As filed with the Securities and Exchange Commission on November 5, 2013
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ZOGENIX, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 20-5300780 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
12400 High Bluff Drive, Suite 650
San Diego, California 92130
(858) 259-1165
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Roger L. Hawley
Chief Executive Officer
Zogenix, Inc.
12400 High Bluff Drive, Suite 650
San Diego, CA 92130
(858) 259-1165
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| Scott N. Wolfe, Esq. Cheston J. Larson, Esq. Latham & Watkins LLP 12636 High Bluff Drive, Suite 400 San Diego, CA 92130 (858) 523-5400 |
Ann D. Rhoads Executive Vice President, Chief Financial Officer, Treasurer and Secretary Zogenix, Inc. 12400 High Bluff Drive, Suite 650 San Diego, CA 92130 (858) 259-1165 |
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
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, 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 of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. x 333-185901
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, 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 definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (check one):
| Large accelerated filer | ¨ | Accelerated filer | x | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities To Be Registered |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee (2) | ||
| Common Stock, par value $0.001 per share |
$5,204,233(1) | $670 | ||
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| (1) | Based on the public offering price. The registrant previously registered securities at an aggregate offering price not to exceed $75,000,000 on a Registration Statement on Form S-3 (File No. 333-185901), which was declared effective on February 14, 2013. In accordance with Rule 462(b) promulgated under the Securities Act, an additional amount of securities having a proposed maximum aggregate offering price of $5,204,233 is hereby registered, which includes shares issuable upon exercise of the underwriters’ over-allotment option. |
| (2) | The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act. |
This Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) promulgated under the Securities Act.
EXPLANATORY NOTE
This registration statement is being filed to register additional shares of our common stock, par value $0.001 per share, with an aggregate public offering price not to exceed $5,204,233, pursuant to Rule 462(b) of the Securities Act of 1933, as amended. This registration statement relates to our registration statement on Form S-3 (File No. 333-185901), which was declared effective by the Securities and Exchange Commission on February 14, 2013. In accordance with Rule 462(b), this registration statement incorporates by reference our registration statement on Form S-3 (File No. 333-185901), including all amendments, supplements and exhibits thereto and all information incorporated by reference therein, other than the exhibits included herein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| ITEM 16. | Exhibits. |
| Exhibit |
Description | |
| 5.1 | Opinion of Latham & Watkins LLP (incorporated by reference to Exhibit 5.1 to Registration Statement No. 333-185901 filed with the Securities and Exchange Commission on January 7, 2013) | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Latham & Watkins LLP (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included in the signature page to Registration Statement No. 333-185901) | |
II-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on the 5th day of November, 2013.
| ZOGENIX, INC. | ||
| By: | /s/ Roger L. Hawley | |
| Roger L. Hawley | ||
| Chief Executive Officer | ||
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/ Roger L. Hawley Roger L. Hawley |
Chief Executive Officer and Director (Principal Executive Officer) | November 5, 2013 | ||
| /s/ Ann D. Rhoads Ann D. Rhoads |
Executive Vice President, Chief Financial Officer, Treasurer and Secretary (Principal Financial and Accounting Officer) |
November 5, 2013 | ||
| * Cam L. Garner |
Chairman of the Board | November 5, 2013 | ||
| * James C. Blair, Ph.D. |
Director | November 5, 2013 | ||
| * Louis C. Bock |
Director | November 5, 2013 | ||
| * Stephen J. Farr, Ph.D. |
President, Chief Operating Officer and Director | November 5, 2013 | ||
| * Erle T. Mast |
Director | November 5, 2013 | ||
| * Mark Wiggins |
Director | November 5, 2013 | ||
| *By: | /s/ Ann D. Rhoads | |
| Ann D. Rhoads | ||
| Attorney-in-fact |
EXHIBIT INDEX
| Exhibit |
Description | |
| 5.1 | Opinion of Latham & Watkins LLP (incorporated by reference to Exhibit 5.1 to Registration Statement No. 333-185901 filed with the Securities and Exchange Commission on January 7, 2013) | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Latham & Watkins LLP (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included in the signature page to Registration Statement No. 333-185901) | |