As filed with the Securities and Exchange Commission on December 19, 2019
Registration No. 333-235504
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Applied Therapeutics, Inc.
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) |
2834
(Primary Standard Industrial Classification Code Number) |
81-3405262
(I.R.S. Employer Identification No.) |
545 5th Avenue, Suite 1400
New York, NY 10017
(212) 220 - 9226
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
Shoshana Shendelman, Ph.D.
President and Chief Executive Officer
545 5th Avenue, Suite 1400
New York, NY 10017
(212) 220 - 9226
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
Andrea L. Nicolas
Michael J. Schwartz
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY 10036
(212) 735-3000
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, 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, 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. o
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.
Large accelerated filer o | Accelerated filer o | Non-accelerated filer ý |
Smaller reporting company ý
Emerging growth company ý |
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. ý
CALCULATION OF REGISTRATION FEE
|
||||||
Title of Each Class of Securities to be Registered
|
Amount to be
Registered(1) |
Proposed
Maximum Aggregate Offering Price(2) |
Amount of
Registration Fee(3) |
|||
---|---|---|---|---|---|---|
Common stock, $0.0001 par value per share |
1,380,344 | $27,870,853.02 | $3,617.90 | |||
|
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 which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 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.
Applied Therapeutics, Inc., the registrant whose name appears on the cover of this registration statement, is filing this Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-235504), or the Registration Statement, to file Exhibit 5.1 and restate the list of exhibits set forth in Item 16 of Part II of the Registration Statement. Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature page to the Registration Statement and the filed exhibit. The prospectus is unchanged and has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses payable by the registrant in connection with the sale of our common stock being registered. All amounts are estimates except for the Securities and Exchange Commission, or SEC, registration fee, the Financial Industry Regulatory Authority, or FINRA, filing fee and The Nasdaq Global Select Market, or Nasdaq, listing fee.
Item
|
Amount | |||
---|---|---|---|---|
SEC registration fee |
$ | 3,618 | ||
FINRA filing fee |
0 | |||
Nasdaq listing fee |
0 | |||
Printing expenses |
75,000 | |||
Legal fees and expenses |
50,000 | |||
Accounting fees and expenses |
30,000 | |||
Transfer agent fees and expenses |
0 | |||
Miscellaneous expenses |
10,000 | |||
| | | | |
Total |
$ | 168,618 | ||
| | | | |
| | | | |
| | | | |
Item 14. Indemnification of Directors and Officers.
As permitted by Section 102 of the Delaware General Corporation Law, we have adopted provisions in our amended and restated certificate of incorporation and bylaws that limit or eliminate the personal liability of our directors for a breach of their fiduciary duty of care as a director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material information reasonably available to them. Consequently, a director will not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:
These limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. Our amended and restated certificate of incorporation also authorizes us to indemnify our officers, directors and other agents to the fullest extent permitted under Delaware law.
As permitted by Section 145 of the Delaware General Corporation Law, our amended and restated bylaws provide that:
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Our amended and restated certificate of incorporation and our amended and restated bylaws provide for the indemnification provisions described above and elsewhere herein. We have entered or will enter into, and intend to continue to enter into, separate indemnification agreements with our directors and officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements generally require us, among other things, to indemnify our officers and directors against liabilities that may arise by reason of their status or service as directors or officers, other than liabilities arising from willful misconduct. These indemnification agreements also generally require us to advance any expenses incurred by the directors or officers as a result of any proceeding against them as to which they could be indemnified. These indemnification provisions and the indemnification agreements may be sufficiently broad to permit indemnification of our officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended, or the Securities Act.
The Registrant has purchased and currently intends to maintain insurance on behalf of each and every person who is or was a director or officer of the Registrant against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
Item 15. Recent Sales of Unregistered Securities.
The following list sets forth information as to all securities we have sold since January 20, 2016 (date of inception) up to the date of the prospectus that is a part of this registration statement:
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The offers, sales and issuances of the securities described in paragraph (1) were deemed to be exempt from registration under the Securities Act in reliance on Rule 701 in that the transactions were under compensatory benefit plans and contracts relating to compensation as provided under Rule 701. The recipients of such securities were employees, directors or bona fide consultants of the Registrant and received the securities under the 2016 Plan. Appropriate legends were affixed to the securities issued in these transactions. Each of the recipients of securities in these transactions had adequate access, through employment, business or other relationships, to information about the Registrant.
The offers, sales and issuances of the securities described in paragraphs (2) through (9) above were deemed to be exempt from registration under the Securities Act in reliance on Section 4(a)(2) of the Securities Act and Rule 506 promulgated under Regulation D as transactions by an issuer not involving a public offering. The recipients of securities in each of these transactions acquired the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the securities issued in these transactions. Each of the recipients of securities in these transactions was an accredited investor within the meaning of Rule 501 of Regulation D under the Securities Act and had adequate access, through employment, business or other relationships, to information about the Registrant. No underwriters were involved in these transactions.
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Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
The exhibits listed below are filed as part of this registration statement.
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Incorporated by Reference | |||||||||
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Exhibit
Number |
|
||||||||||
Description | Form | File No. | Exhibit | Filing Date | |||||||
10.11 | *+ | Separation Agreement, by and between the Company and Les Funtleyder, dated May 28, 2019. | 10-Q | 001-38898 | 10.7 | August 12, 2019 | |||||
23.1 | + | Consent of Independent Registered Public Accounting Firm. | | | | | |||||
23.2 | Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). | | | | | ||||||
24.1 | + | Power of Attorney (included on signature page). | | | | | |||||
101.INS | XBRL Instance Document | | | | | ||||||
101.SCH | XBRL Taxonomy Extension Schema | | | | | ||||||
101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document | | | | | ||||||
101.DEF | XBRL Taxonomy Extension Definition Linkbase Document | | | | | ||||||
101.LAB | XBRL Taxonomy Extension Label Linkbase Document | | | | | ||||||
101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document | | | | |
(b) Financial Statement Schedules.
Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto.
The undersigned hereby undertakes:
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons, the registrant has 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 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 otherwise 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.
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Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New York, New York, on December 19, 2019.
APPLIED THERAPEUTICS, INC. | ||||
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|
By: |
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/s/ SHOSHANA SHENDELMAN Shoshana Shendelman President and Chief Executive Officer |
Each person whose signature appears below constitutes and appoints Shoshana Shendelman and Mark J. Vignola, and each of them severally, as his or her true and lawful attorney-in-fact and agent, each acting alone with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement on Form S-1 to be filed in connection with the offering of securities of Applied Therapeutics, Inc., and any and all amendments (including post-effective amendments) to this registration statement, and any subsequent registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and to file the same with exhibits thereto, and the other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorney-in-fact or his substitutes, each acting alone, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and as of the dates indicated.
Name
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Title
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Date
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/s/ SHOSHANA SHENDELMAN
Shoshana Shendelman, Ph.D. |
President and Chief Executive Officer (Principal Executive Officer) | December 19, 2019 | ||||
* Mark J. Vignola, Ph.D. |
|
Chief Financial Officer (Principal Financial and Accounting Officer) |
|
December 19, 2019 |
||
* Les Funtleyder |
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Director |
|
December 19, 2019 |
||
* Teena Lerner, Ph.D. |
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Director |
|
December 19, 2019 |
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Name
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Title
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Date
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*
Stacy Kanter |
Director | December 19, 2019 | ||||
* Joel S. Marcus |
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Director |
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December 19, 2019 |
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* Jay S. Skyler, M.D., MACP |
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Director |
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December 19, 2019 |
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*By |
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/s/ SHOSHANA SHENDELMAN Shoshana Shendelman As Attorney-in-Fact |
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Exhibit 5.1
December 20, 2019
Applied
Therapeutics, Inc.
545 5th Avenue, Suite 1400
New York, NY 10173
Re: Applied
Therapeutics, Inc.
Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as special counsel to Applied Therapeutics, Inc., a Delaware corporation (the "Company"), in connection with the registration for resale under the Securities Act of 1933 (the "Securities Act"), of an aggregate of 1,380,344 shares of the Company's common stock, par value $0.0001 per share, that are issued and outstanding (the "Shares"), on behalf of the stockholders set forth in Exhibit A hereto (the "Selling Stockholders"), pursuant to the Registration Statement (as defined below). We have been advised that the Shares were issued pursuant to a Securities Purchase Agreement (the "Securities Purchase Agreement"), dated as of November 7, 2019 by and among the Company and the Selling Stockholders.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K of the General Rules and Regulations under the Securities Act.
In rendering the opinions stated herein, we have examined and relied upon the following:
(a) the registration statement on Form S-1 (File No. 333-235504) of the Company relating to the Shares filed on December 13, 2019 with the Securities and Exchange Commission (the "Commission") under the Securities Act, and Pre-Effective Amendment No. 1 thereto, including the information deemed to be a part of the registration statement pursuant to Rule 430A of the Rules and Regulations (such registration statement being hereinafter referred to as the "Registration Statement");
(b) the prospectus, dated December 20, 2019 (the "Prospectus"), which forms a part of and is included in the Registration Statement;
(c) an executed copy of the Securities Purchase Agreement;
(d) the Registration Rights Agreement, dated November 7, 2019, by and among the Company and the Selling Stockholders;
(e) a copy of the Company's Amended and Restated Certificate of Incorporation, filed as Exhibit 3.1 to the Registration Statement (the "Amended and Restated Certificate of Incorporation");
(f) the Amended and Restated Bylaws of the Company, filed as Exhibit 3.2 to the Registration Statement (the "Amended and Restated Bylaws"); and
(g) a copy of certain resolutions of the Board of Directors of the Company, adopted on November 5, 2019 and certain resolutions of the Pricing Committee thereof, adopted on November 7, 2019.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and the Selling Stockholders and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and the Selling Stockholders and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. With
respect to our opinion set forth below, we have assumed that (i) the Company received the consideration for the Shares set forth in the Securities Purchase Agreement and the applicable board resolutions, (ii) the issuance of the Shares has been registered in the Company's share registry and (iii) the issuance of the Shares does not violate or conflict with any agreement or instrument binding on the Company (except that we do not make this assumption with respect to the Amended and Certificate of Incorporation, the Amended and Restated Bylaws or those agreements or instruments expressed to be governed by the laws of the State of New York which are listed in Part II of the Registration Statement). As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and the Selling Stockholders and others and of public officials, including the factual representations and warranties set forth in the Securities Purchase Agreement.
We do not express any opinion with respect to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware (the "DGCL").
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that the Shares have been duly authorized by all requisite corporate action on the part of the Company under the DGCL and have been validly issued and are fully paid and nonassessable.
We hereby consent to the reference to our firm under the heading "Legal Matters" in the prospectus forming part of the Registration Statement. We also hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations.
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Very truly yours, |
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit A
Selling Stockholders
Selling Stockholder
|
Shares Registered | |||
---|---|---|---|---|
OrbiMed Genesis Master Fund, LP |
137,932 | |||
OrbiMed Partners Master Fund Limited |
344,827 | |||
The Biotech Growth Trust PLC |
344,827 | |||
Franklin Strategic SeriesFranklin Biotechnology Discovery Fund |
172,413 | |||
Franklin Templeton Investment FundsFranklin Biotechnology Discovery Fund |
172,413 | |||
Gregg Smith |
6,897 | |||
Hessler Finance LTD |
70,000 | |||
Timothy Hogue |
13,793 | |||
Laurence Lytton |
55,173 | |||
The Ryan and Brittany Pearson Living Trust |
17,241 | |||
Reinfrank Living Trust |
10,345 | |||
Richard A. Smith |
34,483 |