As filed with the Securities and Exchange Commission on March 16, 2010 Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNDER
THE SECURITIES ACT OF 1933
GTx, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 62-1715807 | |
| (State or other jurisdiction of | (I.R.S. Employer | |
| incorporation or organization) | Identification No.) |
175 Toyota Plaza
7th Floor
Memphis, Tennessee 38103
(901) 523-9700
(Address of principal executive offices, including zip code)
7th Floor
Memphis, Tennessee 38103
(901) 523-9700
(Address of principal executive offices, including zip code)
GTx, Inc. 2004 Equity Incentive Plan
GTx, Inc. Amended and Restated 2004 Non-Employee Directors’ Stock Option Plan
(Full titles of the plans)
GTx, Inc. Amended and Restated 2004 Non-Employee Directors’ Stock Option Plan
(Full titles of the plans)
Mitchell S. Steiner, M.D., F.A.C.S.
Chief Executive Officer
GTx, Inc.
175 Toyota Plaza
7th Floor
Memphis, Tennessee 38103
(901) 523-9700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Chief Executive Officer
GTx, Inc.
175 Toyota Plaza
7th Floor
Memphis, Tennessee 38103
(901) 523-9700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Suzanne Sawochka Hooper, Esq.
Chadwick L. Mills, Esq.
Cooley Godward Kronish LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
(650) 843-5000
Suzanne Sawochka Hooper, Esq.
Chadwick L. Mills, Esq.
Cooley Godward Kronish LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
(650) 843-5000
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.
| Large accelerated filer o | Accelerated filer þ | Non-accelerated filer o | Smaller reporting company o | |||
| (Do not check if a smaller reporting company) |
CALCULATION OF REGISTRATION FEE
| Proposed Maximum | Proposed Maximum | |||||||||||||||||||||
| Title of Securities | Amount to be | Offering | Aggregate | Amount of | ||||||||||||||||||
| to be Registered | Registered (1) | Price Per Share(2) | Offering Price(2) | Registration Fee | ||||||||||||||||||
Common Stock, par value $.001 per share |
3,768,667 shares | $ 3.705-$4.20 | $ | 14,049,929.76 | $ | 1,001.76 | ||||||||||||||||
| (1) | Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrant’s Common Stock. | |
| (2) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon (a) the weighted average exercise price for outstanding options granted under the Registrant’s 2004 Equity Incentive Plan ($4.20) and (b) the average of the high and low prices of the Registrant’s Common Stock as reported on The NASDAQ Global Market on March 12, 2010 ($3.705). The chart below details the calculations of the registration fee: |
| Number of | Offering Price | |||||||||||
| Title of Securities to be Registered | Shares | Per Share (2) | Aggregate Offering Price | |||||||||
Common Stock, par value $0.001 per
share, issuable upon the exercise of
outstanding options granted under the
GTx, Inc. 2004 Equity Incentive Plan |
175,795 | $ | 4.20 | (a) | $ | 738,339.00 | ||||||
Common Stock, par value $0.001 per
share, reserved for future grant under
the GTx, Inc. 2004 Equity Incentive
Plan |
3,464,872 | $ | 3.705 | (b) | $ | 12,837,350.76 | ||||||
Common Stock, par value $0.001 per
share, reserved for future grant under
the GTx, Inc. Amended and Restated 2004
Non-Employee Directors’ Stock Option
Plan |
128,000 | $ | 3.705 | (b) | $ | 474,240.00 | ||||||
Proposed Maximum Aggregate Offering Price |
$ | 14,049,929.76 | ||||||||||
Registration Fee |
$ | 1,001.76 | ||||||||||
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering an
additional (i) 3,640,667 shares of the Registrant’s Common Stock to be issued pursuant to the
Registrant’s 2004 Equity Incentive Plan, and (ii) 128,000 shares of the Registrant’s Common Stock
to be issued pursuant to the Registrant’s Amended and Restated 2004 Non-Employee Directors’ Stock
Option Plan.
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION
STATEMENTS ON FORM S-8
STATEMENTS ON FORM S-8
The contents of the Registration Statements on Form S-8 (File Nos. 333-149661, 333-136527 and
333-112576) are incorporated by reference herein.
EXHIBITS
| Exhibit | ||||
| Number | Description | |||
| 3.1 | Restated Certificate of Incorporation of GTx, Inc.(1) |
|||
| 3.2 | Amended and Restated Bylaws of GTx, Inc.(2) |
|||
| 4.1 | Reference is made to Exhibits 3.1 and 3.2 |
|||
| 4.2 | Specimen Common Stock Certificate(3) |
|||
| 4.3 | Amended and Restated Registration Rights Agreement between Registrant and Oracle Partners, L.P. dated August 7, 2003(3) | |||
| 4.4 | Amended and Restated Registration Rights Agreement between Registrant and J. R. Hyde, III dated August 7, 2003(3) | |||
| 4.5 | Consent, Waiver and Amendment between the Registrant and Oracle Partners, L.P., Oracle Investment Management, Inc. and Oracle Institutional Partners, L.P. dated November 29, 2007(4) | |||
| 4.6 | Consent, Waiver and Amendment between Registrant and J. R. Hyde, III and Pittco Associates, L.P. dated December 3, 2007(4) | |||
| 4.7 | Registration Rights Agreement between Registrant and Merck & Co., Inc. dated December 18,
2007(5) |
|||
| 5.1 | Opinion of Cooley Godward Kronish llp |
|||
| 23.1 | Consent of Independent Registered Public Accounting Firm |
|||
| 23.2 | Consent of Cooley Godward Kronish llp is contained in Exhibit 5.1 to this Registration Statement |
|||
| 24.1 | Power of Attorney (contained on the signature pages hereto) |
|||
| 99.1 | GTx, Inc. 2004 Equity Incentive Plan, as amended effective November 4, 2008 and Form of Stock Option Agreement(6) | |||
| 99.2 | GTx, Inc. Amended and Restated 2004 Non-Employee Directors’ Stock Option Plan, as amended effective November 4, 2008(7) | |||
| 99.3 | Form of Stock Option Agreement under the GTx, Inc. Amended and Restated 2004 Non-Employee Directors’ Stock Option Plan(8) | |||
| (1) | Filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 (File No. 333-127175), filed with the SEC on August 4, 2005, and incorporated herein by reference. | |
| (2) | Filed as the like numbered Exhibit to the Registrant’s Current Report on Form 8-K (File No. 000-50549), filed with the SEC on July 26, 2007, and incorporated herein by reference. | |
| (3) | Filed as the like numbered Exhibit to the Registrant’s Registration Statement on Form S-1 or amendments thereto (File No. 333-109700), originally filed with the Securities and Exchange Commission on October 15, 2003, as amended, and incorporated herein by reference. | |
| (4) | Filed as the like numbered Exhibit to the Registrant’s Registration Statement on Form S-3 (File No. 333-148321), filed with the SEC on December 26, 2007, and incorporated herein by reference. |
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| (5) | Filed as the like numbered Exhibit to the Registrant’s Current Report on Form 8-K (File No. 000-50549), filed with the SEC on December 18, 2007, and incorporated herein by reference. | |
| (6) | Filed as Exhibit 10.52 to the Registrant’s Annual Report on Form 10-K (File No. 000-50549), filed with the SEC on March 3, 2009, and incorporated herein by reference. | |
| (7) | Filed as Exhibit 10.51 to the Registrant’s Annual Report on Form 10-K (File No. 000-50549), filed with the SEC on March 3, 2009, and incorporated herein by reference. | |
| (8) | Filed as Exhibit 10.35 to the Registrant’s Quarterly Report on Form 10-Q (File No. 000-50549), filed with the SEC on August 9, 2006, and incorporated herein by reference. |
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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 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 the City of Memphis, State of
Tennessee, on this 16th day of March,
2010.
| GTx, Inc. |
||||
| By: | /s/ MITCHELL S. STEINER | |||
| Mitchell S. Steiner, M.D., F.A.C.S. | ||||
| Chief Executive Officer | ||||
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POWER OF ATTORNEY
Know All Persons By These Presents, that each person whose signature appears below
constitutes and appoints Mitchell S. Steiner, Marc S. Hanover, Henry P. Doggrell and Mark E.
Mosteller, and each or any one of them, his true and lawful attorney-in-fact and agent, with full
power 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 post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission (the “SEC”), and generally to do
all such things in their names and behalf in their capacities as officers and directors to enable
the Registrant to comply with the provisions of the Securities Act of 1933 and all requirements of
the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person,
ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or
his substitutes or substitute, 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/ MITCHELL S. STEINER |
Chief Executive Officer, Vice-Chairman and Director (Principal Executive Officer) |
March 16, 2010 | ||
| /s/ MARK E. MOSTELLER |
Chief Financial Officer (Principal Accounting and Financial Officer) |
March 16, 2010 | ||
| /s/ J.R. HYDE, III |
Chairman of the Board of Directors | March 16, 2010 | ||
| /s/ MARC S. HANOVER |
Director | March 16, 2010 | ||
| /s/ MICHAEL G. CARTER |
Director | March 16, 2010 | ||
| /s/ J. KENNETH GLASS |
Director | March 16, 2010 | ||
| /s/ ROBERT W. KARR |
Director | March 16, 2010 | ||
| /s/ JOHN H. PONTIUS |
Director | March 16, 2010 | ||
| /s/ KENNETH S. ROBINSON |
Director | March 16, 2010 | ||
| /s/ TIMOTHY R. G. SEAR |
Director | March 16, 2010 |
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EXHIBIT INDEX
| Exhibit | ||||
| Number | Description | |||
| 3.1 | Restated Certificate of Incorporation of GTx, Inc.(1) | |||
| 3.2 | Amended and Restated Bylaws of GTx, Inc.(2) | |||
| 4.1 | Reference is made to Exhibits 3.1 and 3.2 | |||
| 4.2 | Specimen Common Stock Certificate(3) | |||
| 4.3 | Amended and Restated Registration Rights Agreement between Registrant and Oracle Partners, L.P. dated August 7, 2003(3) | |||
| 4.4 | Amended and Restated Registration Rights Agreement between Registrant and J. R. Hyde, III dated August 7, 2003(3) | |||
| 4.5 | Consent, Waiver and Amendment between the Registrant and Oracle Partners, L.P., Oracle Investment Management, Inc. and Oracle Institutional Partners, L.P. dated November 29, 2007(4) | |||
| 4.6 | Consent, Waiver and Amendment between Registrant and J. R. Hyde, III and Pittco Associates, L.P. dated December 3, 2007(4) | |||
| 4.7 | Registration Rights Agreement between Registrant and Merck & Co., Inc. dated December 18, 2007(5) | |||
| 5.1 | Opinion of Cooley Godward Kronish llp | |||
| 23.1 | Consent of Independent Registered Public Accounting Firm | |||
| 23.2 | Consent of Cooley Godward Kronish llp is contained in Exhibit 5.1 to this Registration Statement | |||
| 24.1 | Power of Attorney (contained on the signature pages hereto) | |||
| 99.1 | GTx, Inc. 2004 Equity Incentive Plan, as amended effective November 4, 2008 and Form of Stock Option Agreement(6) | |||
| 99.2 | GTx, Inc. Amended and Restated 2004 Non-Employee Directors’ Stock Option Plan, as amended effective November 4, 2008(7) | |||
| 99.3 | Form of Stock Option Agreement under the GTx, Inc. Amended and Restated 2004 Non-Employee Directors’ Stock Option Plan(8) | |||
| (1) | Filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 (File No. 333-127175), filed with the SEC on August 4, 2005, and incorporated herein by reference. | |
| (2) | Filed as the like numbered Exhibit to the Registrant’s Current Report on Form 8-K (File No. 000-50549), filed with the SEC on July 26, 2007, and incorporated herein by reference. | |
| (3) | Filed as the like numbered Exhibit to the Registrant’s Registration Statement on Form S-1 or amendments thereto (File No. 333-109700), originally filed with the Securities and Exchange Commission on October 15, 2003, as amended, and incorporated herein by reference. | |
| (4) | Filed as the like numbered Exhibit to the Registrant’s Registration Statement on Form S-3 (File No. 333-148321), filed with the SEC on December 26, 2007, and incorporated herein by reference. | |
| (5) | Filed as the like numbered Exhibit to the Registrant’s Current Report on Form 8-K (File No. 000-50549), filed with the SEC on December 18, 2007, and incorporated herein by reference. | |
| (6) | Filed as Exhibit 10.52 to the Registrant’s Annual Report on Form 10-K (File No. 000-50549), filed with the SEC on March 3, 2009, and incorporated herein by reference. | |
| (7) | Filed as Exhibit 10.51 to the Registrant’s Annual Report on Form 10-K (File No. 000-50549), filed with the SEC on March 3, 2009, and incorporated herein by reference. | |
| (8) | Filed as Exhibit 10.35 to the Registrant’s Quarterly Report on Form 10-Q (File No. 000-50549), filed with the SEC on August 9, 2006, and incorporated herein by reference. |
5
Exhibit 5.1
March 16, 2010
GTx, Inc.
175 Toyota Plaza
7th Floor
Memphis, Tennessee 38103
175 Toyota Plaza
7th Floor
Memphis, Tennessee 38103
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection with the filing by
GTx, Inc. (the “Company”) of a Registration Statement on Form S-8 (the “Registration Statement”)
with the Securities and Exchange Commission covering the offering of up to (i) 3,640,667 shares of
the Company’s Common Stock, par value $0.001 per share (“Common Stock”), pursuant to the Company’s
2004 Equity Incentive Plan (the “Incentive Plan Shares”); and (ii) 128,000 shares of Common Stock
pursuant to the Company’s Amended and Restated 2004 Non-Employee Directors’ Stock Option Plan (the
“Directors’ Plan Shares”).
In connection with this opinion, we have examined the Registration Statement and related
Prospectuses, the Company’s Restated Certificate of Incorporation and Amended and Restated Bylaws,
as currently in effect, the Company’s 2004 Equity Incentive Plan (the “Incentive Plan”), the
Company’s Amended and Restated 2004 Non-Employee Directors’ Stock Option Plan (the “Directors’
Plan”), 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 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.
Our opinion is expressed only with respect to the federal laws of the United States of America and
the General Corporation Law of the State of Delaware. We express no opinion as to whether the laws
of any particular jurisdiction other than those identified above are applicable to the subject
matter hereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Incentive
Plan Shares and the Directors’ Plan Shares, when sold and issued in accordance with the Incentive
Plan and the Directors’ Plan, respectively, and the Registration Statement and related
Prospectuses, will be validly issued, fully paid and nonassessable (except as to shares issued
pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when
such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration Statement.
| Very truly yours, Cooley Godward Kronish LLP |
||||
| By: | /s/ Chadwick L. Mills | |||
| Chadwick L. Mills | ||||
FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM
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 2004 Equity Incentive Plan and the Amended and Restated 2004 Non-Employee Directors’ Stock
Option Plan of GTx, Inc. of our reports dated March 15, 2010, with respect to the financial
statements of GTx, Inc., and the effectiveness of internal control over financial reporting of GTx,
Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2009, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Memphis, Tennessee
March 16, 2010
March 16, 2010