Securities Registration: Employee Benefit Plan (s-8)
July 22 2014 - 4:33PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on July 22, 2014
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
AVANIR PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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33-0314804
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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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30 Enterprise, Suite 400
Aliso Viejo, California 92656
(Address of Principal Executive Offices)
2005 E
QUITY
I
NCENTIVE
P
LAN
*
2014 I
NCENTIVE
P
LAN
*
(Full Title of the Plan)
*
See explanatory note on following page
Keith Katkin
President and Chief Executive Officer
30 Enterprise, Suite 400
Aliso Viejo, California 92656
Telephone: (949) 389-6700
Facsimile: (949) 643-6820
(Name and Address of Agent For Service)
Copy to:
Ryan A.
Murr
G
IBSON
, D
UNN
& C
RUTCHER
, LLP
555 Mission Street
San
Francisco, California 94105
Telephone: (415) 393-8373
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
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¨
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Accelerated filer
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x
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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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CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
per Share (2)
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Proposed
Maximum
Aggregate
Offering Price (2)
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Amount of
Registration
Fee
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Common Stock, $0.0001 par value per share (3)
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325,000 shares
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$5.35
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$1,738,750
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$223.95
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Common Stock, $0.0001 par value per share (4)
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17,000,000 shares
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$5.35
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$90,950,000
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$11,714.36
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Total
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17,325,000 shares
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$5.35
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$92,688,750
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$11,938.31
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement also covers any additional shares of the registrants common stock, par value $0.0001 per share (Common
Stock), that may be offered or issued in connection with any stock split, stock dividend or similar transaction under the anti-dilution provisions of the registrants 2005 Equity Incentive Plan, 2014 Incentive Plan or the forms of awards
granted thereunder.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) of the Securities Act of 1933, and based on the average of the high and low sale prices of the registrants
Common Stock, as quoted on the Nasdaq Global Market, on July 18, 2014.
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(3)
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Represents shares of Common Stock reserved for issuance pursuant to the registrants 2005 Equity Incentive Plan.
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(4)
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Represents shares of Common Stock reserved for issuance pursuant to the registrants 2014 Incentive Plan.
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EXPLANATORY NOTE:
This Registration Statement on Form S-8 is being filed by the registrant to register (i) an additional 325,000 shares of Common Stock issuable under the
registrants 2005 Equity Incentive Plan (the
2005 Plan
), which shares represent the previously approved and announced evergreen increase under the 2005 Plan for fiscal year 2014 and (ii) 17,000,000 shares
of Common Stock issuable under the registrants 2014 Incentive Plan (the
2014 Plan
).
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The following documents, which have been filed
with the Securities and Exchange Commission (the
Commission
) by the registrant, are incorporated herein by reference and made a part hereof:
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The Registrants Annual Report on Form 10-K for the year ended September 30, 2013;
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The Registrants Quarterly Report on Form 10-Q for the quarters ended December 31, 2013 and March 31, 2014;
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The Registrants Current Reports on Form 8-K filed with the Commission on November 15, 2013, December 10, 2013, January 10, 2014, February 19, 2014, March 19,
2014, May 5, 2014, and May 7, 2014 (other than the portions of such reports not deemed to be filed); and
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The description of the common stock of the registrant contained in the registrants registration statement on Form 8-A/A (File No. 001-15803) filed on March 25, 2009, including any amendment or report
filed for the purpose of updating such description.
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All documents filed by the registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the effective date of this Registration Statement, prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or
deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained herein or in any document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
Item 4.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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None.
Item 6.
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Indemnification of Directors and Officers.
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The registrants Certificate of
Incorporation, or the Certificate, provides that, to the extent permitted by applicable law, the registrants directors shall not be personally liable to the registrant or its stockholders for monetary damages for any breach of fiduciary duty
as directors of the registrant. The Certificate eliminates the personal liability of directors to the fullest extent permitted by the Delaware General Corporation Law and, together with the registrants Bylaws, provides that the registrant
shall fully indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or
other proceeding (whether civil, criminal, administrative, arbitrative or investigative) by reason of the fact that such person is or was a director or officer of the registrant, or is or was serving at the request of the registrant as a director or
officer of another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, foundation, association, organization or other legal entity, against expenses (including attorneys fees), judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation,
administrative hearing or other proceeding. The registrant has entered into indemnification agreements with certain of its directors and officers, which affirm the registrants obligation to indemnify them to the fullest extent permitted by law
and contain various procedural and other provisions that expand the protection afforded by the registrants Certificate and Bylaws. The registrant has also assumed indemnification agreements that the predecessor California corporation had
entered into with its directors and officers. The registrant has obtained liability insurance for its officers and directors.
Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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Exhibit
No.
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Description
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Incorporated by Reference Herein
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4.1
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Form of Common Stock Certificate
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Filed as Exhibit 4.1 to the registrants Current Report on Form 8-K, filed March 25, 2009
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4.2
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Certificate of Incorporation
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Filed as Exhibit 3.1 to the registrants Current Report on Form 8-K, filed March 25, 2009
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4.3
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Bylaws
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Filed as Exhibit 3.2 to the registrants Current Report on Form 8-K, filed March 25, 2009
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5.1
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Opinion of Gibson, Dunn and Crutcher LLP
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Filed herewith
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23.1
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Consent of KMJ Corbin & Company LLP
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Filed herewith
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23.2
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Consent of Gibson, Dunn and Crutcher LLP (filed as a part of Exhibit 5.1)
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Filed herewith
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24.1
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Power of attorney (set forth on signature page)
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99.1
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Avanir Pharmaceuticals, Inc. 2005 Equity Incentive Plan
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Filed as Exhibit 10.21 to the predecessor California corporations Annual Report on Form 10-K, filed December 14, 2005
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99.2
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Avanir Pharmaceuticals, Inc. 2014 Incentive Plan
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Filed herewith
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(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 in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement;
(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 (a)(1)(i) and (a)(1)(ii) of this section shall 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 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in 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; and
(4) 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) The undersigned registrant hereby
undertakes 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.
(h) 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 Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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 Aliso Viejo, California, on July 22, 2014.
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Avanir Pharmaceuticals, Inc.
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By:
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/s/ Keith A. Katkin
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Keith A. Katkin
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President and Chief Executive Officer
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POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints each of Keith A. Katkin and Christine G. Ocampo, his or her attorney-in-fact, with
power of substitution, in his or her name and in the capacity indicated below, to sign any and all further amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may 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 date indicated.
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Signature
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Title
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Date
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/s/ Keith A. Katkin
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President, Chief Executive Officer and Director
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July 22, 2014
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Keith A. Katkin
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(Principal Executive Officer)
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/s/ Christine G. Ocampo
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Vice President, Finance
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July 22, 2014
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Christine G. Ocampo
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(Principal Financial and Accounting Officer)
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/s/ Craig A. Wheeler
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Director, Chairman of the Board
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July 22, 2014
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Craig A. Wheeler
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/s/ Hans E. Bishop
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Director
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July 22, 2014
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Hans E. Bishop
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/s/ David J. Mazzo
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Director
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July 22, 2014
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David J. Mazzo, Ph.D.
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/s/ Corinne H. Nevinny
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Director
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July 22, 2014
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Corinne H. Nevinny
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/s/ Dennis G. Podlesak
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Director
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July 22, 2014
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Dennis G. Podlesak
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EXHIBIT INDEX
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Exhibit
No.
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Description
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Incorporated by Reference Herein
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4.1
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Form of Common Stock Certificate
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Filed as Exhibit 4.1 to the registrants Current Report on Form 8-K, filed March 25, 2009
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4.2
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Certificate of Incorporation
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Filed as Exhibit 3.1 to the registrants Current Report on Form 8-K, filed March 25, 2009
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4.3
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Bylaws
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Filed as Exhibit 3.2 to the registrants Current Report on Form 8-K, filed March 25, 2009
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5.1
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Opinion of Gibson, Dunn and Crutcher LLP
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Filed herewith
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23.1
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Consent of KMJ Corbin & Company LLP
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Filed herewith
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23.2
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Consent of Gibson, Dunn and Crutcher LLP (filed as a part of Exhibit 5.1)
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Filed herewith
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24.1
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Power of attorney (set forth on signature page)
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99.1
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Avanir Pharmaceuticals, Inc. 2005 Equity Incentive Plan
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Filed as Exhibit 10.21 to the predecessor California corporations Annual Report on Form 10-K, filed December 14, 2005
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99.2
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Avanir Pharmaceuticals, Inc. 2014 Incentive Plan
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Filed herewith
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