As filed with the Securities and Exchange Commission on March 3, 2017.

Registration No. 333‑
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
 

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
 
Edge Therapeutics, Inc.
(Exact name of Registrant as specified in its charter)

Delaware
300 Connell Drive, Suite 4000
Berkeley Heights, NJ 07922
26-4231384
(State of Incorporation)
(Address of principal executive offices) (Zip Code)
(I.R.S. Employer Identification No.)

Edge Therapeutics, Inc. 2014 Equity Incentive Plan
(Full Title of the Plan)
 
Brian A. Leuthner
President and Chief Executive Officer
Edge Therapeutics, Inc.
300 Connell Drive, Suite 4000
Berkeley Heights, NJ 07922
(Name and address of agent for service)
(800) 208-3343
(Telephone number, including area code, of agent for service)
 
Copies of all communications to:

W. Bradford Middlekauff, Esq.
 
David S. Rosenthal, Esq.
Senior Vice President, General Counsel and Secretary
 
Dechert LLP
Edge Therapeutics, Inc.
 
1095 Avenue of the Americas
300 Connell Drive, Suite 4000
 
New York, NY 10036
Berkeley Heights, NJ 07922
 
(212) 698-3500

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  ☐
Accelerated filer ☒
Non-accelerated filer    ☐ (Do not check if a smaller reporting company)
Smaller reporting company  ☐
 
CALCULATION OF REGISTRATION FEE
 
Title of securities
to be registered
 
Amount to be
registered(1)
   
Proposed maximum
offering price per share
   
Proposed maximum
aggregate offering
price
   
Amount of
registration fee
 
Common Stock of Edge Therapeutics, Inc., (the “ Registrant ”) par value $0.00033 per share (“ Common Stock ”)
   
1,156,740
(2)
 
$
9.81
(3)  
$
11,347,619.40 (3)  
$
1,316
 
 
(1)
Pursuant to Rules 416(a) and 416(c) of the Securities Act of 1933, as amended (the “ Securities Act ”), this registration statement (this “ Registration Statement ”) shall also cover any additional shares of Common Stock which become issuable under the 2014 Plan (as defined below) 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’s Common Stock.

(2)
Represents an automatic increase to the number of shares available for issuance under the Edge Therapeutics, Inc. 2014 Equity Incentive Plan (the “ 2014 Plan ”) effective January 1, 2017 . Shares available for issuance under the 2014 Plan were previously registered on registration statements on Form S-8 filed with the Securities and Exchange Commission (the “ Commission ”) on October 21, 2015 (Registration No. 333-207545) and March 9, 2016 (Registration No. 333-210041).

(3)
Estimated pursuant to Rules 457(c) and 457(h) of the Securities Act, solely for the purpose of calculating the registration fee, based upon the average of the reported high and low sales prices for a share of the Registrant’s Common Stock, as reported on the NASDAQ Global Select Market on March 1, 2017.
 
 - 2 -
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E

Pursuant to General Instruction E of Form S-8, the Registrant is filing this Registration Statement with the Commission to register 1,156,740 additional shares of Common Stock under its 2014 Plan, pursuant to the provisions of the 2014 Plan providing for an automatic increase in the number of shares reserved for issuance under such plan. This Registration Statement hereby incorporates by reference the contents of the Registrant's registration statements on Form S-8 filed with the Commission on October 21, 2015 (Registration No. 333-207545) and March 9, 2016 (Registration No. 333-210041) . The additional shares are of the same class as other securities relating to the 2014 Plan for which the Registrant’s registration statements on Form S-8 filed with the Commission   on October 21, 2015 (Registration No. 333-207545) and March 9, 2016 (Registration No. 333-210041) are effective.

Part II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8. 
Exhibits.

See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this registration statement on Form S-8, which Exhibit Index is incorporated herein by reference.
 
 - 3 -
SIGNATURES

The Registrant.  Pursuant to the requirements of 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 Berkeley Heights, State of New Jersey, on this 3 rd day of March, 2017.

 
EDGE THERAPEUTICS, INC.
   
 
By: 
/s/ Brian A. Leuthner
   
Brian A. Leuthner
   
President and Chief Executive Officer

POWER OF ATTORNEY

KNOW TO ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian A. Leuthner, Andrew J. Einhorn and W. Bradford Middlekauff, and each or any one of them, as such person’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in such person’s name, place 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, with the Commission, granting unto such 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 in connection with such matters and hereby ratifying and confirming all that each such attorney-in-fact, or his agent or substitutes, may 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 date indicated.

Signature
Title
Date
     
/s/ Brian A. Leuthner
Brian A. Leuthner
President and Chief Executive Officer and Director
(Principal Executive Officer)
March 3, 2017
     
/s/ Andrew J. Einhorn
Andrew J. Einhorn
Chief Financial Officer
(Principal Financial Officer)
March 3, 2017
     
/s/ Albert N. Marchio, II
Albert N. Marchio, II
Chief Accounting and Administrative Officer (Principal Accounting Officer)
March 3, 2017
 
 - 4 -
/s/ Sol Barer
Sol Barer, Ph.D.
Chairman, Board of Directors
March 3, 2017
     
/s/ Isaac Blech
Isaac Blech
Vice Chairman, Board of Directors
March 3, 2017
     
/s/ Kurt Conti
Kurt Conti
Director
March 3, 2017
     
/s/ James I. Healy
James I. Healy, M.D., Ph.D.
Director
March 3, 2017
     
/s/ James Loughlin
James Loughlin
Director
March 3, 2017
     
/s/ R. Loch Macdonald
R. Loch Macdonald, M.D., Ph.D.
Chief Scientific Officer and Director
March 3, 2017
     
/s/ Liam Ratcliffe
Liam Ratcliffe, M.D., Ph.D.
Director
March 3, 2017
     
/s/ Robert Spiegel
Robert Spiegel, M.D.
Director
March 3, 2017
 
 - 5 -
Exhibit Index
Exhibit
Number
 
Description
4.1
Eighth Amended and Restated Certificate of Incorporation of Edge Therapeutics, Inc. ( filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on October 6, 2015, and incorporated by reference herein).
   
4.2
Second Amended and Restated Bylaws of Edge Therapeutics, Inc. ( filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the Commission on October 6, 2015, and incorporated by reference herein).
   
4.3
Form of Certificate of Common Stock (filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 filed with the Commission on September 21, 2015, and incorporated by reference herein).
   
4.4
Edge Therapeutics, Inc. 2014 Equity Incentive Plan (filed as Exhibit 10.4 to the Registrant’s Registration Statement on Form S-1 filed with the Commission on September 21, 2015, and incorporated by reference herein).
   
4.5
Form of Edge Therapeutics, Inc. Executive Stock Option Agreement (filed as Exhibit 10.17 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 2, 2017, and incorporated by reference herein).
   
4.6
Form of Edge Therapeutics, Inc. Employee Stock Option Agreement (filed as Exhibit 10.18 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 2, 2017, and incorporated by reference herein).
   
Opinion of Dechert LLP (counsel to the Registrant) as to the legality of the securities being registered.
   
Consent of KPMG LLP.
   
23.2
Consent of Dechert LLP (included in Exhibit 5.1).
   
24.1
Power of Attorney (contained on the signature page hereto).

 
Exhibit 5.1
 
1095 Avenue of the Americas
New York, NY 10036-6797
+1  212  698  3500  Main
+1  212  698  3599  Fax
www.dechert.com
   

March 3, 2017
 
Edge Therapeutics, Inc.
300 Connell Drive, Suite 4000
Berkeley Heights, NJ 07922
 
Re:
REGISTRATION STATEMENT ON FORM S-8

Ladies and Gentlemen:

We have acted as counsel to Edge Therapeutics, Inc., a Delaware corporation   (the “ Company ”), in connection with the filing with the Securities and Exchange Commission (the “ Commission ”) of a registration statement on Form S-8 (the “ Registration Statement ”) for the purpose of registering under the Securities Act of 1933, as amended (the “ Securities Act ”), 1,156,740 shares of its common stock, par value $0.00033 per share (the “ Shares ”), issuable under the Edge Therapeutics, Inc. 2014 Equity Incentive Plan (the “ Plan ”).

This opinion (the “ Opinion ”) is being furnished to the Company in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement other than as expressly stated herein with respect to the Shares.

As your counsel, we have examined such documents and such matters of fact and law that we have deemed necessary for the purpose of rendering the Opinion expressed herein.

In connection with this Opinion, we have examined originals or copies (in each case signed, certified or otherwise proven to our satisfaction to be genuine) of: (i) the Plan; (ii) the Company’s Eighth Amended and Restated Certificate of Incorporation (as amended to date) (the “ Charter ” ); (iii) the Company’s Second Amended and Restated Bylaws as currently in effect; and (iv) resolutions approving the corporate action of the Company authorizing the issuance and sale of the Shares.

In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as original documents, and the conformity to original documents of all documents submitted to us as copies, the legal capacity of natural persons who are signatories to the documents examined by us and the legal power and authority of all persons signing on behalf of parties (other than the Company) to all documents.
 
Edge Therapeutics, Inc.
March 3, 2017
Page 2
 
In rendering the opinion expressed below, we have assumed that prior to the issuance of any of the Shares, there will exist under the Charter the requisite number of authorized but unissued shares of Common Stock. In addition, we have assumed (i) the resolutions authorizing the Company to issue the Shares in accordance with the terms and conditions of the Plan will remain in effect and unchanged at all times during which the Shares are issued by the Company, and (ii) the Registration Statement, and any amendments thereto, at the time of issuance of the Shares, will continue to be effective under the Securities Act.
 
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the holder and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Plan, assuming in each case that the individual issuances, grants or awards under the Plan are duly issued, granted or awarded and exercised in accordance with the requirements of law and the Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and non-assessable.

We are members of the Bar of the State of New York   and the foregoing Opinion is limited to the General Corporation Law of the State of Delaware.

We hereby consent to the filing of this Opinion as an exhibit to the Registration Statement. In giving this 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 of the Commission thereunder.

Very truly yours,

/s/ Dechert LLP
 
 
Exhibit 23.1
 
Consent of Independent Registered Public Accounting Firm

The Board of Directors
Edge Therapeutics, Inc.:

We consent to the use of our report dated March 2, 2017, with respect to the balance sheets of Edge Therapeutics, Inc. as of December 31, 2016 and 2015, and the related statements of operations and comprehensive loss, convertible preferred stock and change in stockholders’ equity (deficit), and cash flows for each of the years in the three year period ended December 31, 2016 incorporated herein by reference.

/s/ KPMG LLP

Short Hills, New Jersey
March 3, 2017