As filed with the Securities and Exchange Commission on March 29, 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
Ovid Therapeutics Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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46-5270895
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(State or other jurisdiction of
incorporation or organization)
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(IRS employer
identification number)
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1460 Broadway, Suite 15044
New York, New York
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10036
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(Address of Principal Executive Offices)
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(Zip Code)
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2017 Equity Incentive Plan
2017 Employee Stock Purchase Plan
(Full titles of the plans)
Jeremy M. Levin, DPhil, MB BChir
Chief Executive Officer
Ovid Therapeutics Inc.
1460 Broadway, Suite 15044
New York, New York 10036
(646)
661-7661
(Name, address, including zip code and telephone number, including area code, of agent for service)
Copies to:
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Ana C. Ward
Senior Vice President and General Counsel
Ovid Therapeutics Inc.
1460 Broadway, Suite 15044
New York, New York 10036
(646)
661-7661
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Laura A. Berezin
Jaime L. Chase
Cooley
LLP
3175 Hanover Street
Palo Alto, California 94304
(650)
843-5000
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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 Securities 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
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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2017 Equity Incentive Plan
(Common stock, $0.001 par value per share)
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1,230,312
(2)
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$7.525
(4)
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$9,258,097.80
(4)
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$1,073.01
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2017 Employee Stock Purchase Plan
(Common stock, $0.001 par value per share)
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246,062
(3)
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$7.525
(4)
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$1,851,616.55
(5)
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$214.60
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TOTAL
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1,476,374
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$11,109,714.35
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$1,383.16
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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 shall also cover any additional shares of common stock that become issuable
under the above-named plans by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without receipt of consideration which results in an increase in the number of Ovid Therapeutics Inc.’s (the
“
Registrant
”) outstanding shares of common stock, par value $0.001 per share (the “
Common Stock
”).
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(2)
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Represents additional shares of the Registrant’s Common Stock reserved for future grant under the Ovid Therapeutics Inc. 2017 Equity Incentive Plan (the “
2017 Plan
”) as a result of the automatic
increase in shares reserved thereunder on January 1, 2018 pursuant to the terms of the 2017 Plan. The 2017 Plan provides that an additional number of shares will automatically be added annually to the shares authorized for issuance under the
2017 on January 1, from 2018 until the expiration of the 2017 Plan in an amount equal to the lesser of (a) 5% of the total number of shares of capital stock outstanding on December 31
st
of the preceding calendar year and (b) a number of shares of Common Stock designated by action of the Registrant’s board of directors prior to the first day of any calendar year.
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(3)
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Represents additional shares of the Registrant’s Common Stock reserved for issuance under the Ovid Therapeutics Inc. 2017 Employee Stock Purchase Plan (the “
ESPP
”) as a result of the automatic
increase in shares reserved thereunder on January 1, 2018 pursuant to the terms of the ESPP. The ESPP provides that an additional number of shares will automatically be added annually to the shares authorized for issuance
under the ESPP on January 1, from 2018 until January 1, 2027. The number of shares added each year will be equal to the lesser of: (a) 1% of the total number of shares of the Registrant’s capital stock outstanding on December 31
of the preceding calendar year; (b) 550,000 shares of Common Stock and (c) a number of shares of Common Stock designated by action of the Registrant’s board of directors prior to the first day of any calendar year.
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(4)
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Estimated pursuant to Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee. The proposed maximum offering price per share and proposed maximum aggregate offering price are based on the
average of the high and low sale prices of the Common Stock as reported on The Nasdaq Global Select Market on March 26, 2018.
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PART I
EXPLANATORY NOTE
The Registrant is
filing this Registration Statement on Form
S-8
for the purpose of registering an additional 1,230,312 shares of common stock under the Ovid Therapeutics Inc. 2017 Equity Incentive Plan and an additional
246,062 shares of common stock under the Ovid Therapeutics Inc. Employee Stock Purchase Plan, pursuant to the provisions of each plan which provide for annual automatic increases in the number of shares of common stock reserved for issuance under
each respective plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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Ovid Therapeutics Inc. (the “
Registrant
”)
hereby incorporates by reference into this Registration Statement the following documents filed by it with the Commission:
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(a)
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the contents of the Registrant’s Registration Statement on Form
S-8,
previously filed with the Commission on May 22, 2017 (File
No. 333-218167);
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(b)
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the Registrant’s Annual Report on Form
10-K
(File
No. 001-38085)
for the year ended December 31, 2017, filed with the
Commission on March 29, 2018;
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(c)
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the Registrant’s Current Report on Form
8-K
(File
No. 001-38085)
filed with the Commission on January 24, 2018; and
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(d)
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The description of the Common Stock contained in the Registrant’s Registration Statement on Form
8-A
(File
No. 001-38085)
filed
with the Commission on May 4, 2017, under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), including any amendments or reports filed for the purpose of updating such description.
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All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of
this Registration Statement and 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 such documents, except as to specific sections of such documents as set forth therein. 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 herein or in any 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 constitute a part of this Registration Statement, except as so modified or superseded.
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Exhibit
Number
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Exhibit Description
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4.1
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Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on
Form
8-K
(File
No. 001-38085),
filed with the Commission on May 10, 2017).
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4.2
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Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Current Report on Form
8-K
(File
No. 001-38085),
filed with the Commission on May 10, 2017).
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4.3
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Specimen common stock certificate (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form
S-1
(File
No. 333-217245),
filed with the Commission on April 10, 2017).
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4.4
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2017 Equity Incentive Plan (incorporated herein by reference to Exhibit 4.12 to the Registrant’s Registration Statement on Form
S-8
(File
No. 333-218167),
filed with the Commission on May 22, 2017).
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4.5
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Forms of Option Grant Notice and Option Agreement under 2017 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.3 to the Registrant’s
Registration Statement on Form
S-1
(File
No. 333-217245),
filed with the Commission on April 18, 2017).
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4.6
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2017 Employee Stock Purchase Plan (incorporated herein by reference to Exhibit 4.14 to the Registrant’s Registration Statement on Form
S-8
(File
No. 333-218167),
filed with the Commission on May 22, 2017).
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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 New York, State of New York
on March 29, 2018.
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Ovid Therapeutics Inc.
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By:
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/s/ Jeremy M. Levin, DPhil, MB BChir
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Jeremy M. Levin, DPhil, MB BChir
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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 Jeremy M. Levin, DPhil, MB BChir and
Timothy Daly, and each or any one of them, 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, 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, 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 connection therewith, 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 any of them, or their or his or her substitutes or substitute, 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.
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Signature
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Title
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Date
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/s/ Jeremy M. Levin, DPhil, MB
BChir
Jeremy M. Levin, DPhil, MB BChir
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Chief Executive Officer and Director
(Principal Executive Officer)
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March 29, 2018
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/s/ Timothy Daly
Timothy Daly
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Senior Vice President, Finance and Corporate Controller
(Principal Financial and Accounting Officer)
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March 29, 2018
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/s/ Matthew During, MD,
DSc
Matthew During, MD, DSc
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President, Chief Scientific Officer and Director
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March 29, 2018
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/s/ Karen Bernstein,
PhD
Karen Bernstein
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Director
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March 29, 2018
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/s/ Barbara Duncan
Barbara Duncan
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Director
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March 29, 2018
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/s/ Bart Friedman
Bart Friedman
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Director
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March 29, 2018
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/s/ Douglas Williams,
PhD
Douglas Williams, PhD
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Director
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March 29, 2018
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Exhibit 5.1
March 29, 2018
Ovid
Therapeutics Inc.
1460 Broadway, Suite 15044
New York, New
York 10036
Ladies and Gentlemen:
We have acted as counsel
to Ovid Therapeutics Inc., a Delaware corporation (the “
Company
”), and you have requested our opinion in connection with the filing of a registration statement on
Form S-8
(the
“
Registration Statement
”) with the Securities and Exchange Commission covering the offering of up to 1,476,374 shares (the “
Shares
”) of the Company’s Common Stock, $0.001 par value (the
“
Common Stock
”), consisting of (i) 1,230,312 shares of Common Stock issuable pursuant to the Company’s 2017 Equity Incentive Plan and (ii) 246,062 shares of Common Stock issuable pursuant to the Company’s 2017
Employee Stock Purchase Plan (together with the Company’s 2015 Equity Incentive Plan, the “
Plans
”).
In connection with this
opinion, we have examined the Registration Statement and related prospectus, your Certificate of Incorporation, as amended and restated, and Bylaws, as amended and restated, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought independently
to verify such matters.
Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware. We express no
opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related prospectus, 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).
Our opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly
stated and is based on those laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the
opinion expressed herein.
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
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C
OOLEY
LLP
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By:
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/s/ Laura A. Berezin
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Laura A. Berezin
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Cooley LLP 3175 Hanover Street Palo Alto,
CA 94304-1130
t: (650) 843-5000 f: (650)
849-7400 cooley.com