As filed with the U.S. Securities and Exchange Commission on March 15, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEOS THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware |
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27-0395455 |
(State or Other Jurisdiction of
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(I.R.S. Employer
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2940 N. Highway 360
Grand Prairie, TX 75050
(972) 408-1300
(Address of Registrants Principal Executive Offices)
NEOS THERAPEUTICS, INC. 2015 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Vipin Garg
President and Chief Executive Officer
Neos Therapeutics, Inc.
2940 N. Highway 360
Grand Prairie, TX 75050
(972) 408-1300
(Name, address and telephone number of agent for service)
Copies to:
Mitchell S. Bloom, Esq.
Joseph C. Theis, Jr., Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
(617) 570-1000
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):
Large accelerated filer |
o |
Accelerated filer |
x |
Non-accelerated filer |
o (Do not check if a smaller reporting company) |
Smaller reporting company |
o |
CALCULATION OF REGISTRATION FEE
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Title of Securities
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Amount
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Proposed
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Proposed
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Amount of
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Common Stock, $0.001 par value per share |
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803,049 shares (3) |
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$ |
6.60 |
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$ |
5,300,123.40 |
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$ |
614.28 |
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(1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities Act), this registration statement shall also cover any additional shares of common stock which become issuable under the Registrants 2015 Stock Option and Incentive Plan (the Plan) by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrants outstanding shares of common stock. |
(2) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act, 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 March 8, 2017. |
(3) |
Represents an automatic increase of 803,049 shares of Common Stock to the number of shares available for issuance under the Plan, effective January 1, 2017. Shares available for issuance under the Plan were previously registered on a registration statement on Form S-8 filed with the Securities and Exchange Commission on March 18, 2016 (Registration No. 333-210267) and July 29, 2015 (Registration No. 333-205937). |
EXPLANATORY NOTE
This Registration Statement on Form S-8 registers 803,049 additional shares of Common Stock under the Registrants 2015 Stock Option and Incentive Plan (the Plan). The number of shares of Common Stock reserved and available for issuance under the Plan is subject to an automatic annual increase on each January 1, beginning in 2016, by an amount equal to five percent of the number of shares of Common Stock issued and outstanding on the immediately preceding December 31 or such lesser number of shares of Common Stock as determined by the Administrator (as defined in the Plan). Accordingly, on January 1, 2017, the number of shares of Common Stock reserved and available for issuance under the Plan increased by 803,049. The additional shares are of the same class as other securities relating to the Plan for which the Registrants registration statement filed on Form S-8 (Registration No. 333-205937) on July 29, 2015, is effective. The information contained in the Registrants registration statement on Form S-8 (Registration No. 333-205937) is hereby incorporated by reference pursuant to General Instruction E.
SIGNATURES
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 Grand Prairie, State of Texas, on March 15, 2017.
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Neos Therapeutics, Inc. |
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By: |
/s/ Vipin Garg |
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Vipin Garg |
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Chief Executive Officer and Chairman |
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Vipin Garg and Richard Eisenstadt, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them, for him and in his name, place and stead, in any and all capacities, to sign for us and in our names in the capacities indicated below the Registration Statement on Form S-8 of Neos Therapeutics, Inc., and any or all amendments (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 or necessary to be done in connection therewith and about the premises, 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 substitute or substitutes, 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 on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Vipin Garg |
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Chief Executive Officer and Director |
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March 15, 2017 |
Vipin Garg |
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(Principal Executive Officer) |
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/s/ Richard Eisenstadt |
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Chief Financial Officer |
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March 15, 2017 |
Richard Eisenstadt |
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(Principal Accounting and Financial Officer) |
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/s/ Beth Hecht |
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Director |
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March 15, 2017 |
Beth Hecht |
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/s/ Alan Heller |
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Director |
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March 15, 2017 |
Alan Heller |
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/s/ Greg Robitaille |
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Director |
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March 15, 2017 |
Greg Robitaille |
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/s/ Bryant Fong |
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Director |
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March 15, 2017 |
Bryant Fong |
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/s/ John Schmid |
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Director |
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March 15, 2017 |
John Schmid |
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/s/ Paul Edick |
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Director |
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March 15, 2017 |
Paul Edick |
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EXHIBIT INDEX
Exhibit
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Description |
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4.1 |
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Amended and Restated Certificate of Incorporation of the Registrant(1) |
4.2 |
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Amended and Restated Bylaws of the Registrant(2) |
4.3 |
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Form of common stock certificate of the Registrant(3) |
4.4 |
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2009 Equity Plan and forms of restricted stock agreement and option agreements thereunder(4) |
4.5 |
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2015 Stock Option and Grant Plan and forms of option agreements thereunder(5) |
5.1 |
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Opinion of Goodwin Procter LLP |
23.1 |
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Consent of RSM US LLP, independent registered public accounting firm |
23.2 |
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Consent of Goodwin Procter LLP (included in Exhibit 5.1) |
24.1 |
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Power of Attorney (see page II-1 of this Registration Statement on Form S-8) |
(1) |
Filed as Exhibit 3.2 to the Registrants Registration Statement on Form S-1 (File No. 333-205106), filed previously with the Commission on July 13, 2015 and incorporated by reference herein. |
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(2) |
Filed as Exhibit 3.4 to the Registrants Registration Statement on Form S-1 (File No. 333-205106), filed previously with the Commission on July 13, 2015 and incorporated by reference herein. |
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(3) |
Filed as Exhibit 4.1 to the Registrants Registration Statement on Form S-1 (File No. 333-205106), filed previously with the Commission on July 13, 2015 and incorporated by reference herein. |
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(4) |
Filed as Exhibit 10.3 to the Registrants Registration Statement on Form S-1 (File No. 333-205106), filed previously with the Commission on June 19, 2015 and incorporated by reference herein. |
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(5) |
Filed as Exhibit 10.4 to the Registrants Registration Statement on Form S-1 (File No. 333-205106), filed previously with the Commission on July 13, 2015 and incorporated by reference herein. |
Exhibit 5.1
March 15, 2017
Neos Therapeutics, Inc.
2940 N. Highway 360
Grand Prairie, TX 75050
Re: Securities Being Registered under Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the Registration Statement) pursuant to the Securities Act of 1933, as amended (the Securities Act), on or about the date hereof relating to 803,049 shares (the Shares) of Common Stock, $0.001 par value per share (the Common Stock), of Neos Therapeutics, Inc., a Delaware corporation (the Company), that may be issued pursuant to the Companys 2015 Stock Option and Incentive Plan (the Plan).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Delaware General Corporation Law.
For purposes of the opinion set forth below, we have assumed that a sufficient number of authorized but unissued shares of the Companys Common Stock will be available for issuance when the Shares are issued.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
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Very truly yours, |
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/S/ GOODWIN PROCTER LLP |
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GOODWIN PROCTER LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of Neos Therapeutics, Inc. of our report dated March 15, 2017, relating to the consolidated financial statements and the financial statement schedule of Neos Therapeutics, Inc. and subsidiaries appearing in the Annual Report on Form 10-K of Neos Therapeutics, Inc. for the year ended December 31, 2016.
/s/ RSM US LLP
New York, New York
March 15, 2017