Post-effective Amendment Filed Solely to Add Exhibits to a Registration Statement (pos Ex)
November 08 2017 - 6:14AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on November 8, 2017
Registration
No. 333-220981
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
S-1
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
VICAL INCORPORATED
(Exact name of registrant as specified in its charter)
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Delaware
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2836
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93-0948554
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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10390 Pacific Center Court
San Diego, California 92121
(858)
646-1100
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Vijay B. Samant
President and Chief Executive Officer
Vical Incorporated
10390
Pacific Center Court
San Diego, California 92121
(858)
646-1100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Frederick T. Muto, Esq.
Sean M. Clayton, Esq.
Cooley LLP
4401 Eastgate Mall
San Diego, California 92121
(858)
550-6000
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Matthew T. Bush, Esq.
Latham & Watkins LLP
12670 High Bluff Drive
San Diego, California 92130
(858)
523-5400
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
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 (the “Securities Act”), check the following box. ☐
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(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. ☐
If this Form is a post-effective
amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☒
(File No. 333-220981)
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a
non-accelerated
filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company” and “emerging growth company” in Rule
12b-2
of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☒
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. ☐
This post-effective amendment shall become effective upon filing with the Securities and Exchange Commission in accordance with
Rule 462(d) under the Securities Act of 1933, as amended.
Explanatory Note
This Post-Effective Amendment No. 1 (this “Amendment”) relates to the Registrant’s Registration Statement on Form
S-1
(File
No. 333-220981),
as amended, declared effective on November 7, 2017 by the Securities and Exchange Commission. The Registrant is filing this Amendment for
the sole purpose of replacing Exhibit 5.1 to the Registration Statement. This Amendment does not modify any provision of Part I or Part II of the Registration Statement other than Item 16(a) of Part II as set forth below.
PART II
INFORMATION NOT
REQUIRED IN PROSPECTUS
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Item 16.
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Exhibits and financial statement schedules.
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(a) Exhibits.
See Exhibit Index immediately preceding the signature page.
EXHIBIT INDEX
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Exhibit
Number
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Description of Document
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1.1†
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Form of Underwriting Agreement.
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3.1(i)(1)
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Restated Certificate of Incorporation. (P)
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3.2(ii)(2)
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Amended and Restated Bylaws of the Company.
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3.3(i)(2)
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Certificate of Amendment to Restated Certificate of Incorporation.
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3.4(i)(3)
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Certificate of Amendment to Restated Certificate of Incorporation.
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3.5(i)(4)
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Certificate of Amendment to Restated Certificate of Incorporation.
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3.6(i)(5)
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Certificate of Amendment to Restated Certificate of Incorporation.
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4.1(1)
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Specimen Common Stock Certificate. (P)
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4.2†
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Form of
Pre-Funded
Warrant.
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5.1
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Opinion of Cooley LLP.
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10.1(6)+
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Amended and Restated Stock Incentive Plan of Vical Incorporated.
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10.2(7)+
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Form of Indemnity Agreement between the Company and its directors and officers.
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10.3(8)+
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Vical Incorporated
Non-Employee
Director Compensation Policy.
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10.4(9)+
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Form of Delayed Issuance Stock Purchase Election Agreement, as amended, under the Amended and Restated Stock Incentive Plan (with deferral election).
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10.5(10)+
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Form of Delayed Issuance Stock Purchase Election Agreement, as amended, under the Amended and Restated Stock Incentive Plan.
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10.6(11)+
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Restated employment letter dated January
9, 2009, between the Company and Vijay B. Samant.
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10.7(12)+
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Employment Agreement dated January
14, 2005, between the Company and Anthony A. Ramos.
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10.8(13)+
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Severance Agreement dated January
23, 2015, between the Company and Anthony A. Ramos.
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10.9(14)+
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Employment Agreement dated August
25, 2003, between the Company and Larry Smith.
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10.10(15)+
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Severance Agreement dated January
23, 2015, between the Company and Larry Smith.
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10.11(16)*
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U.S. License Agreement dated July
12, 2011, between the Company and Astellas Pharma Inc.
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10.12(17)*
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Ex-U.S.
License Agreement dated July
12, 2011, between the Company and Astellas Pharma Inc.
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10.13(18)*
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Supply and Services Agreement dated July
12, 2011, between the Company and Astellas Pharma Inc.
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10.14(19)
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Letter agreement dated July
12, 2011, related to the U.S. License Agreement dated July
12, 2011, between the Company and Astellas Pharma Inc.
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10.15(20)*
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1st Amendment dated August
6, 2012, to U.S. License Agreement Between Vical Incorporated and Astellas Pharma
Inc.
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10.16(21)*
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1st Amendment dated August
6, 2012, to
Ex-U.S.
License Agreement Between Vical Incorporated and Astellas Pharma Inc.
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10.17(22)*
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1st Amendment dated August
6, 2012, to Supply and Services Agreement Between Vical Incorporated and Astellas Pharma Inc.
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10.18(23)*
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License Agreement dated March
24, 2015, between the Company and Astellas Pharma Inc.
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10.19(24)*
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Amendment No.
1 dated August
31, 2015, to License Agreement dated March
25, 2015, between the Company and Astellas Pharma Inc.
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10.20(25)*
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License Agreement dated December
7, 2001, between the Company and CytRx Corporation.
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10.21(26)
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Letter Agreement dated July
5, 2011, related to the License Agreement dated December
7, 2001, between the Company and CytRx Corporation.
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10.24(27)
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Lease dated January
30, 2002, between the Company and Kilroy Realty, L.P. a Delaware Limited Partnership.
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10.25(28)
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First Amendment dated July
15, 2016, to Lease dated January
30, 2002, between the Company and Kilroy Realty, L.P. a Delaware Limited Partnership.
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10.26(29)
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Stock Purchase Agreement dated August
1, 2016, between the Company and AnGes MG, Inc.
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10.27(30)
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At-the-Market
Issuance Sales Agreement, dated October
13,
2016, by and between the Company and IFS Securities, Inc. (doing business as BP, a division of IFS Securities, Inc.).
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23.1†
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Consent of Independent Registered Public Accounting Firm.
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23.2
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Consent of Cooley LLP (reference is made to Exhibit 5.1).
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24.1†
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Powers of Attorney.
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+
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Indicates management contract or compensatory plan
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*
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The Registrant has obtained confidential treatment with respect to certain portions of this exhibit
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(1)
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Incorporated by reference to the exhibit of the same number filed with the Company’s Registration Statement on Form
S-3
(No. 33-95812)
filed on August 15, 1995.
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(2)
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Incorporated by reference to the exhibit of the same number filed with the Company’s Quarterly Report on Form
10-Q
for the quarter ended June 30, 2010.
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(3)
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Incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form
S-8
(No.
333-135266)
filed on June 23,
2006.
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(4)
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Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form
8-K
filed on May 25, 2016.
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(5)
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Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form
8-K
filed on June 1, 2017.
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(6)
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Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form
8-K
filed on June 1, 2017.
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(7)
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Incorporated by reference to Exhibit 10.3 to the Company’s Annual Report on
Form 10-K
for the fiscal year ended December 31, 2002.
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(8)
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Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended March 31, 2014.
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(9)
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Incorporated by reference to Exhibit 10.58 to the Company’s Annual Report on
Form 10-K
for the year ended December 31, 2009.
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(10)
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Incorporated by reference to Exhibit 10.59 to the Company’s Annual Report on Form
10-K
for the year ended December 31, 2009.
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(11)
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Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form
8-K
filed on January 15, 2009.
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(12)
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Incorporated by reference to Exhibit 10.7 to the Company’s Annual Report on Form
10-K
for the year ended December 31, 2013.
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(13)
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Incorporated by reference to Exhibit 10.8 to the Company’s Annual Report on Form
10-K
for the year ended December 31, 2014.
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(14)
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Incorporated by reference to Exhibit 10.11 to the Company’s Annual Report on Form
10-K
for the year ended December 31, 2013.
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(15)
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Incorporated by reference to Exhibit 10.12 to the Company’s Annual Report on Form
10-K
for the year ended December 31, 2014.
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(16)
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Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended September 30, 2011.
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(17)
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Incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended September 30, 2011.
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(18)
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Incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended September 30, 2011.
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(19)
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Incorporated by reference to Exhibit 99.4 to the Company’s Current Report on Form
8-K
filed on January 5, 2012.
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(20)
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Incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended June 30, 2012.
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(21)
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Incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended June 30, 2012.
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(22)
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Incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended June 30, 2012.
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(23)
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Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended March 31, 2015.
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(24)
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Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended September 30, 2015.
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(25)
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Incorporated by reference to Exhibit 99 to CytRx Corporation’s Current Report on Form
8-K
filed on December 21, 2001.
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(26)
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Incorporated by reference to Exhibit 99.2 to the Company’s Current Report on Form
8-K
filed on January 5, 2012.
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(27)
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Incorporated by reference to Exhibit 10.27 to the Company’s Annual Report on Form
10-K
for the year ended December 31, 2001.
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(28)
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Incorporated by reference to the Exhibit 10.1 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended June 30, 2016.
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(29)
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Incorporated by reference to the Exhibit 10.2 to the Company’s Quarterly Report on Form
10-Q
for the quarter ended June 30, 2016.
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(30)
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Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form
8-K
filed on October 17, 2016.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly caused this post-effective amendment no. 1 to registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, California, on the 8
th
day of November, 2017.
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Vical Incorporated
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By:
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/s/ Vijay B. Samant
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Vijay B. Samant
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President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons
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/ Vijay B. Samant
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President, Chief Executive Officer and Director
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November 8, 2017
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Vijay B. Samant
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(Principal Executive Officer)
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/s/ Anthony A. Ramos
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Vice President, Chief Financial Officer
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November 8, 2017
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Anthony A. Ramos
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(Principal Financial and Accounting Officer)
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/s/ R. Gordon Douglas, M.D.*
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Chairman of the Board of Directors
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November 8, 2017
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R. Gordon Douglas, M.D.
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/s/ Richard M. Beleson*
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Director
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November 8, 2017
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Richard M. Beleson
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/s/ Gary A. Lyons*
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Director
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November 8, 2017
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Gary A. Lyons
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/s/ Robert C. Merton, Ph.D.*
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Director
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November 8, 2017
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Robert C. Merton, Ph.D.
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/s/ George J. Morrow*
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Director
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November 8, 2017
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George J. Morrow
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/s/ Thomas E. Shenk, Ph.D.*
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Director
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November 8, 2017
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Thomas E. Shenk, Ph.D.
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*
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Pursuant to power of attorney
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By:
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/s/ Vijay B. Samant
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Vijay B. Samant
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