As filed with the Securities and Exchange Commission on December 20, 2016
RegistrationNo. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORMS-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KALVISTA PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 20-0915291 | |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification No.) |
One Kendall Square
Bld 200, Ste 2203
Cambridge, MA 02139
(Address of Principal Executive Offices) (Zip Code)
Options to purchase stock granted under the KalVista Pharmaceuticals Ltd Enterprise Management Incentive Scheme and assumed by the Registrant andNon-Plan Inducement Options
(Full Title of the Plans)
Thomas Andrew Crockett
Chief Executive Officer
KalVista Pharmaceuticals, Inc.
One Kendall Square
Bld 200, Ste 2203
Cambridge, MA 02139
(Name and Address of Agent For Service)
(857)999-0075
(Telephone Number, including area code, of agent for service)
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, anon-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
CALCULATION OF REGISTRATION FEE
| ||||||||
Title of Securities To Be Registered | Amount To Be | Proposed Maximum | Proposed Maximum Offering Price | Amount of Registration Fee | ||||
In respect of assumed stock options: Common Stock, $0.001 par value per share (2) | 212,162 | $0.0074 (3) | $1,570.00 (3) | $0.18 (3) | ||||
Non-Plan Inducement Stock Options | 20,055 (4) | $10.21 (5) | $204,761.55 (5) | $23.73 (5) | ||||
TOTAL | 232,217 | N/A | $206,331.55 | $23.91 | ||||
| ||||||||
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| (1) | This Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant’s common stock. |
| (2) | Represents shares subject to issuance upon the exercise of stock options outstanding under the KalVista Pharmaceuticals Ltd Enterprise Management Incentive Scheme, and assumed by the Registrant on November 21, 2016 pursuant to a Share Purchase Agreement by and among the Registrant, KalVista Pharmaceuticals, Inc., formerly known as “Carbylan Therapeutics, Inc.,” KalVista Pharmaceuticals Ltd., the shareholders of KalVista Pharmaceuticals Ltd. and the Seller Representative, dated as of June 15, 2016. |
| (3) | Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the weighted average exercise price of the outstanding options. |
| (4) | Represents shares of the Registrant’s common stock issuable pursuant to aNon-Plan Inducement Stock Options. |
| (5) | Such shares are issuable upon exercise of an outstanding option with a fixed exercise price. Pursuant to Rule 457(h) of the Securities Act, the aggregate offering price and the fee have been computed upon the basis of the price at which the option may be exercised, which was the closing price of a share of Registrant’s common stock on the date of grant of such option as reported on The NASDAQ Stock Market on November 29, 2016. |
| PART II | ||||||
Item 3. | Incorporation of Documents by Reference | II-1 | ||||
Item 4. | Description of Securities | II-1 | ||||
Item 5. | Interests of Named Experts and Counsel | II-1 | ||||
Item 6. | Indemnification of Directors and Officers | II-1 | ||||
Item 7. | Exemption from Registration Claimed | II-3 | ||||
Item 8. | Exhibits | II-3 | ||||
Item 9. | Undertakings | II-4 | ||||
EXHIBIT INDEX | ||||||
EXHIBIT 4.1 | ||||||
EXHIBIT 4.2 | ||||||
EXHIBIT 4.3 | ||||||
EXHIBIT 4.4 | ||||||
EXHIBIT 5.1 | ||||||
EXHIBIT 23.1 | ||||||
EXHIBIT 23.2 | ||||||
EXHIBIT 23.3 | ||||||
EXHIBIT 99.1 | ||||||
EXHIBIT 99.2 | ||||||
EXHIBIT 99.3 | ||||||
PART II
Information Required in the Registration Statement
| Item 3. | Incorporation of Documents by Reference. |
KalVista Pharmaceuticals, Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
| (a) | The Registrant’s Annual Report on Form10-K for the fiscal year ended December 31, 2015 filed with the Commission on March 30, 2016 pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); |
| (b) | All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (a) above; and |
| (c) | The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form8-A (No.001-36830) filed with the Commission on February 2, 2015, and including any other amendments or reports filed for the purpose of updating such description. |
All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or whichde-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such statements as set forth therein. Unless expressly incorporated into this Registration Statement, a report furnished on Form8-K prior or subsequent to the date hereof shall not be incorporated by reference into 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 for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.
| 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 102 of the Delaware General Corporation Law permits a corporation to eliminate the personal liability of its directors or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant’s Amended and Restated Certificate of Incorporation provides that no director shall be personally liable to them or their stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the Delaware General Corporation Law prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
II-1
Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
The Registrant’s Amended and Restated Certificate of Incorporation provides that the Registrant will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Registrant) by reason of the fact that he or she is or was, or has agreed to become, the Registrant’s director or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. The Registrant’s Amended and Restated Certificate of Incorporation also provides that the Registrant will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of the Registrant to procure a judgment in the Registrant’s favor by reason of the fact that the Indemnitee is or was, or has agreed to become, the Registrant’s director or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the Registrant against all expenses (including attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If Registrant does not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
The Registrant has entered into indemnification agreements with the Registrant’s directors and executive officers. In general, these agreements provide that the Registrant will indemnify the director or executive officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or officer of the Registrant’s company or in connection with their service at the Registrant’s request for another corporation or entity. The Registrant maintain a general liability insurance policy which covers certain liabilities of the Registrant’s directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.
II-2
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
Exhibit Number | Exhibit Description | Incorporated by Reference | Filed | |||||||||
| Form | File No. | Exhibit | Filing Date | Herewith | ||||||||
| 4.1 | Registrant’s Amended and Restated Certificate of Incorporation. | S-1/A | 333-201278 | 3.2 | January 23, 2015 | |||||||
| 4.2 | Certificate of Amendment of Registrant’s Amended and Restated Certificate of Incorporation. | 8-K | 001-36830 | 3.1 | November 23, 2016 | |||||||
| 4.3 | Certificate of Amendment of Registrant’s Amended and Restated Certificate of Incorporation. | 8-K | 001-36830 | 3.2 | November 23, 2016 | |||||||
| 4.4 | Registrant’s Amended and Restated Bylaws. | S-1/A | 333-201278 | 3.4 | January 23, 2015 | |||||||
| 5.1 | Opinion and Consent of Fenwick & West LLP. | X | ||||||||||
| 23.1 | Consent of Deloitte LLP. | X | ||||||||||
| 23.2 | Consent of PricewaterhouseCoopers LLP. | X | ||||||||||
| 23.3 | Consent of Fenwick & West LLP (contained in Exhibit 5.1). | X | ||||||||||
| 24 | Power of Attorney (incorporated by reference toPage II-4 of this Registration Statement). | X | ||||||||||
| 99.1 | KalVista Pharmaceuticals Ltd Enterprise Management Incentive Scheme. | X | ||||||||||
| 99.2 | Form of KalVista Pharmaceuticals Ltd Stock Option Agreement. | X | ||||||||||
| 99.3 | Inducement Stock Option Agreement. | X | ||||||||||
II-3
| Item 9. | Undertakings. |
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, as amended (the “Securities Act”); |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this 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 Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
| (2) | That, for the purposes of determining any liability under the Securities Act, each 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 the time shall be deemed to be the initialbona fideoffering 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 undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s 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 initialbona fideoffering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the indemnification provisions described herein, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act 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 and will be governed by the final adjudication of such issue.
II-4
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on FormS-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cambridge, State of Massachusetts, on December 20, 2016.
| KALVISTA PHARMACEUTICALS, INC. | ||
| By: | /s/ Thomas Andrew Crockett | |
| Thomas Andrew Crockett, | ||
| Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Thomas Andrew Crockett and Benjamin L. Palleiko, and each of them, with full power of substitution, such person’s true and lawfulattorneys-in-fact and agents for such person, with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, bothpre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Thomas Andrew Crockett Thomas Andrew Crockett | Chief Executive Officer and Director | December 20, 2016 | ||
/s/ Benjamin L. Palleiko Benjamin L. Palleiko | Chief Financial Officer Principal Accounting Officer) | December 20, 2016 | ||
/s/ Rajeev Shah Rajeev Shah | Director | December 20, 2016 | ||
II-5
/s/ Joshua Resnick Joshua Resnick, M.D. | Director | December 20, 2016 | ||
/s/ Richard Aldrich Richard Aldrich | Director | December 20, 2016 | ||
/s/ Edward W. Unkart Edward W. Unkart | Director | December 20, 2016 | ||
/s/ Albert Cha Albert Cha, M.D., Ph.D. | Director | December 20, 2016 | ||
/s/ Arnold L. Oronsky Arnold L. Oronsky, Ph.D. | Director | December 20, 2016 | ||
II-6
EXHIBIT INDEX
Exhibit Number | Exhibit Description | Incorporated by Reference | Filed | |||||||||
| Form | File No. | Exhibit | Filing Date | Herewith | ||||||||
| 4.1 | Registrants Amended and Restated Certificate of Incorporation. | S-1/A | 333-201278 | 3.2 | January 23, 2015 | |||||||
| 4.2 | Certificate of Amendment of Registrant’s Amended and Restated Certificate of Incorporation. | 8-K | 001-36830 | 3.1 | November 23, 2016 | |||||||
| 4.3 | Certificate of Amendment of Registrant’s Amended and Restated Certificate of Incorporation. | 8-K | 001-36830 | 3.2 | November 23, 2016 | |||||||
| 4.4 | Amended and Restated Bylaws of KalVista Pharmaceuticals, Inc., as currently in effect. | S-1/A | 333-201278 | 3.4 | January 23, 2015 | |||||||
| 5.1 | Opinion and Consent of Fenwick & WestLLP. | X | ||||||||||
| 23.1 | Consent of Deloitte LLP. | X | ||||||||||
| 23.2 | Consent of PricewaterhouseCoopers LLP. | X | ||||||||||
| 23.3 | Consent of Fenwick & West LLP (contained in Exhibit 5.1). | X | ||||||||||
| 24 | Power of Attorney (incorporated by reference toPage II-4 of this Registration Statement). | X | ||||||||||
| 99.1 | KalVista Pharmaceuticals Ltd Enterprise Management Incentive Scheme. | X | ||||||||||
| 99.2 | Form of KalVista Pharmaceuticals Ltd Stock Option Agreement. | X | ||||||||||
| 99.3 | Inducement Stock Option Agreement. | X | ||||||||||
