As filed with the Securities and Exchange Commission on June 29, 2020.
Registration No. 333–
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AEROVATE THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 2834 | 83-1377888 | ||
|
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
Aerovate Therapeutics, Inc.
200 Berkeley Street, Floor 18
Boston, Massachusetts 02116
(617) 443-2400
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Copies to:
|
Edwin O’Connor, Esq. Alicia M. Tschirhart, Esq. |
Peter N. Handrinos. Esq. Wesley C. Holmes, Esq. Latham & Watkins LLP 200 Clarendon Street Boston, MA 02116 (617) 948-6000 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ¨
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. x - 333-256949
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 post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | x | Smaller reporting company | x | |||
| Emerging growth company | x |
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
|
Title of Each Class of Securities to be Registered |
Amount |
Proposed |
Proposed |
Amount of registration fee(2) | ||||
| Common stock, par value $0.0001 per share | 1,761,963 | $14.00 | $24,667,482 | $2,691.23 |
| (1) | Represents only the additional number of shares being registered and includes 229,821 shares of common stock issuable upon exercise of the underwriters’ option to purchase additional shares to cover over-allotments, if any. Does not include the securities that the registrant previously registered on the Registration Statement on Form S-1 (File No. 333–256949). |
| (2) | The registration fee is calculated in accordance with Rule 457(a) under the Securities Act of 1933, as amended, based on the proposed maximum aggregate offering price. The registrant previously registered securities at an aggregate offering price not to exceed $123,337,500 on a Registration Statement on Form S-1 (File No. 333–256949), which was declared effective by the Securities and Exchange Commission on June 29, 2021. In accordance with Rule 462(b) under the Securities Act, an additional amount of securities having a proposed maximum aggregate offering price of $24,667,482 is hereby registered, which includes shares issuable upon the exercise of the underwriters’ option to purchase additional shares. |
The Registration Statement shall become effective upon filing in accordance with Rule 462(b) promulgated under the Securities Act of 1933, as amended.
EXPLANATORY NOTE AND INCORPORATION BY REFERENCE
This Registration Statement is being filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), for the sole purpose of increasing the aggregate number of shares of common stock offered by Aerovate Therapeutics, Inc. (the “Registrant”) by 1,761,963 shares, 229,821 of which are subject to purchase upon exercise of the underwriters’ option to purchase additional shares of the Registrant’s common stock. The contents of the Registration Statement on Form S-1, as amended (File No. 333–256949), filed by the Registrant with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act, including all amendments and exhibits thereto, which was declared effective by the Commission on June 29, 2021, or the Prior Registration Statement, are incorporated by reference into this Registration Statement.
The 1,761,963 additional shares of common stock, which includes 229,821 additional shares that the underwriters have the option to purchase, that are being registered for sale are in an amount and at a price that together represent no more than 20% of the maximum aggregate offering price set forth in the Calculation of Registration Fee table contained in the Prior Registration Statement.
The required opinion and consents are listed on an Exhibit Index attached hereto and filed herewith or incorporated by reference herein.
EXHIBIT INDEX
| * | Previously filed on the signature page to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-256949), originally filed with the Securities and Exchange Commission on June 9, 2021 and incorporated by reference herein. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Aerovate Therapeutics, Inc. has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Boston, Commonwealth of Massachusetts, on the 29th day of June, 2021.
| AEROVATE THERAPEUTICS, INC. | ||
| By: |
/s/ Timothy P. Noyes | |
| Name: | Timothy P. Noyes | |
| Title: | Chief Executive Officer | |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-1 has been signed by the following persons in their capacities and on the date indicated.
| SIGNATURE | TITLE | DATE | ||
| /s/ Timothy P. Noyes | Chief Executive Officer and Director | June 29, 2021 | ||
| Timothy P. Noyes | Principal Executive Officer | |||
| /s/ George A. Eldridge | Chief Financial Officer | June 29, 2021 | ||
| George A. Eldridge | Principal Financial Officer | |||
| Principal Accounting Officer | ||||
| * | Director | June 29, 2021 | ||
| David Grayzel, M.D. | ||||
| * | Director | June 29, 2021 | ||
| Mark Iwicki | ||||
| * | Director | June 29, 2021 | ||
| Maha Katabi, Ph.D. | ||||
| * | Director | June 29, 2021 | ||
| Joshua Resnick, M.D. |
| *By: | /s/ Timothy P. Noyes | |
| Timothy P. Noyes Attorney-in-fact |
Exhibit 5.1
June 29, 2021
Aerovate Therapeutics, Inc.
200 Berkeley Street, Floor 18
Boston, MA 02116
| Re: | Securities Registered under Registration Statement on Form S-1 |
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of (i) a Registration Statement on Form S-1 (File No. 333-256949) (as amended or supplemented, the “Initial Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”) and (ii) a second Registration Statement on Form S-1 filed pursuant to Rule 462(b) promulgated under the Securities Act (the “462(b) Registration Statement,” and together with the Initial Registration Statement, the “Registration Statement”). This opinion letter is being furnished to you in connection with your filing of the 462(b) Registration Statement, relating to the registration of the offering by Aerovate Therapeutics, Inc., a Delaware corporation (the “Company”), of up to 1,761,963 shares (the “Shares”) of the Company’s Common Stock, $0.0001 par value per share, including Shares purchasable by the underwriters upon their exercise of an over-allotment option granted to the underwriters by the Company. The Shares are being sold to the several underwriters named in, and pursuant to, an underwriting agreement among the Company and such underwriters (the “Underwriting Agreement”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Delaware General Corporation Law.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Underwriting Agreement, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration Statement. In giving our consent, we do not 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 thereunder.
Very truly yours,
/s/ Goodwin Procter LLP
GOODWIN PROCTER LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated May 6, 2021, except for the reverse stock split described in Note 1, which is as of June 22, 2021, with respect to the financial statements of Aerovate Therapeutics, Inc., incorporated herein by reference and to the reference to our firm under the heading “Experts” in the prospectus. Our report dated May 6, 2021 contains an explanatory paragraph that states that the Company has suffered recurring losses from operations and has a net capital deficiency that raise substantial doubt about its ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
/s/ KPMG LLP
San Diego, California
June 29, 2021