As filed with the Securities and Exchange Commission on March 1, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
Registration statement
under
the securities act of 1933
Zynerba
Pharmaceuticals, Inc.
(Exact
name of registrant as specified in its
charter)
Delaware | 26-0389433 | |
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification Number) | |
80 W. Lancaster Avenue, Suite 300 Devon, PA |
19333 (Zip Code) |
ZYNERBA PHARMACEUTICALS, INC.
AMENDED AND RESTATED 2014 OMNIBUS INCENTIVE COMPENSATION PLAN
(Full Title of the Plan)
Armando Anido
Chairman and Chief Executive Officer
Zynerba Pharmaceuticals, Inc.
80 W. Lancaster Avenue, Suite 300
Devon, PA 19333
(Name and address of agent for service)
(484) 581-7505
(Telephone number, including area code, of agent for service)
with a copy to:
Rachael M. Bushey, Esq.
Jennifer L. Porter, Esq.
Troutman Pepper Hamilton Sanders LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 10193
(215) 981-4331
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 Securities Exchange Act of 1934, as amended.
Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
Non-accelerated filer | x | Smaller reporting company | x | |||
Emerging growth company | ¨ |
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 of 1933, as amended. ¨
EXPLANATORY NOTE
This Registration Statement is being filed for the purpose of registering an additional 1,500,000 shares of common stock, $0.001 par value per share (the "Common Stock"), of Zynerba Pharmaceuticals, Inc. (the "Registrant") that were added to the shares authorized for issuance under the Zynerba Pharmaceuticals, Inc. Amended and Restated 2014 Omnibus Incentive Compensation Plan, as amended (the "Plan") for which a Registration Statement on Form S-8 relating to the same employee benefit plan is effective.
The Registrant previously filed the Registration Statements on Form S-8 (File Nos. 333- 207973, 333-216968, 333-223597, 333-230182, 333-237051 and 333-256028) with the Securities and Exchange Commission (the "Commission") to register 8,709,030 shares of Common Stock that were authorized for issuance under the Plan. Upon the effectiveness of this Registration Statement, an aggregate of 10,209,030 shares of Common Stock will be registered for issuance from time to time under the Plan. Pursuant to General Instruction E to Form S-8, the contents of the Registration Statements on Form S-8 (File Nos. 333-207973, 333-216968, 333-223597, 333-230182, 333-237051 and 333-256028) filed with the Commission on November 13, 2015, March 27, 2017, March 12, 2018, March 11, 2019, March 10, 2020 and May 12, 2021, are incorporated herein by reference except to the extent supplemented, amended or superseded by the information set forth herein. Only those items of Form S-8 containing new information not contained in the earlier registration statements are presented herein.
PART ii
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of the Registrant filed with the Commission are incorporated by reference in this Registration Statement as of their respective dates:
(b) The Registrant's Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such reports that are related to such items) filed on January 4, 2022, February 28, 2022 and March 1, 2022; and
(c) The description of the Registrant's Common Stock contained in the Form 8-A filed with the Commission on July 30, 2015 pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment or report filed for the purpose of further updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. Any statement contained herein or in a document, all or a portion of which is 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, except as so modified or amended, to constitute a part of this Registration Statement.
Item 8 Exhibits.
Pursuant to the requirements of the Securities Act of 1933, as amended (the “Securities Act”) 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 Devon, Commonwealth of Pennsylvania, on this 1st day of March, 2022.
ZYNERBA PHARMACEUTICALS, INC. | ||
By: | /s/ Armando Anido | |
Name: | Armando Anido | |
Title: | Chief Executive Officer and Chairman of the Board of Directors |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Armando Anido and James Fickenscher, as his or her true and lawful attorney-in-fact and agent, with the full power of substitution, for him or her and in his or her 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 exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in 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 attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Armando Anido | Chief Executive Officer and Chairman of the Board of Directors | March 1, 2022 | ||
Armando Anido | (Principal Executive Officer) | |||
/s/ James Fickenscher | Chief Financial Officer | March 1, 2022 | ||
James Fickenscher | (Principal Financial and Accounting Officer) | |||
/s/ John Butler | Director | March 1, 2022 | ||
John Butler | ||||
/s/ Warren D. Cooper | Director | March 1, 2022 | ||
Warren D. Cooper | ||||
/s/ William J. Federici | Director | March 1, 2022 | ||
William J. Federici | ||||
/s/ Daniel L. Kisner | Director | March 1, 2022 | ||
Daniel L. Kisner | ||||
/s/ Kenneth I. Moch | Director | March 1, 2022 | ||
Kenneth I. Moch | ||||
/s/ Pamela Stephenson | Director | March 1, 2022 | ||
Pamela Stephenson |
Exhibit 5.1
Troutman Pepper Hamilton Sanders LLP
troutman.com |
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March 1, 2022
Board of Directors
Zynerba Pharmaceuticals, Inc.
80 W. Lancaster Avenue, Suite 300
Devon, PA 19333
Ladies and Gentlemen:
We are acting as counsel to Zynerba Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with its registration statement on Form S-8, as amended (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the proposed offering of up to 1,500,000 shares of common stock, par value $0.001 per share, of the Company (the “Shares”), all of which Shares are issuable pursuant to the Zynerba Pharmaceuticals, Inc. Amended and Restated 2014 Omnibus Incentive Compensation Plan, as amended (the “Plan”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the General Corporation Law of the State of Delaware, as amended. We express no opinion herein as to any other statutes, rules or regulations.
Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares pursuant to the terms of the Plan, and (iii) receipt by the Company of the consideration for the Shares specified in the resolutions of the Board of Directors or a duly authorized committee thereof, the Plan and any underlying award agreements or letters, the Shares will be validly issued, fully paid, and nonassessable.
- 1 -
Zynerba Pharmaceuticals, Inc. | March 1, 2022 |
This opinion letter has been prepared for use in connection with the Registration Statement. We assume no obligation to advise you of any changes in the foregoing subsequent to the effective date of the Registration Statement.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Act.
Very truly yours,
/s/ TROUTMAN PEPPER HAMILTON SANDERS LLP
TROUTMAN PEPPER HAMILTON SANDERS LLP
- 2 -
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 1, 2022, with respect to the consolidated financial statements of Zynerba Pharmaceuticals, Inc., incorporated herein by reference.
/s/ KPMG LLP
Philadelphia, Pennsylvania
March 1, 2022
EXHIBIT 107
Calculation of Filing Fee Tables
Form
S-8
(Form Type)
Zynerba
Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
Security Type | Security Class Title | Fee Calculation or Carry Forward Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | |||||||||||||||||||
Fees to Be Paid | Equity | Common Stock, par value $0.001 per share | Rule 457(c) and (h) | 1,500,000 | $ | 2.30 | (2) | $ | 3,450,000 | 0.0000927 | $ | 319.82 | ||||||||||||||
Total Offering Amounts | – | $ | 3,450,000 | $ | 319.82 | |||||||||||||||||||||
Total Fees Previously Paid | – | – | ||||||||||||||||||||||||
Total Fee Offsets | – | – | ||||||||||||||||||||||||
Net Fee Due | – | $ | 319.82 |
(1) | Represents shares of common stock, $0.001 par value per share, of the Registrant ("Common Stock") that were added to the shares authorized for issuance under the Zynerba Pharmaceuticals, Inc. Amended and Restated 2014 Omnibus Incentive Compensation Plan, as amended (the "Plan"), on January 3, 2022 pursuant to an "evergreen" provision contained in the Plan. Pursuant to such provision, as of the first trading day of January of each year, the number of shares authorized for issuance under the Plan is increased by the lesser of (i) ten percent (10%) of the issued and outstanding shares of Common Stock as of the last trading day in December of the immediately preceding calendar year, or (ii) 1,500,000 shares of Common Stock. Pursuant to Rule 416 of 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 Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant. |
(2) | This estimate is made pursuant to Rule 457(c) and (h) of the Securities Act. The price shown is based upon the average of the high and low prices reported for the Registrant’s Common Stock on the Nasdaq Global Market on February 25, 2022. |