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As filed with the Securities and Exchange Commission on
May 12, 2011
Registration
No. 333-166770
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
PRE-EFFECTIVE AMENDMENT
NO. 1
TO
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CORNERSTONE THERAPEUTICS
INC.
(Exact name of registrant as
specified in its charter)
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Delaware
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04-3523569
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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1255 Crescent Green Drive,
Suite 250
Cary, North Carolina 27518
(919) 678-6611
(Address, including
zip code, and telephone number, including area code, of
registrants principal executive offices)
Craig A. Collard
President and Chief Executive Officer
Cornerstone Therapeutics Inc.
1255 Crescent Green Drive, Suite 250
Cary, North Carolina 27518
(919) 678-6611
(Name, address,
including zip code, and telephone number,
including area code, of agent for service)
Copies to:
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David B. Clement
Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan, L.L.P.
2500 Wachovia Capitol Center
Raleigh, North Carolina 27601
(919) 821-1220
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Andrew K. W. Powell
Executive Vice President,
General Counsel and Secretary
Cornerstone Therapeutics Inc.
1255 Crescent Green Drive, Suite 250
Cary, North Carolina 27518
(919) 678-6524
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of the
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. o
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. þ
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. o
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 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. o
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. 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. (Check one):
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Large
accelerated
filer o
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Accelerated
filer o
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Non-accelerated
filer þ
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Smaller reporting
company o
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(Do not check if a smaller
reporting company)
CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Maximum Offering
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Aggregate
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Registration
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Securities to be Registered
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Registered(1)
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Price per Unit(1)
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Offering Price(2)(3)
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Fee(4)
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Common Stock, $0.001 par value per share
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Preferred Stock, $0.001 par value per share
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Warrants
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Total
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$94,950,000
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$6,769.93
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(1) |
An indeterminate number of shares of common stock and preferred
stock and an indeterminate number of warrants to purchase common
stock or preferred stock are being registered hereunder for
possible issuance from time to time at indeterminate prices, but
in no event will the aggregate offering price exceed $94,950,000
or if any securities are issued in foreign currencies, composite
currencies or currency units, the U.S. dollar equivalent of
$94,950,000. Any securities registered hereunder may be sold
separately or with other securities registered hereunder. The
securities registered also include such indeterminate amount and
number of shares of common stock and preferred stock as may be
issued upon conversion of or exchanged for preferred stock and
upon exercise of warrants or pursuant to antidilution provisions
of any such securities. Separate consideration may or may not be
received for securities registered hereunder that are issued
upon conversion of, or in exchange for, or upon exercise of, as
the case may be, convertible or exchangeable securities. In
accordance with Rule 416 under the Securities Act of 1933,
as amended, this registration statement shall be deemed to cover
any additional securities that may from time to time be offered
or issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
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(2) |
Estimated in accordance with Rule 457(o) under the
Securities Act of 1933, as amended, solely for the purpose of
determining the applicable registration fee.
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(3) |
At no time will the aggregate market value of securities offered
or sold in any given
12-month
period exceed the amount allowed for in General
Instruction I.B.6. of
Form S-3.
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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.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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SUBJECT TO COMPLETION, DATED
May 12, 2011
PROSPECTUS
$94,950,000
Common Stock
Preferred Stock
Warrants
From time to time, we may offer and sell the following
securities with an aggregate offering price of up to $94,950,000
in amounts, at prices and on terms described in one or more
supplements to this prospectus (i) shares of common stock;
(ii) shares of preferred stock; and (iii) warrants to
purchase shares of common stock or preferred stock.
This prospectus describes some of the general terms that may
apply to an offering of the securities. The specific terms and
any other information relating to a specific offering will be
set forth in a post-effective amendment to the registration
statement of which this prospectus is a part or in a supplement
to this prospectus, or may be set forth in one or more documents
incorporated by reference into this prospectus. We may also
authorize one or more free writing prospectuses to be provided
to you in connection with a specific offering. You should read
carefully this prospectus, the applicable prospectus supplement
and any related free writing prospectuses that we have
authorized for use in connection with a specific offering, as
well as any documents incorporated by reference in this
prospectus and the applicable prospectus supplement, before you
invest.
This prospectus may not be used to offer and sell securities
without a prospectus supplement.
We may offer and sell securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on
a continuous or delayed basis. If any agents or underwriters are
involved in the sale of any of the securities offered by this
prospectus, their names, and any applicable purchase price, fee,
commission or discount arrangement with, between or among them,
will be set forth, or will be calculable from the information
set forth, in the applicable prospectus supplement. The
supplements to this prospectus will provide the specific terms
of the plan of distribution. The net proceeds we expect to
receive from sales by us will be set forth in the applicable
prospectus supplement.
Our common stock is traded on the Nasdaq Capital Market and is
quoted under the symbol CRTX. On May 6, 2011,
the last reported sale price of our common stock was $6.35 per
share.
As of May 6, 2011, the aggregate market value of our
outstanding common stock held by non-affiliates was
approximately $51,941,970, based on 25,950,804 shares of
outstanding common stock, of which 8,179,822 shares were
held by non-affiliates, and a per share price of $6.35 based on
the closing price of our common stock on that date. As of the
date hereof, we have not offered or sold any securities pursuant
to General Instruction I.B.6.of
Form S-3
during the prior twelve-calendar-month period that ends on, and
includes, the date of this prospectus.
Investing in our securities involves a high degree of risk.
You should review carefully the risks and uncertainties
described under the heading Risk Factors on
page 4 and those contained in the applicable prospectus
supplement and in any related free writing prospectuses that we
have authorized for use in connection with a specific offering
and in our Securities and Exchange Commission filings that are
incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
Prospectus dated May 12, 2011
ABOUT
THIS PROSPECTUS
This prospectus is part of a shelf registration statement that
we filed with the U.S. Securities and Exchange Commission,
or SEC, using a shelf registration process. By using
a shelf registration statement, we may sell any combination of
the securities referred to herein from time to time and in one
or more offerings as described herein up to a maximum aggregate
offering price of $94,950,000. Each time that we sell securities
under this shelf registration process, we will provide a
prospectus supplement to this prospectus that contains specific
information about the securities being offered and the specific
terms of that offering. The prospectus supplement may also add,
update or change information contained in this prospectus. If
there is any inconsistency between the information in this
prospectus and any prospectus supplement, you should rely on the
prospectus supplement. Before purchasing any securities, you
should carefully read both this prospectus, any prospectus
supplement and any related free-writing prospectuses that we
have authorized in connection with a specific offering, together
with the additional information described under the heading
Where You Can Find More Information.
You should rely only on the information contained or
incorporated by reference in this prospectus, in any prospectus
supplement and in any related free-writing prospectuses that we
have authorized in connection with a specific offering. We have
not authorized any dealer, salesman or other person to give any
information or to make any representation other than those
contained or incorporated by reference in this prospectus, the
accompanying supplement to this prospectus and any related
free-writing prospectuses that we have authorized in connection
with a specific offering. We will not make an offer to sell
these securities in any jurisdiction where the offer or sale is
not permitted. You should assume that the information appearing
in this prospectus, the prospectus supplement to this prospectus
and any related free-writing prospectuses that we have
authorized in connection with a specific offering is accurate as
of the date on its respective cover, and that any information
incorporated by reference is accurate only as of the date of the
document incorporated by reference, unless we indicate
otherwise. Our business, financial condition, results of
operations and prospects may have changed since those dates.
When we refer to Cornerstone Therapeutics,
we, our and us in this
prospectus, we mean Cornerstone Therapeutics Inc., a Delaware
corporation, unless otherwise specified. Our principal executive
offices are located at 1255 Crescent Green Drive,
Suite 250, Cary, North Carolina 27518, and our telephone
number is
(919) 678-6611.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement, any related
free-writing prospectuses that we have authorized in connection
with a specific offering and the documents we incorporate by
reference in this prospectus may include forward-looking
statements within the meaning of Section 27A of the
Securities Act of 1933, as
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amended, or the Securities Act, and Section 21E of the
Securities Exchange Act of 1934, as amended, or the Exchange
Act. For purposes of these statutes, any statement contained
herein or therein, other than a statement of historical fact,
may be a forward-looking statement. We may, in some cases, use
words such as anticipate, believe,
could, estimate, expect,
intend, may, plan,
project, should, target,
will, would or other words that convey
uncertainty of future events or outcomes to identify these
forward-looking statements. Examples of risks and uncertainties
that could cause actual results to differ materially from
historical performance and any forward-looking statements
include, but are not limited to, the risks described in our most
recent Annual Report on
Form 10-K,
as well as any amendments thereto reflected in subsequent
filings with the SEC. Given these risks, uncertainties and other
factors, you should not place undue reliance on these
forward-looking statements. Also, these forward-looking
statements represent our estimates and assumptions only as of
the date such forward-looking statements are made. You should
read carefully and completely this prospectus, any applicable
prospectus supplement and any related free writing prospectuses
that we have authorized for use in connection with a specific
offering, together with the information incorporated herein or
therein by reference as described under the headings Where
You Can Find More Information and Incorporation of
Certain Documents by Reference, and with the understanding
that our actual future results may be materially different from
what we expect. We hereby qualify all of our forward-looking
statements by these cautionary statements. Except as required by
law, we assume no obligation to update these forward-looking
statements publicly or to update the reasons actual results
could differ materially from those anticipated in these
forward-looking statements, even if new information becomes
available in the future. Our forward-looking statements do not
reflect the potential impact of any future acquisitions,
mergers, dispositions, joint ventures or investments we may make.
ABOUT
CORNERSTONE THERAPEUTICS INC.
Cornerstone Therapeutics Inc. is a specialty pharmaceutical
company focused on acquiring, developing and commercializing
products primarily for the respiratory and related markets.
Our strategy is to:
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Leverage commercial capabilities by promoting respiratory and
related products to high prescribing physicians through our
respiratory sales force and to hospital-based healthcare
professionals through our hospital sales force;
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Acquire rights to existing patent- or trade secret-protected,
branded products, which can be promoted through the same
channels to generate on-going high-value earnings streams;
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Advance our development projects and further build a robust
pipeline; and
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Generate revenues by marketing approved generic products through
our wholly owned subsidiary, Aristos Pharmaceuticals, Inc.
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We believe that if we implement this strategy successfully, we
can deliver consistent long-term earnings growth.
Our management team has broad experience in the acquisition,
commercialization and development of pharmaceutical products.
Additionally, our commercial understanding has allowed us to
build effective sales forces that continue to grow our products
and build relationships with key physicians within the
respiratory and hospital markets.
We do not devote resources to early stage pharmaceutical
research or captive manufacturing.
We believe that our business model and the competencies we have
developed position us to add additional products in the
respiratory space and can also be easily transferred to other
related specialty market areas.
We currently derive the majority of our revenue from four key
product families:
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CUROSURF®,
an FDA-approved natural lung surfactant for the treatment of
Respiratory Distress Syndrome in premature infants, for which we
acquired rights in the United States in August 2009;
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ZYFLO®
and ZYFLO
CR®,
the only FDA-approved leukotriene synthesis inhibitor drugs
indicated for prophylaxis and chronic treatment of asthma, for
which we acquired worldwide rights in December 2003 and March
2004;
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FACTIVE®,
an FDA-approved fluoroquinolone antibiotic for the treatment of
acute bacterial exacerbation of chronic bronchitis and
community-acquired pneumonia, of mild to moderate severity,
caused by Streptococcus pneumoniae, Haemophilus influenzae,
Moraxella catarrhalis, Mycoplasma pneumoniae, Chlamydia
pneumoniae, or Klebsiella pneumoniae, for which we acquired
rights in North America and certain European countries in
September 2009; and
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SPECTRACEF®
(cefditoren pivoxil) tablets, a third-generation cephalosporin
indicated for the treatment of certain respiratory and skin
infections, for which we acquired rights in the United States in
October 2006.
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We were incorporated in Delaware on July 14, 2000. Our
principal executive offices are located at 1255 Crescent Green
Drive, Suite 250, Cary, North Carolina 27518, and our
telephone number is
(919) 678-6611.
Our corporate website address is www.crtx.com. We do not
incorporate the information on, or accessible through, our
website into this prospectus, and you should not consider any
information on, or that can be accessed through, our website as
part of this prospectus.
Prior to our October 31, 2008 merger with Cornerstone
BioPharma Holdings, Inc., or Cornerstone BioPharma, we were
known as Critical Therapeutics, Inc., or Critical Therapeutics.
Following the closing of the merger, former Cornerstone
BioPharma stockholders owned approximately 70%, and former
Critical Therapeutics stockholders owned approximately 30%, of
our common stock. In connection with the completion of the
merger, on October 31, 2008 we changed our name to
Cornerstone Therapeutics Inc.
RISK
FACTORS
Investing in our securities involves certain risks. Potential
investors are urged to read and consider the risk factors and
other disclosures relating to an investment in our securities
described in any applicable prospectus supplement or free
writing prospectus and in our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2010, as updated by
our subsequent filings under the Exchange Act, and other reports
and documents we file with the SEC after the date of this
prospectus and that are incorporated by reference herein. You
should consider carefully those risks as well as other
information contained in this prospectus, any applicable
prospectus supplement, the documents incorporated by reference
herein or therein and any free writing prospectuses that we have
authorized for use in connection with a specific offering,
before deciding whether to purchase any of our securities. Each
of the risk factors could adversely affect our business,
operating results and financial condition, as well as adversely
affect the value of an investment in our securities, and you may
lose all or part of your investment.
USE OF
PROCEEDS
Except as described in the applicable prospectus supplement, we
anticipate using the net proceeds from the sale of our
securities for general corporate purposes, including capital
expenditures, working capital, repayment of any indebtedness
outstanding, product and other acquisitions and other business
opportunities. Pending such uses of proceeds, the net proceeds
may be temporarily invested in short-term securities.
DESCRIPTION
OF CAPITAL STOCK
This section describes the general terms of our common stock.
The following description is based upon our Amended and Restated
Certificate of Incorporation, as amended, which we refer to as
our Certificate of Incorporation; our Fourth Amended and
Restated Bylaws, which we refer to as our Bylaws; and applicable
provisions of law. We have summarized certain portions of the
Certificate of Incorporation and Bylaws below. This summary is
not complete. The Certificate of Incorporation and Bylaws are
incorporated by reference as
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exhibits to the registration statement of which this prospectus
forms a part. You should read the Certificate of Incorporation
and Bylaws for the provisions that are important to you.
Authorized
Capital Stock
Our authorized capital stock consists of 90,000,000 shares
of common stock, $0.001 par value per share, and
5,000,000 shares of preferred stock, $0.001 par value
per share. As of May 6, 2011, there were 25,950,804 shares
of common stock outstanding and no shares of preferred stock
outstanding.
Common
Stock
Voting
For all matters submitted to a vote of stockholders, each holder
of common stock is entitled to one vote for each share
registered in the stockholders name. Our common stock does
not have cumulative voting rights, and stockholders may take
action by written consent.
Stockholder
Action; Special Meeting of Stockholders; Advance Notice
Requirements for Stockholder Proposals and Director
Nominations
Our Certificate of Incorporation and Bylaws provide that any
action required or permitted to be taken by our stockholders at
an annual meeting or special meeting of stockholders may be
taken if it is properly brought before the meeting and may be
taken by written action in lieu of a meeting. Our Bylaws also
provides that, except as otherwise required by law, a special
meeting of stockholders can be called by the chairman of our
board of directors, or the Board, our chief executive officer,
the Board or stockholders owning at least 50% of our outstanding
capital stock. Our Bylaws establish an advance notice procedure
for stockholder proposals to be brought before an annual meeting
of stockholders, including proposed nominations of persons for
election to the Board. However, nominations of directors
pursuant to the governance agreement dated May 6, 2009 with
Chiesi Farmaceutici S.p.A., or Chiesi, and, solely with respect
to certain sections identified therein, certain of our
stockholders, or the Governance Agreement, are excepted from the
advance notice procedures generally applicable to director
nominations.
Bylaw
Amendments
Under Delaware law, a Delaware corporations bylaws can be
amended by its stockholders and, if the corporations
certificate of incorporation so provides, by its directors. Our
Bylaws may be amended by the stockholders with the approval of a
majority of the shares present in person or represented by proxy
at a meeting of stockholders and entitled to vote on the matter.
Also, our Certificate of Incorporation permits the Board to
amend or repeal our bylaws without the consent of our
stockholders (except as provided by applicable law).
Dividends
Our stockholders are entitled to share ratably in any dividends
declared by our Board, subject to any preferential dividend
rights of any outstanding preferred stock. Dividends consisting
of shares of common stock may be paid to our stockholders.
Liquidation
and Dissolution
If we are liquidated or dissolved, the holders of our common
stock will be entitled to share ratably in all the assets that
remain after we pay our liabilities, subject to the prior rights
of any outstanding preferred stock.
Other
Rights and Restrictions
Our stockholders do not have preemptive rights, and they have no
right to convert their common stock into any other securities.
Our common stock is not subject to redemption. Our Certificate
of Incorporation and Bylaws do not restrict the ability of a
stockholder to transfer the stockholders shares of common
stock.
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Listing
Our common stock is listed on the NASDAQ Capital Market under
the symbol CRTX.
Transfer
Agent and Registrar
Our transfer agent and registrar for our common stock is First
Shareholder Services.
Preferred
Stock
Our Board is authorized, subject to any limitations under our
Certificate of Incorporation or prescribed by law, without
further stockholder approval, to issue up to an aggregate of
5,000,000 shares of preferred stock. Our Board may
establish the applicable and relative designations, number of
authorized shares, dividend rates and terms, redemption or
sinking fund provisions, conversion or exchange rates,
anti-dilution provisions, voting rights, liquidation preferences
and other terms, preferences and limitations of any series of
preferred stock it determines to issue. The existence of the
authorized but unissued shares of preferred stock enables our
Board to render more difficult or to discourage an attempt to
obtain control of our company by means of a merger, tender
offer, proxy contest or otherwise.
Delaware
Law and Certificate of Incorporation and Bylaw
Provisions
Anti-takeover
Provisions
Section 203 of the Delaware General Corporation Law, or
Section 203, is an anti-takeover provision that applies to
Delaware corporations. It generally provides that any person or
entity who acquires 15% or more of a corporations voting
stock (thereby becoming an interested stockholder)
may not engage in a wide range of business combinations with the
corporation for a period of three years following the date the
person became an interested stockholder, unless (i) the
board of directors of the corporation has approved, prior to
that acquisition date, either the business combination or the
transaction that resulted in the person becoming an interested
stockholder; (ii) upon consummation of the transaction that
resulted in the person becoming an interested stockholder, that
person owns at least 85% of the corporations voting stock
outstanding at the time the transaction commenced (excluding
shares owned by persons who are directors and also officers and
shares owned by employee stock plans in which participants do
not have the right to determine confidentially whether shares
will be tendered in a tender or exchange offer); or
(iii) the business combination is approved by the board of
directors and authorized by the affirmative vote (at an annual
or special meeting and not by written consent) of at least
66 and 2/3% of the outstanding voting stock not owned by
the interested stockholder. Under Delaware law, a corporation
can elect not to be subject to Section 203 by inserting a
provision to that effect in its certificate of incorporation. In
our Certificate of Incorporation, we have elected not to be
governed by Section 203.
Limitation
of Liability and Indemnification of Officers and
Directors
Our Certificate of Incorporation contains provisions permitted
under the Delaware General Corporation Law relating to the
liability of directors. The provisions eliminate a
directors liability for monetary damages for a breach of
fiduciary duty, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of
liability of directors for breaches of fiduciary duty. In
addition, our Certificate of Incorporation contains provisions
to indemnify our directors and officers to the fullest extent
permitted by the Delaware General Corporation Law.
The limitations of liability and indemnification provisions in
our Certificate of Incorporation and Bylaws may discourage
stockholders from bringing a lawsuit against directors for
breach of their fiduciary duty. These provisions may also have
the effect of reducing the likelihood of derivative litigation
against directors and officers, even though such an action, if
successful, might otherwise benefit our stockholders and us. In
addition, your investment may be adversely affected to the
extent we pay the costs of settlement and damage awards against
directors and officers pursuant to these indemnification
provisions.
There is currently no pending material litigation or proceeding
involving any of our directors, officers or employees for which
indemnification is sought.
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Governance
Agreement
The Governance Agreement sets forth certain rights and
obligations of the Company, Chiesi and certain stockholders
concerning, among other things, certain corporate governance
matters, the voting of Chiesis shares of common stock,
certain limitations on future acquisitions and dispositions of
shares of common stock by Chiesi and certain rights of first
offer to distribute and market the other partys products.
The Governance Agreement became effective on July 28, 2009.
Under the Governance Agreement, our Board is required to consist
of our chief executive officer, three independent directors
under the NASDAQ Marketplace Rules and four persons designated
by Chiesi. The number of persons Chiesi is entitled to designate
for consideration for election to the Board to our Nominating
and Corporate Governance Committee, or the Nominating Committee,
will thereafter depend on the percentage of beneficial ownership
held by Chiesi and its affiliates on a fully diluted basis, with
a maximum of four persons so designated at any time. The
Nominating Committee will nominate our chief executive officer
and three independent directors.
The Governance Agreement provides that from July 28, 2009
to July 28, 2011, which we refer to as the Blackout Period,
Chiesi will not directly or indirectly acquire or offer to
acquire any shares of common stock except (i) with the
approval of our Board and a majority of its independent
directors; (ii) effected solely to the extent necessary to
maintain the beneficial ownership of Chiesi and its affiliates
at an amount equal to 51% of the shares of common stock on a
fully diluted basis; (iii) pursuant to open market
purchases in the same number of shares as certain stockholders
of the Company transfer during the same period; (iv) in
order to effect the acquisition of all of our outstanding
capital stock by Chiesi
and/or any
of its affiliates, in accordance with the provisions of the
Governance Agreement; and (v) pursuant to a mandatory
tender offer by Chiesi that Chiesi will be required to make if
Chiesi and its affiliates beneficially own 85% or more of our
capital stock on a fully diluted basis. Also, during the
Blackout Period, Chiesi will be prohibited from selling or
otherwise transferring any shares of common stock except
pursuant to a bona fide acquisition by a third party through a
merger, consolidation, stock exchange or tender offer that was
not solicited by Chiesi or its affiliates and that was approved
by our Board and a majority of its independent directors.
The Governance Agreement further imposes certain
standstill obligations on Chiesi during the Blackout
Period, pursuant to which Chiesi and certain related persons are
prohibited from soliciting proxies from our stockholders,
participating in a group of persons that would be
required to file a statement with the SEC if the group
beneficially owned 5% or more of any class of our voting stock,
granting proxies or entering into voting agreements and seeking
additional representation on our Board.
DESCRIPTION
OF WARRANTS
This description summarizes only the terms of any warrants that
we may offer under this prospectus and related warrant
agreements and certificates. You should refer to the warrant
agreement, including the form of warrant certificate
representing the warrants, relating to the specific warrants
being offered for complete terms, which will be described and
included in an accompanying prospectus supplement. Such warrant
agreement, together with the warrant certificate, will be filed
with the SEC in connection with the offering of the specific
warrants.
We may issue warrants for the purchase of common or preferred
stock. Warrants may be issued independently or together with
common or preferred stock, and may be attached to or separate
from any other securities.
We will evidence each series of warrants by warrant certificates
that we will issue under a separate warrant agreement. We may
enter into the warrant agreement with a warrant agent and, if
so, we will indicate the name and address of the warrant agent
in the applicable prospectus supplement relating to the
particular series of warrants.
7
Terms of Warrants. The particular terms of any
issue of warrants will be described in the prospectus supplement
relating to the series. Those terms may include:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies (including composite currencies) in
which the price of such warrants may be payable;
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the terms of the securities issuable upon exercise of such
warrants and the procedures and conditions relating to the
exercise of such warrants;
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the price at which the securities issuable upon exercise of such
warrants may be acquired;
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the dates on which the right to exercise such warrants will
commence and expire;
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any provisions for adjustment of the number or amount of
securities receivable upon exercise of the warrants or the
exercise price of the warrants;
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if applicable, the minimum or maximum amount of such warrants
that may be exercised at any one time;
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if applicable, the designation and terms of the securities with
which such warrants are issued and the number of such warrants
issued with each such security or principal amount of such
security;
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if applicable, the date on and after which such warrants and the
related securities will be separately transferable;
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information with respect to book-entry procedures, if
any; and
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any other terms of such warrants, including terms, procedures
and limitations relating to the exchange or exercise of such
warrants.
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The prospectus supplement relating to any warrants to purchase
equity securities may also include, if applicable, a discussion
of certain U.S. federal income tax and ERISA considerations.
Exercise of Warrants. Each warrant will
entitle the holder thereof to purchase such number of shares of
common stock or preferred stock at the exercise price as will in
each case be set forth in, or be determinable as set forth in,
the applicable prospectus supplement. Warrants may be exercised
at any time up to the close of business on the expiration date
set forth in the applicable prospectus supplement. After the
close of business on the expiration date, unexercised warrants
will become void. Warrants may be exercised as set forth in the
applicable prospectus supplement relating to the warrants
offered thereby. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the
corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement, we will, as
soon as practicable, forward the purchased securities. If less
than all of the warrants represented by the warrant certificate
are exercised, a new warrant certificate will be issued for the
remaining warrants.
Enforceability of Rights of Holders of
Warrants. Each warrant agent will act solely as
our agent under the applicable warrant agreement and will not
assume any obligation or relationship of agency or trust with
any holder of any warrant. A single bank or trust company may
act as warrant agent for more than one issue of warrants. A
warrant agent will have no duty or responsibility in case of any
default by us under the applicable warrant agreement or warrant,
including any duty or responsibility to initiate any proceedings
at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant
agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities
purchasable upon exercise of, that holders warrant(s).
8
PLAN OF
DISTRIBUTION
We may sell the securities offered by this prospectus from time
to time:
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through agents;
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through underwriters or dealers;
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directly to one or more purchasers;
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through a combination of any of these methods of sale; or
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through any other methods described in a prospectus supplement.
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We will identify the specific plan of distribution, including
any underwriters, dealers, agents or direct purchasers and their
compensation, in the applicable prospectus supplement.
If we use underwriters in the sale, the securities will be
acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including:
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negotiated transactions;
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at a fixed public offering price or prices, which may be changed;
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at market prices prevailing at the time of sale; or
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at prices related to prevailing market prices.
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Unless otherwise stated in a prospectus supplement, the
obligations of the underwriters to purchase any securities will
be conditioned on customary closing conditions.
We may sell the securities through agents from time to time. The
prospectus supplement will name any agent involved in the offer
or sale of the securities and any commissions we pay to them.
Generally, any agent will be acting on a best efforts basis for
the period of its appointment.
In compliance with guidelines of the Financial Industry
Regulatory Authority, or FINRA, the maximum consideration or
discount to be received by any FINRA member or independent
broker-dealer may not exceed 8% of the aggregate amount of the
securities offered pursuant to this prospectus and any
applicable prospectus supplement.
Underwriters and agents may be entitled under agreements entered
into with us to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, or
to contribution with respect to payments that the underwriters
or agents may be required to make. Underwriters and agents may
be customers of, engage in transactions with or perform services
for us and our affiliates in the ordinary course of business.
WHERE YOU
CAN FIND MORE INFORMATION
We are a public company and file annual, quarterly and current
reports, proxy statements and information statements and other
information with the SEC. You may read and copy materials that
we have filed with the SEC at the SEC public reference room at
100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at
1-800-SEC-0330
for further information on the public reference room. Copies of
reports and other information from us are available on the
SECs website at
http://www.sec.gov.
Such filings are also available at our website at
http://www.crtx.com.
Materials accessed at or through our website are not a part of
this prospectus.
We have filed a registration statement, of which this prospectus
is a part, covering the securities offered hereby. As allowed by
SEC rules, this prospectus does not contain all of the
information set forth in the registration statement and the
exhibits, financial statements and schedules thereto. We refer
you to the registration statement, the exhibits, financial
statements and schedules thereto for further information. This
prospectus is qualified in its entirety by such other
information.
9
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference in
this prospectus the information we file with the SEC, which
means that we can disclose important information to you by
referring you to those documents. The following documents filed
with the SEC are hereby incorporated by reference in this
prospectus:
(a) Our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2010, filed with the
SEC on March 3, 2011;
(b) Our Quarterly Report on
Form 10-Q
for the quarterly period ended March 31, 2011, filed with
the SEC on May 12, 2011;
(c) Our Current Report on
Form 8-K
filed with the SEC on February 7, 2011; and
(d) The description of our Common Stock contained in our
Registration Statement on
Form 8-A
filed on May 19, 2004, as amended by our Registration
Statement on
Form 8-A/A
filed with the SEC on September 2, 2009, and any amendments
or reports filed for the purpose of updating such description.
In addition, all documents that we subsequently file pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
either (i) prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold
or (ii) after the date of the initial registration
statement of which this prospectus is a part and prior to the
effectiveness of the registration statement, shall be deemed to
be incorporated by reference in this prospectus and to be a part
hereof from the date of filing of such documents. However, any
documents or portions thereof, whether specifically listed above
or filed in the future, that are not deemed filed
with the SEC, including without limitation the certifications
required by
Rule 13a-14(b)
or
Rule 15d-14(b)
under the Exchange Act, any information furnished pursuant to
Item 2.02 or 7.01 of
Form 8-K
or certain exhibits furnished pursuant to Item 9.01 of
Form 8-K,
shall not be deemed to be incorporated by reference in this
prospectus.
Any statement in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for the purposes of this prospectus to the extent
that a statement contained herein or in any other subsequently
filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a
part of this prospectus.
We will furnish without charge to you, upon written or oral
request, a copy of any or all of the documents incorporated by
reference herein, other than exhibits to such documents that are
not specifically incorporated by reference therein. All requests
should be sent to the attention of Andrew K. W. Powell,
Executive Vice President, General Counsel, and Secretary,
Cornerstone Therapeutics Inc., 1255 Crescent Green Drive,
Suite 250, Cary, North Carolina 27518 or made via telephone
at
(888) 466-6505.
LEGAL
MATTERS
The validity of our securities issuable hereunder will be passed
upon for us by Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan, L.L.P., Raleigh, North Carolina.
EXPERTS
The consolidated financial statements of Cornerstone
Therapeutics Inc. appearing in Cornerstone Therapeutics
Annual Report
(Form 10-K)
for the year ended December 31, 2010 incorporated by
reference in this prospectus and elsewhere in the registration
statement have been so incorporated by reference in reliance
upon the report of Grant Thornton LLP, independent registered
public accountants, upon the authority of said firm as experts
in accounting and auditing in giving said report.
10
$94,950,000
Common Stock
Preferred Stock
Warrants
PROSPECTUS
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
expenses of issuance and distribution
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The fees and expenses to be paid in connection with the
distribution of the securities being registered hereby are as
follows (all amounts except the registration fee are estimates):
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SEC registration fee
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$
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6,770
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Accounting fees and expenses
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*
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Legal fees and expenses
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*
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Printing fees
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*
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Miscellaneous
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*
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Total
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$
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*
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* |
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Cannot be estimated at this time. |
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Item 15.
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Indemnification
of Directors and Officers
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Section 102 of the General Corporation Law of Delaware
allows a corporation to eliminate the personal liability of
directors of a corporation to the corporation or its
stockholders for monetary damages for a breach of fiduciary duty
as a director, except where the director breached his or her
duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized
the payment of a dividend or approved a stock repurchase in
violation of Delaware corporate law or obtained an improper
personal benefit. Our Certificate of Incorporation provides
that, except to the extent that the General Corporation Law of
Delaware prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty, none of our directors
shall be personally liable to us or our stockholders for
monetary damages for any breach of fiduciary duty as a director.
Section 145 of the General Corporation Law of Delaware
provides that a corporation has the power to indemnify a
director, officer, employee or agent of the corporation and
certain other persons serving at the request of the corporation
in related capacities against amounts paid and expenses incurred
in connection with an action or proceeding to which such person
is or is threatened to be made a party by reason of such
position, if such person shall have acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe
his or her conduct was unlawful; provided that, in the case of
actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to
which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the adjudicating
court determines that such indemnification is proper under the
circumstances.
Our Certificate of Incorporation provides that we must
(i) indemnify our directors and officers to the fullest
extent permitted by Delaware law and (ii) advance expenses,
as incurred, to our directors and officers in connection with a
legal proceeding to the fullest extent permitted by Delaware
law. These provisions are not exclusive of any other rights to
which a director or officer may be entitled by law, agreement,
vote of stockholders or disinterested directors or otherwise.
Cornerstone BioPharma Holdings, Inc., or CBHI, our wholly owned
subsidiary, has entered into an indemnification agreement with
Craig A. Collard, our President, Chief Executive Officer and
Chairman. Among other things, the indemnification agreement
requires CBHI to indemnify Mr. Collard for expenses
incurred by Mr. Collard in connection with actions or
proceedings in connection with his service as a director,
officer, employee, agent or fiduciary of CBHI or of any other
enterprise that he is or was serving at CBHIs express
written request. The indemnification agreement also provides for
mandatory advancement of expenses to Mr. Collard.
In addition, we maintain insurance on behalf of our directors
and officers insuring them against liability asserted against
them in their capacities as directors or officers or arising out
of such status.
II-1
The above arrangements may discourage stockholders from bringing
a lawsuit against directors for breach of their fiduciary duty.
These provisions may also have the effect of reducing the
likelihood of derivative litigation against directors and
officers, even though such an action, if successful, might
otherwise benefit our stockholders and us. In addition, your
investment may be adversely affected to the extent we pay the
costs of settlement and damage awards against directors and
officers pursuant to these indemnification provisions. We
believe that these provisions are necessary to attract and
retain talented and experienced directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that, in the opinion of the SEC,
such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable.
The list of exhibits filed as a part of this registration
statement on
Form S-3
is set forth in the Exhibit Index immediately preceding the
exhibits hereto and is incorporated herein by reference.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) 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 SEC pursuant to Rule 424(b) 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
(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;
provided, however, that paragraphs (1)(i), (1)(ii) and
(1)(iii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That, for the purpose 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
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) 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.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) 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
II-2
(B) 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.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that 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:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) 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;
(iii) 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
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrants
annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plans
annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in
the registration statement 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 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 Act and will be
governed by the final adjudication of such issue.
II-3
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 this
Registration Statement 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
Town of Cary, State of North Carolina, on May 12, 2011.
CORNERSTONE THERAPEUTICS INC.
Craig A. Collard
President, Chief Executive Officer and Chairman
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 date indicated.
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Name
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Title
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Date
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/s/ Craig
A. Collard
Craig
A. Collard
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President, Chief Executive Officer and Chairman (Principal
Executive Officer)
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May 12, 2011
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/s/ Vincent
T. Morgus
Vincent
T. Morgus
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Executive Vice President,
Finance and Chief Financial Officer
(Principal Financial Officer)
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May 12, 2011
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/s/ Ira
Duarte
Ira
Duarte
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Director of Accounting
(Principal Accounting Officer)
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May 12, 2011
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*
Alessandro
Chiesi
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Director
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May 12, 2011
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*
Christopher
Codeanne
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Director
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May 12, 2011
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*
Michael
Enright
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Director
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May 12, 2011
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*
Anton
Giorgio Failla
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Director
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May 12, 2011
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*
Michael
Heffernan
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Director
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May 12, 2011
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*
Robert
Stephan
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Director
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May 12, 2011
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*
Marco
Vecchia
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Director
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May 12, 2011
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*By:
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/s/ Andrew
K.W. Powell
Andrew
K.W. Powell
Attorney-in-fact
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II-4
EXHIBIT INDEX
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Exhibit
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No.
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Description
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1
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.1
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Form of Underwriting Agreement.(1)
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1
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.2
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Form of Placement Agent Agreement.(1)
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4
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.1
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Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrants Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2004).
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4
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.2
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Amendment to the Registrants Certificate of Incorporation,
effecting a 10-to-1 reverse stock split of the Registrants
common stock (incorporated by reference to Exhibit 3.1 to
the Registrants Current Report on
Form 8-K
dated October 30, 2008).
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4
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.3
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Amendment to the Registrants Certificate of Incorporation,
changing the name of the corporation from Critical Therapeutics,
Inc. to Cornerstone Therapeutics Inc. (incorporated by reference
to Exhibit 3.2 to the Registrants Current Report on
Form 8-K
dated October 30, 2008).
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4
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.4
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Amendment to the Registrants Certificate of Incorporation,
effecting certain changes pursuant to the Governance Agreement
among Chiesi Farmaceutici S.p.A., the Registrant and certain
other stockholders of the Registrant dated May 6, 2009
(incorporated by reference to Exhibit 3.1 to the
Registrants Current Report on
Form 8-K
dated August 27, 2009).
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4
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.5
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Fourth Amended and Restated Bylaws of the Registrant dated
July 28, 2009 (incorporated by reference to
Exhibit 3.1 to the Registrants Current Report on
Form 8-K
dated July 27, 2009).
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4
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.6
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Form of Certificate of Designation for Preferred Stock(1)
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4
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.7
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Form of Preferred Stock Certificate(1)
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4
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.8
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Form of Warrant Agreement (including form of warrant
certificate)(1)
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5
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.1
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Opinion of Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan, L.L.P.
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23
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.1
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Consent Grant Thornton LLP, Independent Registered Public
Accounting Firm.
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23
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.2
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|
Consent of Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan, L.L.P. (contained in
Exhibit 5.1).
|
|
24
|
.1
|
|
Power of Attorney (included on signature page of the original
filing of this Registration Statement on
Form S-3).
|
|
24
|
.2
|
|
Power of Attorney of Vincent T. Morgus and Marco Vecchia
|
|
|
|
(1) |
|
To be filed by amendment or as an exhibit to a current report on
Form 8-K
and incorporated herein by reference, if applicable. |
II-5