As filed with the Securities and Exchange Commission on May 9, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MAP PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in Its Charter)
|
|
|
Delaware
|
|
20-0507047
|
(State or Other Jurisdiction of
Incorporation or Organization)
|
|
(IRS Employer
Identification Number)
|
2400 Bayshore Parkway, Suite 200
Mountain View, California 94043
(Address of Principal Executive Offices including Zip Code)
MAP
Pharmaceuticals, Inc. 2007 Equity Award Plan
MAP Pharmaceuticals, Inc. Employee Stock Purchase Plan
(Full Title of the Plans)
Copy
to:
|
|
|
Timothy S. Nelson
President and Chief Executive Officer
MAP Pharmaceuticals,
Inc.
2400 Bayshore Parkway, Suite 200
Mountain View, California 94043
(650) 386-3100
|
|
Patrick A. Pohlen
Gregory Chin
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025
(650) 328-4600
|
(Name and Address, Including Zip Code and Telephone Number, Including Area Code, of Agent for Service)
|
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):
|
|
|
|
|
|
|
Large accelerated filer
|
|
¨
|
|
Accelerated filer
|
|
x
|
|
|
|
|
Non-accelerated filer
|
|
¨
|
|
Smaller reporting company
|
|
¨
|
CALCULATION OF
REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
Title of Securities
to be Registered
|
|
Amount
to be
Registered (3)
|
|
Proposed
Maximum
Offering Price
Per Share (4)
|
|
Proposed
Maximum
Aggregate
Offering Price (4)
|
|
Amount of
Registration Fee
|
Common Stock, par value $0.01 per share, issuable under the MAP Pharmaceuticals, Inc. 2007
Equity Award Plan (1):
|
|
1,000,000 shares
|
|
$11.89
|
|
$11,890,000
|
|
$1,362.59
|
Common Stock, par value $0.01 per share, issuable under the MAP Pharmaceuticals, Inc.
Employee Stock Purchase Plan (2):
|
|
215,000 shares
|
|
$11.89
|
|
$2,556,350
|
|
$292.96
|
Total:
|
|
1,215,000 shares
|
|
|
|
$14,446,350
|
|
$1,655.55
|
|
|
(1)
|
The MAP Pharmaceuticals, Inc. 2007 Equity Award Plan (the 2007 Plan) authorizes the issuance of a maximum of 6,494,580 shares of common stock, of which
1,000,000 shares are being registered hereunder.
|
(2)
|
The MAP Pharmaceuticals, Inc. Employee Stock Purchase Plan (the ESPP) authorizes the issuance of a maximum of 1,350,000 shares of common stock, of which
215,000 shares are being registered hereunder.
|
(3)
|
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this registration statement shall also cover any additional
shares of MAP Pharmaceuticals, Inc.s common stock that become issuable under the 2007 Plan and the ESPP by reason of any stock dividend, stock split, recapitalization or similar transaction effected without the registrants receipt of
consideration which would increase the number of outstanding shares of common stock. In addition, pursuant to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the ESPP.
|
(4)
|
This estimate is made pursuant to Rule 457(c) and 457(h) of the Securities Act solely for purposes of calculating the registration fee. The Proposed Maximum Offering
Price per Share is $11.89, which is the average of the high and low prices for the registrants common stock as reported on the Nasdaq Global Select Market on May 8, 2012.
|
This registration statement will become effective upon filing in accordance with Rule 462 under the Securities Act.
REGISTRATION OF ADDITIONAL SECURITIES
By a registration statement on Form S-8 filed with the Securities and Exchange Commission (the SEC) on October 12, 2007,
File No. 333-146656 (the Original Registration Statement), MAP Pharmaceuticals, Inc. (the Registrant) registered 2,494,580 shares of common stock, par value $0.01 per share (the Common Stock), issuable under
the MAP Pharmaceuticals, Inc. 2007 Equity Award Plan (the 2007 Plan) and 500,000 shares of Common Stock issuable under the MAP Pharmaceuticals, Inc. Employee Stock Purchase Plan (the ESPP). By a registration statement on
Form S-8 filed with the SEC on March 27, 2009, File No. 333-158253 (the 2009 S-8), the Registrant registered an additional 1,000,000 shares of Common Stock issuable under the 2007 Plan and an additional 205,000 shares of Common
Stock issuable under the ESPP. By a registration statement on Form S-8 filed with the SEC on March 25, 2010, File No. 333-165694 (the 2010 S-8), the Registrant registered an additional 1,000,000 shares of Common Stock issuable
under the 2007 Plan and an additional 215,000 shares of Common Stock issuable under the ESPP. By a registration statement on Form S-8 filed with the SEC on May 6, 2011, File No. 333-174024 (the 2011 S-8), the Registrant
registered an additional 1,000,000 shares of Common Stock issuable under the 2007 Plan and an additional 215,000 shares of Common Stock issuable under the ESPP. The Registrant is hereby registering an additional 1,000,000 shares of Common Stock
issuable under the 2007 Plan and an additional 215,000 shares of Common Stock issuable under the ESPP.
Pursuant to
Instruction E of Form S-8, the contents of the Original Registration Statement, 2009 S-8, 2010 S-8 and 2011 S-8 are incorporated by reference in this Registration Statement on Form S-8.
PART I
The Registrant is not filing or including in this Form S-8 the information called for in Part I of the Form S-8 (by
incorporation, by reference or otherwise) in accordance with the rules and regulations of the SEC.
PART II
Item 3.
|
Incorporation of Documents by Reference.
|
The SEC allows the Registrant to incorporate by reference the information the Registrant files with the SEC, which means that the Registrant can disclose important information to you by
referring you to those documents. The information incorporated by reference is considered to be part of this registration statement, and later information filed with (rather than furnished to) the SEC will update and supersede this information. The
Registrant hereby incorporates by reference into this registration statement the following documents previously filed with the SEC:
|
(a)
|
The Registrants Annual Report on Form 10-K for the year ended December 31, 2011, filed with the SEC on March 30, 2012;
|
|
(b)
|
The Registrants Quarterly Report on Form 10-Q for the quarter ended March 31, 2012, filed with the SEC on April 8, 2012;
|
|
(c)
|
The Registrants Current Reports on Form 8-K, filed with the SEC on January 17, 2012, January 27, 2012, March 27, 2012 (excluding
Item 7.01 thereof), March 29, 2012, April 12, 2012; and
|
|
(d)
|
The description of the Registrants Common Stock contained in the Registrants registration statement on Form 8-A (Registration No. 001-33719), filed by
the Registrant with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), on October 2, 2007, including any amendments or reports filed for the purpose of updating such description.
|
All documents that the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post-effective amendment to the registration statement which indicates that all of the shares of Common Stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part hereof from the date of the filing of such documents; except as to any portion of any future annual or quarterly report to stockholders or document or current report
furnished under current Items 2.02 or 7.01 of Form 8-K that is not deemed filed under such provisions. For the purposes of this registration statement, any statement contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Under no circumstances will any information filed under current items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
Item 4.
|
Description of Securities.
|
Not applicable.
Item 5.
|
Interests of Named Experts and Counsel.
|
Not applicable.
Item 6.
|
Indemnification of Directors and Officers.
|
Section 145 of the Delaware General Corporation Law (DGCL) permits a corporation to include in its charter documents, and in agreements between the corporation and its directors and
officers, provisions expanding the scope of indemnification beyond that specifically provided by the current law.
Article VI
of the Registrants Amended and Restated Certificate of Incorporation (the Certificate) provides that, to the maximum extent permitted by the DGCL, as now exists or as may hereafter be amended, a director shall not be personally
liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. Article VI of the Certificate further provides that the Registrant may indemnify to the fullest extent permitted by law any person made or
threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director, officer, employee or agent of the Registrant or any
predecessor of the Registrant, or serves or served at any other enterprise as a director, officer, employee or agent at the request of the Registrant or any predecessor to the Registrant.
Article IX of the Registrants Amended and Restated Bylaws (the Bylaws) provides that the Registrant shall indemnify and
hold harmless, to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended, any director or officer of the Registrant who was or is made or is threatened to be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a Proceeding) by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director, officer, employee or
agent of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect
to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person in connection with any such Proceeding. The Registrant shall be required to indemnify a person in connection with a Proceeding
initiated by such person only if the Proceeding was authorized by the Board of Directors.
The Registrant has entered into
indemnification agreements with each of its directors and executive officers, in addition to the indemnification provisions provided for in the Certificate and Bylaws, and the Registrant intends to enter into indemnification agreements with any new
directors and executive officers in the future.
The Registrant maintains insurance on behalf of any person who is or was a
director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in that capacity, subject to certain exclusions and limits on the amount of coverage.
Item 7.
|
Exemption From Registration Claimed.
|
Not applicable.
|
|
|
4.1
|
|
Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference from Exhibit 3.1 to the Registrants Quarterly Report on Form 10-Q for the
quarter ended September 30, 2007 (File No. 001-33719), filed on November 19, 2007).
|
|
|
4.2
|
|
Amended and Restated Bylaws of the Registrant (incorporated by reference from Exhibit 3.2 to the Registrants Quarterly Report on Form 10-Q for the quarter ended September 30,
2007 (File No. 001-33719), filed on November 19, 2007).
|
|
|
4.3
|
|
Specimen Stock Certificate (incorporated by reference from Exhibit 4.1 to the Registrants registration statement on Form S-1/A (File No. 333-143823), filed on September 20,
2007).
|
|
|
4.4
|
|
MAP Pharmaceuticals, Inc. 2007 Equity Award Plan (incorporated by reference from Exhibit 10.3 to the Registrants registration statement on Form S-1/A (File No. 333-143823),
filed on September 20, 2007).
|
|
|
4.5
|
|
MAP Pharmaceuticals, Inc. Employee Stock Purchase Plan (incorporated by reference from Exhibit 10.30 to the Registrants registration statement on Form S-1/A (File No.
333-143823), filed on September 20, 2007).
|
|
|
5.1
|
|
Opinion of Latham & Watkins LLP.
|
|
|
23.1
|
|
Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
|
|
|
23.2
|
|
Consent of Latham & Watkins LLP (included in Exhibit 5.1).
|
|
|
24.1
|
|
Power of Attorney (included on the signature page of this registration statement).
|
The
Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; and
(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 (1)(i) and (1)(ii) do not apply if information required to be included in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
The Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of our annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by one of our directors, officers or controlling persons 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has
reasonable grounds to believe that the Registrant meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Mountain View, State of California, on this 9
th
day of
May, 2012.
|
|
|
MAP PHARMACEUTICALS, INC.
|
|
|
By:
|
|
/
S
/ T
IMOTHY
S. N
ELSON
|
|
|
Timothy S. Nelson
|
|
|
President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Timothy S. Nelson and Christopher Y. Chai, and each of them, with full power to act without the
other, such persons true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign this registration statement, and any and all
amendments thereto (including post-effective amendments), and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or their 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 has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/
S
/ T
IMOTHY
S. N
ELSON
|
|
President and Chief Executive Officer, Director
|
|
May 9, 2012
|
T
IMOTHY
S. N
ELSON
|
|
(Principal Executive Officer)
|
|
|
|
|
|
/
S
/ C
HRISTOPHER
Y. C
HAI
|
|
Senior Vice President and Chief Financial Officer
|
|
May 9, 2012
|
C
HRISTOPHER
Y.
C
HAI
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
|
|
/
S
/ S
COTT
R. W
ARD
|
|
Chairman of the Board of Directors
|
|
May 9, 2012
|
S
COTT
R. W
ARD
|
|
|
|
|
|
|
|
/
S
/
T
HOMAS
A. A
RMER
,
P
H
.D.
|
|
Director, Chief Scientific Officer
|
|
May 9, 2012
|
T
HOMAS
A.
A
RMER
, P
H
.D.
|
|
|
|
|
|
|
|
/
S
/ G
ERRI
A. H
ENWOOD
|
|
Director
|
|
May 9, 2012
|
G
ERRI
A. H
ENWOOD
|
|
|
|
|
|
|
|
/
S
/ B
ERNARD
J. K
ELLEY
|
|
Director
|
|
May 9, 2012
|
B
ERNARD
J. K
ELLEY
|
|
|
|
|
|
|
|
/
S
/ M
ATTHEW
V.
M
C
P
HERRON
|
|
Director
|
|
May 9, 2012
|
M
ATTHEW
V.
M
C
P
HERRON
|
|
|
|
|
|
|
|
/
S
/ W. J
AMES
OS
HEA
|
|
Director
|
|
May 9, 2012
|
W. J
AMES
OS
HEA
|
|
|
|
|
|
|
|
/
S
/ H. W
ARD
W
OLFF
|
|
Director
|
|
May 9, 2012
|
H. W
ARD
W
OLFF
|
|
|
|
|
EXHIBIT INDEX
|
|
|
|
|
4.1
|
|
Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference from Exhibit 3.1 to the Registrants Quarterly Report on Form 10-Q for the
quarter ended September 30, 2007 (File No. 001-33719), filed on November 19, 2007).
|
|
|
4.2
|
|
Amended and Restated Bylaws of the Registrant (incorporated by reference from Exhibit 3.2 to the Registrants Quarterly Report on Form 10-Q for the quarter ended September 30,
2007 (File No. 001-33719), filed on November 19, 2007).
|
|
|
4.3
|
|
Specimen Stock Certificate (incorporated by reference from Exhibit 4.1 to the Registrants registration statement on Form S-1/A (File No. 333-143823), filed on September 20,
2007).
|
|
|
4.4
|
|
MAP Pharmaceuticals, Inc. 2007 Equity Award Plan (incorporated by reference from Exhibit 10.3 to the Registrants registration statement on Form S-1/A (File No. 333-143823),
filed on September 20, 2007).
|
|
|
4.5
|
|
MAP Pharmaceuticals, Inc. Employee Stock Purchase Plan (incorporated by reference from Exhibit 10.30 to the Registrants registration statement on Form S-1/A (File No.
333-143823), filed on September 20, 2007).
|
|
|
5.1
|
|
Opinion of Latham & Watkins LLP.
|
|
|
23.1
|
|
Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
|
|
|
23.2
|
|
Consent of Latham & Watkins LLP (included in Exhibit 5.1).
|
|
|
24.1
|
|
Power of Attorney (included on the signature page of this registration statement).
|
Map Pharmaceuticals, Inc. (MM) (NASDAQ:MAPP)
Historical Stock Chart
From Aug 2024 to Sep 2024
Map Pharmaceuticals, Inc. (MM) (NASDAQ:MAPP)
Historical Stock Chart
From Sep 2023 to Sep 2024