As filed with the Securities and Exchange Commission on September 21, 2020
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
CYCLERION THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
| Massachusetts | 83-1895370 |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
301 Binney Street Cambridge, Massachusetts |
02142 |
| (Address of Principal Executive Offices) | (Zip Code) |
Cyclerion Therapeutics, Inc. 2019 Equity Incentive Plan
Cyclerion Therapeutics, Inc. 2019 Employee Stock Purchase Plan
(Full title of the plan)
William Huyett
301 Binney Street
Cambridge, Massachusetts 02142
(Name and address of agent for service)
(857) 327-8778
(Telephone number, including area code, of agent for service)
Please send copies of all communications to:
|
Gary J. Simon, Esq. Hughes Hubbard & Reed LLP One Battery Park Plaza New York, NY 10004 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ | 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 securities to be registered |
Amount to be registered(1) | Proposed maximum offering price per share(2) |
Proposed maximum aggregate offering price(2) |
Amount of registration fee | |||
| Common Stock | 1,440,298 (3) | $7.06 | $10,161,302.39 | $1,318.94 | |||
| Common Stock | 360,075 (4) | $7.06 | $2,540,329.13 | $329.73 | |||
| TOTAL | 1,800,373 | $12,701,631.52 | $1,648.67 | ||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional shares of Common Stock as may be issued to prevent dilution resulting from stock splits, stock dividends and similar transactions. |
| (2) | Pursuant to Rules 457(c) and 457(h)(1) under the Securities Act, the proposed maximum offering price per share and the maximum aggregate offering price for the shares have been calculated solely for the purpose of computing the registration fee on the basis of the average high and low prices of the Common Stock trading on a “when issued” basis as reported by the Nasdaq Global Select Market, which were $7.39 and $6.72, respectively on September 14, 2020. |
| (3) | Represents additional shares of Common Stock authorized for issuance under the Cyclerion Therapeutics, Inc. 2019 Equity Incentive Plan. |
| (4) | Represents additional shares of Common Stock authorized for issuance under the Cyclerion Therapeutics, Inc. 2019 Employee Stock Purchase Plan. |
REGISTRATION OF ADDITIONAL SECURITIES
INCORPORATION OF EARLIER REGISTRATION STATEMENT BY REFERENCE
This Registration Statement (the “Registration Statement”) is being filed by Cyclerion Therapeutics, Inc. (the “Company”) to register “Additional Shares”, consisting of an additional 1,440,298 shares of Common Stock of the Company issuable under the Company’s 2019 Equity Incentive Plan (the “2019 Incentive Plan”) and an additional 360,075 shares of Common Stock of the Company issuable under the Company’s 2019 Employee Stock Purchase Plan (the “2019 ESPP” and together with the 2019 Incentive Plan, the “Plans”). The Additional Shares are in addition to the Common Stock previously registered for issuance in respect of the Plans on the Company’s Registration Statement on Form S-8 (File No. 333-230615), filed with the Securities and Exchange Commission (the “SEC”) on March 29, 2019 (the “Prior Registration Statement”).
This Registration Statement relates to securities of the same class as that to which the Prior Registration Statement relates, and is submitted in accordance with General Instruction E to Form S-8 regarding registration of additional securities. Pursuant to such instruction, the contents of the Prior Registration Statement are incorporated by reference and made part of this Registration Statement, except to the extent otherwise updated or modified by this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by Cyclerion Therapeutics, Inc. (the “Registrant”) with the SEC are incorporated herein by reference (excluding any portions of such documents that have been “furnished” but not “filed” for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)):
(2) The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30, 2020, filed with the SEC on May 4 and August 3, 2020, respectively;
(3) The Registrant’s Current Reports on Form 8-K filed with the SEC on March 5, 2020, April 14, 2020 (only with respect to Item 8.01 thereof), June 18, 2020 (only with respect to Item 5.07 thereof) and September 3, 2020; and
(4) The description of the Registrant’s Common Stock contained in the Information Statement filed with the SEC as Exhibit 99.1 to the Registrant’s Form 10 (File No. 001-38787), including any amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein from the date of filing of such documents. In no event, however, will any information that the Registrant discloses under Item 2.02 or 7.01 of any Current Report on Form 8-K that the Registrant may from time to time furnish to the SEC, or any other information that is not deemed “filed” with the SEC, be incorporated by reference into, or otherwise become part of, this Registration Statement.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
| Item 8. | Exhibits. |
| 2 |
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Cambridge, Massachusetts, on the 21st day of September, 2020.
| CYCLERION THERAPEUTICS, INC. | ||
| By: | /s/ William I. Huyett | |
| Name: William I. Huyett | ||
| Title: Chief Financial Officer | ||
| 3 |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Peter M. Hecht and William Huyett, jointly and severally, as their true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for them and in their name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this Registration Statement on Form S-8 of Cyclerion Therapeutics, Inc., and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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:
|
Signature |
Title |
Date | ||
|
/s/ PETER M. HECHT |
Chief Executive Officer (Principal Executive Officer) | September 21, 2020 | ||
| Peter M. Hecht | ||||
|
/s/ WILLIAM I. HUYETT |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | September 21, 2020 | ||
| William I. Huyett | ||||
|
/s/ KEVIN CHURCHWELL |
Director | September 21, 2020 | ||
| Kevin Churchwell | ||||
|
/s/ GEORGE CONRADES |
Director | September 21, 2020 | ||
| George Conrades | ||||
|
/s/ MARSHA FANUCCI |
Director | September 21, 2020 | ||
| Marsha Fanucci | ||||
|
/s/ OLE ISACSON |
Director | September 21, 2020 | ||
| Ole Isacson | ||||
|
/s/ TERRANCE MCGUIRE |
Director | September 21, 2020 | ||
| Terrance McGuire | ||||
|
/s/ MICHAEL MENDELSOHN |
Director | September 21, 2020 | ||
| Michael Mendelsohn | ||||
|
/s/ AMY SCHULMAN |
Director | September 21, 2020 | ||
| Amy Schulman |
| 4 |
Exhibit 5.1
 |
Seaport West
617 832 1000 main 617 832 7000 fax |
September 21, 2020
|
Cyclerion Therapeutics, Inc. 301 Binney Street Cambridge, Massachusetts 02142 |
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special Massachusetts counsel to Cyclerion Therapeutics, Inc., a Massachusetts corporation (the “Company”), in connection with its filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form S-8 on the date hereof (the “Registration Statement”).
The Registration Statement relates to the offer and sale by the Company of up to 1,440,298 shares (the “2019 Incentive Plan Shares”) of the Company’s common stock, no par value per share (“Common Stock”), issuable under the Company’s 2019 Equity Incentive Plan (the “2019 Incentive Plan”) and up to 360,075 shares (together with the 2019 Incentive Plan Shares, the “Shares”) of Common Stock issuable under the Company’s 2019 Employee Stock Purchase Plan (the “2019 ESPP”).
We have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. We have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as copies.
The opinions expressed below are limited to the internal laws of the Commonwealth of Massachusetts.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares are issued against the Company’s receipt of the consideration therefor in accordance with the terms of the 2019 Incentive Plan or the 2019 ESPP, as applicable, and the awards thereunder, the Shares will be validly issued, fully paid and non-assessable.
Cyclerion Therapeutics, Inc.
September 21, 2020
Page 2
This opinion is to be relied upon only in connection with the offer and sale of the Shares while the Registration Statement and any and all required post-effective amendments are effective.
This opinion is being delivered solely for the benefit of the Company and such other persons as are entitled to rely upon it pursuant to applicable provisions of the Securities Act. This opinion may not be used, quoted, relied upon or referred to for any other purpose, nor may this opinion be used, quoted, relied upon or referred to by any other person, for any purpose, in each case without our prior written consent.
We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, 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 thereunder.
| Very truly yours, | ||
| FOLEY HOAG llp | ||
| By: | /s/ John D. Hancock | |
| a Partner | ||
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2019 Employee Stock Purchase Plan and 2019 Equity Incentive Plan of Cyclerion Therapeutics, Inc. of our report dated March 12, 2020, with respect to the consolidated and combined financial statements of Cyclerion Therapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2019, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
September 21, 2020