Securities Registration: Employee Benefit Plan (s-8)
February 22 2021 - 4:17PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on February 22, 2021
Registration No.
__________________
United
States
SECURITIES
AND EXCHANGE cOMMISSION
Washington, D.C. 20549
fOrm
S-8
registration
statement
under
the securities act of 1933
Lannett
Company, Inc.
(Exact name of registrant as specified in
its charter)
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Delaware
(State or other jurisdiction of incorporation
or organization)
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23-0787699
(I.R.S.
Employer Identification No.)
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9000 State Road
Philadelphia, Pennsylvania
(Address of Principal Executive Offices)
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19136
(Zip
Code)
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Lannett Company, Inc. 2021 Long-Term
Incentive Plan
(Full title of the plan)
Timothy C. Crew
Chief Executive Officer
Lannett Company, Inc.
9000 State Road
Philadelphia, Pennsylvania 19136
(Name and address of agent for service)
(215) 333-9000
(Telephone number, including area code,
of agent for service)
Copies requested to:
Bradley S. Rodos, Esquire
Fox Rothschild LLP
2000 Market Street, 20th Floor
Philadelphia, Pennsylvania 19103
(215) 299-2000
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.
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Large accelerated filer ¨
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Accelerated filer x
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Non-accelerated filer ¨
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Smaller reporting company ¨
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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. ¨
CALCULATION OF REGISTRATION FEE
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
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Amount of
registration
fee
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Common Stock, $0.001 par value per share(3)
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3,000,000 shares
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$6.58
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$19,740,000
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$2,153.63
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement
also covers any additional shares of the registrant’s common stock that become issuable under the Lannett Company, Inc. 2021
Long-Term Incentive Plan (the “2021 Plan”) by reason of any recapitalization, stock split, stock dividend or other
similar transaction effected without receipt of consideration where the registrant’s outstanding shares of common stock are
increased, converted or exchanged.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee and calculated pursuant to Rule 457(c) and
Rule 457(h) under the Securities Act on the basis of the average of the high and low sales prices of the registrant’s common
stock, as reported by the New York Stock Exchange on February 12, 2021.
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(3)
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Represents shares of the registrant’s common stock available for issuance under the 2021 Plan.
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EXPLANATORY NOTE
Lannett Company, Inc.
(the “Registrant” or the “Company”) has filed this Registration Statement on Form S-8 (this “Registration
Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Securities Act”), to register (i) 3,000,000 shares of the Company’s common stock, $0.001 par
value per share (the “Common Stock”), issuable pursuant to awards under the Lannett Company, Inc. 2021 Long-Term Incentive
Plan (the “2021 Plan”) and (ii) such indeterminate number of shares as may become available under the 2021 Plan as
a result of the adjustment provisions thereof.
The 2021 Plan was approved
by the Company’s Board of Directors on December 4, 2020 and was approved and adopted by the Company’s stockholders
on January 27, 2021.
PART I
Information
Required In The SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The document(s) containing
the information specified in Part I of Form S-8 will be sent or given to participants in the 2021 Plan in accordance with Rule
428(b)(1) under the Securities Act. Such documents are not required to be and are not being filed with the Commission either as
part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act,
but constitute, along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II hereof, a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information
and Employee Plan Annual Information.
The Company will furnish without charge
to each person to whom the prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the
documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof, other than exhibits
to such documents (unless such exhibits are specifically incorporated by reference in such documents that are incorporated), and
the other documents required to be delivered to eligible participants in the 2021 Plan pursuant to Rule 428(b) under the Securities
Act. Those documents are incorporated by reference in the Section 10(a) prospectus. Requests should be directed to:
Lannett Company, Inc.
9000 State Road
Philadelphia, Pennsylvania 19136
Attention: Investor Relations
Tel: (215) 333-9000
PART II
Information
Required In The Registration Statement
Item 3. Incorporation
of Documents by Reference.
The Company hereby incorporates by reference
into this Registration Statement the following documents, which have been previously filed (not furnished) with the Commission:
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(c)
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The Company’s Current Reports on Form 8-K filed on July 14, 2020, August 17, 2020, August 28, 2020, November 12, 2020,
December 10, 2020, December 29, 2020, January 14, 2021, January 28, 2021 and February 9, 2021 (File Nos. 001-31298); and
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In addition, all other documents filed (not
furnished) by the Company pursuant to Section 13(a), Section 13(c), Section 14 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), on or after the date of this Registration Statement and prior
to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have
been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated in this Registration Statement
by reference and to be a part of this Registration Statement from the date of filing of such documents; provided, however,
that documents or information deemed to have been furnished to and not filed with the Commission in accordance with the rules of
the Commission shall not be deemed incorporated by reference into this Registration Statement.
Any statement contained in a 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 subsequently filed document which also is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of
Securities.
Not applicable.
Item 5. Interests of
Named Experts and Counsel.
Not applicable.
Item 6. Indemnification
of Directors and Officers.
The Company’s certificate of incorporation
and bylaws provide that the Company indemnify its directors, officers, employees and agents against expenses, including attorneys’
fees, judgments, fines and amounts paid in settlement reasonably incurred, including liabilities under the Securities Act, provided
they act in good faith and in a manner reasonably believed to be in or not opposed to the Company’s best interests, and,
with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful.
Pursuant
to Section 102 of the Delaware General Corporation Law (“DGCL”), a director's liability is not eliminated (1) for
a breach of such director's duty of loyalty to the registrant or its stockholders, (2) for acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL (relating to
the declaration of dividends and purchase or redemption of shares in violation of the DGCL) or (4) for any transaction from
which such director derived an improper personal benefit.
The
Company believes that the indemnification provisions contained in its certificate of incorporation and bylaws are necessary to
attract and retain qualified persons as directors and officers. These provisions do not eliminate a directors’ or officers’
duty of care, and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under the DGCL. The indemnification provisions also do not affect a director’s responsibilities under any
other law, such as federal securities laws or state or federal environmental laws.
If
the Company fails to pay in full a claim for indemnification within 30 days, then the person claiming an indemnification right
may bring suit to enforce the indemnification claim. The Company must prove the person claiming indemnification has failed to meet
the standards of conduct that make it permissible under the DGCL for us to indemnify such person.
At
present, there is no pending litigation or proceeding involving any of the Company’s executive officers or directors to which
indemnification is being sought, nor is the Company aware of any threatened litigation that may result in claims for indemnification
by any executive officer or director.
Item 7. Exemption from
Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed with or
incorporated by reference into this Registration Statement:
Item 9. Undertakings.
(a)
The 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;
(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 Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 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 (a)(1)(i)
and (a)(1)(ii) herein 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 Exchange Act that are incorporated by reference in the Registration Statement;
(2) That,
for the purpose of determining any liability under the Securities Act, 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.
(b) The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to the 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 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 and will be governed by 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 Philadelphia, Commonwealth of Pennsylvania on the 22nd day of February, 2021.
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LANNETT COMPANY, INC.
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By:
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/s/ Timothy C. Crew
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Timothy C. Crew
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE
PRESENTS, that each person whose signature appears below constitutes and appoints Timothy C. Crew as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name and stead,
in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to be done in and about the premises, as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent
his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the
dates indicated:
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Date: February 22, 2021
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By:
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/s/ Timothy C. Crew
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Timothy C. Crew
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Director and Chief Executive Officer
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Date: February 22, 2021
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By:
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/s/ John Kozlowski
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John Kozlowski
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Vice President of Finance, Chief Financial Officer
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Date: February 22, 2021
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By:
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/s/ John C. Chapman
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John C. Chapman
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Director
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Date: February 22, 2021
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By:
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/s/ David Drabik
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David Drabik
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Director
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Date: February 22, 2021
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By:
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/s/ Jeffrey Farber
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Jeffrey Farber
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Director
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Date: February 22, 2021
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By:
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/s/ Patrick G. LePore
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Patrick G. LePore
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Chairman of the Board of Directors
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Date: February 22, 2021
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By:
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/s/ Melissa Rewolinski
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Melissa Rewolinski
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Director
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Date: February 22, 2021
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By:
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/s/ Paul Taveira
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Paul Taveira
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Director
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