and between the Company and George C. Carpenter,
IV.
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10-Q
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001-35527
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10.7
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May
14, 2018
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MYnd
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10.8
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Common
Stock Purchase Agreement, dated as of May 15, 2018, by and between the Company and Aspire Capital Fund, LLC
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8-K
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001-35527
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10.1
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May
18, 2018
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MYnd
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10.9
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Registration
Rights Agreement, dated as of May 15, 2018, by and between the Company and Aspire Capital Fund, LLC
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8-K
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001-35527
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4.1
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May
18, 2018
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MYnd
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10.10†
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Chief
Executive Officer Agreement, dated as of May 25, 2018, by and between the Company and George C. Carpenter, IV
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10-Q
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001-35527
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10.2
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August
10, 2018
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MYnd
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10.11
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Management
Services Agreement, effective as of November 13, 2017, between Arcadian Telepsychiatry Services LLC and Arcadian Telepsychiatry
P.C.
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10-Q
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001-35527
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10.32
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February
20, 2018
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MYnd
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10.12
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Management
Services Agreement, effective as of November 13, 2017, between Arcadian Telepsychiatry Services LLC and Arcadian Telepsychiatry
PA.
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10-Q
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001-35527
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10.33
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February
20, 2018
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MYnd
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10.13
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Subscription
Agreement for Shares of Common Stock and Common Stock Purchase Warrants, dated as of September 21, 2018, by and between the
Company and the investor(s) party thereto
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10-K
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001-35527
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10.13
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December
11, 2018
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MYnd
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10.14
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Form
of Warrant to Purchase Shares of Common Stock, dated as of September 24, 2018, by and between the Company and the holder party
thereto
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10-K
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001-35527
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10.14
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December
11, 2018
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MYnd
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10.15
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Agreement,
by and between the Company and RSJ Investments SICAV a.s. acting in respect of its sub-fund (podfond) RSJ Gradus podfond,
RSJ Investment SICAV a.s., effective as of September 20, 2018
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10-K
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001-35527
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10.15
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December
11, 2018
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MYnd
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10.16†
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Employment
Agreement, dated as of December 12, 2018, by and between the Company and Patrick Herguth
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8-K
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001-35527
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10.1
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December
12, 2018
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MYnd
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10.17†
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Amendment
to Carpenter Employment Agreement, dated as of December 12, 2018, by and between the Company and George C. Carpenter, IV
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8-K
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001-35527
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10.2
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December
12, 2018
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MYnd
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10.18
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Separation
Agreement dated as of January 4, 2019, by and among MYnd Analytics, Inc., a Delaware corporation and its wholly-owned subsidiary,
MYnd Analytics, Inc., a California corporation
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8-K
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001-35527
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10.1
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January
7, 2019
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MYnd
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10.19
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Form
of Emmaus Voting Agreement dated as of January 4, 2019
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8-K
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001-35527
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10.2
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January
7, 2019
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MYnd
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10.20
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Form
of MYnd Voting Agreement dated as of January 4, 2019
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8-K
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001-35527
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10.3
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January
7, 2019
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MYnd
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10.21
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Form
of Emmaus Lock-Up Agreement dated as of January 4, 2019
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8-K
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001-35527
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10.4
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January
7, 2019
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MYnd
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10.22
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Form
of MYnd Lock-Up Agreement dated as of January 4, 2019
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8-K
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001-35527
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10.5
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January
7, 2019
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MYnd
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10.23
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Amended
and Restated Separation Agreement dated as of March 27, 2019, by and among MYnd Analytics, Inc., a Delaware corporation and
its wholly-owned subsidiary, Telemynd, Inc., a Delaware corporation (included as Annex B to the joint proxy statement/prospectus
forming a part of this Registration Statement).
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21.1
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Subsidiaries
of the Registrant
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10-K
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001-35527
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21.1
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December
29, 2017
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MYnd
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23.1*
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Consent
of Marcum LLP, Independent Registered Public Accounting Firm
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23.2*
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Consent
of SingerLewak LLP, Independent Registered Public Accounting Firm
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23.3**
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Consent
of Dentons U.S. LLP (included in Exhibit 8.1 hereto)
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23.4*
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Consent
of ThinkEquity
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24.1*
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Power
of Attorney (included on the signature page)
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99.1*
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Opinion
of ThinkEquity, financial advisor to MYnd Analytics, Inc. (included as Annex C to the joint proxy statement/prospectus forming
a part of this Registration Statement)
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99.2*
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Form
of MYnd Analytics, Inc. Proxy Card
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99.3*
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Form
of Emmaus Life Sciences, Inc. Proxy Card
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99.4*
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Proposed
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of MYnd Analytics, Inc. for Reverse Stock
Split (included as Annex D to the joint proxy statement/prospectus forming a part of this Registration Statement)
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99.5*
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Proposed
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of MYnd Analytics, Inc. for Name Change
(included as Annex E to the joint proxy statement/prospectus forming a part of this Registration Statement)
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99.6*
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Consent
of Yutaka Niihara, M.D., M.P.H. to be named as a director
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99.7*
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Consent
of Willis C. Lee, M.S. to be named as a director
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99.8*
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Consent
of Robert Dickey IV to be named as a director
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99.9*
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Consent
of Masaharu Osato, M.D. to be named as a director
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99.10*
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Consent
of Wei Peu Zen to be named as a director
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99.11*
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Consent
of Ian Zwicker to be named as a director
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*
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Previously Filed
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**
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Filed herewith
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†
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Management compensatory plan, contract or arrangement
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+
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All schedules (or similar attachments) have been omitted from this filing pursuant
to Item 601(b)(2) of Regulation S-K. MYnd Analytics, Inc. will furnish copies of any schedules to the Securities and Exchange
Commission upon request.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City
of Mission Viejo, State of California, on the 11th day of June, 2019.
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MYND ANALYTICS, INC.
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By:
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/s/ Patrick Herguth
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Name:
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Patrick Herguth
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Title:
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Chief Executive Officer
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Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons on behalf of the Registrant in the capacities and on the dates indicated.
Signature
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Signature
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Date
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/s/ Patrick Herguth
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Chief Executive Officer and Director
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June 11, 2019
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Patrick Herguth
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(Principal Executive Officer)
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*
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Chief Financial Officer
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June 11, 2019
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Donald E. D’Ambrosio
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(Principal Financial and Accounting Officer)
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*
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Robin L. Smith, M.D.
|
|
Chairman of the board of directors
|
|
June 11, 2019
|
|
|
|
|
|
*
|
|
|
|
|
Geoffrey E. Harris
|
|
Director
|
|
June 11, 2019
|
|
|
|
|
|
*
|
|
|
|
|
John Pappajohn
|
|
Director
|
|
June 11, 2019
|
|
|
|
|
|
*
|
|
|
|
|
Peter Unanue
|
|
Director
|
|
June 11, 2019
|
|
|
|
|
|
*
|
|
|
|
|
Michal Votruba
|
|
Director
|
|
June 11, 2019
|
*By:
|
/s/ Patrick Herguth
|
|
|
Patrick Herguth
|
|
|
Attorney-in-Fact
|
|
II-6
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