As filed with the Securities and Exchange Commission on February 5, 2007
Registration No. 333-
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UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
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Pre-Effective Amendment No. 1
FORM S-3/A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CYCLACEL PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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| Delaware | |
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91-1707622 |
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or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification Number) |
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200 Connell Drive,
Suite 1500
Berkeley Heights, NJ 07922
(908)
517-7330
(Address, including zip code, and
telephone number, including area code,
of
registrant’s principal executive offices)
Spiro Rombotis
Chief Executive Officer
Cyclacel Pharmaceuticals, Inc.
200 Connell Drive, Suite
1500
Berkeley Heights, NJ 07922
(908)
517-7330
(Name, address, including zip code,
and telephone number, including area code,
of
agent for service)
With a copy
to:
Joel I. Papernik, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
The Chrysler Center
666 Third
Avenue
New York, New York 10017
(212)
935-3000
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only
securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ![[ ]](https://cdn.kscope.io/303b3145b64708f711faed0a0662f2ec-ebox.gif){kind=small}
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
![[X]](https://cdn.kscope.io/303b3145b64708f711faed0a0662f2ec-xbox.gif){kind=small}
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities
Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering.
If this Form
is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
If this Form
is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities
Act, check the following box.
If this Form is
a post-effective amendment to a registration statement filed pursuant
to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box.
CALCULATION OF REGISTRATION FEE
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| Title of each Class of Securities to be Registered(1) | |
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Proposed Maximum Aggregate Offering Price(2)(3) |
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Amount
of Registration Fee(4) |
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| Common Stock, $0.001 par value per share | |
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(5)
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(5)
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| Preferred Stock, $0.001 par value per share | |
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(5)
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(5)
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| Warrants | |
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(5)
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(5)
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| Debt Securities | |
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(5)
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(5)
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| Total | |
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$ | 75,000,000 |
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$ | 8,025 |
*
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| * | Previously Paid |
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| (1) | There are being registered hereunder such indeterminate number of shares of common stock, such indeterminate number of shares of preferred stock, such indeterminate number of warrants to purchase common stock, and such indeterminate number of debt securities as shall have an aggregate initial offering price not to exceed $75,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $75,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities registered also include such indeterminate amounts and numbers of common stock as may be issued upon conversion of preferred stock or pursuant to the antidilution provisions of any such securities. The securities registered also include such indeterminate amounts and numbers of common stock as may be issued upon exercise of warrants or pursuant to the antidilution provisions of any such securities. The securities registered also include such indeterminate amounts and numbers of common stock and debt securities as may be issued upon conversion of or exchange for debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the anti-dilution provisions of any such securities. |
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| (2) | In United States dollars or the equivalent thereof in any other currency, currency unit or units, or composite currency or currencies. |
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| (3) | The proposed maximum per unit and aggregate offering prices per class of security will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder. |
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| (4) | Estimated solely for purposes of determining the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
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| (5) | Not required to be included in accordance with General Instruction II.D of Form S-3. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the company 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 Commission, acting pursuant to said Section 8(a), shall determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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| Item 16. | Exhibits |
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| (a) | Exhibits. |
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| Exhibit Number |
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Description of Document | |||
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1 | .1* |
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The form of any equity underwriting agreement will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference |
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1 | .2* |
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The form of debt underwriting agreement will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference |
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4 | .1 |
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Specimen of Common Stock Certificate, filed as Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2005 (File No. 000-50626) and incorporated herein by reference |
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4 | .2 |
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Specimen of Preferred Stock Certificate, filed as Exhibit 4.4 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2005 (File No. 000-50626) and incorporated herein by reference |
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4 | .2* |
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The form of any warrant will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference |
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4 | .3* |
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Form of Indenture relating to senior debt securities |
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4 | .4* |
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Form of Indenture relating to subordinated debt securities |
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4 | .5* |
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The form of any senior note with respect to each particular series of senior notes issued hereunder will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference |
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4 | .6* |
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The form of any subordinated note with respect to each particular series of subordinated notes issued hereunder will be filed as an exhibit to a Current Report on the Registrant on Form 8-K and incorporated hereby by reference |
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5 | .1 |
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Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding legality of securities being registered. |
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12 | .1 |
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Statement Regarding Computation of Ratio of Earnings to Fixed Charges† |
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23 | .1 |
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Consent of Ernst & Young LLP† |
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23 | .2 |
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1) |
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24 | .1 |
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Power of Attorney (included on signature page)† |
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25 | .1 |
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The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture will be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939 |
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II-1
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| Exhibit Number |
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Description of Document | |||
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25 | .2 |
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The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture will be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939 |
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| * | To be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act. |
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| † | Previously Filed. |
II-2
SIGNATURES
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 this Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Berkeley Heights, New Jersey on the 5th day of February, 2007.
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| Cyclacel Pharmaceuticals, Inc. | |||
| By: | |
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/s/ Paul McBarron |
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Paul McBarron Chief Operating Officer & Executive Vice President, Finance |
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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| Signature | Title | Date | ||
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| /s/ Spiro Rombotis | Chief Executive Officer (Principal Executive Officer) and Director |
February 5, 2007 | ||
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| Spiro Rombotis | ||||
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| /s/ Paul McBarron | Chief Operating Officer
& Executive Vice President, Finance (Principal Financial and Accounting Officer) |
February 5, 2007 | ||
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| Paul McBarron | ||||
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| * | Chairman | February 5, 2007 | ||
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| Dr. David U’Prichard | ||||
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| * | Director | February 5, 2007 | ||
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| Sir John Banham | ||||
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| * | Director | February 5, 2007 | ||
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| Dr. Christopher Henney | ||||
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| * | Director | February 5, 2007 | ||
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| Prof. Gordon McVie | ||||
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| * | Director | February 5, 2007 | ||
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| Daniel Spiegelman | ||||
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| * | By executing his name hereto, Paul McBarron is signing this document on behalf of the persons indicated above pursuant to the powers of attorney duly executed by such persons and filed with the Securities and Exchange Commission. |
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| By: /s/ Paul McBarron | |
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| Paul McBarron | |
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II-3
February 5, 2007
Cyclacel Pharmaceuticals, Inc.
200 Connelly
Drive, Suite 1500
Berkeley Heights, New Jersey 07922
Ladies and Gentlemen:
We have acted as counsel to Cyclacel Pharmaceuticals, Inc., a Delaware corporation (the ‘‘Company’’), in connection with the preparation and filing with the Securities and Exchange Commission of a Registration Statement on Form S-3 (the ‘‘Registration Statement’’), pursuant to which the Company is registering under the Securities Act of 1933, as amended (the ‘‘Securities Act’’), the following:
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| (i) | common stock, $0.001 par value per share (the ‘‘Common Stock’’); |
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| (ii) | preferred stock, $0.001 par value per share (the ‘‘Preferred Stock’’); |
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| (iii) | debt securities (the ‘‘Debt Securities’’); |
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| (iv) | warrants to purchase Common Stock, Preferred Stock, or Debt Securities (the ‘‘Warrants’’); and |
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| (v) | any combination of the above, separately or as units (the ‘‘Units’’); |
some or all of which may be issued from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, at an aggregate public offering price not to exceed $75,000,000. The Common Stock, the Preferred Stock, the Debt Securities, the Warrants and the Units are collectively referred to herein as the ‘‘Offered Securities.’’
The Debt Securities may be issued pursuant to an Indenture between the Company and a trustee to be named in such Indenture (the ‘‘Indentures’’). Warrants may be issued pursuant to a Warrant Agreement between the Company and a bank or trust company as Warrant Agent (the ‘‘Warrant Agreement’’).
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
February 5, 2007
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In connection with this opinion, we have examined the Company’s Amended and Restated Certificate of Incorporation and By-Laws, both as currently in effect, certain resolutions adopted on February 5, 2007 by the Company’s Board of Directors (the ‘‘Board of Directors’’) relating to the registration of the Offered Securities and such other documents or records of the corporate proceedings of the Company as we have deemed relevant, and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures, the legal capacity of 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, photostatic or facsimile copies and the authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion:
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| 1. | With respect to the Common Stock, including those duly issued upon due conversion, exchange or exercise of any Preferred Stock, Debt Securities, Warrants or Units, when (i) specifically authorized for issuance by the Company’s Board of Directors or an authorized committee thereof (the ‘‘Common Stock Authorizing Resolutions’’), (ii) the Registration Statement has become effective under the Securities Act, (iii) the terms of the sale of the Common Stock have been duly established in conformity with the Company’s Certificate of Incorporation and By-laws and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding on the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (iv) the Common Stock has been issued and sold as contemplated by the Registration Statement, and (v) the Company has received the consideration provided for in the Common Stock Authorizing Resolutions, the Common Stock will be validly issued, fully paid and non-assessable. |
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| 2. | With respect to the Preferred Stock, including those duly issued upon due conversion, exchange or exercise of any Debt Securities, Warrants or Units, when (i) specifically authorized for issuance by the Company’s Board of Directors or an authorized committee thereof (the ‘‘Preferred Stock Authorizing Resolutions’’), (ii) the Registration Statement has become effective under the Securities Act, (iii) appropriate Certificate or Certificates of Designation relating to a class or series of the Preferred Stock to be sold under the Registration Statement have been duly authorized and adopted and filed with the Secretary of State of the State of Delaware, (iv) the terms of issuance and sale of shares of such class or series of Preferred Stock have been duly established in conformity with the Company’s Certificate of Incorporation and By-laws and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (iv) shares of such class or series of Preferred Stock have been duly issued and sold as contemplated by the Registration Statement, and (v) the Company has received the consideration provided for in the Preferred Stock Authorizing Resolutions, such Preferred Stock will be validly issued, fully paid, and non-assessable. |
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
February 5, 2007
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| 3. | With respect to the Debt Securities, including those duly issued upon due conversion, exchange or exercise of any Preferred Stock, Debt Securities or Units, when (i) specifically authorized for issuance by the Company’s Board of Directors or an authorized committee thereof (the ‘‘Debt Securities Authorizing Resolutions’’), (ii) the Registration Statement has become effective under the Securities Act, (iii) the terms of the Debt Securities and of their issue and sale have been duly established in conformity with the applicable Indenture and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (iv) such Debt Securities have been duly executed and authenticated in accordance with the applicable Indenture and issued and sold as contemplated in the Registration Statement, and (v) the Company has received the consideration provided for in the Debt Securities Authorizing Resolutions, such Debt Securities will constitute valid and legally binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
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| 4. | With respect to the Warrants, including those duly issued upon due conversion, exchange or exercise of any Preferred Stock, Debt Securities or Units, when (i) specifically authorized for issuance by the Company’s Board of Directors or an authorized committee thereof (the ‘‘Warrant Authorizing Resolutions’’), (ii) the Registration Statement has become effective under the Securities Act, (iii) any Warrant Agreement relating to the Warrants has been duly authorized, executed, and delivered, (iv) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the Warrant Agreement and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (v) the Warrants have been duly executed and countersigned in accordance with the Warrant Agreement and issued and sold as contemplated by the Registration Statement, and (vi) the Company has received the consideration provided for in the Warrant Authorizing Resolutions, the Warrants will constitute valid and legally binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
February 5, 2007
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Our opinion is limited to the General Corporation Laws of the State of Delaware and the United States Federal Laws, and we express no opinion with respect to the laws of any other jurisdiction. To the extent that any applicable document is stated to be governed by the laws of another jurisdiction, we have assumed for purposes of this opinion that the laws of such jurisdiction are identical to the state laws of the State of Delaware.
We have relied as to certain matters on information obtained from public officials, officers of the Company, and other sources believed by us to be responsible and we have assumed that the Indentures will be duly authorized, executed, and delivered by the respective trustees thereunder and the Warrant Agreement will be duly authorized, executed, and delivered by the Warrant Agent thereunder, assumptions which we have not independently verified.
It is understood that this opinion is to be used only in connection with the offer and sale of Common Stock, Preferred Stock, Debt Securities, Warrants and Units while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
We understand that you wish to file this opinion as an exhibit to the Registration Statement, and we hereby consent thereto.
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Very truly yours, |
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/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
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