Post-effective Amendment to Registration Statement (pos Am)
April 10 2019 - 4:57PM
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As filed with the U.S. Securities and Exchange Commission on April 10, 2019
Registration No. 333-229536
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
VAXART, 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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2834
(Primary Standard Industrial
Classification Code Number)
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59-1212264
(I.R.S. Employer
Identification No.)
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290 Utah Ave
Suite 200
South San Francisco, California 94080
(650) 550-3500
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
Wouter W. Latour M.D.
President and Chief Executive Officer
290 Utah Ave
Suite 200
South San Francisco, California 94080
(650) 550-3500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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Copies to:
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John T. McKenna
Josh Seidenfeld
Cooley LLP
3175 Hanover Street
Palo Alto, California 94304
(650) 843-5000
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Gary Emmanuel
Heidi Steele
McDermott Will & Emery LLP
340 Madison Avenue
New York, New York 10173
(212) 547-5400
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Approximate date of commencement of proposed sale to 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, 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, 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(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:
ý
(File No. 333-229536)
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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Accelerated Filer
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Non-accelerated Filer
ý
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Smaller Reporting Company
ý
Emerging growth company
o
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act of 1933, as amended.
o
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. 333-229536), as amended, declared effective on April 8, 2019 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 IIINFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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(a)
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Exhibits.
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Incorporated by Reference
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Exhibit
Number
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Schedule/
Form
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File
Number
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Exhibit
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File Date
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1.1
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Underwriting Agreement.
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S-1
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333-229536
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1.1
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April 8, 2019
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2.1
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Agreement and Plan of Merger and Reorganization, dated October 27, 2017, by and among Aviragen Therapeutics, Inc., Vaxart,
Inc. and Agora Merger Sub, Inc.
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8-K
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001-35285
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2.1
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October 30, 2017
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2.2
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Amendment No. 1, dated as of February 7, 2018, to the Agreement and Plan of Merger and Reorganization, dated
October 27, 2017, by and among Aviragen Therapeutics, Inc., Vaxart, Inc. and Agora Merger Sub, Inc.
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8-K
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001-35285
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2.1
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February 7, 2018
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3.1
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Restated Certificate of Incorporation of Aviragen Therapeutics, Inc.
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10-K
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001-35285
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3.1
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September 13, 2016
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3.2
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Certificate of Amendment to Restated Certificate of Incorporation of Aviragen Therapeutics, Inc.
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8-K
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001-35285
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3.1
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February 20, 2018
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3.3
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Certificate of Amendment to Restated Certificate of Incorporation of Vaxart, Inc.
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8-K
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001-35285
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3.2
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February 20, 2018
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3.4
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Restated By-laws of Aviragen Therapeutics, Inc.
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10-K
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001-35285
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3.2
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September 13, 2016
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4.1
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Reference is made to Exhibits
3.1
to
3.3
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4.2
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Specimen Common Stock Certificate.
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S-3
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333-228910
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4.2
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December 20, 2018
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4.3
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Form of Pre-Funded Warrant.
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S-1
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333-229536
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10.25
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February 6, 2019
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4.4
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Form of Common Warrant.
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S-1
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333-229536
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4.4
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April 8, 2019
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4.5
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Form of Representative Warrant.
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S-1
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333-229536
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4.5
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April 8, 2019
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5.1
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Opinion of Cooley LLP.
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II-1
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Incorporated by Reference
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Exhibit
Number
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Schedule/
Form
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File
Number
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Exhibit
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File Date
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10.1
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Collaboration and License Agreement dated September 29, 2003, between Biota Holdings Limited and Sankyo Co.,
Ltd.
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10-Q
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001-35285
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10.5
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May 10, 2013
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10.2
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Amendment #1 to Collaboration and License Agreement dated June 30, 2005, between Biota Holdings Limited, Biota Scientific
Management Pty. Ltd. and Sankyo Company, Ltd.
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10-Q
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001-35285
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10.6
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May 10, 2013
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10.3
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Amendment #2 to Collaboration and License Agreement, dated March 27, 2009, between Biota Holdings Limited, Biota Scientific
Management Pty. Ltd. and Daiichi Sankyo Company, Limited
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10-Q
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001-35285
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10.7
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May 10, 2013
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10.4
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Commercialization Agreement dated March 27, 2009, between Biota Holdings Limited, Biota Scientific Management Pty. Ltd and
Daiichi Sankyo Company, Ltd.
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10-Q
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001-35285
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10.8
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May 10, 2013
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10.5
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Contract dated March 31, 2011, between Biota Scientific Management Pty. Ltd. and Office of Biomedical Advanced Research
and Development Authority within the Office of the Assistant Secretary for preparedness and Response at the U.S. Department of Health and Human Services
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10-Q
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001-35285
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10.9
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May 10, 2013
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10.6
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Research and License Agreement dated February 21, 1990, by and among Biota Scientific Management Pty. Ltd., Biota Holdings
Limited, Glaxo Australia Pty. Ltd. and Glaxo Group Limited
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10-K
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001-35285
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10.6
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September 27, 2013
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10.7
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#
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2007 Omnibus Equity and Incentive Plan (included as Appendix A to the proxy statement)
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DEF 14A
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000-04829
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April 12, 2007
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10.8
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Form of Employee Stock Option Agreement under the 2007 Omnibus Equity and Incentive Plan
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8-K
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001-35285
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10.1
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December 10, 2013
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II-2
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Incorporated by Reference
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Exhibit
Number
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Schedule/
Form
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File
Number
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Exhibit
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File Date
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10.9
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Royalty Interest Acquisition Agreement by and between Aviragen Therapeutics, Inc., Biota Holdings Pty Ltd, Biota Scientific
Management Pty. Ltd. and HealthCare Royalty Partners III, L.P. dated April 22, 2016
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8-K
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001-35285
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10.1
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April 26, 2016
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10.10
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Protective Rights Agreement between Aviragen Therapeutics, Inc. and HealthCare Royalty Partners III, L.P. dated
April 22, 2016
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8-K
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001-35285
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10.2
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April 26, 2016
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10.11
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#
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Form of Employee Stock Option Agreement under the 2016 Equity Incentive Plan
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10-Q
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001-35285
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10.1
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May 8, 2017
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10.12
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#
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2016 Equity Incentive Plan (included as Appendix A to the proxy statement)
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DEF 14A
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001-35285
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September 27, 2016
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10.13
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#
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Director Stock Option Agreement
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S-4
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333-222009
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10.22
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December 12, 2017
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10.14
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Form of Indemnification Agreement by and between Vaxart, Inc. and its Directors and Executive Officers.
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8-K
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001-35285
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10.3
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February 20, 2018
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10.15
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#
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Vaxart, Inc. Amended and Restated 2007 Equity Incentive Plan, Stock Option Agreement, form of Notice of Stock Option Grant,
form of Additional Terms and Conditions to Option and Stock Option Exercise Agreement
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S-4/A
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333-222009
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10.24
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December 29, 2017
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10.16
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#
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Offer Letter, dated May 25, 2011, and Amendment to Offer Letter and Option Grant Agreement, dated October 1, 2011, by
and between Vaxart, Inc. and Wouter W. Latour, M.D.
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S-4/A
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333-222009
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10.25
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December 29, 2017
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10.17
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Industrial Lease dated October 28, 2013, by and between Vaxart, Inc. and Oyster Point LLC
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S-4/A
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333-222009
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10.26
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December 29, 2017
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10.18
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Lease Agreement dated April 17, 2015, by and between Vaxart, Inc. and CRP Edgewater, LLC
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S-4/A
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333-222009
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10.27
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December 29, 2017
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10.19
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Loan and Security Agreement dated December 22, 2016, by and between Vaxart, Inc. and Oxford
Finance LLC
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S-4/A
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333-222009
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10.28
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December 29, 2017
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II-3
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Incorporated by Reference
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Exhibit
Number
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Schedule/
Form
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File
Number
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Exhibit
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File Date
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10.20
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Second Amendment to the Loan Agreement, dated February 13, 2018, between Vaxart, Inc. and Oxford
Finance LLC.
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8-K
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001-35285
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10.1
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February 20, 2018
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10.21
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#
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Severance Benefit Plan and Form of Severance Benefit Plan Participation Notice.
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8-K
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001-35285
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10.1
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June 6, 2018
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10.22
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Settlement Agreement by and among Vaxart, Inc., Digirad Corporation, East Hill Management Company, LLC, and Aviragen
Therapeutics, Inc.
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8-K
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001-35285
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10.1
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February 9, 2018
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10.23
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Form of Sales Agreement dated December 19, 2018 by and between Vaxart, Inc. and B. Riley FBR,
Inc.
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S-3
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333-228910
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1.2
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December 20, 2018
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10.24
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Amended and Restated Warrant issued to Oxford Finance LLC, dated February 13, 2018.
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8-K
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001-35285
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10.2
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February 20, 2018
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10.25
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Form of Securities Purchase Agreement dated as of March 19, 2019, by and among Vaxart, Inc. and the Purchasers named
therein.
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8-K
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001-35285
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10.1
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March 20, 2019
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10.26
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Form of Placement Warrant.
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8-K
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001-35285
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10.3
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March 20, 2019
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16.1
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Letter dated February 16, 2018 from Ernst & Young LLP to the Securities and Exchange
Commission.
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8-K
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001-35285
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16.1
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February 20, 2018
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21.1
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List of Subsidiaries.
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10-K
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001-35285
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21.1
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February 6, 2019
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23.1
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Consent of KPMG LLP, Independent Registered Public Accounting Firm.
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S-1/A
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333-229536
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23.1
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April 8, 2019
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23.2
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Consent of Cooley LLP is contained in Exhibit 5.1 to this Registration Statement.
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24.1
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Power of Attorney (see the signature page to the original filing of this registration statement on
Form S-1).
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S-1
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333-229536
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February 6, 2019
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-
#
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Management
contract or compensation plan or arrangement.
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+
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Confidential
portions of this exhibit have been omitted and filed separately with the Commission pursuant to confidential treatment granted under Rule 24b-2
promulgated under the Exchange Act
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Post-Effective Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, in the City of South San Francisco, State of California, on April 10, 2019.
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VAXART, INC.
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By:
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/s/ WOUTER W. LATOUR, M.D.
Wouter W. Latour, M.D.
President and Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 to Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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Signatures
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Title
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Date
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/s/ WOUTER W. LATOUR, M.D.
Wouter W. Latour, M.D.
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President, Chief Executive Officer and Director
(Principal Executive Officer and Principal Financial Officer)
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April 10, 2019
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/s/ MARGARET A. ECHERD
Margaret A. Echerd
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Vice President, Corporate Controller
(Principal Accounting Officer)
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April 10, 2019
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Richard J. Markham
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Chairman of the Board
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April 10, 2019
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Michael J. Finney, Ph.D.
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Director
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April 10, 2019
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Anne M. VanLent
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Director
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April 10, 2019
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Geoffrey F. Cox, Ph.D.
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Director
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April 10, 2019
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John P. Richard
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Director
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April 10, 2019
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By:
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/s/ WOUTER W. LATOUR, M.D.
Wouter W. Latour, M.D.
Attorney-in-Fact
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II-5
QuickLinks
Explanatory Note
PART IIINFORMATION NOT REQUIRED IN PROSPECTUS
SIGNATURES
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