As
filed with the Securities and Exchange Commission on December 17,
2010
Registration
Statement No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.
C. 20549
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_____________________
VENTRUS
BIOSCIENCES, INC.
(Exact
name of Registrant as specified in its charter)
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Delaware
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2834
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20-8729264
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(State
or other jurisdiction of
incorporation
or organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.
R. S. Employer
Identification
No. )
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|||||
787
7th
Avenue, 48th
Floor
New
York, New York 10019
(212)
554-4300
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
_____________________
Russell
H. Ellison, M.D.
Chief
Executive Officer
Ventrus
Biosciences, Inc.
787
7th
Avenue, 48th
Floor
New
York, New York 10019
(212)
554-4300
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
_____________________
Copies
to:
|
Alexander
M. Donaldson, Esq.
W. David
Mannheim, Esq.
Wyrick
Robbins Yates & Ponton LLP
4101
Lake Boone Trail, Suite 300
Raleigh,
North Carolina 27607
Telephone:
(919) 781-4000
Facsimile:
(919) 781-4865
|
Steven
D. Uslaner, Esq.
Mark
F. Coldwell, Esq.
Littman
Krooks LLP
655
Third Avenue
New
York, New York 10017
Telephone:
(212) 490-2020
Facsimile:
(212) 490-2990
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_____________________
Approximate date of commencement of
proposed sale to the public: As promptly as practicable after this
registration statement becomes effective.
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, check
the following box. o
If
this Form is filed to register additional securities for an offering pursuant to
Rule 462(b) 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. x 333-168224
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. o
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. o
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.
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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
smaller reporting company)
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Smaller
reporting company x
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CALCULATION
OF REGISTRATION FEE
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Title
of each class of
securities
to be registered
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Amount
to be registered
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Proposed
maximum
offering
price per share
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Proposed
maximum
aggregate
offering
price (1)
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Amount
of
registration
fee
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Common
stock, $0.001 par value per share (2)
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115,000
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$6.00
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$690,000
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$49.20
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Shares
of common stock underlying underwriter’s common stock purchase
warrant
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6,800 | $7.50 | $51,000 | $3.64 |
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Total
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$741,000
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$52.84
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(1)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(o) under the Securities Act of 1933, as amended.
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(2)
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Includes
15,000 shares of common stock that may be issued pursuant to the exercise
of a 45-day option granted by the registrant to the underwriter cover
over-allotments, if any.
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The registrant hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until
the registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE AND INCORPORATION BY REFERENCE
The
Registrant is filing this Registration Statement on Form S-1 pursuant to Rule
462(b) under the Securities Act of 1933, as amended, to increase the amount of
securities available for sale under its previously filed Registration Statement
on Form S-1 (No. 333-168224, filed on July 20, 2010 and declared effective on
December 15, 2010) by 121,800 shares, which represents 3.6% of the 3,410,400
shares registered under such previously filed Registration Statement, the
contents of which, including all exhibits thereto, are incorporated herein by
reference.
Item
16. Exhibits.
(a) The
following exhibits are filed as part of this Registration
Statement:
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Exhibit
Number
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Description
of Document
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Registrant’s
Form
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Dated
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Exhibit
Number
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Filed
Herewith
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|||||
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5.1
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Opinion
of Wyrick Robbins Yates & Ponton LLP.
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X
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||||||||
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23.1
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Consent
of J. H. Cohn LLP.
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X
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||||||||
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23.3
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Consent
of Wyrick Robbins Yates & Ponton LLP (included as part of Exhibit
5.1).
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X
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24.1
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Power
of Attorney (included in the signature pages hereto).
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X
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_____________________
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on December 16, 2010.
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VENTRUS
BIOSCIENCES, INC.
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Date: December
16, 2010
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By:
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/s/ Russell H. Ellison | |
| Name: Russell H. Ellison | |||
| Title: Chief Executive Officer | |||
POWER
OF ATTORNEY AND SIGNATURES
KNOW ALL
PERSONS BY THESE PRESENTS, that the persons whose signatures appear below each
severally constitutes and appoints Russell H. Ellison and David J. Barrett, and
each of them, his true and lawful attorney-in-fact and agent, with full powers
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including pre-effective
and post-effective amendments) to this registration statement, and to file the
same, with all exhibits, 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 in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all which said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do, or cause to be done by virtue hereof.
SIGNATURES
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.
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Signature
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Title
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Date
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/s/ Russell H. Ellison
Russell
H. Ellison
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Chief
Executive Officer (Principal Executive Officer) and
Director
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December
16, 2010
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/s/
David J. Barrett
David
J. Barrett
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Chief
Financial Officer (Principal Financial and Accounting
Officer)
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December
16, 2010
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/s/ Mark Auerbach
Mark
Auerbach
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Director
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December
16, 2010
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/s/ Joseph Felder
Joseph
Felder
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Director
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December
16, 2010
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/s/ Myron Z. Holubiak
Myron
Z. Holubiak
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Director
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December
16, 2010
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/s/ Thomas Rowland
Thomas
Rowland
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Director
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December
16,
2010
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Exhibit
5.1
Wyrick
Robbins Yates & Ponton LLP
4101 Lake
Boone Trail, Suite 300
Raleigh,
North Carolina 27607
December
17, 2010
Board of
Directors
Ventrus
Biosciences, Inc.
787
Seventh Avenue
48th
Floor
New York,
New York 10019
Ventrus
Biosciences, Inc.
Registration
Statement on Form S-1
Ladies
and Gentlemen:
We have
acted as counsel to Ventrus Biosciences, Inc., a Delaware corporation (the
“Company”), in connection with the Company’s filing of a Registration Statement
on Form S-1 (the “Registration Statement”) with the Securities and Exchange
Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended
(the “Act”). The Registration Statement relates to the sale by the
Company in an underwritten public offering of shares (including shares subject
to the underwriters’ over-allotment option) (the “Shares”) of the Company’s
common stock, $0.001 par value per share (the “Common Stock”). The Registration
Statement also relates to shares of Common Stock to be issued pursuant to the
exercise of a warrant to be issued by the Company (the “Warrant Shares”) to the
underwriters who are signatories to the underwriting agreement (the
“Underwriting Agreement”) among the Company and the several underwriters named
therein.
We
understand that the Shares are to be sold by the Company pursuant to the terms
of the Underwriting Agreement. We understand that the Warrant Shares
are to be sold by the Company pursuant to the terms of a Warrant (the “Warrant”)
in substantially the form attached as an exhibit to the Underwriting
Agreement.
This
opinion is being furnished in accordance with the requirements of Item 16 of
Form S-1 and Item 601(b)(5)(i) of Regulation S-K.
In
connection with the foregoing, we have relied upon, among other things, our
examination of such documents, records of the Company and certificates of its
officers and public officials as we deemed necessary for purposes of the
opinions expressed below. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the original of all documents submitted to
us as copies thereof.
Based
upon the foregoing, we are of the opinion that:
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1.
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The
Shares have been duly authorized for issuance and, when the Shares have
been issued and sold in accordance with the terms and provisions of the
Underwriting Agreement and as described in the Registration Statement,
will be legally and validly issued, fully paid and
nonassessable.
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2.
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The
Warrant has been duly authorized for issuance and, when the Warrant has
been issued and delivered as contemplated pursuant to the Underwriting
Agreement, the Warrant will be the valid binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors’
rights generally and (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity).
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3.
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The
Warrant Shares have been duly authorized for issuance and, when the
Warrant Shares have been issued and sold in accordance with the terms and
provisions of the Warrant, and upon receipt by the Company of the
consideration to be paid therefor, the Warrant Shares will be legally and
validly issued, fully paid and
nonassessable.
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This
opinion is limited to the Delaware General Corporation Law, including the
statutory provisions of the Delaware General Corporation Law and all applicable
provisions of the Delaware Constitution and reported judicial decisions
interpreting these laws, and, as to the Warrant constituting a valid binding
obligation of the Company, the Business Corporation Law of the State of New
York. We hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Registration Statement and reference to our
firm under the heading “Legal Matters” in the Registration
Statement. In giving this consent, we do not admit that we are within
the category of persons whose consent is required by Section 7 of the Securities
Act or the rules and regulations promulgated thereunder by the
Commission.
| Very truly yours, | |
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/s/
Wyrick Robbins Yates & Ponton LLP
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Exhibit
23.1
Consent
of Independent Registered
Public
Accounting Firm
We
consent to the incorporation by reference in this Registration Statement on Form
S-1 of our report on our audits of the financial statements of Ventrus
Biosciences, Inc. as of December 31, 2009 and 2008 and for the years then ended
and for the period from October 7, 2005 (inception) to December 31, 2009 which
includes an explanatory paragraph relating to Ventrus Biosciences, Inc.’s
ability to continue as a going concern, dated July 19, 2010, except for the
effects of the matter discussed in the last paragraph of Note 1 which are as of
November 10, 2010, which
report is included in Ventrus Biosciences, Inc.’s Registration Statement on Form
S-1 (File No. 333-168224), which was declared effective on December 15, 2010.
We also consent to the reference to our Firm under the caption “Experts”
in the Registration Statement on Form S-1 (File No. 333-168224), which was
declared effective on December 15, 2010, and its incorporation by reference in
this Registration Statement.
/s/ J. H.
Cohn LLP
Roseland,
New Jersey
December
10, 2010