As filed with the Securities and Exchange Commission on August 6, 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

 

 

VANDA PHARMACEUTICALS INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Delaware		03-0491827
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification Number)

2200 Pennsylvania Avenue NW, Suite 300 E

Washington D.C. 20037

(202) 734-3400

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Mihael H. Polymeropoulos, M.D.

President and Chief Executive Officer

2200 Pennsylvania Avenue NW, Suite 300 E

Washington D.C. 20037

(202) 734-3400

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

Gregg A. Griner, Esq.

Keith J. Scherer, Esq.

Gunderson Dettmer Stough

Villeneuve Franklin & Hachigian, LLP

850 Winter Street

Waltham, MA 02451

(781) 890-8800

 

 

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 to be 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:  x

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 333-171963

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” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

¨		Large accelerated filer				x		Accelerated filer
¨		Non-accelerated filer		(Do not check if a smaller reporting company)		¨		Smaller reporting company

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities to be Registered		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee(1)
Common Stock, $0.001 par value (2)		$10,000,000		$1,364.00

(1)

Calculated in accordance with Rule 457(o) under the Securities Act of 1933. This registration statement registers an indeterminate number of shares of common stock that the Registrant may sell from time to time. The aggregate offering price for all the shares of common stock that the Registrant may sell from time to time pursuant to this registration statement will not exceed $10,000,000.

(2)

Includes rights to purchase shares of the registrant’s Series A Junior Participating Preferred Stock pursuant to the Rights Agreement dated September 25, 2008, as amended. No separate consideration is paid for these rights and, as a result, the registration fee for these rights is included in the fee for the common stock.

This Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) of the Securities Act of 1933, as amended.

 

 

 

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EXPLANATORY NOTE

This Registration Statement is being filed with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and General Instruction IV of Form S-3. This Registration Statement relates to the shelf registration statement on Form S-3 (File Number 333-171963) (the “Prior Registration Statement”) declared effective on February 11, 2011 by the Commission, and is being filed for the purpose of registering up to $10,000,000 additional aggregate dollar amount of shares of the Registrant’s common stock, in one or more offerings, in amounts, at prices and on terms that the Registrant will determine at the time of the offering and which will be set forth in a prospectus supplement, which may also add, update or change information contained in this prospectus. The Registrant hereby incorporates by reference into this Registration Statement on Form S-3 in its entirety the Prior Registration Statement, including each of the documents filed by the Registrant with the Commission and incorporated or deemed to be incorporated by reference therein and all exhibits thereto.

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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 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 District of Columbia, on the 6th day of August 2013.

 

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POWER OF ATTORNEY

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/ Mihael H. Polymeropoulos, M.D.		Chief Executive Officer and Director		August 6, 2013
Mihael H. Polymeropoulos, M.D.		(Principal Executive Officer)
/s/ James P. Kelly		Senior Vice President, Chief Financial Officer, Secretary and Treasurer		August 6, 2013
James P. Kelly		(Principal Financial Officer)
*		Director		August 6, 2013
Howard Pien
		Director
Michael Cola
*		Director		August 6, 2013
Richard W. Dugan
*		Director		August 6, 2013
Steven K. Galson, M.D.
*		Director		August 6, 2013
Vincent J. Milano
*		Director		August 6, 2013
H. Thomas Watkins

 

*By:		/s/ James P. Kelly
		James P. Kelly
		Attorney-in-Fact

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EXHIBIT INDEX

 

Exhibit Number		Description of Document
5.1		Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP.
23.1		Consent of PricewaterhouseCoopers LLP, Independent Public Registered Accounting Firm.
23.2		Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. Reference is made to Exhibit 5.1.
24.1†		Power of Attorney. Incorporated by reference to Vanda Pharmaceuticals Inc.’s Registration Statement on Form S-3 (Reg. No. 333-171963).

 

†	Previously filed.

Exhibit 5.1

Vanda Pharmaceuticals Inc.

2200 Pennsylvania Avenue NW, Suite 300 E

Washington D.C. 20037

August 6, 2013

 

Re:

Registration Statement on Form S-3

Ladies and Gentlemen:

This opinion is furnished to Vanda Pharmaceuticals Inc. (the “Company”), in connection with the filing with the Securities and Exchange Commission of a Registration Statement on Form S-3 (the “Additional Registration Statement”) pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended (the “Act”), relating to an aggregate of up to $10,000,000 of shares of the Company’s common stock, par value $0.001 per share (the “Shares”). The Shares are being registered for the proposed offer and sale from time to time pursuant to Rule 415 under the Act. The Additional Registration Statement incorporates by reference the Registration Statement on Form S-3 (File No. 333-171963) (the “Original Registration Statement” and, together with the Additional Registration Statement, the “Registration Statement”), which was declared effective on February 11, 2011, including the prospectus which forms a part of the Registration Statement.

In connection with this opinion, we have examined the Registration Statement and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness of all signatures, the legal capacity of natural persons, the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company.

Based on the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Shares, when sold and after receipt of payment therefore as contemplated in the Registration Statement, will be validly issued, fully paid and non-assessable.

We do not express any opinion herein concerning any law other than the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing).

We consent to the use of this opinion as Exhibit 5.1 to the Additional Registration Statement, and further consent to the use of our name under the caption “Legal Matters” in the prospectus included in the Registration Statement, and in any amendment or supplement thereto.

 

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 25, 2013 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Vanda Pharmaceuticals Inc.’s Annual Report on Form 10-K for the year ended December 31, 2012. We also consent to the reference to us under the heading “Experts” in such Registration Statement.

/s/ PricewaterhouseCoopers LLP

Baltimore, Maryland

August 6, 2013

 

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