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TABLE OF CONTENTS
TABLE OF CONTENTS
Table of Contents
As filed with the Securities and Exchange Commission on December 1, 2016.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Voyager Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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46-3003182
(I.R.S. Employer
Identification Number)
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75 Sidney Street
Cambridge, Massachusetts 02139
(857) 259-5340
(Address, including zip code, and telephone number, including area code, of principal executive offices)
Steven M. Paul, M.D.
President and Chief Executive Officer
Voyager Therapeutics, Inc.
75 Sidney Street
Cambridge, Massachusetts 02139
(857) 259-5340
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Mitchell S. Bloom, Esq.
Edwin M. O'Connor, Esq.
Laurie A. Burlingame, Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
(617) 570-1000
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box.
o
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, other than securities offered only in connection with dividend or interest reinvestment plans, 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, 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 registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing
with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
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" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
ý
(Do not check if a
smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities
To Be Registered
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Amount to be
Registered
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Proposed Maximum
Offering Price Per
Unit
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee(3)
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Common Stock, $0.001 par value per share
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(1)
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(2)
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(2)
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Preferred Stock, $0.001 par value per share
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(1)
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(2)
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(2)
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Debt Securities
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(1)
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(2)
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(2)
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Warrants
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(1)
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(2)
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(2)
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Units
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(1)
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(2)
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(2)
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Total
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(1)
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(2)
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$250,000,000
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$28,975
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(1)
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There
are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities
and such indeterminate number of warrants and units as shall have an aggregate initial offering price not to exceed $250,000,000. If any debt securities are issued at an original issue discount, then
the principal amount of such debt securities shall be in such greater amount as shall result in an aggregate initial offering price not to exceed $250,000,000, less the aggregate dollar amount of all
securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities registered also include such
indeterminate number of shares of common stock and preferred stock and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for
conversion or exchange, upon exercise of warrants or pursuant to the antidilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act, the shares being
registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock
splits, stock dividends or similar transactions.
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(2)
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The
proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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EXPLANATORY NOTE
This Registration Statement contains two prospectuses:
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A base prospectus which covers the offering, issuance and sale by us of up to $250,000,000 in the aggregate of the securities identified above
from time to time in one or more offerings; and
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A sales agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $75,000,000 of our
common stock that may be issued and sold under a sales agreement with Cowen and Company, LLC, or Cowen.
The
base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus
supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus. The $75,000,000 of common stock that may be offered, issued and sold under the sales
agreement prospectus is included in the $250,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the sales agreement with Cowen, any portion
of the $75,000,000 included in the sales agreement prospectus that is not sold pursuant to the sales agreement will be available for sale in other offerings pursuant to the base prospectus, and if no
shares are sold under the sales agreement, the full $250,000,000 of securities may be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement.
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The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 1, 2016
PROSPECTUS
$250,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may from time to time issue, in one or more series or classes, up to $250,000,000 in aggregate principal amount of our common stock, preferred
stock, debt securities, warrants and/or units in one or more offerings. We may offer these securities separately or together in units, and we may offer securities as may be issuable upon conversion,
redemption, repurchase, exchange or exercise of any of the securities registered hereunder, including any applicable antidilution provisions.
This
prospectus provides a general description of the securities we may offer. Each time we offer securities, we will specify in the accompanying prospectus supplement the terms of the
securities being offered. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any free writing
prospectus may also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference, before you invest in our securities.
We
may sell these securities to or through underwriters and also to other purchasers or through agents. We will set forth the names of any underwriters or agents, and any fees,
conversions or discount arrangements, in the accompanying prospectus supplement. We may not sell any securities under this prospectus without delivery of the applicable prospectus supplement.
Our
common stock is traded on The NASDAQ Global Select Market under the symbol "VYGR." On November 30, 2016, the closing price for our common stock, as reported on The NASDAQ
Global Select Market, was $12.46 per share. Our principal executive offices are located at 75 Sidney Street, Cambridge, Massachusetts 02139.
We are an "emerging growth company" as that term is used in the Jumpstart Our Business Startups Act of 2012 and, as such, have elected to avail ourselves of
certain reduced public company reporting requirements for this prospectus and future filings.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the heading
"
Risk Factors
" contained in this prospectus beginning on page 2 and any applicable prospectus supplement, and under similar headings in the other
documents that are incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this Prospectus is , 2016.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the United States Securities and Exchange Commission,
or the SEC, using a "shelf" registration process. Under this shelf registration process, we may, from time to time, sell any combination of the securities described in this prospectus in one or more
offerings up to a total amount of $250,000,000.
This
prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide one or more prospectus supplements that will contain
specific information about the terms of the offering. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement
and any free writing prospectus may also add, update or change information contained in this prospectus. You should read this prospectus, the accompanying prospectus supplement and any free writing
prospectus together with the additional information described under the heading "Where You Can Find More Information" beginning on page 27 of this prospectus.
You
should rely only on the information contained in or incorporated by reference in this prospectus, any accompanying prospectus supplement or in any related free writing prospectus
filed by us with the SEC. We have not authorized anyone to provide you with different information. This prospectus and the accompanying prospectus supplement do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the securities described in the accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities
in any circumstances in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement, the documents incorporated by
reference and any related free writing prospectus is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially
since those dates.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All
of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading "Where You Can Find More Information."
Unless the context otherwise indicates, references in this prospectus to "Voyager Therapeutics", "we", "our", "us" and "the Company" refer, collectively, to
Voyager Therapeutics, Inc., a Delaware corporation. The term "Voyager Securities" means Voyager Securities Corporation, a Massachusetts corporation and our wholly-owned
subsidiary.
We
own various U.S. federal trademark registrations and applications and unregistered trademarks, including our corporate logo. This prospectus and the information incorporated herein by
reference contains references to trademarks, service marks and trade names referred to in this prospectus and the information incorporated herein, including logos, artwork, and other visual displays,
may appear without the ® or
TM
symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our
rights or the rights of the applicable licensor to these trademarks, service marks or trade names. We do not intend our use or display of other companies' trade names, service marks or trademarks to
imply a relationship with, or endorsement or sponsorship of us by, any other companies. All trademarks, service marks and trade names included or incorporated by reference into this prospectus, any
applicable prospectus supplement or any related free writing prospectus are the property of their respective owners.
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RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully consider the risks and uncertainties referenced below and
described in the documents incorporated by reference in this prospectus and any prospectus supplement, as well as other information we include or incorporate by reference into this prospectus and any
applicable prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be materially adversely affected by the materialization of any
of these risks. The trading price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents
incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking
statements as a result of certain factors, including the risks referenced below and described in the documents incorporated herein by reference, including (i) our Annual Report on
Form 10-K for the fiscal year ended December 31, 2015, which is on file with the SEC and is incorporated herein by reference, (ii) our Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2016, June 30, 2016 and September 30, 2016, which are incorporated by reference into this prospectus, and (iii) other documents we file with
the SEC that are deemed incorporated by reference into this prospectus.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference, contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Any statements
about our expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and may be forward-looking. These statements are often, but are not always,
made through the use of words or phrases such as "may," "will," "could," "should," "expects," "intends," "plans," "anticipates," "believes," "estimates," "predicts," "projects," "potential,"
"continue," and similar expressions, or the negative of these terms, or similar expressions. Accordingly, these statements involve estimates, assumptions, risks and uncertainties which could cause
actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout this prospectus, and
in particular those factors referenced in the section "Risk Factors."
This
prospectus contains forward-looking statements that are based on our management's belief and assumptions and on information currently available to our management. These statements
relate to future events or our future financial performance, and involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or
achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Forward-looking statements
include, but are not limited to, statements about:
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our ability to continue to advance VY-AADC01 through the current Phase 1b clinical trial as a treatment for advanced Parkinson's disease
and establish human proof-of-concept in December 2016;
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the accuracy of our estimates regarding expenses, future revenues and capital requirements;
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our ability to continue to develop our product engine;
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our ability to develop a manufacturing capability compliant with current good manufacturing practices for our product candidates;
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our ability to advance our other programs through preclinical development and into clinical trials, including filing of an IND for VY-SOD101 in
the fourth quarter of 2017, and successfully complete such clinical trials;
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regulatory developments in the United States and the European Union;
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our ability to obtain and maintain intellectual property protection for our proprietary assets;
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the size of the potential markets for our product candidates and our ability to serve those markets;
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the rate and degree of market acceptance of our product candidates for any indication once approved;
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our ability to obtain additional financing when needed; and
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the success of competing products that are or become available for the indications that we are pursuing.
These
forward-looking statements are neither promises nor guarantees of future performance due to a variety of risks and uncertainties, many of which are beyond our control, and other
factors more fully discussed in the "Risk Factors" section in this prospectus, the section of any accompanying prospectus supplement entitled "Risk Factors" and the risk factors and cautionary
statements described in other documents that we file from time to time with the SEC, specifically under "Item 1A. Risk
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Factors"
and elsewhere in our most recent Annual Report on Form 10-K for the year ended December 31, 2015 and our most recent Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2016, June 30, 2016 and September 30, 2016, and our Current Reports on Form 8-K.
Given
these uncertainties, readers should not place undue reliance on our forward-looking statements. These forward-looking statements speak only as of the date on which the statements
were made and are not guarantees of future performance. Except as may be required by applicable law, we do not undertake to update any forward-looking statements after the date of this prospectus or
the respective dates of documents incorporated by reference herein or therein that include forward-looking statements.
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THE COMPANY
Voyager Therapeutics is a clinical-stage gene therapy company focused on developing life-changing treatments for patients suffering from severe
diseases of the central nervous system, or CNS. We focus on CNS diseases where we believe that an adeno-associated virus, or AAV, gene therapy approach that either increases or decreases the
production of a specific protein can slow or reduce the symptoms experienced by patients, and therefore have a clinically meaningful impact. The Company has created a product engine that enables it to
engineer, optimize, manufacture, and deliver its AAV-based gene therapies that have the potential to provide durable efficacy following a single administration directly to the CNS. The Company's
product engine has rapidly generated six programs for CNS indications, including advanced Parkinson's disease, a form of monogenic amyotrophic lateral sclerosis, Friedreich's ataxia, Huntington's
disease, frontotemporal dementia / Alzheimer's disease, and severe, chronic pain. The Company's most advanced clinical candidate, VY-AADC01, is being evaluated for the treatment of advanced
Parkinson's disease in an open-label, Phase 1b clinical trial with the goal of generating human proof-of-concept data in early December 2016.
In
February 2015, we entered into an agreement with Genzyme ("Collaboration Agreement"), which included a non-refundable upfront payment of $65.0 million. In addition,
contemporaneous with entering into the Collaboration Agreement, Genzyme entered into a Series B Stock Purchase Agreement, under which Genzyme purchased 10,000,000 shares of Series B
Preferred Stock for $30.0 million.
Through
September 30, 2016, we had raised approximately $278.0 million of proceeds from sales of convertible preferred stock and common stock, including our initial public
offering and proceeds from the Collaboration Agreement. We believe that our cash, cash equivalents, and marketable securities of $191.2 million as of September 30, 2016 is sufficient to
fund our current operating plan into 2019. There can be no assurance, however, that the current operating plan will be achieved in the timeframe that we anticipate, or that our cash resources will
fund our operating plan for the period that we anticipate, or if we need additional funding that such funding will be available on terms acceptable to us, or at all.
We
qualify as an "emerging growth company" as defined in the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act. As an emerging growth company, we may take
advantage of specified reduced disclosure and other requirements that are otherwise applicable generally to public companies. We would cease to be an emerging growth company on the date that is the
earliest of: (i) the last day of the fiscal year in which we have total annual gross revenues of $1 billion or more; (ii) December 31, 2020; (iii) the date on which
we have issued more than $1 billion in nonconvertible debt during the previous three years; or (iv) the date on which we are deemed to be a large accelerated filer under the rules of the
SEC.
We
were incorporated under the laws of the State of Delaware in June 2013. Our principal executive offices are located at 75 Sidney Street, Cambridge, Massachusetts 02139 and our
telephone number is (857) 259-5340. Our website address is www.voyagertherapeutics.com. The information on, or that can be accessed through, our website does not constitute part of this
prospectus, and you should not rely
on any such information in making the decision whether to purchase our common stock. Our common stock trades on The NASDAQ Global Select Market under the symbol "VYGR".
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for the periods shown. You should read this table in conjunction with the
consolidated financial statements and notes incorporated by reference in this prospectus. We have no shares of preferred stock outstanding as of September 30, 2016, and no paid dividends on
shares of preferred stock during the periods indicated. Therefore, the ratios of earnings to combined fixed charges and preferred dividends are the same as the ratios of earnings to fixed charges
presented below. See Exhibit 12.1 hereto for additional details regarding the computation of the ratio of earnings to fixed charges. Our ratio of earnings to fixed charges for the period ended
December 31, 2013 and for each of the years ended December 31, 2014 and December 31, 2015 and the nine months ended September 30, 2016 were as follows:
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Period Ended
December 31,
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Year Ended
December 31,
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Nine Months
Ended
September 30,
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2013
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2014
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2015
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2016
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(in thousands, except for ratios)
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Deficiency of earnings to fixed charges
(1)
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$
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(3,833
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(17,683
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$
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(38,290
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$
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(25,520
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Ratio of earnings to fixed ratios
(2)
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N/A
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N/A
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N/A
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N/A
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(1)
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The
deficiency of earning available to cover combined fixed charges and preferred dividends includes non-cash deemed dividends to preferred stockholders and
accretion of redemption value of redeemable convertible preferred stock of $1,366 and $8,618 for the years ended December 31, 2014 and 2015, respectively.
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Due
to the Company's net loss for the period ended December 31, 2013 and for each of the years ended December 31, 2014 and 2015 and for the nine months
ended September 30, 2016, earnings were insufficient to cover combined fixed charges.
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USE OF PROCEEDS
Unless otherwise indicated in the prospectus supplement, we will use the net proceeds from the sale of securities by us offered by this
prospectus for costs associated with preclinical and clinical stage development, as well as for general corporate purposes, which may include new research and development activities, the hiring of
additional personnel, capital expenditures and the costs of operating as a public company. The timing and amount of our actual expenditures will be based on many factors, including the progress of our
development efforts, the status of and results from preclinical studies and any current and future clinical trials, as well as any collaborations that we may enter into with third parties for our
product candidates and any unforeseen cash needs. We may temporarily invest the net proceeds in a variety of capital preservation instruments, including investment grade instruments, certificates of
deposit or direct or guaranteed obligations of the U.S. government, or may hold such proceeds as cash, until they are used for their stated purpose. We have not determined the amount of net proceeds
to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation of net proceeds.
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THE SECURITIES WE MAY OFFER
This prospectus contains summary descriptions of the securities we may offer from time to time. These summary descriptions are not meant to be
complete descriptions of each security. The particular terms of any security will be described in the applicable prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 120,000,000 shares of common stock, $0.001 par value per share, and 5,000,000 shares of undesignated
preferred stock, $0.001 par value per share.
As
of September 30, 2016, there were 26,720,082 shares of our common stock outstanding, including 1,300,837 shares of restricted common stock, held by 38 stockholders of
record, and no shares of our redeemable convertible preferred stock outstanding. Our board of directors is authorized, without stockholder approval except as required by the listing standards of the
NASDAQ Global Select Market, to issue additional shares of our capital stock.
Common Stock
The holders of our common stock are entitled to one vote per share on all matters to be voted on by our stockholders. Our Fifth Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws currently in effect do not provide for cumulative voting rights. Our Fifth Amended and Restated Certificate of Incorporation
establishes a classified board of directors that is divided into three classes with staggered three-year terms. Only the directors in one class will be subject to election by a plurality of the votes
cast at each annual meeting of our stockholders, with the directors in the other classes continuing for the remainder of their respective three-year terms. With respect to matters other than the
election of directors, at any meeting of the stockholders at which a quorum is present or represented, the affirmative vote of a majority of the voting power of the shares present in person or
represented by proxy at such meeting and entitled to vote on the subject matter shall be the act of the stockholders, except as otherwise required by law. The holders of a majority of the stock issued
and outstanding and entitled to vote, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders.
Subject
to preferences that may be applicable to any outstanding shares of preferred stock, holders of common stock are entitled to receive ratably such dividends as may be declared by
our board of directors out of funds legally available for that purpose. In the event of our liquidation, dissolution or winding up, the holders of common stock are entitled to share ratably in all
assets remaining after the payment of liabilities, subject to the prior distribution rights of preferred stock then outstanding. Holders of common stock have no preemptive, conversion or subscription
rights. There are no redemption or sinking fund provisions applicable to the common stock.
Preferred Stock
Our board of directors has the authority, without further action by our stockholders, to issue up to 5,000,000 shares of preferred stock in one
or more series and to fix the rights, preferences, privileges and restrictions thereof. These rights, preferences and privileges could include dividend rights, conversion rights, voting rights, terms
of redemption, liquidation preferences, sinking fund terms and the number of shares constituting, or the designation of, such series, any or all of which may be greater than the rights of common
stock. The issuance of our preferred stock could adversely affect the voting power of holders of common stock and the likelihood that such holders will receive dividend payments and payments upon our
liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferring or preventing a change in control of our company or other corporate action. There
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are
no shares of preferred stock currently outstanding, and we have no present plans to issue any shares of preferred stock.
If
we issue preferred stock, we will incorporate by reference as an exhibit to the registration statement, which includes this prospectus, the form of any certificate of designation that
describes the terms of the series of preferred stock we are offering. This description and the applicable prospectus supplement will include:
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the title and stated value;
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the number of shares authorized;
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the liquidation preference per share;
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the purchase price;
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the dividend rate, period and payment date, and method of calculation for dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase
rights;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated,
and the conversion period;
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated,
and the exchange period;
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voting rights, if any, of the preferred stock;
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preemptive rights, if any;
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restrictions on transfer, sale or other assignment, if any;
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a discussion of any material United States federal income tax considerations applicable to the preferred stock;
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-
the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
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-
any limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
-
-
any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
When
we issue shares of preferred stock under this prospectus, the shares will fully be paid and nonassessable and will not have, or be subject to, any preemptive or similar rights.
Registration Rights
The holders of 11,061,176 shares our common stock are entitled to rights with respect to the registration of these shares under the Securities
Act. These rights are provided under the terms of the
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Second
Amended and Restated Investor Rights' Agreement (the "Investor Rights Agreement") between us and the holders of these shares, and include demand registration rights, short-form registration
rights and piggyback registration rights. All fees, costs and expenses of underwritten registrations will be borne by us and all selling expenses, including underwriting discounts and selling
commissions, will be borne by the holders of the shares being registered.
Demand registration rights
The holders of 11,061,176 shares of our common stock are entitled to demand registration rights. Under the terms of the Investor Rights
Agreement, we will be required, upon the written request of holders of a majority of the then-outstanding shares of Registrable Securities, as such term is defined in the Investor Rights Agreement,
requesting registration of at least 75% of the then-outstanding shares of Registrable Securities, to use our commercially reasonable efforts to effect the registration of such shares for public
resale.
Form S-3 registration rights
If the holders of at least 25% of the then-outstanding Registrable Securities request that we register their shares for public resale on
Form S-3 with an aggregate price to the public of the shares to be registered, net of underwriting discounts and commissions, of at least $1.0 million, we will be required to effect such
registration within 45 days.
Piggyback registration rights
The holders of 11,061,176 shares of our common stock are entitled to piggyback registration rights. If we register any of our securities either
for our own account or for the account of other security holders, the holders of these shares are entitled to include their shares in the registration. We have the right to terminate or withdraw any
registration that we initiate before the effective date of the registration.
Indemnification
Our Investor Rights Agreement contains customary cross-indemnification provisions, under which we are obligated to indemnify holders of
Registrable Securities in the event of material misstatements or omissions in the registration statement attributable to us, and they are obligated to indemnify us for material misstatements or
omissions attributable to them.
Termination of registration rights
The registration rights granted under the Investor Rights Agreement will terminate upon a Deemed Liquidation Event, as defined in the Investor
Rights Agreement, or on November 16, 2020, or, with respect to any holder of Registrable Securities, such earlier time as all such Registrable Securities held by such holder are available for
resale without limitation during a three-month period without registration, pursuant to Rule 144 or another similar exemption under the Securities Act.
Anti-Takeover Provisions
Our Fifth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws contain certain provisions that are intended to
enhance the likelihood of continuity and stability in the composition of the board of directors and which may have the effect of delaying,
deferring or preventing a future takeover or change in control of the company unless such takeover or change in control is approved by the board of directors.
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Classified board of directors
Our Fifth Amended and Restated Certificate of Incorporation provides that our board of directors will be divided into three classes of
directors, with the classes as nearly equal in number as possible. As a result, approximately one-third of our board of directors will be elected each year. The classification of directors will have
the effect of making it more difficult for stockholders to change the composition of our board of directors. Our amended and restated certificate of incorporation also provides that, subject to any
rights of holders of preferred stock to elect additional directors under specified circumstances, the number of directors will be fixed exclusively pursuant to a resolution adopted by our board of
directors. Our board of directors currently has six members.
Action by written consent; special meetings of stockholders
Our Fifth Amended and Restated Certificate of Incorporation provides that stockholder action can be taken only at an annual or special meeting
of stockholders and cannot be taken by written consent in lieu of a meeting. Our Fifth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws also provide that, except as
otherwise required by law, special meetings of the stockholders can be called only by a majority of our board of directors, the Chairperson or the President. Stockholders will not be permitted to call
a special meeting or to require the board of directors to call a special meeting.
Removal of directors
Our Fifth Amended and Restated Certificate of Incorporation provides that our directors may be removed only for cause by the affirmative vote of
at least 75% of the votes that all our stockholders would be entitled to cast in an annual election of directors, voting together as a single class, at a meeting of the stockholders called for that
purpose upon at least 45 days' prior written notice. This requirement of a supermajority vote to remove directors could enable a minority of our stockholders to prevent a change in the
composition of our board of directors.
Advance notice procedures
Our Amended and Restated Bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of our
stockholders, including proposed nominations of persons for election to the board of directors. Stockholders at an annual meeting will only be able to consider proposals or nominations specified in
the notice of meeting or brought before the meeting by or at the direction of the board of directors or by a stockholder who was a stockholder of record on the record date for the meeting, who is
entitled to vote at the meeting and who has given our Secretary timely written notice, in proper form, of the stockholder's intention to bring that business before the meeting. Although our Amended
and Restated Bylaws do not give the board of directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business to be conducted at a special or
annual meeting, our Amended and Restated Bylaws may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed or may discourage or deter a
potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of our company.
Super majority approval requirements
The Delaware General Corporation Law generally provides that the affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation's certificate of incorporation or bylaws, unless either a corporation's certificate of incorporation or bylaws requires a greater percentage. A majority vote of our
board of directors or the affirmative vote of holders of at least 75% of the total votes of our outstanding shares of capital stock entitled to vote with respect
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thereto,
voting together as a single class, will be required to amend, alter, change or repeal the bylaws. In addition, the affirmative vote of the holders of at least 75% of the total votes of our
outstanding shares of capital stock entitled to vote with respect thereto, voting together as a single class, will be required to amend, alter, change or repeal, or to adopt any provisions
inconsistent with, any of the provisions in our certificate of incorporation relating to amendments to our certificate of incorporation and bylaws and as described under "Action by written consent;
special meetings of stockholders", "Classified board of directors" and "Removal of directors" above. This requirement of a supermajority vote to approve amendments to our bylaws and certificate of
incorporation could enable a minority of our stockholders to exercise veto power over any such amendments.
Authorized but unissued shares
Our authorized but unissued shares of common stock and preferred stock will be available for future issuance without stockholder approval. These
additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital and corporate acquisitions. The existence of authorized but
unissued shares of common stock and preferred stock could render more difficult or discourage an attempt to obtain control of a majority of our common stock by means of a proxy contest, tender offer,
merger or otherwise.
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of the Delaware General Corporation Law, or Section 203. In general,
Section 203 prohibits a publicly-held Delaware corporation from engaging in a "business combination" with an "interested stockholder" for a three-year period following the time that this
stockholder becomes an interested stockholder, unless the business combination is approved in a prescribed manner. A "business combination" includes, among other things, a merger, asset or stock sale
or other transaction resulting in a financial benefit to the interested stockholder. An "interested stockholder" is a person who, together with affiliates and associates, owns, or did own within three
years prior to the determination of interested stockholder status, 15% or more of the corporation's voting stock.
Under
Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions: before the
stockholder became interested, the board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; upon
consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 75% of the voting stock of the corporation outstanding
at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in
some instances; or at or after the time the stockholder became interested, the business combination was approved by the board of directors of the corporation and authorized at an annual or special
meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
A
Delaware corporation may "opt out" of these provisions with an express provision in its original certificate of incorporation or an express provision in its certificate of
incorporation or bylaws resulting from a stockholders' amendment approved by at least a majority of the outstanding voting shares. We have not opted out of these provisions. As a result, mergers or
other takeover or change in control attempts of us may be discouraged or prevented.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust N.A.
Listing
Our common stock is listed on the NASDAQ Global Select Market under the symbol "VYGR".
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DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of our debt securities that we may issue from time to time. We may issue debt
securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will apply generally to any future debt
securities we may offer under this prospectus, the applicable prospectus supplement or free writing prospectus will describe the specific terms of any debt securities offered through that prospectus
supplement or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement or free writing prospectus may differ from the terms we describe below. Unless the
context requires otherwise, whenever we refer to the "indentures," we are also referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We
will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior indenture. We will issue any subordinated debt securities
under the
subordinated indenture that we will enter into with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which this
prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of
which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term "trustee" to refer to either the trustee under the senior
indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by
reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplement or free writing prospectus and any
related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete applicable indenture that contains the terms of the debt securities.
Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
General
We will describe in the applicable prospectus supplement or free writing prospectus the terms of the series of debt securities being offered,
including:
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-
the title;
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the principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
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any limit on the amount that may be issued;
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whether or not we will issue the series of debt securities in global form, and, if so, the terms and who the depository will be;
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the maturity date;
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whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States
person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt;
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the place where payments will be payable;
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restrictions on transfer, sale or other assignment, if any;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the date, if any, after which, the conditions upon which, and the price at which, we may, at our option, redeem the series of debt securities
pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or
otherwise, to redeem, or at the holder's option, to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;
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whether the indenture will restrict our ability or the ability of our subsidiaries, if any at such time, to:
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incur additional indebtedness;
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issue additional securities;
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create liens;
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pay dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries;
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redeem capital stock;
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place restrictions on our subsidiaries' ability to pay dividends, make distributions or transfer assets;
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make investments or other restricted payments;
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sell or otherwise dispose of assets;
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enter into sale-leaseback transactions;
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engage in transactions with stockholders or affiliates;
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issue or sell stock of our subsidiaries; or
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effect a consolidation or merger;
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whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios;
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a discussion of certain material or special United States federal income tax considerations applicable to the debt securities;
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information describing any book-entry features;
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provisions for a sinking fund purchase or other analogous fund, if any;
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the applicability of the provisions in the indenture on discharge;
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whether the debt securities are to be offered at a price such that they will be deemed to be offered at an "original issue discount" as defined
in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof;
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the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of
default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under applicable laws or regulations or advisable in connection with the
marketing of the debt securities.
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement or free writing prospectus the terms on which a series of debt securities may be
convertible into or exchangeable for our common stock, our preferred stock or other securities (including securities of a third-party). We will include provisions as to whether conversion or exchange
is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock, our preferred stock or other securities (including
securities of a third-party) that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, the
indentures will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any
successor to or acquirer of such assets must assume all of our obligations under the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for
other securities of ours or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt
securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
Events of Default Under the Indenture
Unless we provide otherwise in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, the
following are events of default under the indentures with respect to any series of debt securities that we may issue:
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if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended;
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if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase or
otherwise, and the time for payment has not been extended;
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if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
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We
will describe in each applicable prospectus supplement or free writing prospectus any additional events of default relating to the relevant series of debt securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare
the unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the unpaid
principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or
any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its
consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture.
Any waiver shall cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or
powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security
satisfactory to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might
be unduly prejudicial to the holders not involved in the proceeding.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other remedies
if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such
holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss, liability or expense or to be incurred in compliance with instituting the proceeding as
trustee; and
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities, or
other defaults that may be specified in the applicable prospectus supplement or free writing prospectus.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
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Modification of Indenture; Waiver
Subject to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without
the consent of any holders with respect to the following specific matters:
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to fix any ambiguity, defect or inconsistency in the indenture;
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to comply with the provisions described above under "Consolidation, Merger or Sale;"
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
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to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture;
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to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided under
"Description of Our Debt SecuritiesGeneral," to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities,
or to add to the rights of the holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to provide for uncertificated debt securities and to make all appropriate changes for such purpose;
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to add to our covenants such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or
the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred to us in the
indenture; or
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to change anything that does not materially adversely affect the interests of any holder of debt securities of any series.
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a
majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, subject to the terms of the indenture for any series of debt securities that we may
issue or as otherwise provided in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, we and the trustee may make the following changes only with
the consent of each holder of any outstanding debt securities affected:
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extending the stated maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the
redemption or repurchase of any debt securities; or
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
Discharge
Each indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement or free
writing prospectus applicable to a particular series of
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debt
securities, we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations
to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium and interest on,
the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the
applicable prospectus supplement or free writing prospectus, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in
temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depository named by us and identified in a
prospectus supplement or free writing prospectus with respect to that series.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement or free writing
prospectus, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and
aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement or free writing prospectus, holders of the
debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the
security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement or free writing prospectus the security registrar, and any transfer agent in addition to the security registrar, that we initially
designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer
agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series. If we elect to redeem the debt securities of any series, we
will not be required to:
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-
issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any
debt securities we are redeeming in part.
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Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties
as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Subject
to this provision, the trustee is under no obligation to exercise any of the powers given it by the indentures at the request of any holder of debt securities unless it is
offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement or free writing prospectus, we will make payment of the interest on any
debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date
for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise
indicate in the applicable prospectus supplement or free writing prospectus, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we
otherwise indicate in the applicable prospectus supplement or free writing prospectus, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to
debt securities of each series. We will name in the applicable prospectus supplement or free writing prospectus any other paying agents that we initially designate for the debt securities of a
particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the
extent that the Trust Indenture Act is applicable.
Ranking of Debt Securities
The subordinated debt securities will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement or free writing prospectus. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue. It also does not limit us from
issuing any other secured or unsecured debt.
The
senior debt securities will rank equally in right of payment to all our other senior unsecured debt. The senior indenture does not limit the amount of senior debt securities that we
may issue. It also does not limit us from issuing any other secured or unsecured debt.
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DESCRIPTION OF WARRANTS
The following description, together with the additional information we may include in any applicable prospectus supplements, summarizes the
material terms and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the terms summarized below will apply generally
to any warrants that we may offer, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement or free writing prospectus. If we indicate in
the prospectus supplement or free writing prospectus, the terms of any warrants offered under that prospectus supplement may differ from the terms described below. Specific warrant agreements will
contain additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement, which includes this prospectus.
General
We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants
independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities.
We
will evidence each series of warrants by warrant certificates that we will issue under a separate warrant agreement. We will enter into the warrant agreement with a warrant agent. We
will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
We
will describe in the applicable prospectus supplement or free writing prospectus the terms of the series of warrants, including:
-
-
the offering price and aggregate number of warrants offered;
-
-
the currency for which the warrants may be purchased;
-
-
if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such
security or each principal amount of such security;
-
-
if applicable, the date on and after which the warrants and the related securities will be separately transferable;
-
-
in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the
price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
-
-
in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may
be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
-
-
the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
-
-
the terms of any rights to redeem or call the warrants;
-
-
any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
-
-
the periods during which, and places at which, the warrants are exercisable;
-
-
the manner of exercise;
-
-
the dates on which the right to exercise the warrants will commence and expire;
-
-
the manner in which the warrant agreement and warrants may be modified;
-
-
federal income tax consequences of holding or exercising the warrants;
-
-
the terms of the securities issuable upon exercise of the warrants; and
-
-
any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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DESCRIPTION OF UNITS
We may issue units comprised of shares of common stock, shares of preferred stock, debt securities and warrants in any combination. We may issue
units in such amounts and in as many distinct series as we wish. This section outlines certain provisions of the units that we may issue. If we issue units, they will be issued under one or more unit
agreements to be entered into between us and a bank or other financial institution, as unit agent. The information described in this section may not be complete in all respects and is qualified
entirely by reference to the unit agreement with respect to the units of any particular series. The specific terms of any series of units offered will be described
in the applicable prospectus supplement or free writing prospectus. If so described in a particular supplement or free writing prospectus, the specific terms of any series of units may differ from the
general description of terms presented below. We urge you to read any prospectus supplement or free writing prospectus related to any series of units we may offer, as well as the complete unit
agreement and unit certificate that contain the terms of the units. If we issue units, forms of unit agreements and unit certificates relating to such units will be incorporated by reference as
exhibits to the registration statement, which includes this prospectus.
Each
unit that we may issue will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and
obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at
any time or at any time before a specified date. The applicable prospectus supplement may describe:
-
-
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately;
-
-
any provisions of the governing unit agreement;
-
-
the price or prices at which such units will be issued;
-
-
the applicable United States federal income tax considerations relating to the units;
-
-
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
-
-
any other terms of the units and of the securities comprising the units.
The
provisions described in this section, as well as those described under "Description of Capital Stock," "Description of Debt Securities" and "Description of Warrants" will apply to
the securities included in each unit, to the extent relevant and as may be updated in any prospectus supplements or free writing prospectuses.
Issuance in Series
We may issue units in such amounts and in as many distinct series as we wish. This section summarizes terms of the units that apply generally to
all series. Most of the financial and other specific terms of a particular series of units will be described in the applicable prospectus supplement or free writing prospectus.
Unit Agreements
We will issue the units under one or more unit agreements to be entered into between us and a bank or other financial institution, as unit
agent. We may add, replace or terminate unit agents from time to time. We will identify the unit agreement under which each series of units will be issued and the unit agent under that agreement in
the applicable prospectus supplement or free writing prospectus.
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The
following provisions will generally apply to all unit agreements unless otherwise stated in the applicable prospectus supplement or free writing prospectus:
Modification without Consent
We and the applicable unit agent may amend any unit or unit agreement without the consent of any
holder:
-
-
to cure any ambiguity; any provisions of the governing unit agreement that differ from those described below;
-
-
to correct or supplement any defective or inconsistent provision; or
-
-
to make any other change that we believe is necessary or desirable and will not adversely affect the interests of the affected holders in any
material respect.
We
do not need any approval to make changes that affect only units to be issued after the changes take effect. We may also make changes that do not adversely affect a particular unit in
any material respect, even if they adversely affect other units in a material respect. In those cases, we do not need to obtain the approval of the holder of the unaffected unit; we need only obtain
any required approvals from the holders of the affected units.
Modification with Consent
We may not amend any particular unit or a unit agreement with respect to any particular unit unless we obtain the consent of the holder of that
unit, if the amendment would:
-
-
impair any right of the holder to exercise or enforce any right under a security included in the unit if the terms of that security require the
consent of the holder to any changes that would impair the exercise or enforcement of that right; or
-
-
reduce the percentage of outstanding units or any series or class the consent of whose holders is required to amend that series or class, or
the applicable unit agreement with respect to that series or class, as described below.
Any
other change to a particular unit agreement and the units issued under that agreement would require the following approval:
-
-
If the change affects only the units of a particular series issued under that agreement, the change must be approved by the holders of a
majority of the outstanding units of that series; or
-
-
If the change affects the units of more than one series issued under that agreement, it must be approved by the holders of a majority of all
outstanding units of all series affected by the change, with the units of all the affected series voting together as one class for this purpose.
These
provisions regarding changes with majority approval also apply to changes affecting any securities issued under a unit agreement, as the governing document.
In
each case, the required approval must be given by written consent.
Unit Agreements Will Not Be Qualified under Trust Indenture Act
No unit agreement will be qualified as an indenture, and no unit agent will be required to qualify as a trustee, under the Trust Indenture Act.
Therefore, holders of units issued under unit agreements will not have the protections of the Trust Indenture Act with respect to their units.
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Mergers and Similar Transactions Permitted; No Restrictive Covenants or Events of Default
The unit agreements will not restrict our ability to merge or consolidate with, or sell our assets to, another corporation or other entity or to
engage in any other transactions. If at any time we merge or consolidate with, or sell our assets substantially as an entirety to, another corporation or other entity, the successor entity will
succeed to and assume our obligations under the unit agreements. We will then be relieved of any further obligation under these agreements.
The
unit agreements will not include any restrictions on our ability to put liens on our assets, nor will they restrict our ability to sell our assets. The unit agreements also will not
provide for any events of default or remedies upon the occurrence of any events of default.
Governing Law
The unit agreements and the units will be governed by Delaware law.
Form, Exchange and Transfer
We will issue each unit in globali.e., book-entryform only. Units in book-entry form will be represented by a
global security registered in the name of a depositary, which will be the holder of all the units represented by the global security. Those who own beneficial interests in a unit will do so through
participants in the depositary's system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depositary and its participants. We will describe
book-entry securities, and other terms regarding the issuance and registration of the units in the applicable prospectus supplement or free writing prospectus.
Each
unit and all securities comprising the unit will be issued in the same form.
If
we issue any units in registered, non-global form, the following will apply to them.
The
units will be issued in the denominations stated in the applicable prospectus supplement. Holders may exchange their units for units of smaller denominations or combined into fewer
units of larger denominations, as long as the total amount is not changed.
-
-
Holders may exchange or transfer their units at the office of the unit agent. Holders may also replace lost, stolen, destroyed or mutilated
units at that office. We may appoint another entity to perform these functions or perform them ourselves.
-
-
Holders will not be required to pay a service charge to transfer or exchange their units, but they may be required to pay for any tax or other
governmental charge associated with the transfer or exchange. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder's proof of legal
ownership. The transfer agent may also require an indemnity before replacing any units.
-
-
If we have the right to redeem, accelerate or settle any units before their maturity, and we exercise our right as to less than all those units
or other securities, we may block the exchange or transfer of those units during the period beginning 15 days before the day we mail the notice of exercise and ending on the day of that
mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers of or exchange any unit selected for early settlement, except that we will continue to
permit transfers and exchanges of the unsettled portion of any unit being partially settled. We may also block the transfer or exchange of any unit in this manner if the unit includes securities that
are or may be selected for early settlement.
Only
the depositary will be entitled to transfer or exchange a unit in global form, since it will be the sole holder of the unit.
Payments and Notices
In making payments and giving notices with respect to our units, we will follow the procedures as described in the applicable prospectus
supplement or free writing prospectus.
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PLAN OF DISTRIBUTION
We may sell securities:
-
-
through underwriters;
-
-
through dealers;
-
-
through agents;
-
-
directly to purchasers; or
-
-
through a combination of any of these methods or any other method permitted by law.
In
addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing security holders.
We
may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. In the prospectus supplement relating to such offering, we will name any agent
that could be viewed as an underwriter under the Securities Act and describe any commissions that we must pay to any such agent. Any such agent will be acting on a best efforts basis for the period of
its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis. This prospectus may be used in connection with any offering of our securities through any of these
methods or other methods described in the applicable prospectus supplement.
The
distribution of the securities may be effected from time to time in one or more transactions:
-
-
at a fixed price, or prices, which may be changed from time to time;
-
-
at market prices prevailing at the time of sale;
-
-
at prices related to such prevailing market prices; or
-
-
at negotiated prices.
Each
prospectus supplement will describe the method of distribution of the securities and any applicable restrictions.
The
prospectus supplement with respect to the securities of a particular series will describe the terms of the offering of the securities, including the
following:
-
-
the name of the agent or any underwriters;
-
-
the public offering or purchase price;
-
-
any discounts and commissions to be allowed or paid to the agent or underwriters;
-
-
all other items constituting underwriting compensation;
-
-
any discounts and commissions to be allowed or paid to dealers; and
-
-
any exchanges on which the securities will be listed.
If
any underwriters or agents are used in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement, sales agreement or
other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters or agents and the terms of the related
agreement with them.
In
connection with the offering of securities, we may grant to the underwriters an option to purchase additional securities with an additional underwriting commission, as may be set
forth in the
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accompanying
prospectus supplement. If we grant any such option, the terms of such option will be set forth in the prospectus supplement for such securities.
If
a dealer is used in the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer, who may be deemed
to be an "underwriter" as that term is defined in the Securities Act, may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
If
we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby
underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may
retain a dealer-manager to manage a subscription rights offering for us.
Agents,
underwriters, dealers and other persons may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
If
so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase
securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the
aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when
authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all
cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
-
-
the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which that institution is subject; and
-
-
if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such
securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or performance of delayed delivery
contracts.
Offered
securities may also be offered and sold, if so indicated in the prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or
repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and the
terms of its agreement, if any, with us and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters in connection with their
remarketing of offered securities.
Certain
agents, underwriters and dealers, and their associates and affiliates, may be customers of, have borrowing relationships with, engage in other transactions with, or perform
services, including investment banking services, for us or one or more of our respective affiliates in the ordinary course of business.
In
order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other
securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position for their
own accounts. In addition,
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to
cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open
market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for
distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or
otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters are not required to engage in these activities
and may end any of these activities at any time.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in
connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third
party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement
of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in the
applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the
securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party may transfer its economic short position to investors in our securities
or in connection with a concurrent offering of other securities.
Under
Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in three business days, unless the parties to any such trade expressly agree
otherwise. The applicable prospectus supplement may provide that the original issue date for your securities may be more than three scheduled business days after the trade date for your securities.
Accordingly, in such a case, if you wish to trade securities on any date prior to the third business day before the original issue date for your securities, you will be required, by virtue of the fact
that your securities initially are expected to settle in more than three scheduled business days after the trade date for your securities, to make alternative settlement arrangements to prevent a
failed settlement.
The
securities may be new issues of securities and may have no established trading market. The securities may or may not be listed on a national securities exchange. We can make no
assurance as to the liquidity of or the existence of trading markets for any of the securities.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
The
anticipated date of delivery of offered securities will be set forth in the applicable prospectus supplement relating to each offer.
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LEGAL MATTERS
Certain legal matters in connection with this offering will be passed upon for us by Goodwin Procter LLP, Boston, Massachusetts. Any
underwriters will also be advised about the validity of the securities and other legal matters by their own counsel, which will be named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of the Company appearing in our Annual Report on Form 10-K for the year ended December 31,
2015 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement that we have filed with the SEC. Certain information in the registration statement has been
omitted from this prospectus in accordance with the rules of the SEC. We are subject to the information requirements of the Exchange Act and, in accordance therewith, file annual, quarterly and
special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C.
20549. You may call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. These documents also may be accessed through the SEC's electronic data gathering,
analysis and retrieval system, or EDGAR, via electronic means, including the SEC's home page on the Internet (
www.sec.gov
).
We
have the authority to designate and issue more than one class or series of stock having various preferences, conversion and other rights, voting powers, restrictions, limitations as
to dividends, qualifications, and terms and conditions of redemption. See "Description of Capital Stock." We will furnish a full statement of the relative rights and preferences of each class or
series of our stock which has been so designated and any restrictions on the ownership or transfer of our stock to any stockholder upon request and without charge. Written requests for such copies
should be directed to Voyager Therapeutics, Inc., 75 Sidney Street, Cambridge, MA 02139, Attention: Corporate Secretary, or by telephone request to (857) 259-5340. Our website is located
at www.voyagertherapeutics.com. Information contained on our website is not incorporated by reference into this prospectus and, therefore, is not part of this prospectus or any accompanying prospectus
supplement.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference the information and reports we file with it, which means that we can disclose important
information to you by referring you to these documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will
automatically update and supersede the information already incorporated by reference. We are incorporating by reference the documents listed below, which we have already filed with the SEC, and any
future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including all filings made after the date of the filing of this registration statement and
prior to the effectiveness of this registration statement, except as to any portion of any future report or document that is not deemed filed under such provisions, after the date of this prospectus
and prior to the termination of this offering:
-
-
our Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the SEC on March 17, 2016;
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Table of Contents
-
-
the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2015
from our definitive proxy statement on Schedule 14A (other than information furnished rather than filed), which was filed with the SEC on April 22, 2016;
-
-
our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, June 30 and September 30, 2016,
respectively, filed with the SEC on May 12, August 11 and November 10, 2016, respectively;
-
-
our Current Reports on Form 8-K filed with the SEC on June 16, 2016 and October 18, 2016 (in each case, except for
information contained therein which is furnished rather than filed); and
-
-
the description of our common stock contained in our registration statement on Form 8-A (registration No. 001-37625) filed with
the SEC on November 6, 2015 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
Upon
request, we will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of the documents incorporated by
reference into this prospectus but not delivered with the prospectus. You may request a copy of these filings, and any exhibits we have specifically incorporated by reference as an exhibit in this
prospectus, at no cost by writing or telephoning us at the following address:
Voyager
Therapeutics, Inc.
75 Sidney Street
Cambridge, Massachusetts 02139
Attention: Corporate Secretary
You
may also access these documents, free of charge on the SEC's website at www.sec.gov or on our website at www.voyagertherapeutics.com. Information contained on our website is not
incorporated by reference into this prospectus, and you should not consider any information on, or that can be accessed from, our website as part of this prospectus or any accompanying prospectus
supplement.
This
prospectus is part of a registration statement we filed with the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for
provisions that may be important to you.
You
should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with different
information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or in the documents
incorporated by reference is accurate as of any date other than the date on the front of this prospectus or those documents.
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$250,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
And
Units
PROSPECTUS
, 2016
We have not authorized any dealer, salesperson or other person to give any information or represent anything not contained in this prospectus. You must not rely
on any unauthorized information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus does not offer to sell any securities in any jurisdiction
where it is unlawful. Neither the delivery of this prospectus, nor any sale made hereunder, shall create any implication that the information in this prospectus is correct after the date hereof.
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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer
or sale is not permitted.
Subject to completion, dated December 1, 2016
PROSPECTUS
Up to $75,000,000
Common Stock
We have entered into a certain Sales Agreement, or sales agreement, with Cowen and Company, LLC, or Cowen, relating to shares of our common
stock offered by this prospectus. In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $75 million
from time to time through Cowen.
Our
common stock is traded on The NASDAQ Global Select Market under the symbol "VYGR". The last reported sales price of our common stock on The NASDAQ Global Select Market on
November 30, 2016 was $12.46 per share.
Sales
of our common stock, if any, under this prospectus may be made in sales deemed to be an "at the market offering" as defined in Rule 415 promulgated under the Securities Act
of 1933, as amended, or the Securities Act, including sales made directly on or through the Exchange, the existing trading market for our common stock, sales made to or through a market maker
otherwise than on an exchange, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices, and/or any other method permitted by
law. Cowen is not required to sell any specific number or dollar amount of securities, but will act as a sales agent using commercially reasonable efforts consistent with its normal trading and sales
practices, on mutually agreed terms between Cowen and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The
compensation to Cowen for sales of common stock sold pursuant to the sales agreement will be equal to 3.0% of the aggregate gross proceeds of any shares of common stock sold under
the sales agreement. In connection with the sale of the common stock on our behalf, Cowen will be deemed to be an "underwriter" within the meaning of the Securities Act and the compensation of Cowen
will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to Cowen with respect to certain liabilities, including liabilities under
the Securities Act or the Securities Exchange Act of 1934, as amended, or the Exchange Act. See section titled "Plan of Distribution" on page 10 of this prospectus.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the heading
"
Risk Factors
" on page 4 of this prospectus as well as those contained in the applicable prospectus and any related free writing prospectus
supplement, and in the other documents that are incorporated by reference into this prospectus or the applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Cowen and Company
The date of this prospectus is , 2016.
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TABLE OF CONTENTS
We
are responsible for the information contained and incorporated by reference in this prospectus, in any accompanying prospectus supplement, and in any related free writing prospectus
we prepare or authorize. We have not authorized anyone to give you any other information, and we take no responsibility for any other information that others may give you. If you are in a jurisdiction
where offers to sell, or solicitations of offers to purchase, the securities offered by this documentation are unlawful, or if you are a person to whom it is unlawful to direct these types of
activities, then the offer presented in this document does not extend to you. The information contained in this document speaks only as of the date of this document, unless the information
specifically indicates that another date
applies. Our business, financial condition, results of operations and prospects may have changed since those dates.
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ABOUT THIS PROSPECTUS
This prospectus relates to the offering of our common stock. Before buying any of the common stock that we are offering, we urge you to
carefully read this prospectus, together with the information incorporated by reference as described under the headings "Where You Can Find More Information" and "Incorporation by Reference" in this
prospectus, and any free writing prospectus or prospectus supplement that we have authorized for use in connection with this offering. These documents contain important information that you should
consider when making your investment decision. This prospectus is deemed a prospectus supplement to the base prospectus contained in the registration statement of which this prospectus forms a
part.
This
prospectus describes the terms of this offering of common stock and also adds to and updates information contained in the documents incorporated by reference into this prospectus.
To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated by reference into this prospectus
that was filed with the Securities and Exchange Commission, or the SEC, before the date of this prospectus, on the
other hand, you should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement in another document having a later datefor
example, a document incorporated by reference into this prospectusthe statement in the document having the later date modifies or supersedes the earlier statement.
We
have not authorized anyone to provide you with information in addition to or different from that contained in this prospectus, any applicable prospectus supplement and any related
free writing prospectus. We take no responsibility for, and can provide no assurances as to the reliability of, any information not contained in this prospectus, any applicable prospectus supplement
or any related free writing prospectus that we may authorize to be provided to you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. You should assume that the information in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of
the date on the front of the document and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery
of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of a security.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All
of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading "Where You Can Find More Information".
Unless the context otherwise indicates, references in this prospectus to "Voyager Therapeutics", "we", "our", "us" and "the Company" refer, collectively, to
Voyager Therapeutics, Inc., a Delaware corporation.
We
own various U.S. federal trademark registrations and applications and unregistered trademarks, including our corporate logo. This prospectus and the information incorporated herein by
reference contains references to trademarks, service marks and trade names referred to in this prospectus and the information incorporated herein, including logos, artwork, and other visual displays,
may appear without the ® or
TM
symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our
rights or the rights of the applicable licensor to these trademarks, service marks or trade names. We do not intend our use or display of other companies' trade names, service marks or trademarks to
imply a relationship with, or endorsement or sponsorship of us by, any other companies. All trademarks, service marks and trade names included or incorporated by reference into this prospectus, any
applicable prospectus supplement or any related free writing prospectus are the property of their respective owners.
1
Table of Contents
PROSPECTUS SUMMARY
This summary highlights certain information about us, this offering and selected information contained elsewhere in or
incorporated by reference into this prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether to invest in our common stock.
For a more complete understanding of our company and this offering, we encourage you to read and consider carefully the more detailed information in this prospectus, including the information
incorporated by reference in this prospectus, and the information included in any free writing prospectus or prospectus supplement that we have authorized for use in connection with this offering,
including the information under the heading "Risk Factors" in this prospectus on page 4 and in the documents incorporated by reference into this prospectus.
Voyager
Therapeutics is a clinical-stage gene therapy company focused on developing life-changing treatments for patients suffering from severe diseases of the central nervous system, or
CNS. We focus on CNS diseases where we believe that an adeno-associated virus, or AAV, gene therapy approach that either increases or decreases the production of a specific protein can slow or reduce
the symptoms experienced by patients, and therefore have a clinically meaningful impact. The Company has created a product engine that enables it to engineer, optimize, manufacture, and deliver its
AAV-based gene therapies that have the potential to provide durable efficacy following a single administration directly to the CNS. The Company's product engine has rapidly generated six programs for
CNS indications, including advanced Parkinson's disease, a form of monogenic amyotrophic lateral sclerosis, Friedreich's ataxia, Huntington's disease, frontotemporal dementia / Alzheimer's disease,
and severe, chronic pain. The Company's most advanced clinical candidate, VY-AADC01, is being evaluated for the treatment of advanced Parkinson's disease in an open-label, Phase 1b clinical
trial with the goal of generating human proof-of-concept data in early December 2016.
In
February 2015, we entered into an agreement with Genzyme ("Collaboration Agreement"), which included a non-refundable upfront payment of $65.0 million. In addition,
contemporaneous with entering into the Collaboration Agreement, Genzyme entered into a Series B Stock Purchase Agreement, under which Genzyme purchased 10,000,000 shares of Series B
Preferred Stock for $30.0 million.
Through
September 30, 2016, we had raised approximately $278.0 million of proceeds from sales of convertible preferred stock and common stock, including our initial public
offering and proceeds from the Collaboration Agreement. We believe that our cash, cash equivalents, and marketable securities of $191.2 million as of September 30, 2016 is sufficient to
fund our current operating plan into 2019. There can be no assurance, however, that the current operating plan will be achieved in the timeframe that we anticipate, or that our cash resources will
fund our operating plan for the period that we anticipate, or if we need additional funding that such funding will be available on terms acceptable to us, or at all.
We
qualify as an "emerging growth company" as defined in the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act. As an emerging growth company, we may take
advantage of specified reduced disclosure and other requirements that are otherwise applicable generally to public companies. We would cease to be an emerging growth company on the date that is the
earliest of: (i) the last day of the fiscal year in which we have total annual gross revenues of $1 billion or more; (ii) December 31, 2020; (iii) the date on which
we have issued more than $1 billion in nonconvertible debt during the previous three years; or (iv) the date on which we are deemed to be a large accelerated filer under the rules of the
SEC.
We
were incorporated under the laws of the State of Delaware in June 2013. Our principal executive offices are located at 75 Sidney Street, Cambridge, Massachusetts 02139, telephone
(857) 259-5340. Our website address is www.voyagertherapeutics.com. The information on, or that can be accessed through, our website does not constitute part of this prospectus, and you should
not rely on any such information in making the decision whether to purchase our common stock. Our common stock trades on The NASDAQ Global Select Market under the symbol "VYGR".
2
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THE OFFERING
|
|
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Common stock offered by us
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Shares of our common stock having an aggregate offering price of up to $75 million.
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Common stock to be outstanding immediately after this offering
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Up to 32,739,343 shares (as more fully described in the notes following this table), assuming sales of
6,019,261 shares of our common stock in this offering at an offering price of $12.46 per share, which was the last reported sale price of our common stock on the NASDAQ Global Select Market on November 30, 2016. The actual number of
shares issued will vary depending on the sales price under this offering.
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Manner of offering
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"At the market offering" that may be made from time to time through our sales agent, Cowen and Company, LLC. See "Plan
of Distribution" on page 10.
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Use of proceeds
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We currently intend to use the net proceeds from this offering primarily for costs associated with preclinical and clinical
stage development, as well as for general corporate purposes. See "Use of Proceeds" on page 7 of this prospectus.
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Risk factors
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Investing in our common stock involves significant risks. See "Risk Factors" on page 4 of this prospectus, and under similar
headings in other documents incorporated by reference into this prospectus.
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The NASDAQ Global Select Market symbol
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"VYGR"
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The
number of shares of common stock shown above to be outstanding after this offering is based on 26,720,082 shares outstanding, including 1,300,837 shares of restricted common stock,
as of September 30, 2016, and excludes as of that date:
-
-
1,862,619 shares of common stock issuable upon the exercise of stock options outstanding as of September 30, 2016, at a weighted-average
exercise price of $10.01;
-
-
1,879,606 shares of common stock that are available for future issuance under our Voyager Therapeutics, Inc. 2015 Stock Option and
Incentive Plan, or 2015 Plan, as of September 30, 2016; and
-
-
529,854 shares of common stock that are available for future issuance under our Voyager Therapeutics, Inc. 2015 Employee Stock Purchase
Plan, or 2015 ESPP, as of September 30, 2016.
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Table of Contents
RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully consider the risks and uncertainties
described in the documents incorporated by reference in this prospectus and any prospectus supplement, as well as other information we include or incorporate by reference into this prospectus and any
applicable prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be materially adversely affected by the materialization of any
of these risks. The trading price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents
incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking
statements as a result of certain factors, including the risks described in the documents incorporated herein by reference, including our most recent Annual Report on Form 10-K for the year
ended December 31, 2015 and our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2016, June 20, 2016, and September 30, 2016, which are on file with
the SEC and are incorporated by reference into this prospectus, and other documents we file with the SEC that are deemed incorporated by reference into this prospectus.
Additional Risks Related To This Offering
Our management team may invest or spend the proceeds of this offering in ways with which you may not agree or
in ways which may not yield a significant return.
Our management will have broad discretion over the use of proceeds from this offering. The net proceeds from this offering will be used for
general corporate purposes, which may include, among other things, research, development, manufacturing, selling and marketing, and general and administrative expenses. Our management will have
considerable discretion in the application of the net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately.
The net proceeds may be used for corporate purposes that do not increase our operating results or enhance the value of our common stock.
You may experience immediate and substantial dilution.
The offering price per share in this offering may exceed the net tangible book value per share of our common stock outstanding prior to this
offering. Assuming that an aggregate of 6,019,261 shares of our common stock are sold at a price of $12.46 per share, the last reported sale price of our common stock on The NASDAQ
Global Select Market on November 30, 2016, for aggregate gross proceeds of $75 million, and after deducting commissions and estimated offering expenses payable by us, you may experience
immediate dilution of $5.69 per share, representing the difference between our as adjusted net tangible book value per share as of September 30, 2016 after giving effect to this offering
and the assumed offering price. The exercise of outstanding stock options and warrants may result in further dilution of your investment. See the section titled "Dilution" below for a more detailed
illustration of the dilution you would incur if you participate in this offering.
You may experience future dilution as a result of future equity offerings.
In order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into or
exchangeable for our common stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any other offering at a price per share that is
less than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per
share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions may be higher or lower than the price per share paid
by investors in this offering.
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Table of Contents
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference, contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Any statements
about our expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and may be forward-looking. These statements are often, but are not always,
made through the use of words or phrases such as "may," "will," "could," "should," "expects," "intends," "plans," "anticipates," "believes," "estimates," "predicts," "projects," "potential,"
"continue," and similar expressions, or the negative of these terms, or similar expressions. Accordingly, these statements involve estimates, assumptions, risks and uncertainties which could cause
actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout this prospectus, and
in particular those factors referenced in the section "Risk Factors."
This
prospectus contains forward-looking statements that are based on our management's belief and assumptions and on information currently available to our management. These statements
relate to future events or our future financial performance, and involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or
achievements to be materially different from any future results, levels of activity, performance or achievements
expressed or implied by these forward-looking statements. Forward-looking statements include, but are not limited to, statements about:
-
-
our ability to continue to advance VY-AADC01 through the current Phase 1b clinical trial as a treatment for advanced Parkinson's disease
and establish human proof-of-concept in December 2016;
-
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the accuracy of our estimates regarding expenses, future revenues and capital requirements;
-
-
our ability to continue to develop our product engine;
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our ability to develop a manufacturing capability compliant with current good manufacturing practices for our product candidates;
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our ability to advance our other programs through preclinical development and into clinical trials, including filing of an IND for VY-SOD101 in
the fourth quarter of 2017, and successfully complete such clinical trials;
-
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regulatory developments in the United States and the European Union;
-
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our ability to obtain and maintain intellectual property protection for our proprietary assets;
-
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the size of the potential markets for our product candidates and our ability to serve those markets;
-
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the rate and degree of market acceptance of our product candidates for any indication once approved;
-
-
our ability to obtain additional financing when needed; and
-
-
the success of competing products that are or become available for the indications that we are pursuing.
These
forward-looking statements are neither promises nor guarantees of future performance due to a variety of risks and uncertainties, many of which are beyond our control, and other
factors more fully discussed in the "Risk Factors" section in this prospectus, the section of any accompanying prospectus supplement entitled "Risk Factors" and the risk factors and cautionary
statements described in other documents that we file from time to time with the SEC, specifically under "Item 1A. Risk
5
Table of Contents
Factors"
and elsewhere in our most recent Annual Report on Form 10-K for the year ended December 31, 2015 and our most recent Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2016, June 30, 2016 and September 30, 2016, and our Current Reports on Form 8-K.
Given
these uncertainties, readers should not place undue reliance on our forward-looking statements. These forward-looking statements speak only as of the date on which the statements
were made and are not guarantees of future performance. Except as may be required by applicable law, we do not undertake to update any forward-looking statements after the date of this prospectus or
the respective
dates of documents incorporated by reference herein or therein that include forward-looking statements.
6
Table of Contents
USE OF PROCEEDS
We may offer and sell shares of our common stock having aggregate sales proceeds of up to $75 million from time to time pursuant to this
sales agreement prospectus. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any,
are not determinable at this time. We estimate that the net proceeds from the sale of the shares of common stock that we are offering may be up to approximately $72.5 million, after deducting
Cowen's commission and estimated offering expenses payable by us.
We
currently intend to use the net proceeds from this offering primarily for costs associated with preclinical and clinical stage development, as well as for general corporate purposes,
which may include new research and development activities, the hiring of additional personnel, capital expenditures and the costs of operating as a public company.
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DILUTION
Our net tangible book value as of September 30, 2016 was approximately $149.1 million, or $5.58 per share. Net tangible book value
per share is determined by dividing our total tangible assets, less total liabilities, by the number of shares of our common stock outstanding, including 1,300,837 shares of restricted common stock,
as of September 30, 2016. Dilution with respect to net tangible book value per share represents the difference between the amount per share paid by purchasers of shares of common stock in this
offering and the net tangible book value per share of our common stock immediately after this offering.
After
giving effect to the assumed sale of 6,019,261 shares of our common stock in this offering at an assumed offering price of $12.46 per share, the last reported sale price of our
common stock on the Exchange on November 30, 2016, and after deducting commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of
September 30, 2016 would have been approximately $221.6 million, or $6.77 per share. This represents an immediate increase in net tangible
book value of $1.19 per share to existing stockholders. Investors purchasing our common stock in this offering will have paid $5.69 more than the as adjusted net tangible book value per share after
this offering. The following table illustrates this on a per share basis:
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Assumed offering price per share
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$
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12.46
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Net tangible book value per share as of September 30, 2016
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$
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5.58
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Increase per share attributable to new investors
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$
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1.19
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As-adjusted net tangible book value per share after this offering
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$
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6.77
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Dilution per share to new investors
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$
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5.69
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The
above discussion and table are based on 26,720,082 shares of our common stock outstanding, including 1,300,837 shares of restricted common stock, as of September 30, 2016, and
excludes as of that date:
-
-
1,862,619 shares of common stock issuable upon the exercise of stock options outstanding as of September 30, 2016, at a weighted-average
exercise price of $10.01;
-
-
1,879,606 shares of common stock that are available for future issuance under our Voyager Therapeutics, Inc. 2015 Stock Option and
Incentive Plan, or 2015 Plan, as of September 30, 2016; and
-
-
529,854 shares of common stock that are available for future issuance under our Voyager Therapeutics, Inc. 2015 Employee Stock Purchase
Plan, or 2015 ESPP, as of September 30, 2016.
The
table above assumes for illustrative purposes that an aggregate of 6,019,261 shares of our common stock are sold during the term of the sales agreement with Cowen at a price of
$12.46 per share, the last reported sale price of our common stock on The NASDAQ Global Select Market on November 30, 2016, for aggregate gross proceeds of $75 million. The shares
subject to the sales agreement with Cowen are being sold from time to time at various prices. An increase of $1.00 per share in the price at which the shares are sold from the assumed offering price
of $12.46 per share shown in the table above, assuming all of our common stock in the aggregate amount of $75 million during the term of the sales agreement with Cowen is sold at that price,
would increase our adjusted net tangible book value per share after the offering to $6.86 per share and would increase the difference in net tangible book value per share to new investors in this
offering to $1.28 per share, after deducting commissions and estimated aggregate offering expenses payable by us. A decrease of $1.00 per share in the price at which the shares are sold from the
assumed offering price of $12.46 per share shown in the table above, assuming all of our common stock in the amount of $75 million during the term of the sales agreement with Cowen is sold at
that price, would decrease our adjusted net
8
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tangible
book value per share after the offering to $6.66 per share and would decrease the dilution in net tangible book value per share to new investors in this offering to $1.08 per share, after
deducting commissions and estimated aggregate offering expenses payable by us. This information is supplied for illustrative purposes only and may differ based on the actual offering price and the
actual number of shares offered.
To
the extent that outstanding options outstanding as of September 30, 2016 have been or may be exercised or other shares issued, investors purchasing our common stock in this
offering may experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for
our current or future operating plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could result in
further dilution to our stockholders.
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Table of Contents
PLAN OF DISTRIBUTION
We have entered into a sales agreement with Cowen, under which we may offer and sell from time to time up to an aggregate of $75 million
of our common stock through Cowen as our sales agent. Sales of our common stock, if any, will be made at market prices by any method that is deemed to be an "at the market offering" as defined in
Rule 415 under the Securities Act, including sales made directly on The NASDAQ Global Select Market or any other trading market for our common stock, or sales to or through a market maker other
than on an exchange. If authorized by us in writing, Cowen may also sell our shares of common stock by any other method permitted by law, including negotiated transactions, and Cowen may also purchase
shares of our common stock as principal.
Cowen
will offer our common stock subject to the terms and conditions of the sales agreement on a daily basis or as otherwise agreed upon by us and Cowen. We will designate the maximum
amount of
common stock to be sold through Cowen on a daily basis or otherwise determine such maximum amount together with Cowen. Subject to the terms and conditions of the sales agreement, Cowen will use its
commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us. We may instruct Cowen not to sell common stock if the sales cannot be effected at or
above the price designated by us in any such instruction. Cowen or we may suspend the offering of our common stock being made through Cowen under the sales agreement upon proper notice to the other
party. Cowen and we each have the right, by giving written notice as specified in the sales agreement, to terminate the sales agreement in each party's sole discretion at any time.
The
aggregate compensation payable to Cowen as sales agent equals 3.0% of the aggregate gross sales price of the shares sold through it pursuant to the sales agreement. We have also
agreed to reimburse Cowen up to $50,000 of Cowen's actual outside legal expenses incurred by Cowen in connection with this offering. We have also agreed to reimburse Cowen for its FINRA counsel fee of
up to $15,000. We estimate that the total expenses of the offering payable by us, excluding commissions payable to Cowen under the sales agreement, will be approximately $0.3 million.
The
remaining sales proceeds, after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection
with the sales, will equal our net proceeds for the sale of such common stock.
Cowen
will provide written confirmation to us following the close of trading on The NASDAQ Global Select Market on each day in which common stock is sold through it as sales agent under
the sales agreement. Each confirmation will include the number of shares of common stock sold through it as sales agent on that day, the volume weighted average price of the shares sold, the
percentage of the daily trading volume and the net proceeds to us.
We
will report at least quarterly the number of shares of common stock sold through Cowen under the sales agreement, the net proceeds to us and the compensation paid by us to Cowen in
connection with the sales of common stock.
Settlement
for sales of common stock will occur, unless the parties agree otherwise, on the third business day that is also a trading day following the date on which any sales were made
in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
In
connection with the sales of our common stock on our behalf, Cowen will be deemed to be an "underwriter" within the meaning of the Securities Act, and the compensation paid to Cowen
will be deemed to be underwriting commissions or discounts. We have agreed in the sales agreement to provide indemnification and contribution to Cowen against certain liabilities, including
liabilities under the Securities Act. As sales agent, Cowen will not engage in any transactions that stabilizes our common stock.
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Our
common stock is listed on The NASDAQ Global Select Market and trades under the symbol "VYGR." The transfer agent of our common stock is Computershare Trust N.A.
Cowen
and/or its affiliates have provided, and may in the future provide, various investment banking and other financial services for us for which services they have received and, may in
the future receive, customary fees.
11
Table of Contents
LEGAL MATTERS
Certain legal matters in connection with this offering will be passed upon for us by Goodwin Procter LLP, Boston, Massachusetts. Cowen
and Company, LLC is being represented by Cooley LLP, New York, New York in connection with this offering.
EXPERTS
The consolidated financial statements of the Company appearing in our Annual Report on Form 10-K for the year ended December 31,
2015 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement that we have filed with the SEC. Certain information in the registration statement has been
omitted from this prospectus in accordance with the rules of the SEC. We are subject to the information requirements of the Exchange Act and, in accordance therewith, file annual, quarterly and
special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C.
20549. You may call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. These documents also may be accessed through the SEC's electronic data gathering,
analysis and retrieval system, or EDGAR, via electronic means, including the SEC's home page on the Internet (
www.sec.gov
).
We
have the authority to designate and issue more than one class or series of stock having various preferences, conversion and other rights, voting powers, restrictions, limitations as
to dividends, qualifications, and terms and conditions of redemption. See "Description of Capital Stock." We will furnish a full statement of the relative rights and preferences of each class or
series of our stock which has been so designated and any restrictions on the ownership or transfer of our stock to any stockholder upon request and without charge. Written requests for such copies
should be directed to Voyager Therapeutics, Inc., 75 Sidney Street, Cambridge, MA 02139, Attention: Corporate Secretary, or by telephone request to (857) 259-5340. Our website is located
at www.voyagertherapeutics.com. Information contained on our website is not incorporated by reference into this prospectus and, therefore, is not part of this prospectus or any accompanying prospectus
supplement.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference the information and reports we file with it, which means that we can disclose important
information to you by referring you to these documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will
automatically update and supersede the information already incorporated by reference. We are incorporating by reference the documents listed below, which we have already filed with the SEC, and any
future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including all filings made after the date of the filing of this registration statement and
prior to the effectiveness of this registration statement, except as to any portion of any future report or document that is not deemed filed under such provisions, after the date of this prospectus
and prior to the termination of this offering:
-
-
our Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the SEC on March 17, 2016;
12
Table of Contents
-
-
the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2015
from our definitive proxy statement on Schedule 14A (other than information furnished rather than filed), which was filed with the SEC on April 22, 2016;
-
-
our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, June 30 and September 30, 2016,
respectively, filed with the SEC on May 12, August 11 and November 10, 2016, respectively;
-
-
our Current Reports on Form 8-K filed with the SEC on June 16, 2016 and October 18, 2016 (in each case, except for
information contained therein which is furnished rather than filed); and
-
-
the description of our common stock contained in our registration statement on Form 8-A (registration No. 001-37625) filed with
the SEC on November 6, 2015 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
Upon
request, we will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of the documents incorporated by
reference into this prospectus but not delivered with the prospectus. You may request a copy of these filings, and any exhibits we have specifically incorporated by reference as an exhibit in this
prospectus, at no cost by writing or telephoning us at the following address:
Voyager
Therapeutics, Inc.
75 Sidney Street
Cambridge, Massachusetts 02139
Attention: Corporate Secretary
You
may also access these documents, free of charge on the SEC's website at www.sec.gov or on our website at www.voyagertherapeutics.com. Information contained on our website is not
incorporated by reference into this prospectus, and you should not consider any information on, or that can be accessed from, our website as part of this prospectus or any accompanying prospectus
supplement.
This
prospectus is part of a registration statement we filed with the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for
provisions that may be important to you.
You
should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with different
information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or in the documents
incorporated by reference is accurate as of any date other than the date on the front of this prospectus or those documents.
13
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Up to $75,000,000
Common Stock
PROSPECTUS
Cowen and Company
, 2016
Table of Contents
Part II
Information Not Required in the Prospectus
Item 14. Other Expenses of Issuance and Distribution
The expenses payable by Voyager Therapeutics, Inc. (the "Registrant" or the "Company") in connection with the issuance and distribution
of the securities being registered (other than underwriting discounts and commissions, if any) are set forth below. Each item listed is estimated, except for the Securities and Exchange Commission
(the "SEC") registration fee and the FINRA filing fee.
|
|
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|
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Securities and Exchange Commission registration fee
|
|
$
|
28,975
|
|
FINRA filing fee
|
|
$
|
38,000
|
|
Legal fees and expenses
|
|
|
|
*
|
Accounting fees and expenses
|
|
|
|
*
|
Printing fees and expenses
|
|
|
|
*
|
Transfer agent and trustee fees
|
|
|
|
*
|
Miscellaneous
|
|
|
|
*
|
Total
|
|
|
|
*
|
-
*
-
To
be provided by amendment or as an exhibit to a filing with the SEC under Section 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934, as amended.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, or the DGCL, authorizes a corporation to indemnify its directors and officers
against liabilities arising out of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently serving as a
director or officer to a corporation. The indemnity may cover expenses (including attorneys' fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or
officer in connection with any such action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys' fees) incurred by directors and officers in advance of the
final disposition of such action, suit or proceeding. In addition, Section 145 provides that a corporation has the power to purchase and maintain insurance on behalf of its directors and
officers against any liability asserted against them and incurred by them in their capacity as a director or officer, or arising out of their status as such, whether or not the corporation would have
the power to indemnify the director or officer against such liability under Section 145.
We
have adopted provisions in our Fifth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws that limit or eliminate the personal liability of our directors
to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended. Consequently, a director will not be personally liable to us or our stockholders for monetary damages or
breach of fiduciary duty as a director, except for liability for:
-
-
any breach of their duty of loyalty to our company or our stockholders;
-
-
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
-
-
unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General
Corporation Law; or
-
-
any transaction from which they derived an improper personal benefit.
These
limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or
rescission.
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In
addition, our bylaws provide that:
-
-
we will indemnify our directors, officers and, in the discretion of our board of directors, certain employees to the fullest extent permitted
by the DGCL, as it now exists or may in the future be amended; and
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-
we will advance reasonable expenses, including attorneys' fees, to our directors and, in the discretion of our board of directors, to our
officers and certain employees, in connection with legal proceedings relating to their service for or on behalf of us, subject to limited exceptions.
We
have entered into indemnification agreements with each of our directors and certain of our executive officers. These agreements provide that we will indemnify each of our directors
and certain of our executive officers to the fullest extent permitted by Delaware law. We will advance expenses, including attorneys' fees (but excluding judgments, fines and settlement amounts), to
each indemnified director or executive officer in connection with any proceeding in which indemnification is available and we will indemnify our directors and officers for any action or proceeding
arising out of that
person's services as a director or officer brought on behalf of the Company or in furtherance of our rights. Additionally, certain of our directors may have certain rights to indemnification,
advancement of expenses or insurance provided by their affiliates, which indemnification relates to and might apply to the same proceedings arising out of such director's services as a director
referenced herein. Nonetheless, we have agreed in the indemnification agreements that the Company's obligations to those same directors are primary and any obligation of the affiliates of those
directors to advance expenses or to provide indemnification for the expenses or liabilities incurred by those directors are secondary. We also maintain a general liability insurance policy which
covers certain liabilities of directors and officers of our Company arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the
Securities Act of 1933, as amended.
Item 16. Exhibits
A list of exhibits filed with this registration statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by
reference.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(a)(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 of 1933;
(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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a
20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
II-2
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(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), (a)(l)(ii) and (a)(1)(iii) of this section do 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 Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, 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;
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(l)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no
statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
II-3
Table of Contents
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser;
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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;
(7) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 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 of 1933 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 of 1933 and will be governed by the final adjudication of such issue; and
(8) To
file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act
of 1939 in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act of 1939.
II-4
Table of Contents
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-3 and has duly caused this registration statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, Commonwealth of Massachusetts, on the 1st day of December, 2016.
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VOYAGER THERAPEUTICS, INC.
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By:
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/s/ STEVEN M. PAUL, M.D.
Steven M. Paul, M.D.
President and Chief Executive Officer, Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Steven M. Paul as his true and
lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign the Registration Statement on
Form S-3 of Voyager Therapeutics, Inc., and any or all amendments (including post-effective amendments) thereto and any new registration statement with respect to the offering
contemplated thereby filed pursuant to Rule 462(b) of the Securities Act, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises
hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-3 has been signed 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/ STEVEN M. PAUL, M.D.
Steven M. Paul, M.D.
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President, Chief Executive Officer and Director (Principal Executive Officer)
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December 1, 2016
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/s/ JEFFREY GOATER
Jeffrey Goater
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Chief Financial Officer (Principal Financial and Accounting Officer)
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December 1, 2016
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/s/ MARK LEVIN
Mark Levin
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Director
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|
December 1, 2016
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/s/ JAMES GERAGHTY
James Geraghty
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Director
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December 1, 2016
|
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II-5
Table of Contents
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Signature
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Title
|
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Date
|
|
|
|
|
|
|
|
|
/s/ MICHAEL HIGGINS
Michael Higgins
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Director
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December 1, 2016
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/s/ STEVEN HYMAN, M.D.
Steven Hyman, M.D.
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Director
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December 1, 2016
|
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/s/ PERRY A. KARSEN
Perry A. Karsen
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Director
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December 1, 2016
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II-6
Table of Contents
Exhibit Index
|
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|
Exhibit
Number
|
|
Exhibit Title
|
|
1.1
|
*
|
Form of Underwriting Agreement
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1.2
|
|
Sales Agreement, dated as of December 1, 2016, by and between the Registrant and Cowen and Company, LLC
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3.1
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Fifth Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference to Exhibit 3.1 of the Registrant's Form 8-K filed November 16, 2015 (No. 001-37625)
|
|
|
|
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3.2
|
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Amended and Restated Bylaws of the Registrant incorporated by reference to Exhibit 3.2 of the Registrant's Form 8-K filed November 16, 2015 (No. 001-37625)
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4.1
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Form of Common Stock Certificate of the Registrant incorporated by reference to Exhibit 4.1 of the Registrant's Form S-1/A filed October 28, 2015 (No. 001-37625)
|
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4.2
|
*
|
Form of indenture for subordinated debt securities and the related form of subordinated debt security
|
|
|
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|
|
4.3
|
*
|
Form of indenture for senior debt securities and the related form of senior debt security
|
|
|
|
|
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4.4
|
*
|
Form of Certificate of Designations
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|
|
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|
4.5
|
*
|
Form of Warrant Agreements
|
|
|
|
|
|
4.6
|
*
|
Form of Unit Certificate
|
|
|
|
|
|
4.7
|
*
|
Form of Unit Agreement
|
|
|
|
|
|
4.8
|
*
|
Form of Preferred Stock Certificate
|
|
|
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5.1
|
|
Opinion of Goodwin Procter LLP
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|
|
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5.2
|
|
Opinion of Goodwin Procter LLP relating to the sales agreement prospectus
|
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12.1
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges
|
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23.1
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
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23.2
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Consent of Goodwin Procter LLP (included in Exhibit 5.1)
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23.3
|
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Consent of Goodwin Procter LLP (included in Exhibit 5.2)
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24.1
|
|
Power of Attorney (included in page II-5 to this registration statement on Form S-3)
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|
|
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25.1
|
**
|
Form T-1 Statement of Eligibility of designated trustee under the Senior Indenture
|
|
|
|
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|
25.2
|
**
|
Form T-1 Statement of Eligibility of designated trustee under the Subordinated Indenture
|
-
*
-
To
be filed, if necessary, by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and
incorporated herein by reference.
-
**
-
To
be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.
II-7
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