As filed with the Securities and Exchange Commission on March 8, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
F
LEXION
T
HERAPEUTICS
, I
NC
.
(Exact name of registrant as specified in its charter)
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Delaware
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26-1388364
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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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10 Mall Road, Suite 301
Burlington, Massachusetts
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01803
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(Address of Principal Executive Offices)
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(Zip Code)
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2013 Equity Incentive Plan
2013 Employee Stock Purchase Plan
(Full titles of the plans)
Michael D. Clayman, M.D.
Chief Executive Officer
Flexion Therapeutics, Inc.
10 Mall Road, Suite 301
Burlington, MA 01803
(781) 305-7777
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Thomas A. Coll, Esq.
Sean M. Clayton, Esq.
Cooley LLP
4401 Eastgate
Mall
San Diego, CA 92121
(858) 550-6000
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Mark S. Levine
General Counsel and Corporate Secretary
Flexion Therapeutics, Inc.
10 Mall Road, Suite 301
Burlington, MA 01803
(781)
305-7777
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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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☐
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Accelerated filer
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☑
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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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Emerging growth company
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☑
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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 Exchange Act. ☑
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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2013 Equity Incentive Plan
Common Stock, $0.001 par value per share
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1,504,356 shares (3)
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$25.14
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$37,819,509.84
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$4,708.53
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2013 Employee Stock Purchase Plan
Common Stock, $0.001 par value per share
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375,768 shares (4)
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$25.14
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$9,446,807.52
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$1,176.13
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “
Securities Act
”), this Registration Statement on Form
S-8
shall also cover any
additional shares of the Registrant’s Common Stock (“
Common Stock
”) that become issuable under the Flexion Therapeutics, Inc. 2013 Equity Incentive Plan (the “
2013 EIP
”) or the Flexion Therapeutics, Inc. 2013
Employee Stock Purchase Plan (the “
2013 ESPP
”) by reason of any stock dividend, stock split, recapitalization or other similar transaction.
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(2)
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This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based upon the average
of the high and low prices of the Common Stock on March 2, 2018, as reported on the Nasdaq Stock Market.
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(3)
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Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2013 EIP on January 1, 2018 pursuant to an “evergreen” provision contained in the 2013 EIP.
Pursuant to such provision, on January 1 of each year from 2015 until 2023, the number of shares authorized for issuance under the 2013 EIP is automatically increased by: (a) a number equal to 4% of the total number of shares of Common
Stock outstanding on December 31 of the preceding calendar year; or (b) a number determined by the Registrant’s board of directors that is less than the amount set forth in the foregoing clause (a).
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(4)
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Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2013 ESPP on January 1, 2018 pursuant to an “evergreen” provision contained in the 2013
ESPP. Pursuant to such provision, on January 1 of each year from 2015 until 2023, the number of shares authorized for issuance under the 2013 ESPP is automatically increased by a number equal to the least of: (a) 1% of the total number of
shares of Common Stock outstanding on December 31 of the preceding calendar year; (b) 375,768 shares of Common Stock; or (c) a number determined by the Registrant’s board of directors that is less than the amounts set forth in the
foregoing clauses (a) and (b).
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INCORPORATION OF DOCUMENTS BY REFERENCE
This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for
which a Registration Statement of the Registrant on Form
S-8
relating to the same employee benefit plans is effective.
The Registrant previously registered shares of its Common Stock for issuance under the 2013 EIP and the 2013 ESPP under Registration
Statements on Form
S-8
filed with the Securities and Exchange Commission (the “
Commission
”) on February 12, 2014 (File
No. 333-193907),
on
March 24, 2015 (File
No. 333-202957),
on March 11, 2016 (File
No. 333-210111),
on March 10, 2017 (File
No. 333-216615)
and on November 6, 2017 (File
No. 333-221373).
Pursuant to General Instruction E to Form
S-8,
this
Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.
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(1)
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Previously filed as Exhibit 3.1 to the Registrant’s Current Report on Form
8-K,
filed with the Commission on February 19, 2014, and incorporated herein by reference.
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(2)
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Previously filed as Exhibit 3.2 to the Registrant’s Current Report on Form
8-K,
filed with the Commission on February 19, 2014, and incorporated herein by reference.
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(3)
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Previously filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form
S-1
(File
No. 333-193233),
originally filed
with the Commission on January 8, 2014, as amended, and incorporated herein by reference.
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(4)
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Previously filed as Exhibit 99.1 to the Registrant’s Current Report on Form
8-K,
filed with the Commission on September 14, 2017, and incorporated herein by reference.
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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
Burlington, State of Massachusetts, on March 8, 2018.
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F
LEXION
T
HERAPEUTICS
, I
NC
.
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By:
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/s/ Michael D. Clayman, M.D.
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Michael D. Clayman, M.D.
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael D. Clayman and Mark S.
Levine, and each of them, as his or her true and lawful
attorneys-in-fact
and agents, each 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 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 and necessary 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
attorneys-in-fact
and agents, 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 has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Michael D. Clayman, M.D.
Michael D. Clayman, M.D.
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President, Chief Executive Officer and Member of the Board of
Directors
(Principal Executive Officer and Principal Financial and Accounting
Officer)
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March 8, 2018
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/s/ Patrick J. Mahaffy
Patrick J. Mahaffy
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Chairman of the Board of Directors
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March 8, 2018
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/s/ Scott A. Canute
Scott A. Canute
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Member of the Board of Directors
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March 8, 2018
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/s/ Samuel D. Colella
Samuel D. Colella
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Member of the Board of Directors
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March 8, 2018
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/s/ Heath Lukatch, Ph.D.
Heath Lukatch, Ph.D.
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Member of the Board of Directors
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March 8, 2018
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/s/ Sandesh Mahatme
Sandesh Mahatme
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Member of the Board of Directors
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March 8, 2018
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/s/ Ann Merrifield
Ann Merrifield
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Member of the Board of Directors
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March 8, 2018
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/s/ Alan W. Milinazzo
Alan W. Milinazzo
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Member of the Board of Directors
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March 8, 2018
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/s/ Mark Stejbach
Mark Stejbach
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Member of the Board of Directors
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March 8, 2018
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Exhibit 5.1
Sean M. Clayton
+1 858 550
6034
sclayton@cooley.com
March 8, 2018
Flexion Therapeutics, Inc.
10 Mall Road, Suite 301
Burlington, MA 01803
Ladies and Gentlemen:
We have acted as counsel to Flexion Therapeutics, Inc., a Delaware corporation (the “
Company
”), and you have requested our opinion in
connection with the filing by the Company of a registration statement on
Form S-8
(the “
Registration Statement
”) with the Securities and Exchange Commission, covering the offering
of up to an aggregate of 1,880,124 shares of the Company’s Common Stock, $0.001 par value (the
“
Shares
”
), including (i) 1,504,356 shares (the “
2013 Plan Shares
”) reserved
for issuance pursuant to the Company’s 2013 Equity Incentive Plan (the
“
2013 Plan
”
), and (ii) 375,768 shares (the “
ESPP Shares
”) reserved for issuance pursuant to the
Company’s 2013 Employee Stock Purchase Plan (the “
2013 ESPP
”).
In connection with this opinion, we have examined and relied
upon the Registration Statement and the related prospectuses included therein, the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, as currently in effect, the 2013 Plan and the 2013 ESPP and the
originals or copies certified to our satisfaction of such other records, documents, certificates, memoranda and other instruments as we deem necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness
and authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies thereof.
Our
opinion is expressed only with respect to the General Corporation Law of the State of Delaware.
On the basis of the foregoing, and in reliance thereon,
we are of the opinion that the 2013 Plan Shares, when sold and issued in accordance with the 2013 Plan and applicable stock option agreement, and the ESPP Shares, when sold and issued in accordance with the 2013 ESPP, and in each case when sold and
issued in accordance with the Registration Statement and related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
4401
Eastgate Mall, San Diego, CA 92121 T: (858)
550-6000
F: (858)
550-6420
www.cooley.com
Sean M. Clayton
+1 858 550
6034
sclayton@cooley.com
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Sincerely,
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Cooley LLP
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By:
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/s/ Sean M. Clayton
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Sean M. Clayton
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Cooley LLP 4401 Eastgate Mall San Diego,
CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com