As filed with the Securities and Exchange Commission on January 18, 2019.
Registration
No. 333-228292
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment
No. 1
to
FORM
S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
BIODELIVERY SCIENCES INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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35-2089858
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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4121 ParkLake Avenue, Suite 225
Raleigh, NC 27612
(919)
582-9050
(Address, including zip code, and telephone number, including area code, of principal
executive offices)
Herm Cukier
Chief
Executive Officer
4131 ParkLake Avenue, Suite 225
Raleigh, NC 27612
(919)
582-9050
(Name, address, including zip code, and telephone number, including area code, of agent
for service)
With copies to:
Robert E. Puopolo, Esq.
Goodwin Procter LLP
100
Northern Avenue
Boston, Massachusetts 02210
(617)
570-1000
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. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
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, 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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, or a smaller reporting 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. (Check one):
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering Price
Per
Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Primary Offering
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Common Stock, par value $0.001 per share(1)
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Preferred Stock, par value $0.001 per share(2)
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Debt Securities(3)
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Warrants(4)
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Units(5)
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Total Primary Offering
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$75,000,000(6)
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N.A.(7)
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$75,000,000(8)
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$9,090(9)(10)
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Secondary Offering by Selling Stockholder
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Common Stock, par value $0.001 per share
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12,222,223(11)(12)
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$4.07(13)
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$49,744,447.60
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$6,029.03(10)
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Total
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$124,744,447.60
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$15,119.03(10)
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(1)
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Including such indeterminate amount of common stock as may be issued from time to time at indeterminate prices
or upon conversion of debt securities and/or preferred stock registered hereby, or upon exercise of warrants registered hereby, as the case may be.
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(2)
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Including such indeterminate amount of preferred stock as may be issued from time to time at indeterminate
prices or upon conversion of debt securities and/or preferred stock registered hereby, or upon exercise of warrants registered hereby, as the case may be.
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(3)
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Including such indeterminate principal amount of debt securities as may be issued from time to time at
indeterminate prices or upon exercise of warrants registered hereby, as the case may be.
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(4)
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Including such indeterminate number of warrants or other rights, including without limitation share purchase or
subscription rights, as may be issued from time to time at indeterminate prices.
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(5)
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Each unit will be issued under a unit agreement and will represent an interest in two or more securities, which
may or may not be separable from one another.
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(6)
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The amount to be registered consists of up to $75,000,000 of an indeterminate amount of common stock, preferred
stock, debt securities, warrants and/or units. There is also being registered hereunder such currently indeterminate number of (i) shares of common stock or other securities of the registrant as may be issued upon conversion of, or in exchange
for, convertible or exchangeable debt securities and/or preferred stock registered hereby or (ii) shares of preferred stock, common stock, debt securities or units as may be issued upon exercise of warrants registered hereby, as the case may
be. Any securities registered hereunder may be sold separately or as units with the other securities registered hereunder.
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(7)
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The proposed maximum aggregate offering price per unit will be determined from time to time by the registrant
in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form
S-3
under the Securities
Act.
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(8)
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Estimated solely for purposes of computing the registration fee. No separate consideration will be received for
(i) common stock or other securities of the registrant that may be issued upon conversion of, or in exchange for, convertible or exchangeable debt securities and/or preferred stock registered hereby or (ii) preferred stock, common stock,
debt securities or units that may be issued upon exercise of warrants registered hereby, as the case may be.
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(9)
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The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act.
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(10)
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The registrant previously paid a registration fee of $18,180 in connection with the initial filing of this
registration statement on Form S-3.
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(11)
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Pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such unspecified
number of each identified security as may be issuable with respect to the securities being registered hereunder as a result of stock splits, stock dividends or similar transactions and other adjustments.
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(12)
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Represents shares offered by the selling stockholder, to be described more fully in prospectus supplements to
be filed.
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(13)
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Estimated solely for the purpose of calculating the registration fee and computed pursuant to Rule 457(c) under
the Securities Act, and based upon the average of the high and low reported sales prices of the registrants common stock on the Nasdaq Capital Market on January 14, 2019.
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This registration statement shall hereafter become effective in accordance with the provisions of Section 8(a) of the Securities Act of 1933.