Form S-8 Insys Therapeutics, Inc.
As filed with the Securities and Exchange Commission on February 16, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INSYS THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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51-0327886 |
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(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
1333 S. Spectrum Blvd, Suite 100
Chandler, Arizona 85286
(480) 500-3127
(Address of Principal Executive Offices)
2013 Equity Incentive Plan
2013 Employee Stock Purchase Plan
(Full titles of the plans)
Andrew G. Long
Chief Financial Officer
Insys Therapeutics, Inc.
1333 S. Spectrum Blvd, Suite 100
Chandler, Arizona 85286
(480) 500-3127
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Sean M. Clayton Cooley LLP 4401 Eastgate Mall San Diego, California 92121 (858) 550-6000 |
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Franc Del Fosse General Counsel Insys Therapeutics, Inc. 1333 S. Spectrum Blvd, Suite 100 Chandler, Arizona 85286 (480) 500-3127 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large Accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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☐ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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☐ |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. |
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered |
Amount to be registered (1) |
Proposed maximum offering price per share (2) |
Proposed maximum aggregate offering price (2) |
Amount of registration fee |
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2013 Equity Incentive Plan Common Stock, $0.01 par value per share (3) |
5,821,424(4) |
$8.18 |
$47,619,248.32 |
$5,928.60 |
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2013 Employee Stock Purchase Plan Common Stock, $0.01 par value per share (3) |
1,200,000 (5) |
$8.18 |
$9,816,000.00 |
$1,222.10 |
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(1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock (the “Common Stock”) that become issuable under the plans by reason of any stock dividend, stock split, recapitalization or other similar transaction. |
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(2) |
This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) of the Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock on February 6, 2018, as reported on the Nasdaq Global Market. |
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(3) |
Includes related rights to purchase shares of the Registrant’s Series A Junior Participating Preferred Stock. |
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(4) |
Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2013 Equity Incentive Plan (the “2013 EIP”), on January 1, 2017 and January 1, 2018 pursuant to an “evergreen” provision contained in the 2013 EIP. Pursuant to such provision, on January 1 of each year until 2023, the number of shares authorized for issuance under the 2013 EIP is automatically increased by a number equal to: (a) 4.0% of the total number of shares of Common Stock outstanding on December 31 of the preceding calendar year; or (b) a number of shares of Common Stock that may be determined each year by the Registrant’s board of directors that is less than the preceding clause (a). |
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(5) |
Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2013 Employee Stock Purchase Plan (the “2013 ESPP”), on January 1, 2017 and January 1, 2018 pursuant to an “evergreen” provision contained in the 2013 ESPP. Pursuant to such provision, on January 1 of each year until 2023, the number of shares authorized for issuance under the 2013 ESPP is automatically increased by a number equal to the least of: (a) 1.0% of the total number of shares of Common Stock outstanding on December 31 of the preceding calendar year; (b) 600,000 shares of Common Stock (as adjusted to give effect to a three-for-two forward stock split of the Common Stock effected on March 28, 2014 and a two-for-one forward stock split of the Common Stock effected on June 8, 2015); or (c) a number of shares of Common Stock that may be determined each year by the Registrant’s board of directors that is less than the preceding clauses (a) and (b). |
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
Pursuant to General Instruction E of Form S-8, Insys Therapeutics, Inc., or the Registrant, is filing this Registration Statement with the Securities and Exchange Commission, or the SEC, to register 5,821,424 additional shares of common stock under the Registrant’s 2013 Equity Incentive Plan and 1,200,000 additional shares of common stock under the Registrant’s 2013 Employee Stock Purchase Plan, pursuant to the provisions of those plans providing for an automatic increase in the number of shares reserved for issuance under such plans. The Registrant’s Registration Statements on Form S-8 previously filed with the SEC on May 2, 2013 (File No. 333-188306), March 6, 2014 (File No. 333-194374), March 3, 2015 (File No. 333-202472), and March 10, 2016 (File No. 333-210064) are incorporated by reference in this Registration Statement, pursuant to General Instruction E of Form S-8.
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Item 8. |
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Exhibits. |
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Exhibit Number |
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Description |
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4.1(1) |
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Amended and Restated Certificate of Incorporation of the Registrant. |
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4.2(2) |
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4.3(3) |
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4.4(4) |
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Certificate of Designation of Series A Junior Participating Preferred Stock. |
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4.5(5) |
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Rights Agreement, dated August 15, 2014 between the Registrant and Computershare Trust Company, N.A. |
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5.1 |
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23.1 |
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Consent of BDO USA, LLP, Independent Registered Public Accounting Firm. |
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23.2 |
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24.1 |
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Power of Attorney. Reference is made to the signature page hereto. |
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99.1(6) |
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99.2(7) |
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(1) |
Previously filed as Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on August 12, 2014 and incorporated herein by reference. |
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(2) |
Previously filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on May 9, 2016 and incorporated herein by reference. |
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(3) |
Previously filed as Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K, filed with the SEC on March 3, 2015 and incorporated herein by reference. |
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(4) |
Previously filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 18, 2014 and incorporated herein by reference. |
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(5) |
Previously filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 18, 2014 and incorporated herein by reference. |
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(6) |
Previously filed as Exhibit 99.3 to the Registrant’s Registration Statement on Form S-8 (File No. 333-188306), filed with the SEC on May 2, 2013 and incorporated herein by reference. |
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(7) |
Previously filed as Exhibit 99.4 to the Registrant’s Registration Statement on Form S-8 (File No. 333-188306), filed with the SEC on May 2, 2013 and incorporated herein by reference. |
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Chandler, State of Arizona, on February 16, 2018.
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Insys Therapeutics, Inc. |
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By: |
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/s/ Andrew G. Long |
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Andrew G. Long Chief Financial Officer |
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Andrew G. Long and Franc Del Fosse, and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him and in his name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, 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, hereby 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, as amended, 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/ Saeed Motahari |
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Saeed Motahari
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President, Chief Executive Officer and Member of the Board of Directors (Principal Executive Officer) |
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February 16, 2018 |
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/s/ Andrew G. Long |
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Andrew G. Long |
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Chief Financial Officer
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February 16, 2018 |
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/s/ Steven Meyer |
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Steven Meyer |
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Executive Chairman of the Board of Directors |
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February 16, 2018 |
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/s/ Pierre Lapalme |
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Pierre Lapalme |
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Member of the Board of Directors |
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February 16, 2018 |
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/s/ Vaseem Mahboob |
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Vaseem Mahboob |
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Member of the Board of Directors |
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February 16, 2018 |
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Brian Tambi |
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Member of the Board of Directors |
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February 16, 2018 |
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/s/ Rohit Vishnoi |
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Rohit Vishnoi |
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Member of the Board of Directors |
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February 16, 2018 |
Exhibit 5.1
February 16, 2018
Insys Therapeutics, Inc.
1333 S. Spectrum Blvd, Suite 100
Chandler, Arizona 85286
Ladies and Gentlemen:
We have represented Insys Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission, covering the offering of (i) an aggregate of up to 7,021,424 shares of the Company's Common Stock, $ 0.01 par value (the “Shares”), including 5,821,424 shares issuable pursuant to the Company’s 2013 Equity Incentive Plan (the “Incentive Plan”), and 1,200,000 shares issuable pursuant to the Company’s 2013 Employee Stock Purchase Plan (the “Stock Plan”), and (ii) the preferred stock purchase rights (the “Rights”) associated with the Shares to be issued pursuant to that certain Rights Agreement, dated August 15, 2014 (the “Rights Agreement”), between the Company and Computershare Trust Company, N.A., as rights agent (the “Rights Agent”). The Company has requested our opinion in connection therewith.
In connection with this opinion, we have examined and relied upon the Registration Statement and related prospectuses, the Incentive Plan and the Stock Plan, the Company's Amended and Restated Certificate of Incorporation and Bylaws, the Rights Agreement and such other documents, records, certificates, memoranda and other instruments as we deem necessary for a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, and the conformity to originals of all documents submitted to us as copies thereof. We have also assumed that the Rights Agreement has been duly authorized, executed and delivered by the Rights Agent and that the members of the Board of Directors of the Company (the “Board”) have acted in a manner consistent with their fiduciary duties as required under applicable law in adopting the Rights Agreement. This opinion does not address the determination a court of competent jurisdiction may make regarding whether the Board may be required to redeem or terminate, or take other action with respect to, the Rights in the future based on the facts and circumstances then existing. Moreover, this opinion addresses corporate procedures in connection with the issuance of the Rights associated with the Shares, and not any particular provision of the Rights or the Rights Agreement. It should be understood that it is not settled whether the invalidity of any particular provision of a rights agreement or purchase rights issued thereunder would invalidate such rights in their entirety.
Our opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware. Our opinion is based on these laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. 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.
4401 Eastgate Mall, San Diego, CA 92121 T: (858) 550-6000 F: (858) 550-6420 www.cooley.com
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Insys Therapeutics, Inc. Page 2 |
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On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares and the associated Rights, when sold and issued in accordance with the Incentive Plan or the Stock Plan, as applicable, the Registration Statement and related prospectus, and the Rights Agreement, will be validly issued, and the Shares fully paid and nonassessable (except as to Shares issued pursuant to certain deferred payment arrangements under the Incentive Plan, 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 llp
By:/s/ Sean M. Clayton
Sean M. Clayton
141830937 v4
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
Insys Therapeutics, Inc.
Chandler, Arizona
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 31, 2017, relating to the consolidated financial statements and the effectiveness of Insys Therapeutics, Inc.’s (the “Company”) internal control over financial reporting appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2016. Our report on the effectiveness of internal control over financial reporting expresses an adverse opinion on the effectiveness of Insys Therapeutics, Inc.’s internal control over financial reporting as of December 31, 2016.
/s/ BDO USA, LLP
Phoenix, Arizona
February 16, 2018
BDO USA, LLP, a Delaware limited liability partnership, is the U.S. member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms.
BDO is the brand name for the BDO network and for each of the BDO Member Firms.