Delaware
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2834
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22-2407152
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(State or other jurisdiction
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(Primary Standard Industrial
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(I.R.S. Employer Identification No.)
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of incorporation or organization)
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Classification Code)
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Copies to:
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Emilio Ragosa, Esq.
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John D. Hogoboom, Esq.
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Morgan Lewis & Bockius LLP
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Lowenstein Sandler PC
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502 Carnegie Center
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65 Livingston Avenue
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Princeton, New Jersey 08540
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Roseland, New Jersey 07068-1791
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(609) 919-6600
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(973) 597-2383
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer o (Do not check if a smaller reporting company)
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Smaller reporting company x
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(cover continued on next page)
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•
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2010 filed with the SEC on March 29, 2011; and
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•
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our current reports on Form 8-K filed with the SEC on January 5, 2011, January 7, 2011, February 4, 2011 and February 15, 2011.
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SEC Registration Fee
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$
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1,021.42
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Printing and Engraving Expenses
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$
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22,000.00
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Accounting Fees and Expenses
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$
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25,000.00
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Legal Fees and Expenses
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$
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50,000.00
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Miscellaneous
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$
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1,978.58
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Total
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$
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100,000.00
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Exhibit No.
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Description
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Method of Filing
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1.1
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Form of Placement Agent Agreement
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Incorporated by reference to Exhibit 1.1 of the Company’s Form 8-K, as filed with the SEC on February 15, 2011.
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3.1
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Restated Certificate of Incorporation of the Company
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Incorporated by reference to Exhibit 3.1 of the Company’s Quarterly Report on Form 10-QSB, as filed with the SEC on June 14, 2004.
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3.2
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Certificate of Amendment to the Certificate of Incorporation of the Company
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Incorporated by reference to Exhibit 3.1 of the Company’s Annual Report on Form 10-K, as filed with the SEC on March 26, 2007.
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3.3
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Amended and Restated By-laws of the Company
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Incorporated by reference to Exhibit 3.1 of the Company’s Form 8-K, as filed with the SEC on September 9, 2005.
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3.4
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Certificate of Designations of Preferences, Rights and Limitations of Series A Convertible Preferred Stock
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Incorporated by reference to Exhibit 3.1 of the Company’s Form 8-K, as filed with the SEC on February 15, 2011.
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4.1
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Form of Warrant issued to certain accredited investors and placement agents
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Incorporated by reference to Exhibit 4.1 of the Company’s Form 8-K, as filed with the SEC on April 17, 2006.
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4.2
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Form of Warrant issued to certain accredited investors and the placement agent
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Incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on January 4, 2007.
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4.3
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Form of Warrant
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Incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K, as filed with the SEC on June 3, 2008.
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4.4
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Form of Series A Warrant
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Incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K, as filed with the SEC on March 31, 2010.
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4.5
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Form of Series A Convertible Preferred Stock Certificate
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Incorporated by reference to Exhibit 4.1 of the Company’s Form 8-K, as filed with the SEC on February 15, 2011.
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4.6
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Form of Series A Warrant
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Incorporated by reference to Exhibit 4.2 of the Company’s Form 8-K, as filed with the SEC on February 15, 2011.
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4.7
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Form of Series B Warrant
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Incorporated by reference to Exhibit 4.3 of the Company’s Form 8-K, as filed with the SEC on February 15, 2011.
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4.8
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Form of Series C Warrant
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Incorporated by reference to Exhibit 4.4 of the Company’s Form 8-K, as filed with the SEC on February 15, 2011.
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5.1
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Opinion of Morgan, Lewis & Bockius LLP
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Incorporated by reference to Exhibit 5.1 of the Company’s Amendment No. 4 to the Registration Statement on Form S-1, as filed with the SEC on February 14, 2011.
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10.1
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*
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1992 Stock Option Plan
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Incorporated by reference to the Company’s Registration Statement on Form SB-2, as filed with the SEC on August 8, 1997 (File No. 333-33201).
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10.2
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*
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Form of Incentive Stock Option Agreement under the 1992 Stock Option Plan
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Incorporated by reference to the Company’s Registration Statement on Form SB-2, as filed with the SEC on August 8, 1997 (File No. 333-33201).
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10.3
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*
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1997 Stock Option Plan
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Incorporated by reference to Exhibit 10.8 to the Company’s Registration Statement on Form SB-2, as filed with the SEC on August 8, 1997 (File No. 333-33201).
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10.4
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*
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Form of Non-Qualified Option Agreement under the 1997 Stock Option Plan
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Incorporated by reference to the Company’s Registration Statement on Form SB-2, as filed with the SEC on August 8, 1997 (File No. 333-33201).
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10.5
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*
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1998 Stock Option Plan
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Incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-8, as filed with the SEC on June 18, 2004 (File No. 333-116665).
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10.6
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*
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Form of Stock Option Agreement under the 1998 Stock Option Plan
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Incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-8, as filed with the SEC on June 18, 2004 (File No. 333-116665).
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10.7
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*
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Form of Non-Qualified Option Agreement
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Incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-8, as filed with the SEC on June 18, 2004 (File No. 333-116665).
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10.8
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+
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License and Development Agreement, effective as of April 4, 2003, by and between the Company and Manhattan Pharmaceuticals, Inc.
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Incorporated by reference to Exhibit 10.31 to the Company’s Annual Report on Form 10-KSB, as filed with the SEC on March 11, 2004.
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10.9
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+
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Second Amendment to License and Development Agreement, dated as of June 22, 2004, by and between the Company and Velcera, Inc. (formerly known as the Veterinary Company, Inc.)
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Incorporated by reference to Exhibit 10.14 to the Company’s Annual Report on Form 10-KSB, as filed with the SEC on November 15, 2004.
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10.10
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*
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Disclosure and Release Agreement Related to the Exchange of Non-Plan Options for Stock Options under the NovaDel Pharma Inc. 1998 Stock Option Plan by and between the Company and Thomas E. Bonney
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Incorporated by reference to Exhibit 10.3 of the Company’s Form 8-K, as filed with the SEC on August 2, 2005.
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10.11
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*
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Disclosure and Release Agreement Related to the Exchange of Non-Plan Options for Stock Options under the NovaDel Pharma Inc. 1998 Stock Option Plan by and between the Company and Charles Nemeroff
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Incorporated by reference to Exhibit 10.4 of the Company’s Form 8-K, as filed with the SEC on August 2, 2005.
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10.12
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*
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1998 Stock Option Plan Nonqualified Stock Option Agreement dated July 28, 2005, by and between the Company and Thomas E. Bonney
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Incorporated by reference to Exhibit 10.25 of the Company’s Annual Report on Form 10-KSB for the period ended July 31, 2005, as filed with the SEC on October 31, 2005.
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10.13
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*
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1998 Stock Option Plan Nonqualified Stock Option Agreement dated July 28, 2005, by and between the Company and Charles Nemeroff
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Incorporated by reference to Exhibit 10.29 of the Company’s Annual Report on Form 10-KSB for the period ended July 31, 2005, as filed with the SEC on October 31, 2005.
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10.14
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*
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1998 Stock Option Plan Nonqualified Stock Option Agreement dated January 17, 2006, by and between the Company and Thomas Bonney
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Incorporated by reference to Exhibit 10.2 of the Company’s Quarterly Report on Form 10-Q, as filed with the SEC on March 15, 2006.
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10.15
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*
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1998 Stock Option Plan Nonqualified Stock Option Agreement dated January 17, 2006, by and between the Company and Charles Nemeroff
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Incorporated by reference to Exhibit 10.5 of the Company’s Quarterly Report on Form 10-Q, as filed with the SEC on March 15, 2006.
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10.16
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*
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1998 Stock Option Plan Nonqualified Stock Option Agreement dated January 17, 2006, by and between the Company and Steven Ratoff
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Incorporated by reference to Exhibit 10.6 of the Company’s Quarterly Report on Form 10-Q, as filed with the SEC on March 15, 2006.
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10.17
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*
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Employment Agreement dated December 4, 2006 by and between the Company and David H. Bergstrom, Ph.D.
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Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, as filed with the SEC on December 8, 2006.
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10.18
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*
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Incentive Stock Option Award between the Company and David H. Bergstrom dated December 4, 2006
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Incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K, as filed with the SEC on December 8, 2006.
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10.19
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*
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Nonqualified Stock Option Award between the Company and David H. Bergstrom, dated December 4, 2006
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Incorporated by reference to Exhibit 10.3 of the Company’s Current Report on Form 8-K, as filed with the SEC on December 8, 2006.
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10.20
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*
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Amendment 2007-1 to the NovaDel Pharma Inc. 1998 Stock Option Plan dated March 2, 2007
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Incorporated by reference to Exhibit 10.45 of the Company’s Annual Report on Form 10-K, as filed with the SEC on March 26, 2007.
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10.21
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+
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Amended and Restated License and Development Agreement, dated as of July 31, 2007, by and between NovaDel Pharma Inc. and HANA Biosciences, Inc.
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Incorporated by reference to Exhibit 10.1 of the Company’s Quarterly Report on Form 10-Q, as filed with the SEC on November 14, 2007.
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10.22
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+
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Product Development and Commercialization Sublicense Agreement, dated as of July 31, 2007, by and among NovaDel Pharma Inc., HANA Biosciences and PAR Pharmaceuticals, Inc.
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Incorporated by reference to Exhibit 10.2 of the Company’s Quarterly Report on Form 10-Q, as filed with the SEC on November 14, 2007.
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10.23
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+
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License Agreement, dated May 19, 2008, by and among the Company and BioAlliance Pharma SA.
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Incorporated by reference to Exhibit 10.4 of the Company’s Quarterly Report on Form 10-Q, as filed with the SEC on August 7, 2008.
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10.24
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+
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Supply Agreement, dated July 7, 2008, by and among the Company and BioAlliance Pharma SA.
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Incorporated by reference to Exhibit 10.5 of the Company’s Quarterly Report on Form 10-Q, as filed with the SEC on August 7, 2008.
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10.25
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+
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License and Distribution Agreement, dated October 27, 2009, between NovaDel Pharma Inc. and Mist Acquisition, LLC
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Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, as filed with the SEC on December 10, 2009.
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10.26
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+
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License and Distribution Agreement, dated November 12, 2009, between NovaDel Pharma Inc. and ECR Pharmaceuticals Company, Inc.
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Incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K, as filed with the SEC on December 10, 2009.
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10.27
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Lease Agreement, dated as of December 7, 2009 and effective as of February 1, 2010, by and between Regus Management Group, LLC, as Landlord, and NovaDel Pharma Inc., as Tenant
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Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, as filed with the SEC on January 14, 2010.
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10.28
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*
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Employment Agreement, dated January 8, 2010, by and between NovaDel Pharma Inc. and Steven B. Ratoff.
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Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, as filed with the SEC on January 11, 2010.
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10.29
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Securities Purchase Agreement, dated March 31, 2010, among the Company and the investors set forth therein.
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Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, as filed with the SEC on March 31, 2010.
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10.30
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*
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Employment Agreement, dated June 8, 2010, by and between NovaDel Pharma Inc. and Craig Johnson.
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Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, as filed with the SEC on June 9, 2010.
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10.31
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*
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NovaDel 2006 Equity Incentive Plan (As amended and restated April 20, 2010).
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Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K, as filed with the SEC on June 10, 2010.
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10.32
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Form of Securities Purchase Agreement
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Incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K, as filed with the SEC on February 15, 2011.
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10.33
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License Agreement, dated January 5, 2007, between NovaDel Pharma, Inc. and Kwang Dong Pharmaceuticals.
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Incorporated by reference to Exhibit 10.32 of the Company’s Annual Report on Form 10-K, as filed with the SEC on March 29, 2011.
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21.1
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Subsidiaries of the Registrant
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The registrant has no subsidiaries.
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23.1
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Consent of J.H. Cohn LLP
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Filed herewith.
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23.2
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Consent of Morgan Lewis & Bockius LLP (included in Exhibit 5.1)
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Incorporated by reference to Exhibit 23.2 of the Company’s Amendment No. 4 to the Registration Statement on Form S-1, as filed with the SEC on February 14, 2011.
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24.1
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Power of Attorney
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Incorporated by reference to Exhibit 24.1 of the Company’s Registration Statement on Form S-1, as filed with the SEC on October 21, 2010.
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*
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Compensation Related Contract.
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+
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Confidential Treatment Requested. Confidential Materials omitted and filed separately with the Securities and Exchange Commission.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
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(2)
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That, for the purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4)
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That, if the registrant is relying on Rule 430B, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
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(5)
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That, for the purpose of determining liability under the Securities Act of 1933 in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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(c)
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The undersigned registrant hereby undertakes that:
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(i)
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For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
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(ii)
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For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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Novadel Pharma Inc.
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By:
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/s/ Steven B. Ratoff
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Name: Steven B. Ratoff
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Title: President and Chief Executive Officer
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(principal executive officer)
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Signatures
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Title
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Date
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||||||||
/s/ Steven B. Ratoff
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Chairman, President and Chief Executive Officer
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April 1, 2011
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||||||||
Steven B. Ratoff
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(principal executive officer)
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|||||||||
/s/ Craig Johnson
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Chief Financial Officer
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April 1, 2011
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||||||||
Craig Johnson
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(principal financial and accounting officer)
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*
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Director
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April 1, 2011
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Mark J. Baric
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*
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Director
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April 1, 2011
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Thomas E. Bonney
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*
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Director
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April 1, 2011
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||||||||
Charles Nemeroff
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||||||||||
/s/ Steven B. Ratoff
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||||||||||
* By: Steven B. Ratoff
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||||||||||
Attorney-in-fact
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