|
Delaware
(State or other jurisdiction of incorporation or organization) |
| |
2834
(Primary Standard Industrial Classification Code Number) |
| |
85-0870387
(I.R.S. Employer Identification No.) |
|
|
Copies to:
|
| |||
|
Steven M. Skolnick, Esq.
Lowenstein Sandler LLP 1251 Avenue of the Americas New York, New York 10020 Telephone: (212) 262-6700 |
| |
Richard I., Anslow, Esq.
Lawrence Rosenbloom, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, New York 10105 Telephone: (212) 370-1300 |
|
|
Large accelerated filer
☐
|
| |
Accelerated filer
☐
|
|
|
Non-accelerated filer
☒
|
| |
Smaller reporting company
☒
|
|
| | | |
Emerging growth company
☒
|
|
| | |
Per Share
|
| |
Total
|
| ||||||
Initial public offering price
|
| | | $ | | | | | $ | | | ||
Underwriting discounts and commissions(1)
|
| | | $ | | | | | $ | | | ||
Proceeds, before expenses, to us
|
| | | $ | | | | | $ | | |
| The Benchmark Company | | |
Brookline Capital Markets,
a division of Arcadia Securities, LLC
|
|
| | |
Page
|
| |||
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| | | | 43 | | | |
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| | | | 89 | | | |
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| | | | 100 | | | |
| | | | 105 | | | |
| | | | 105 | | | |
| | | | 105 | | | |
| | | | 105 | | | |
| | | | F-1 | | |
| | |
For the Six
Months Ended June 30, 2020 |
| |
For the Six
Months Ended June 30, 2019 |
| |
For the Year
Ended December 31, 2019 |
| |
For the Period
from April 5, 2018 (Inception) through December 31, 2018 |
| ||||||||||||
Statements of Operations Data | | | | | | | | | | | | | | | | | | | | | | | | | |
General and adminsitrative expense
|
| | | $ | 1,532,217 | | | | | $ | 36,915 | | | | | $ | 114,496 | | | | | $ | 12,342 | | |
Stock-based compensation
|
| | | | 955,344 | | | | | | — | | | | | | — | | | | | | — | | |
Research and development expense
|
| | | | 269,947 | | | | | | 215,357 | | | | | | 484,113 | | | | | | 204,161 | | |
Research and development expense – license acquired
|
| | | | — | | | | | | — | | | | | | — | | | | | | 5,776 | | |
Net loss
|
| | | $ | (1,802,164) | | | | | $ | (252,272) | | | | | $ | 598,609 | | | | | $ | 222,279 | | |
|
| | |
6/30/2020
|
| |
6/20/2019
|
| |
12/31/2019
|
| |
12/31/2018
|
| ||||||||||||
Balance Sheet Data | | | | | | ||||||||||||||||||||
Cash
|
| | | $ | 26,865 | | | | | $ | 40,459 | | | | | $ | 24,947 | | | | | $ | 9,322 | | |
Total assets
|
| | | | 26,865 | | | | | | 40,459 | | | | | | 24,947 | | | | | | 9,322 | | |
Working capital (deficit)
|
| | | | (374,365) | | | | | | 6,742 | | | | | | (98,301) | | | | | | 2,721 | | |
Temporary equity(1)
|
| | | | 2,808,148 | | | | | | 501,193 | | | | | | — | | | | | | 232,096 | | |
Accumulated deficit
|
| | | | (2,685,434) | | | | | | (494,451) | | | | | | (863,828) | | | | | | (229,375) | | |
Total members’ deficit
|
| | | | (3,182,513) | | | | | | (494,451) | | | | | | (863,828) | | | | | | (229,375) | | |
| | |
As of
|
| |||||||||||||||
| | |
Actual
|
| |
Pro Forma
|
| |
Pro
Forma as Adjusted |
| |||||||||
| | |
(unaudited)
|
| |||||||||||||||
| | |
(in thousands, except share and per
share data) |
| |||||||||||||||
Cash
|
| | | $ | 27 | | | | | $ | 127 | | | | | $ | 13,102 | | |
Preferred shares, 2,696,439 issued and outstanding at June 30, 2020; aggregate liquidation preferences of $2,808,148 as of June 30, 2020 (pro forma and pro forma adjusted)
|
| | | | 2,808 | | | | | | — | | | | | | — | | |
Stockholders’ equity (deficit): | | | | | | | | | | | | | | | | | | | |
Common units, 5,775,898 shares issued and outstanding (actual); 7,355,555
shares issued and outstanding (pro forma); 9,855,555 issued and outstanding (pro forma as adjusted) |
| | | | | | | | | | | | | | | | | | |
Additional paid in capital
|
| | | | (497) | | | | | | 2,411 | | | | | | 15,407 | | |
Accumulated deficit
|
| | | | (2,685) | | | | | | (2,686) | | | | | | (2,707) | | |
Total stockholders’ equity (deficit)
|
| | | | (3,182) | | | | | | (275) | | | | | | 12,700 | | |
Total capitalization
|
| | | $ | (3,182) | | | | | $ | (275) | | | | | $ | 12,700 | | |
|
Assumed initial public offering price per share
|
| | | $ | 6.00 | | |
|
Historical net tangible book value per share as of June 30, 2020
|
| | | $ | (0.55) | | |
|
Pro forma increase in net tangible book value per share attributable to the conversion of preferred stock and the conversion of the 2020 Notes
|
| | | $ | 0.51 | | |
|
Pro forma net tangible book value per share as of June 30, 2020
|
| | | $ | (0.04) | | |
|
Pro forma increase in net tangible book value per share attributable to new investors
|
| | | $ | 1.33 | | |
|
Pro forma as adjusted net tangible book value per share after this offering
|
| | | $ | 1.29 | | |
|
Dilution per share to new investors participating in this offering
|
| | | $ | 4.71 | | |
| | |
Shares Purchased
|
| |
Total Consideration
|
| |
Average Price
Per Share |
| |||||||||||||||||||||
| | |
Number
|
| |
Percent
|
| |
Amount
|
| |
Percent
|
| ||||||||||||||||||
Existing stockholders
|
| | | | 7,355,555 | | | | | | 74.6% | | | | | $ | 878,718 | | | | | | 5.8% | | | | | $ | 0.12 | | |
Investors participating in this offering
|
| | | | 2,500,000 | | | | | | 25.4% | | | | | $ | 15,000,000 | | | | | | 94.2% | | | | | $ | 6.00 | | |
Total
|
| | | | 9,855,555 | | | | | | 100% | | | | | $ | 15,878,718 | | | | | | 100% | | | | | $ | 1.61 | | |
| | |
Six Months Ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Operating expenses
|
| | | | | | | | | | | | |
General and administrative
|
| | | $ | 1,532,218 | | | | | $ | 36,915 | | |
Research and development
|
| | | | 269,947 | | | | | | 215,357 | | |
Total operating expenses
|
| | | | 1,802,165 | | | | | | 252,272 | | |
Loss from operations
|
| | | | (1,802,165) | | | | | | (252,272) | | |
Net loss
|
| | | $ | (1,802,165) | | | | | $ | (252,272) | | |
| | |
For the
Year Ended December 31, 2019 |
| |
For the Period
from April 5, 2018 (Inception) through December 31, 2018 |
| ||||||
Operating expenses | | | | | | | | | | | | | |
General and administrative
|
| | | | 114,496 | | | | | | 12,342 | | |
Research and development
|
| | | | 484,113 | | | | | | 204,161 | | |
Research and development – license acquired
|
| | | | — | | | | | | 5,776 | | |
Total operating expenses
|
| | | | 598,609 | | | | | | 222,279 | | |
Loss from operations
|
| | | | (598,609) | | | | | | (222,279) | | |
Net loss
|
| | | $ | (598,609) | | | | | $ | (222,279) | | |
Weighted average number of common shares outstanding, basic and diluted
|
| | | | 5,775,898 | | | | | | 5,775,898 | | |
Net loss per share, basic and diluted
|
| | | $ | (0.10) | | | | | $ | (0.04) | | |
Outcome
|
| |
Suramin
|
| |
Placebo
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Instruments
|
| |
Factor or
behaviour |
| |
Time after
Treatement (days) |
| |
Difference from
baseline (mean ± SD) |
| |
95% CI
|
| |
d(1)
|
| |
N
|
| |
P(2)
|
| |
p(3)
|
| |
Difference from
baseline (mean ± SD) |
| |
95% CI
|
| |
d(1)
|
| |
N
|
| |
P(2)
|
| |
p(3)
|
| |||||||||||||||||||||||||||
Primary outcomes | | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
ADOS-2
|
| | Comparision | | | | | 45 | | | |
-1.6 ± 0.55
|
| |
-2.3 to -0.9
|
| | | | 2.9 | | | | | | 5 | | | | | | 0.0028 | | | | | | 0.038 | | | |
-0.4 ± 0.55
|
| |
-1.1 to + 0.28
|
| | | | 0.7 | | | | | | 5 | | | | | | 0.18 | | | | | | 0.16 | | |
| | | Raw | | | | | 45 | | | |
-4.6 ± 1.9
|
| |
-7.0. to -2.2
|
| | | | 2.4 | | | | | | 5 | | | | | | 0.0062 | | | | | | 0.039 | | | |
-0.4 ± 1.8
|
| |
-2.7 to +1.9
|
| | | | 0.22 | | | | | | 5 | | | | | | 0.65 | | | | | | 0.58 | | |
| | | Social | | | | | 45 | | | |
-3.2 ± 1.9
|
| |
-5.6 to -0.8
|
| | | | 1.7 | | | | | | 5 | | | | | | 0.020 | | | | | | 0.043 | | | |
0.0 ± 1.7
|
| |
-2.2 to +2.2
|
| | | | 0 | | | | | | 5 | | | | | | 0.99 | | | | | | 0.71 | | |
| | | Rest/Rep | | | | | 45 | | | |
-1.4 ± 0.89
|
| |
-2.5 to -0.29
|
| | | | 1.6 | | | | | | 5 | | | | | | 0.025 | | | | | | 0.059 | | | |
-0.4 ± 2.1
|
| |
-3.0 to +2.2
|
| | | | 0.19 | | | | | | 5 | | | | | | 0.69 | | | | | | 0.58 | | |
EOWPVT
|
| | Vocabulary | | | | | 45 | | | |
-4.2 ± -8.3
|
| |
-14.50 to +6.1
|
| | | | -0.51 | | | | | | 5 | | | | | | 0.32 | | | | | | 0.50 | | | |
+2.0 ± 4.6
|
| |
-3.8 to +7.8
|
| | | | 0.43 | | | | | | 5 | | | | | | 0.39 | | | | | | 0.50 | | |
Secondary Outcomes | | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
ABC
|
| | Stereotypy | | | | | 7 | | | |
-3.6 ± 2.1
|
| |
-6.2 to -1.0
|
| | | | 1.7 | | | | | | 5 | | | | | | 0.018 | | | | | | 0.043 | | | |
+0.4 ± 1.9
|
| |
-2.0 to +2.8
|
| | | | -0.21 | | | | | | 5 | | | | | | 0.67 | | | | | | 0.68 | | |
| | | Stereotypy | | | | | 45 | | | |
-4.0 ± 2.3
|
| |
-6.9 to -1.1
|
| | | | 1.7 | | | | | | 5 | | | | | | 0.019 | | | | | | 0.042 | | | |
+1.0 ± 4.3
|
| |
4.3 to +6.3
|
| | | | -0.23 | | | | | | 5 | | | | | | 0.63 | | | | | | 0.69 | | |
ATEC
|
| | Total | | | | | 7 | | | |
-10 ± 7.7
|
| |
-20 to -0.46
|
| | | | 1.3 | | | | | | 5 | | | | | | 0.044 | | | | | | 0.043 | | | |
+7.2 ± 14
|
| |
-10 to +25
|
| | | | -0.51 | | | | | | 5 | | | | | | 0.32 | | | | | | 0.35 | | |
| | | Language | | | | | 7 | | | |
-2.2 ± 1.5
|
| |
-4.0 to -0.36
|
| | | | 1.4 | | | | | | 5 | | | | | | 0.021 | | | | | | 0.059 | | | |
0.0 ± 4.1
|
| |
-5.0 to +5.0
|
| | | | 0 | | | | | | 5 | | | | | | 0.99 | | | | | | 0.89 | | |
| | | Sociability | | | | | 7 | | | |
-3.6 ± 2.6
|
| |
-6.8 to -0.36
|
| | | | 1.4 | | | | | | 5 | | | | | | 0.025 | | | | | | 0.063 | | | |
-0.8 ± 2.8
|
| |
4.3 to +2.6
|
| | | | 0.29 | | | | | | 5 | | | | | | 0.55 | | | | | | 0.58 | | |
| | | Language | | | | | 45 | | | |
-2.0 ± 1.4
|
| |
-2.7 to -0.49
|
| | | | 1.4 | | | | | | 5 | | | | | | 0.034 | | | | | | 0.059 | | | |
-0.2 ± 2.9
|
| |
-3.8 to +3.4
|
| | | | 0.07 | | | | | | 5 | | | | | | 0.88 | | | | | | 0.79 | | |
CGI
|
| |
Overall ASD
|
| | | | 45 | | | |
-1.8 ± 1.04
|
| |
-3.4 to -0.15
|
| | | | 1.7 | | | | | | 5 | | | | | | 0.05 | | | | | | n/a | | | |
0.0 ± 0.34
|
| |
-0.55 to +0.55
|
| | | | 0 | | | | | | 5 | | | | | | 0.99 | | | | | | n/a | | |
| | |
E. Language
|
| | | | 45 | | | |
-2.0 ± 1.04
|
| |
-3.6 to -0.35
|
| | | | 1.9 | | | | | | 5 | | | | | | 0.01 | | | | | | n/a | | | |
0.0 ± 0.34
|
| |
-0.55 to +0.55
|
| | | | 0 | | | | | | 5 | | | | | | 0.99 | | | | | | n/a | | |
| | |
Social Inter.
|
| | | | 45 | | | |
-2.0 ± 1.04
|
| |
-3.6 to -0.35
|
| | | | 1.9 | | | | | | 5 | | | | | | 0.01 | | | | | | n/a | | | |
0.0 ± 0.34
|
| |
-0.55 to +0.55
|
| | | | 0 | | | | | | 5 | | | | | | 0.99 | | | | | | n/a | | |
RBQ
|
| | Total | | | | | 45 | | | |
-3.2 ± 5.8
|
| |
-10.4 to +4.0
|
| | | | 0.55 | | | | | | 5 | | | | | | 0.28 | | | | | | 0.22 | | | |
-0.8 ± 3.3
|
| |
-4.9 to 3.3
|
| | | | 0.24 | | | | | | 5 | | | | | | 0.62 | | | | | | 0.47 | | |
Name
|
| |
Age
|
| |
Position(s)
|
|
Howard J. Weisman | | | 61 | | | Chief Executive Officer and Class III Director | |
Joseph Lucchese | | | 54 | | | Chief Financial Officer | |
Michael Derby | | | 47 | | |
Executive Chairman of the Board and Class II Director
|
|
Zachary Rome | | | 36 | | | Chief Operating Officer and Class I Director | |
David Hough, MD | | | 63 | | | Chief Medical Officer | |
Karen Dawes | | | 69 | | | Class III Director | |
Karen LaRochelle | | | 53 | | | Class II Director | |
Paul K. Wotton, Ph.D. | | | 60 | | | Class III Director | |
Robert Apple | | | 54 | | | Class I Director | |
Name of Beneficial Owner(1)
|
| |
Number of
Shares Beneficially Owned(2) |
| |
Percentage
Owned Prior to the Offering |
| |
Percentage
Owned After the Offering(3) |
| | |||||||||||
5% Stockholders | | | | | | | | | | | | | | | | | | | | | ||
TardiMed Sciences, LLC(4)(7)
|
| | | | 7,241,745 | | | | | | 98.8% | | | | | | 73.5% | | | | ||
Directors and Executive Officers | | | | | | | | | | | | | | | | | | | | | ||
Howard J. Weisman(5)
|
| | | | — | | | | | | — | | | | | | — | | | | ||
Joseph Lucchese(6)
|
| | | | — | | | | | | — | | | | | | — | | | | ||
Michael Derby(7)
|
| | | | 7,241,745 | | | | | | 98.8 | | | | | | — | | | | ||
Zachary Rome(8)
|
| | | | 78,124 | | | | | | * | | | | | | — | | | | ||
David Hough, MD
|
| | | | — | | | | | | — | | | | | | — | | | | ||
Karen Dawes(9)
|
| | | | — | | | | | | — | | | | | | — | | | | ||
Karen | | | | | — | | | | | | — | | | | | | — | | | | ||
LaRochelle | | | | | — | | | | | | — | | | | | | — | | | | ||
Paul K. Wotton, Ph.D.
|
| | | | — | | | | | | — | | | | | | — | | | | ||
Robert Apple
|
| | | | — | | | | | | — | | | | | | — | | | | ||
Directors and Executive Officers as a group (9 persons)
|
| | | | 7,314,661 | | | | | | 99.7 | | | | | | 74.2 | | | | | |
Date Available for Sale
|
| |
Shares Eligible for Sale
|
| |
Description
|
|
Date of Prospectus | | |
2,500,000
|
| | Shares sold in the offering that are not subject to a lock-up | |
90 Days after Date of Prospectus | | |
—
|
| | Shares saleable under Rules 144 and 701 that are not subject to a lock-up | |
180 Days after Date of Prospectus | | |
809,721
|
| | Lock-up released; shares saleable under Rules 144 and 701 | |
Underwriter
|
| |
Number of
shares of common stock |
| |||
The Benchmark Company, LLC
|
| |
|
| |||
Brookline Capital Markets, a division of Arcadia Securities, LLC
|
| | |||||
Total:
|
| | | | | |
| | |
Per Share of
Common Stock |
| |
Total without
Exercise of Over-allotment option |
| |
Total with
Exercise of Over-allotment option |
| |||||||||
Public offering price
|
| | | $ | | | | | $ | | | | | $ | | | |||
Underwriting discount(1)
|
| | | $ | | | | | $ | | | | | $ | | | |||
Non-accountable expense allowance(2)
|
| | | $ | | | | | $ | | | | | $ | | | |||
Net proceeds to us
|
| | | $ | | | | | $ | | | | | $ | | |
| | |
Page No.
|
| |||
Audited Financial Statements
|
| | |||||
| | | | F-2 | | | |
| | | | F-3 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
| | | | F-7 | | |
| | |
Page No.
|
| |||
Interim Condensed Financial Statements (Unaudited)
|
| | |||||
| | | | F-14 | | | |
| | | | F-15 | | | |
| | | | F-16 | | | |
| | | | F-17 | | | |
| | | | F-18 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
ASSETS | | | | | | | | | | | | | |
Current assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 24,947 | | | | | $ | 9,322 | | |
Total current assets
|
| | | | 24,947 | | | | | | 9,322 | | |
Total assets
|
| | | $ | 24,947 | | | | | $ | 9,322 | | |
LIABILITIES, TEMPORARY EQUITY AND MEMBERS’ DEFICIT | | | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 41,023 | | | | | $ | — | | |
Accounts payable – related party
|
| | | | 15,325 | | | | | | 2,454 | | |
Accrued expenses
|
| | | | 66,900 | | | | | | 4,147 | | |
Total current liabilities
|
| | | | 123,248 | | | | | | 6,601 | | |
Total liabilities
|
| | | | 123,248 | | | | | | 6,601 | | |
Temporary equity | | | | ||||||||||
Preferred units, 1,445,173 and 450,000 shares issued and outstanding at December 31, 2019 and 2018; liquidation preference of $765,527 and $232,096 and of December 31, 2019 and 2018, respectively
|
| | | | 765,527 | | | | | | 232,096 | | |
Commitments and contingencies (Note 7) | | | | | | | | | | | | | |
Members’ deficit | | | | | | | | | | | | | |
Accumulated deficit
|
| | | | (863,828) | | | | | | (229,375) | | |
Total members’ deficit
|
| | | | (863,828) | | | | | | (229,375) | | |
Total liabilities, temporary equity and members’ deficit
|
| | | $ | 24,947 | | | | | $ | 9,322 | | |
| | |
For the Year
Ended December 31, 2019 |
| |
For the Period
from April 5, 2018 (Inception) through December 31, 2018 |
| ||||||
Operating expenses | | | | | | | | | | | | | |
General and administrative
|
| | | $ | 114,496 | | | | | $ | 12,342 | | |
Research and development
|
| | | | 484,113 | | | | | | 204,161 | | |
Research and development – license acquired
|
| | | | — | | | | | | 5,776 | | |
Total operating expenses
|
| | | | 598,609 | | | | | | 222,279 | | |
Loss from operations
|
| | | | (598,609) | | | | | | (222,279) | | |
Net loss
|
| | | $ | (598,609) | | | | | $ | (222,279) | | |
Proforma weighted average number of common shares outstanding, basic and
diluted |
| | | | 5,775,898 | | | | | | 5,775,898 | | |
Proforma net loss per share, basic and diluted
|
| | | $ | (0.10) | | | | | $ | (0.04) | | |
| | |
Common Stock
|
| |
Accumulated
Deficit |
| |
Total
Members' Deficit |
| |||||||||||||||
| | |
Units
|
| |
Amount
|
| ||||||||||||||||||
Balance at April 5, 2018 (Inception)
|
| | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Contribution from TardiMed
|
| | | | 5,775,898 | | | | | | — | | | | | | — | | | | | | | | |
Accrued preferred unit dividend
|
| | | | — | | | | | | — | | | | | | (7,096) | | | | | | (7,096) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (222,279) | | | | | | (222,279) | | |
Balance at December 31, 2018
|
| | | | 5,775,898 | | | | | $ | — | | | | | $ | (229,375) | | | | | $ | (229,375) | | |
Accrued preferred unit dividend
|
| | | | — | | | | | | — | | | | | | (35,844) | | | | | | (35,844) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (598,609) | | | | | | (598,609) | | |
Balance at December 31, 2019
|
| | | | 5,775,898 | | | | | $ | — | | | | | $ | (863,828) | | | | | $ | (863,828) | | |
| | |
For the Year
Ended December 31, 2019 |
| |
For the Period
from April 5, 2018 (Inception) through December 31, 2018 |
| ||||||
Cash flows from operating activities | | | | | | | | | | | | | |
Net loss
|
| | | $ | (598,609) | | | | | $ | (222,279) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Research and development-licenses acquired, expense
|
| | | | — | | | | | | 5,776 | | |
Non-cash contribution from TardiMed
|
| | | | 62,587 | | | | | | — | | |
Changes in assets and liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | | 41,023 | | | | | | — | | |
Accounts payable – related party
|
| | | | 12,871 | | | | | | 2,454 | | |
Accrued expenses
|
| | | | 62,753 | | | | | | 4,147 | | |
Net cash used in operating activities
|
| | | | (419,375) | | | | | | (209,902) | | |
Cash flows from investing activities | | | | | | | | | | | | | |
Purchase of research and development licenses
|
| | | | — | | | | | | (5,776) | | |
Net cash used in investing activities
|
| | | | — | | | | | | (5,776) | | |
Cash flows from financing activities | | | | | | | | | | | | | |
Contribution from TardiMed
|
| | | | 435,000 | | | | | | 200,000 | | |
Contribution from a third-party
|
| | | | — | | | | | | 25,000 | | |
Net cash provided by financing activities
|
| | | | 435,000 | | | | | | 225,000 | | |
Net increase in cash
|
| | | | 15,625 | | | | | | 9,322 | | |
Cash, beginning of period
|
| | | | 9,322 | | | | | | — | | |
Cash, end of period
|
| | | $ | 24,947 | | | | | $ | 9,322 | | |
Non cash financing activities: | | | | | | | | | | | | | |
Accrued preferred unit dividend
|
| | | $ | 35,844 | | | | | $ | 7,096 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Accrued expenses: | | | | | | | | | | | | | |
Research and development
|
| | | $ | 66,900 | | | | | $ | 4,147 | | |
Total accrued expenses
|
| | | $ | 66,900 | | | | | $ | 4,147 | | |
| | |
Preferred Units
|
| |||||||||
| | |
Shares
|
| |
Amount
|
| ||||||
Balance at April 5, 2018 (Inception)
|
| | | | — | | | | | $ | — | | |
Contribution from TardiMed
|
| | | | 400,000 | | | | | | 200,000 | | |
Contribution from a third-party
|
| | | | 50,000 | | | | | | 25,000 | | |
Accrued preferred unit dividend
|
| | | | — | | | | | | 7,096 | | |
Balance at December 31, 2018
|
| | | | 450,000 | | | | | $ | 232,096 | | |
Contribution from TardiMed
|
| | | | 870,000 | | | | | | 435,000 | | |
Non-cash contribution from TardiMed
|
| | | | 125,173 | | | | | | 62,587 | | |
Accrued preferred unit dividend
|
| | | | — | | | | | | 35,844 | | |
Balance at December 31, 2019
|
| | | | 1,445,173 | | | | | $ | 765,527 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Net Loss
|
| | | $ | (598,609) | | | | | $ | (222,279) | | |
Cumulative Dividends
|
| | | | (35,844) | | | | | | (7,096) | | |
Net Loss applicable to common unit holder
|
| | | $ | (634,453) | | | | | $ | (229,375) | | |
Weighted average number of common shares outstanding, basic and diluted
|
| | | | 5,775,898 | | | | | | 5,775,898 | | |
Pro forma net loss per share, basic and diluted
|
| | | $ | (0.10) | | | | | $ | (0.04) | | |
Pro forma net loss applicable to common unit holder per share, basic and diluted
|
| | | $ | (0.11) | | | | | $ | (0.04) | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
| | |
(Unaudited)
|
| | | | | | | |||
ASSETS | | | | | | | | | | | | | |
Current assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 26,865 | | | | | $ | 24,947 | | |
Total assets
|
| | | $ | 26,865 | | | | | $ | 24,947 | | |
LIABILITIES, TEMPORARY EQUITY, AND MEMBERS’ AND STOCKHOLDERS’ DEFICIT
|
| | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 304,412 | | | | | $ | 41,023 | | |
Accounts payable – related party
|
| | | | 7,988 | | | | | | 15,325 | | |
Accrued expenses
|
| | | | 88,830 | | | | | | 66,900 | | |
Total current liabilities
|
| | | | 401,230 | | | | | | 123,248 | | |
Total liabilities
|
| | | | 401,230 | | | | | | 123,248 | | |
Temporary equity | | | | | | | | | | | | | |
Preferred units, 1,516,141 shares issued and outstanding at December 31, 2019;
aggregate liquidation preference of $765,527 as of December 31, 2019 |
| | | | — | | | | | | 765,527 | | |
Preferred shares, par value $.0001; 2,696,439 shares authorized; 2,696,439 shares issued and outstanding at June 30, 2020; aggregate liquidation preference of $2,808,148
|
| | | | 2,808,148 | | | | | | — | | |
Commitments and contingencies (Note 7) | | | | | | | | | | | | | |
Members’ and stockholders deficit | | | | | | | | | | | | | |
Common stock – member units
|
| | | | — | | | | | | — | | |
Common stock, par value $.0001; 20,000,000 shares authorized at June 30, 2020; 5,775,898 shares issued and outstanding at June 30, 2020
|
| | | | — | | | | | | — | | |
Additional paid-in capital
|
| | | | (497,079) | | | | | | — | | |
Accumulated deficit
|
| | | | (2,685,434) | | | | | | (863,828) | | |
Total members’ and stockholders’ deficit
|
| | | | (3,182,513) | | | | | | (863,828) | | |
Total liabilities, temporary equity, and members’ and stockholders’ deficit
|
| | | $ | 26,865 | | | | | $ | 24,947 | | |
| | |
Six Months Ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Operating expenses | | | | | | | | | | | | | |
General and administrative
|
| | | $ | 1,532,217 | | | | | $ | 36,915 | | |
Research and development
|
| | | | 269,947 | | | | | | 215,357 | | |
Total operating expenses
|
| | | | 1,802,164 | | | | | | 252,272 | | |
Loss from operations
|
| | | | (1,802,164) | | | | | | (252,272) | | |
Net loss
|
| | | $ | (1,802,164) | | | | | $ | (252,272) | | |
Less: Accrued preferred unit and stock dividend
|
| | | | (19,442) | | | | | | (12,804) | | |
Less: Deemed dividend – beneficial conversion feature on preferred stock
|
| | | | (1,452,422) | | | | | | — | | |
Net loss attributable to common stockholders
|
| | | $ | (3,274,028) | | | | | $ | (265,076) | | |
Weighted average number of common shares outstanding, basic and diluted
|
| | | | 5,775,898 | | | | | | 5,775,898 | | |
Net loss per share, basic and diluted
|
| | | $ | (0.31) | | | | | $ | (0.04) | | |
| | |
Common Units
|
| |
Common Stock
|
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Members’ and Stockholders’ Deficit |
| |||||||||||||||||||||||||||
| | |
Units
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance at January 1, 2020
|
| | | | 5,775,898 | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | (863,828) | | | | | $ | (863,828) | | |
Conversion of common units to common stock
|
| | |
|
(5,775,898)
|
| | | |
|
—
|
| | | |
|
5,775,898
|
| | | |
|
—
|
| | | |
|
—
|
| | | | | — | | | | | | — | | |
Stock-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | 955,344 | | | | | | — | | | | | | 955,344 | | |
Accrued preferred unit and stock
dividend |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (19,442) | | | | | | (19,442) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,802,164) | | | | | | (1,802,164) | | |
Deemed dividend – beneficial conversion feature on preferred stock
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,452,423) | | | | | | — | | | | | | (1,452,423) | | |
Balance at June 30, 2020
|
| | | | — | | | | | $ | — | | | | | | 5,775,898 | | | | | $ | — | | | | | $ | (497,079) | | | | | $ | (2,685,434) | | | | | $ | (3,182,513) | | |
|
| | |
Common Stock
|
| |
Accumulated
Deficit |
| |
Total
Members’ and Stockholders’ Deficit |
| |||||||||||||||
| | |
Units
|
| |
Amount
|
| ||||||||||||||||||
Balance at January 1, 2019
|
| | | | 5,775,898 | | | | | $ | — | | | | | $ | (229,375) | | | | | $ | (229,375) | | |
Accrued preferred unit dividend
|
| | | | — | | | | | | — | | | | | | (12,804) | | | | | | (12,804) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (252,272) | | | | | | (252,272) | | |
Balance at June 30, 2019
|
| | | | 5,775,898 | | | | | $ | — | | | | | $ | (494,451) | | | | | $ | (494,451) | | |
| | |
Six Months Ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Cash flows from operating activities | | | | | | | | | | | | | |
Net loss
|
| | | $ | (1,802,164) | | | | | $ | (252,272) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Stock-based compensation
|
| | | | 955,344 | | | | | | — | | |
Non-cash contribution from TardiMed
|
| | | | 50,757 | | | | | | 31,293 | | |
Changes in assets and liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | | 263,388 | | | | | | 30,218 | | |
Accounts payable – related party
|
| | | | (7,337) | | | | | | 1,045 | | |
Accrued expenses
|
| | | | 21,930 | | | | | | (4,147) | | |
Net cash used in operating activities
|
| | | | (518,082) | | | | | | (193,863) | | |
Cash flows from financing activities | | | | | | | | | | | | | |
Contribution from TardiMed
|
| | | | 470,000 | | | | | | 225,000 | | |
Third party investor contributions
|
| | | | 50,000 | | | | | | — | | |
Net cash provided by financing activities
|
| | | | 520,000 | | | | | | 225,000 | | |
Net increase in cash
|
| | | | 1,918 | | | | | | 31,137 | | |
Cash, beginning of period
|
| | | | 24,947 | | | | | | 9,322 | | |
Cash, end of period
|
| | | $ | 26,865 | | | | | $ | 40,459 | | |
Non cash financing activities: | | | | | | | | | | | | | |
Deemed dividend – beneficial conversion feature on preferred stock
|
| | | $ | 1,452,423 | | | | | $ | — | | |
Accrued preferred unit and stock dividend
|
| | | $ | 19,442 | | | | | $ | 12,804 | | |
| | |
June 30,
2020 |
| |||
Preferred stock
|
| | | | 1,557,435 | | |
Stock options
|
| | | | 787,499 | | |
Total
|
| | | | 2,344,933 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Accrued expenses: | | | | | | | | | | | | | |
Research and development
|
| | | $ | 9,600 | | | | | $ | 66,900 | | |
Audit fees
|
| | | | 20,600 | | | | | | — | | |
Employee and related expenses
|
| | | | 58,630 | | | | | | — | | |
Total accrued expenses
|
| | | $ | 88,830 | | | | | $ | 66,900 | | |
| | |
Six Months Ended June 30, 2020
|
| |
Year Ended December 31, 2019
|
| ||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Units
|
| |
Amount
|
| ||||||||||||
Opening balance
|
| | | | 1,516,041 | | | | | $ | 765,527 | | | | | | 450,000 | | | | | $ | 232,096 | | |
Contribution from TardiMed
|
| | | | 940,000 | | | | | | 470,000 | | | | | | 870,000 | | | | | | 435,000 | | |
Investor contributions
|
| | | | 100,000 | | | | | | 50,000 | | | | | | — | | | | | | — | | |
Non-cash contribution from TardiMed
|
| | | | 101,514 | | | | | | 50,757 | | | | | | 125,173 | | | | | | 62,587 | | |
Accrued preferred unit dividend
|
| | | | 38,884 | | | | | | 19,442 | | | | | | — | | | | | | 35,844 | | |
Deemed dividend – beneficial conversion feature
on preferred stock |
| | | | — | | | | | | 1,452,422 | | | | | | — | | | | | | — | | |
Ending balance
|
| | | | 2,696,439 | | | | | $ | 2,808,148 | | | | | | 1,445,173 | | | | | $ | 765,527 | | |
| | |
Preferred Units
|
| |||||||||
| | |
Units
|
| |
Amount
|
| ||||||
Balance at January 1, 2019
|
| | | | 464,192 | | | | | $ | 232,096 | | |
Contribution from TardiMed
|
| | | | 450,000 | | | | | | 225,000 | | |
Non-cash contribution from TardiMed
|
| | | | 62,587 | | | | | | 31,293 | | |
Accrued preferred unit dividend
|
| | | | 25,609 | | | | | | 12,804 | | |
Balance at June 30, 2019
|
| | | | 1,002,388 | | | | | $ | 501,193 | | |
| | |
Number of Shares
|
| |
Weighted Average
Exercise Price |
| |
Total Intrinsic
Value |
| |
Weighted Average
Remaining Contractual Life (in years) |
| ||||||||||||
Outstanding as of December 31, 2019
|
| | | | — | | | | | $ | — | | | | | $ | — | | | | | | — | | |
Granted
|
| | | | 787,499 | | | | | | 0.19 | | | | | $ | 4,236,391 | | | | | | 9.8 | | |
Outstanding as of June 30, 2020
|
| | | | 787,499 | | | | | $ | 0.19 | | | | | $ | 4,236,391 | | | | | | 9.8 | | |
Options vested and expected to vest as of June 30, 2020
|
| | | | 787,499 | | | | | $ | 0.19 | | | | | $ | 4,236,391 | | | | | | 9.8 | | |
Options vested and exercisable as of June 30, 2020
|
| | | | 84,375 | | | | | $ | 0.19 | | | | | $ | 453,898 | | | | | | 9.8 | | |
| The Benchmark Company | | |
Brookline Capital Markets,
a division of Arcadia Securities, LLC
|
|
|
SEC Filing Fee
|
| | | $ | 2,395.78 | | |
|
FINRA Fee
|
| | | $ | 3,268.63 | | |
|
Underwriter Legal Fees and Expenses.
|
| | | $ | 100,000.00 | | |
|
Nasdaq Fee
|
| | | $ | 50,000.00 | | |
|
Printing Expenses
|
| | | $ | 85,000.00 | | |
|
Accounting Fees and Expenses
|
| | | $ | 120,000.00 | | |
|
Legal Fees and Expenses
|
| | | $ | 415,000.00 | | |
|
Transfer Agent and Registrar Expenses
|
| | | $ | 24,100.00 | | |
|
Miscellaneous
|
| | | $ | 5,236.00 | | |
|
Total
|
| | | $ | 805,000.00 | | |
| | | | PAXMEDICA, INC. | |
| | | |
/s/ Howard J. Weisman
Howard J. Weisman
|
|
| | | | Chief Executive Officer | |
| | | | (Principal Executive Officer) | |
|
Signature
|
| |
Title
|
| |
Date
|
|
|
/s/ Howard J. Weisman
Howard J. Weisman
|
| |
Chief Executive Officer and Director
(Principal Executive Officer) |
| | September 2, 2020 | |
|
/s/ Joseph Lucchese
Joseph Lucchese
|
| |
Chief Financial Officer
(Principal Financial and Accounting Officer) |
| | September 2, 2020 | |
|
*
Zachary Rome
|
| |
Chief Operating Officer and Director
|
| | September 2, 2020 | |
|
*
David Hough, M.D.
|
| |
Chief Medical Officer
|
| | September 2, 2020 | |
|
*
Michael Derby
|
| |
Executive Chairman and Director
|
| | September 2, 2020 | |
|
*
Karen Dawes
|
| |
Director
|
| | September 2, 2020 | |
|
*
Karen LaRochelle
|
| |
Director
|
| | September 2, 2020 | |
|
*
Paul Wotton, Ph.D.
|
| |
Director
|
| | September 2, 2020 | |
|
*
Robert Apple
|
| |
Director
|
| | September 2, 2020 | |
| *By: | | |
/s/ Joseph Lucchese
Joseph Lucchese, Attorney-In-Fact
|
|
Exhibit 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
PAXMEDICA, INC.
PaxMedica, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies as follows:
1. The name of this corporation is PaxMedica, Inc. The date of the filing of its original certificate of incorporation with the Secretary of State of the State of Delaware was April 15, 2020.
2. This Amended and Restated Certificate of Incorporation, which restates, integrates and further amends the certificate of incorporation of this corporation as heretofore amended and restated, has been duly adopted by the corporation in accordance with Sections 242 and 245 of the DGCL and has been adopted by the requisite vote of the stockholders of the corporation, acting by written consent in lieu of a meeting in accordance with Section 228 of the DGCL.
3. The certificate of incorporation of this corporation is hereby amended and restated in its entirety to read as follows:
ARTICLE I
The name of the corporation is “PaxMedica, Inc.” (hereinafter called the “Corporation”).
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, city of Wilmington, county of New Castle, Delaware 19808. The name of its registered agent at such address is Corporate Service Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware or any applicable successor act thereto, as the same may be amended from time to time (the “DGCL”).
ARTICLE IV
(A) Classes of Stock. The total number of shares of all classes of capital stock that the Corporation is authorized to issue is one hundred and ten million (110,000,000) shares which shall be divided into two classes of stock to be designated “Common Stock” and “Preferred Stock”. The total number of shares of Common Stock that the Corporation is authorized to issue is one hundred million (100,000,000) shares, par value $0.0001 per share. The total number of shares of Preferred Stock that the Corporation is authorized to issue is ten million (10,000,000) shares, par value $0.0001 per share. Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of any of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of any of the Common Stock or Preferred Stock voting separately as a class shall be required therefor.
1 |
(B) Common Stock. The powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations and restrictions of the Common Stock are as follows:
1. Ranking. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any series as may be designated by the Board of Directors of the Corporation (the “Board”) upon any issuance of the Preferred Stock of any series.
2. Voting. Except as otherwise provided by law or by the resolution or resolutions providing for the issue of any series of Preferred Stock, the holders of outstanding shares of Common Stock shall have the exclusive right to vote for the election and removal of directors and for all other purposes. Notwithstanding any other provision of this Amended and Restated Certificate of Incorporation (as the same may be amended and/or restated from time to time, including by the terms of any Preferred Stock Designation (as defined below), this “Certificate of Incorporation”) to the contrary, except as required by law the holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) or the DGCL.
3. Dividends. Subject to the rights of the holders of Preferred Stock, holders of shares of Common Stock shall be entitled to receive such dividends and distributions and other distributions in cash, stock or property of the Corporation when, as and if declared thereon by the Board from time to time out of assets or funds of the Corporation legally available therefor.
4. Liquidation. Subject to the rights of the holders of Preferred Stock, shares of Common Stock shall be entitled to receive the assets and funds of the Corporation available for distribution in the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary. A liquidation, dissolution or winding up of the affairs of the Corporation, as such terms are used in this Section B(4), shall not be deemed to be occasioned by or to include any consolidation or merger of the Corporation with or into any other person or a sale, lease, exchange or conveyance of all or a part of its assets.
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(C) Preferred Stock.
Shares of Preferred Stock may be issued from time to time in one or more series. The Board is hereby authorized to provide by resolution or resolutions from time to time for the issuance, out of the unissued shares of Preferred Stock, of one or more series of Preferred Stock, without stockholder approval, by filing a certificate pursuant to the applicable law of the State of Delaware (the “Preferred Stock Designation”), setting forth such resolution and, with respect to each such series, establishing the number of shares to be included in such series, and fixing the voting powers, full or limited, or no voting power of the shares of such series, and the designation, preferences and relative, participating, optional or other special rights, if any, of the shares of each such series and any qualifications, limitations or restrictions thereof. The powers, designation, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations and restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. The authority of the Board with respect to each series of Preferred Stock shall include, but not be limited to, the determination of the following:
(a) the designation of the series, which may be by distinguishing number, letter or title;
(b) the number of shares of the series, which number the Board may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding);
(c) the amounts or rates at which dividends will be payable on, and the preferences, if any, of shares of the series in respect of dividends, and whether such dividends, if any, shall be cumulative or noncumulative;
(d) the dates on which dividends, if any, shall be payable;
(e) the redemption rights and price or prices, if any, for shares of the series;
(f) the terms and amount of any sinking fund, if any, provided for the purchase or redemption of shares of the series;
(g) the amounts payable on, and the preferences, if any, of shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation;
(h) whether the shares of the series shall be convertible into or exchangeable for, shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;
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(i) restrictions on the issuance of shares of the same series or any other class or series;
(j) the voting rights, if any, of the holders of shares of the series generally or upon specified events; and
(k) any other powers, preferences and relative, participating, optional or other special rights of each series of Preferred Stock, and any qualifications, limitations or restrictions thereof, all as may be determined from time to time by the Board and stated in the resolution or resolutions providing for the issuance of such Preferred Stock.
Without limiting the generality of the foregoing, the resolutions providing for the issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law.
ARTICLE V
This Article V is inserted for the management of the business and for the conduct of the affairs of the Corporation.
(A) General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as otherwise provided by this Certificate of Incorporation or the DGCL.
(B) Number of Directors; Election of Directors. Subject to the rights of holders of any series of Preferred Stock to elect directors, the number of the directors of the Corporation shall be fixed from time to time solely by resolution of the Board. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, each director of the Corporation shall hold office until the expiration of the term for which he or she is elected and until his or her successor has been duly elected and qualified or until his or her earlier resignation, death or removal.
(C) Classes of Directors. Subject to the rights of holders of any series of Preferred Stock to elect directors, the Board shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be practicable, of one third of the total number of directors constituting the entire Board. The Board is authorized to assign members of the Board already in office to Class I, Class II or Class III at the time such classification becomes effective.
(D) Terms of Office. Subject to the rights of holders of any series of Preferred Stock to elect directors, each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting of stockholders at which such director was elected; provided that each director initially assigned to Class I shall serve for a term expiring at the Corporation’s first annual meeting of stockholders held following the time at which the initial classification of the Board becomes effective; each director initially assigned to Class II shall serve for a term expiring at the Corporation’s second annual meeting of stockholders held following the time at which the initial classification of the Board becomes effective; and each director initially assigned to Class III shall serve for a term expiring at the Corporation’s third annual meeting of stockholders held following the time at which the initial classification of the Board becomes effective; provided further, that the term of each director shall continue until the election and qualification of his or her successor and be subject to his or her earlier death, disqualification, resignation or removal.
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(E) Vacancies. Subject to the rights of holders of any series of Preferred Stock, any newly created directorship that results from an increase in the number of directors or any vacancy on the Board that results from the death, disability, resignation, disqualification or removal of any director or from any other cause shall be filled solely by the affirmative vote of a majority of the total number of directors then in office, even if less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. Any director elected in accordance with the preceding sentence shall, in the case of a newly created directorship, hold office for the full term of the class in which the newly created directorship was created or, in the case of a vacancy, hold office for the remaining term of his or her predecessor and in each case until his or her successor shall be elected and qualified, subject to his or her earlier death, disqualification, resignation or removal.
(F) Removal. Subject to the rights of the holders of any series of Preferred Stock, any director or the entire Board may be removed from office at any time, but only for cause.
(G) Committees. Pursuant to the Amended and Restated Bylaws of the Corporation (as the same may be amended and/or restated from time to time, the “Bylaws”), the Board may establish one or more committees to which may be delegated any or all of the powers and duties of the Board to the fullest extent permitted by law.
(H) Stockholder Nominations and Introduction of Business. Advance notice of stockholder nominations for election of directors and other business to be brought by stockholders before a meeting of stockholders shall be given in the manner provided by the Bylaws.
(I) Preferred Stock Directors. During any period when the holders of any series of Preferred Stock have the right to elect additional directors as provided for or fixed pursuant to the provisions of Article IV hereof or any Preferred Stock Designation, then upon commencement and for the duration of the period during which such right continues: (i) the then otherwise total number of authorized directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to said provisions, and (ii) each such additional director shall serve until such director’s successor shall have been duly elected and qualified, or until such director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to his earlier death, disqualification, resignation or removal. Except as otherwise provided for or fixed pursuant to the provisions of Article IV hereof or any Preferred Stock Designation, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate and the total authorized number of directors of the Corporation shall be reduced accordingly.
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ARTICLE VI
Unless and except to the extent that the Bylaws shall so require, the election of directors of the Corporation need not be by written ballot.
ARTICLE VII
To the fullest extent permitted by the DGCL as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that nothing contained in this Article VII shall eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to the provisions of Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. No repeal or modification of this Article VII shall apply to or have any adverse effect on any right or protection of, or any limitation of the liability of, a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
ARTICLE VIII
The Corporation may indemnify, and advance expenses to, to the fullest extent permitted by law, any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
ARTICLE IX
Subject to the terms of any series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders and may not be effected by written consent in lieu of a meeting.
ARTICLE X
Special meetings of stockholders for any purpose or purposes may be called at any time by the Board, the Chairman of the Board or the Chief Executive Officer of the Corporation, and may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
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ARTICLE XI
The Corporation reserves the right at any time from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any other provisions authorized by the DGCL may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article XI. Notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any series of Preferred Stock required by law, by this Certificate of Incorporation or by any Preferred Stock Designation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) in voting power of the stock of the Corporation entitled to vote thereon shall be required to amend, alter, change or repeal, or adopt any provision inconsistent with, any of Article V, Article VII, Article VIII, Article IX, Article X, Article XII, Article XIII, and this sentence of this Certificate of Incorporation, or in each case, the definition of any capitalized terms used therein or any successor provision (including, without limitation, any such article or section as renumbered as a result of any amendment, alteration, change, repeal or adoption of any other provision of this Certificate of Incorporation). Any amendment, repeal or modification of any of Article VII, Article VIII and this sentence shall not adversely affect any right or protection of any person existing thereunder with respect to any act or omission occurring prior to such repeal or modification.
ARTICLE XII
In furtherance and not in limitation of the powers conferred upon it by law, the Board is expressly authorized and empowered to adopt, amend and repeal the Bylaws. Notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote, but in addition to any affirmative vote of the holders of any series of Preferred Stock required by law, by this Certificate of Incorporation or by any Preferred Stock Designation, the Bylaws may also be amended, altered or repealed and new Bylaws may be adopted by the stockholders of the Corporation by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) in voting power of the outstanding stock of the Corporation entitled to vote thereon.
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ARTICLE XIII
Unless the Corporation consents in writing to the selection of an alternative forum, (A) (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, other employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, this Certificate of Incorporation or the Bylaws (as either may be amended or restated) or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware or (iv) any action asserting a claim governed by the internal affairs doctrine of the law of the State of Delaware shall, to the fullest extent permitted by law, be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, the federal district court of the State of Delaware; and (B) the federal district courts of the United States shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. Notwithstanding the foregoing, this Article XIII shall not apply to claims seeking to enforce any liability or duty created by the Securities Exchange Act of 1934, as amended. To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XIII.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been executed this __ day of _______________, 2020.
PAXMEDICA, INC. | ||
By: | ||
Name: | ||
Title: |
Exhibit 5.1
September 2, 2020
PaxMedica, Inc.
50 Tice Boulevard, Suite A26
Woodcliff Lake, NJ 07677
Ladies and Gentlemen:
We have acted as counsel for PaxMedica, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-1 (File No. 333-239676) (the “Registration Statement”), including a related prospectus filed with the Registration Statement (the “Prospectus”), with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”) covering an underwritten public offering of up to 2,875,000 shares (the “Shares”) of common stock par value $0.0001 per share (the “Common Stock”), including 375,000 Shares that may be sold by the Company pursuant to the exercise of an over-allotment option granted to the underwriters. The Shares are to be sold by the Company pursuant to an underwriting agreement (the “Underwriting Agreement”) to be entered into between the Company and the several underwriters named therein. This opinion is being rendered in connection with the filing of the Registration Statement with the Commission.
In connection with this opinion, we have examined originals or copies (certified or otherwise identified to our satisfaction) of (i) the Company’s Certificate of Incorporation, as amended, and Bylaws, as currently in effect, (ii) the form of the Amended and Restated Certificate of Incorporation, filed as Exhibit 3.2 to the Registration Statement and the form of Amended and Restated Bylaws, filed as Exhibit 3.4 to the Registration Statement, each of which will be in effect upon closing of the offering contemplated by the Registration Statement, (iii) the Registration Statement and related Prospectus, (iv) the form of Underwriting Agreement and (v) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials or of officers and representatives of the Company, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity 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 certified, conformed or photostatic copies, and the authenticity of the originals of such latter documents. As to certain questions of fact material to this opinion, we have relied upon certificates or comparable documents of officers and representatives of the Company and have not sought to independently verify such facts.
Based on the foregoing, and subject to the assumptions, limitations and qualifications stated herein, we are of the opinion that the Shares, when issued and sold as contemplated in the Registration Statement and the related Prospectus, and upon payment and delivery in accordance with the Underwriting Agreement, will be validly issued, fully paid and non-assessable.
The opinion expressed herein is limited to the General Corporation Law of the State of Delaware (including reported judicial decisions interpreting the General Corporation Law of the State of Delaware) and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
We hereby consent to the filing of this letter as an exhibit to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the Prospectus which is a part of the Registration Statement. In giving such consents, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission promulgated thereunder.
Very truly yours, | |
/s/ Lowenstein Sandler LLP | |
Lowenstein Sandler LLP |
Exhibit 23.1
Independent Registered Public Accounting Firm’s Consent
We consent to the inclusion in this Registration Statement of PaxMedica, Inc. (formerly Purinix Pharmaceuticals LLC) on Form S-1 Amendment No. 3 [File No. 333-239676] of our report dated May 15, 2020, except for Note 11 which is dated July 23, 2020, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to our audits of the financial statements of PaxMedica, Inc. (formerly Purinix Pharmaceuticals LLC) as of December 31, 2019 and 2018 and for the year ended December 31, 2019 and for the period from April 5, 2018 (Inception) through December 31, 2018, which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus
/s/ Marcum llp
Marcum llp
New York, NY
September 1, 2020