As filed with the Securities and Exchange Commission on February 23, 2016
Registration No. 333-203292
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 3
to
Form S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Regulus Therapeutics Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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26-4738379 |
(State or other jurisdiction of
incorporation or organization) |
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(IRS Employer
Identification Number) |
3545 John Hopkins Ct., Suite 210
San Diego, CA 92121
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Paul C. Grint, M.D.
President and Chief Executive Officer
Regulus Therapeutics Inc.
3545 John Hopkins Ct., Suite 210
San Diego, CA 92121
(858) 202-6300
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Thomas A. Coll, Esq.
Kenneth J. Rollins, Esq.
Cooley LLP
4401 Eastgate
Mall
San Diego, CA 92121
(858) 550-6000
Approximate
date of commencement of proposed sale to public: From time to time after the effective date of this Registration Statement.
If the
only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. x
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 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. ¨
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. ¨
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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x |
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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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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 that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Post-Effective Amendment No. 3 to the Registration Statement on Form S-3 (File No. 333-203292) is being filed solely for the purpose of
including the delaying amendment language set forth on the cover page hereto. This Amendment No. 3 does not modify any provision of the prospectus that forms a part of the registration statement and accordingly such prospectus has not been included
herein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. |
Other Expenses of Issuance and Distribution. |
The following table sets forth the various
expenses incurred or to be incurred in connection with the registration of the common stock being registered hereby, all of which will be borne by the Registrant. All amounts shown are estimates except the SEC registration fee.
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SEC registration fee |
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$ |
15,476 |
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Legal fees and expenses |
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300,000 |
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Accounting fees and expenses |
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150,000 |
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Miscellaneous expenses |
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9,524 |
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Total expenses |
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$ |
475,000 |
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Item 15. |
Indemnification of Directors and Officers. |
The Registrants certificate of
incorporation and bylaws provide that each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of
the fact that he or she is or was one of the Registrants directors or officers or is or was serving at the Registrants request as a director, officer, or trustee of another corporation, or of a partnership, joint venture, trust or other
enterprise, whether the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the
Registrant to the fullest extent authorized by the DGCL against all expense, liability and loss (including attorneys fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action.
Section 145 of the DGCL permits a corporation to indemnify any director or officer of the corporation against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the
corporation, if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason
to believe his or her conduct was unlawful. In a derivative action, (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in
connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no
indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and
reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the
DGCL, the Registrants certificate of incorporation eliminates the liability of a director to the Registrants stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
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from any breach of the directors duty of loyalty to the Registrant or the Registrants stockholders; |
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from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
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under Section 174 of the DGCL; and |
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from any transaction from which the director derived an improper personal benefit. |
II-1
The Registrant has entered into agreements to indemnify the Registrants directors and
executive officers. These agreements, among other things, provide that the Registrant will indemnify the director or executive officer to the fullest extent authorized or permitted by the provisions of the Registrants certificate of
incorporation, bylaws or law for claims arising in his or her capacity as a director or officer of the Registrant. The indemnification agreements also establish the procedures that will apply in the event a director or officer makes a claim for
indemnification.
The Registrant maintains a general liability insurance policy which covers certain liabilities of directors and officers
of the Registrant arising out of claims based on acts or omissions in their capacities as directors or officers.
The foregoing discussion
of the Registrants certificate of incorporation, bylaws, indemnification agreements, and Delaware law is not intended to be exhaustive and is qualified in its entirety by such certificate of incorporation, bylaws, indemnification agreements,
or law.
In any underwriting agreement the Registrant enters into in connection with the sale of common stock being registered hereby, the
underwriters will agree to indemnify, under certain conditions, the Registrant, the Registrants directors, the Registrants officers and persons who control the Registrant with the meaning of the Securities Act of 1933 against certain
liabilities.
See the Exhibit Index on the page immediately preceding the exhibits for a
list of exhibits filed as part of this Registration Statement, which Exhibit Index is incorporated herein by reference.
The undersigned 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 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 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.
(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), (1)(ii) and (1)(iii) 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 SEC 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.
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(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:
(A) 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
(B) 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)(1)(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) 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) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrants 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 plans 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.
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(7) That, for purposes of determining any liability under the Securities Act of 1933:
(i) the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be a part of the registration statement as of the time it was declared effective; and
(ii) each post-effective amendment that contains a form of prospectus 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 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 SEC 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.
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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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on February
23, 2016.
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REGULUS THERAPEUTICS INC. |
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By: |
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/s/ Paul C. Grint |
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Paul C. Grint, M.D. President and Chief
Executive Officer |
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.
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Signature |
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Title |
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Date |
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/s/ Paul C. Grint |
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President, Chief Executive Officer and
Member of the Board of Directors (Principal Executive Officer) |
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February 23, 2016 |
Paul C. Grint, M.D. |
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/s/ Joseph P. Hagan |
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Chief Operating Officer
(Principal Financial and Accounting Officer) |
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February 23, 2016 |
Joseph P. Hagan |
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* |
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Member of the Board of Directors |
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February 23, 2016 |
David Baltimore, Ph.D. |
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* |
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Member of the Board of Directors |
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February 23, 2016 |
Mark G. Foletta |
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* |
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Member of the Board of Directors |
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February 23, 2016 |
Stelios Papadopoulos, Ph.D. |
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* |
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Member of the Board of Directors |
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February 23, 2016 |
William H. Rastetter, Ph.D. |
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* |
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Member of the Board of Directors |
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February 23, 2016 |
Douglas E. Williams, Ph.D. |
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* By: |
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/s/ Paul C. Grint |
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Paul C. Grint, M.D. |
EXHIBIT INDEX
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Exhibit Number |
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Description |
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1.1 |
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Form of Underwriting Agreement (to be filed by amendment or as an exhibit to a current report on Form 8-K of the Registrant, and incorporated herein by reference). |
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4.1 |
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Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K, filed with the SEC on October 11, 2012). |
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4.2 |
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Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K, filed with the SEC on December 5, 2014). |
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4.3 |
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Form of Common Stock Certificate of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrants Registration Statement on Form S-1, as amended (File No. 333-183384), originally filed with the SEC on
August 17, 2012). |
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4.4 |
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Registration Rights Agreement dated February 5, 2014 between the Registrant and Aventisub LLC (formerly Aventis Holdings Inc.) (incorporated by reference to Exhibit 99.3 to the Registrants Current Report on Form 8-K, filed
with the SEC on February 5, 2014). |
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5.1 |
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Opinion of Cooley LLP (incorporated by reference to Exhibit 5.1 to the Registrants Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (File No. 333-203292), filed with the SEC on February 23,
2016). |
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23.1 |
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Consent of Independent Registered Public Accounting Firm (incorporated by reference to Exhibit 23.1 to the Registrants Post-Effective Amendment No. 2 to the Registration Statement on Form S-3 (File No. 333-203292), filed
with the SEC on February 23, 2016). |
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23.2 |
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Consent of Cooley LLP (included in Exhibit 5.1). |
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24.1 |
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Power of Attorney (previously filed with the SEC). |
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