TYME TECHNOLOGIES, INC. (Form: S-8, Received: 08/28/2018 16:29:57)

Large accelerated filer

Accelerated filer

Non-accelerated filer

☐ (Do not check if a smaller reporting company)

Smaller reporting company

Emerging growth company

As filed with the Securities and Exchange Commission on August 28, 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

TYME TECHNOLOGIES, INC.

(Exact name of registrant as specified in its charter)


Delaware		45-3864597
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

17 State Street, 7th Floor New York, NY		10004
(Address of Principal Executive Offices)		(Zip Code)

Tyme Technologies, Inc.:

Amended and Restated

2016 Stock Option Plan for

Non-Employee Directors

and

2015 Equity Incentive Plan

(Full title of the plan)

Steve Hoffman

Chief Executive Officer

TYME TECHNOLOGIES, INC.

17 STATE STREET, 7th FLOOR

NEW YORK, NY 10004

Telephone: (646) 205-1603

(Name and address of agent for service)

(646) 205-1603

(Telephone number, including area code, of agent for service)

Copies to:

Elizabeth A. Diffley, Esq.

Drinker Biddle & Reath LLP

One Logan Square, Suite 2000

Philadelphia, PA 19103

(215) 988-2700

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.

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



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, par value $0.0001 per share (“ Common Stock ”), to be issued under the 2015 Equity Incentive Plan (the “ 2015 Plan ”)	2,656,552	$2.24 ⁽²⁾	$5,950,676	$740.86
Common Stock to be issued under the Amended and Restated 2016 Stock Option Plan for Non-Employee Directors (the “ Amended and Restated 2016 Plan ,” and together with the 2015 Plan, the “ Plans ”)	2,000,000	$2.24 ⁽²⁾	$4,480,000	$557.76
TOTAL	4,656,552	$2.24 ⁽²⁾	$10,430,676	$1,298.62

⁽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 of Tyme Technologies, Inc., a Delaware corporation (the “ Company ” or the “ Registrant ”), that may be hereinafter offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

⁽²⁾	Estimated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of $2.24 per share, based upon the average of the high and low trading price as of August 21, 2018.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information specified in this Part I is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act. In accordance with the rules and regulations of the Securities and Exchange Commission (the “ Commission ”) and the General Instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.

Incorporation of Documents by Reference.

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:

(a)	The Registrant’s Annual Report on Form 10-K for the fiscal year ended March 31, 2018, filed with the Commission on June 13, 2018;

(b)

The Registrant’s (i) Definitive Proxy Statement on Schedule 14A, filed with the Commission on July 25, 2018; (ii) Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2018, filed with the Commission on July 31, 2018; and (iii) Current Reports on Form 8-K filed with the Commission on April 2, 2018, May 29, 2018, June 12, 2018, and August 27, 2018; and

(c)	The description of the Registrant’s capital stock in its Form 8-A filed with the SEC on July 27, 2017.

All documents filed by the Registrant pursuant to Sections 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 that indicates that all securities offered hereby have been sold or that de-registers 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. 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 contained in any subsequently filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement.

Item 4.

Description of Securities.

Not applicable.

Item 5.

Interests of Named Experts and Counsel.

The validity of the Common Stock offered pursuant to this Registration Statement has been passed upon for the Registrant by Drinker Biddle & Reath LLP, outside counsel to the Registrant (“ DBR ”).

As of the date of this Registration Statement, James Biehl, a partner of DBR and a director of the Registrant, beneficially owns 20,150 shares of Common Stock and options to purchase 1,102,270 shares of Common Stock that are presently exercisable or exercisable within 60 days. Mr. Biehl is also eligible to receive future grants of awards pursuant to the Amended and Restated 2016 Plan.

Item 6.

Indemnification of Directors and Officers.

Section 102(b)(7) of the General Corporation Law of the State of Delaware (as amended, the “ DGCL ”) permits a corporation, in its certificate of incorporation, to limit or eliminate the liability of directors to the corporation or its stockholders for monetary damages for breaches of fiduciary duty, except for liability (a) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL, or (d) for any transaction from which the director derived an improper personal benefit. Article 9 of the Registrant’s Amended and Restated Certificate of Incorporation eliminates personal liability of directors of the Registrant to the extent set forth in the DGCL.

Under Section 145 of the DGCL, a corporation has the power to indemnify directors and officers against expenses (including attorneys’ fees actually and reasonably incurred), judgments, fines and settlements, in connection with any action, suit or proceeding (other than derivative actions), whether civil, criminal, administrative or investigative, if it is determined that such person acted in good faith and in a manner he or she reasonably believed to be in (or not opposed to) the best interests of the corporation and, in the case of a criminal action, had no reasonable cause to believe that his or her conduct was unlawful. In a derivative action brought by or in the right of the corporation, the DGCL permits indemnification of any such person if he or she acted in good faith and in a manner he or she reasonably believed to be in (or not opposed to) the best interests of the corporation, but no indemnification may be given where such person has been found to be liable to the corporation unless (and only to the extent that) a court determines that despite such finding of liability, such person is fairly

and reasonably entitled to indemnification against such expenses which the court deems proper. Article 7 of the Registrant’s Amended and Restated By-Laws provides for indemnification of the Registrant’s directors and officers to the fullest extent permitted by the DGCL, and further permits the Company to maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another entity, against any liability asserted against such person and incurred by such person in any such capacity or arising out of his status as such, whether or not the Company would have the power to indemnify such person against such liability under the DGCL. Article 7 of the Registrant’s Amended and Restated Certificate of Incorporation and Article 7 of the Registrant’s Amended and Restated By-Laws contain provisions providing for indemnification of certain persons (including officers and directors).

The Registrant maintains insurance that generally insures its officers and directors and the officers and directors of its subsidiaries (as defined in the insurance policy) against liabilities incurred in their professional capacities, and insures the Registrant with respect to amounts to which officers and directors become entitled as indemnification payments from the Registrant, subject to certain specified exclusions and deductible and maximum amounts. The Registrant also maintains an insurance policy that protects, among others, certain of its officers and directors and certain of the officers and directors of its subsidiaries against liabilities incurred for certain breaches of fiduciary duty with respect to their performance of certain duties and responsibilities, subject to certain specified exclusions and deductible and maximum amounts.

Item 7.

Exemption from Registration Claimed.

Not applicable.

Item 8.

Exhibits.

The following documents are filed or incorporated by reference as part of this Registration Statement.


Exhibit Number		Exhibit Description

4.1		Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference from Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on September 19, 2014.

4.2		Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference from Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on April 2, 2018.

4.3		Amended and Restated By-Laws of the Registrant, incorporated by reference from Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the Commission on April 2, 2018.

4.4		2015 Equity Incentive Plan of the Registrant, incorporated by reference from Exhibit 10.8 to the Registrant’s Current Report on Form 8-K filed with the Commission on March 11, 2015.

4.5		Amendment No. 1 to the 2015 Equity Incentive Plan of the Registrant, incorporated by reference from Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed with the Commission on August 9, 2016.

4.6		Amendment No. 2 to the 2015 Equity Incentive Plan of the Registrant, incorporated by reference from Exhibit 99.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on April 2, 2018.

4.7		Amended and Restated 2016 Stock Option Plan for Non-Employee Directors of the Registrant, incorporated by reference from Exhibit 99.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on May 29, 2018.

5.1		Opinion of Drinker Biddle & Reath LLP. ^*

23.1		Consent of Grant Thornton LLP – Independent Registered Public Accounting Firm. ^*

23.2		Consent of Drinker Biddle & Reath LLP (contained in Exhibit 5.1). ^*

24.1		Power of Attorney (contained in the signature pages of this Registration Statement). ^*

*	Filed with this Registration Statement.

Item 9.

Undertakings.

The undersigned Registrant hereby undertakes:

(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

(iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

provided , however , that paragraphs (1)(i) and (1)(ii) above do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

(2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless, in the opinion of its counsel, the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 August 28, 2018.


TYME TECHNOLOGIES, INC.

By:		/s/ Steve Hoffman
		Steve Hoffman, Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS , that the undersigned officers and directors of the Registrant do hereby constitute and appoint Steve Hoffman and Ben R. Taylor, and each of them, the lawful attorneys-in-fact and agents with full power of substitution and resubstitution and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act and any rules or regulations or requirements of the Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on August 28, 2018.


Signature				Title

/s/ Steve Hoffman Steve Hoffman				Chief Executive Officer and Director (Principal Executive Officer)

/s/ Michael Demurjian Michael Demurjian				Chief Operating Officer and Director

/s/ Ben R. Taylor Ben R. Taylor				President and Chief Financial Officer (Principal Financial Officer)

/s/ Barbara Galaini Barbara Galaini				Corporate Controller (Principal Accounting Officer)

/s/ Dr. Gerald Sokol Dr. Gerald Sokol				Director

/s/ Paul L. Sturman Paul L. Sturman				Director

/s/ David Carberry David Carberry				Director

/s/ Timothy C. Tyson Timothy C. Tyson				Director

/s/ James Biehl James Biehl				Director

/s/ Tommy G. Thompson Tommy Thompson				Director

/s/ Don DeGolyer Don DeGolyer				Director

Exhibit 5.1

LOGO

August 28, 2018

Tyme Technologies, Inc.

17 State Street – 7th Floor

New York, NY 10004

Re: Securities Being Registered under Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to Tyme Technologies, Inc., a Delaware corporation (the “ Company ”), in connection with the preparation and filing of the Company’s Registration Statement on Form S-8 (the “ Registration Statement ”) filed with the Securities and Exchange Commission (the “ Commission ”) pursuant to the Securities Act of 1933 (as amended, the “ Securities Act ”), on or about the date hereof relating to an aggregate of 4,656,552 shares of the Company’s common stock, $0.0001 par value per share (“ Shares ”), issuable pursuant to the Company’s 2015 Equity Incentive Plan, as amended (the “ 2015 Plan ”) and the Company’s Amended and Restated 2016 Stock Option Plan for Non-Employee Directors (the “ Amended and Restated 2016 Plan ” and together with the 2015 Plan, the “ Plans ”) and such presently indeterminate number of Shares or other securities that may be offered and issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

For purposes of this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Registration Statement, the Company’s Amended and Restated Certificate of Incorporation, as amended, the Company’s Amended and Restated By-Laws, the Plans, certain minutes and resolutions of the Company’s Board of Directors relating to the Plans and the Registration Statement and such other documents and corporate records relating to the Company and the issuance of the Shares as we have deemed appropriate. In all cases, we have assumed the legal capacity of each natural person signing any of the documents and corporate records examined by us, the genuineness of signatures, the authenticity of documents submitted to us as originals, the conformity to authentic originals of documents submitted to us as copies and the accuracy and completeness of all corporate records and other information made available to us by the Company. We have also assumed the legal capacity of all natural persons. As to issues of fact material to this opinion, we have relied on representations of officers of the Company and public officials. Except as otherwise indicated, we have not undertaken any independent investigation of factual matters.

We express no opinion concerning the laws of any jurisdiction other than the federal securities laws of the United States and the General Corporation Law of the State of Delaware. For purposes of this opinion, we have assumed that a sufficient number of authorized but unissued Shares will be available for issuance when the Shares are issued.

Based on the foregoing, and consideration of such questions of law as we have deemed relevant, in our opinion the Shares have been duly authorized and, when and if issued against payment therefor in accordance with the terms of the Plans, will be validly issued, fully paid and non-assessable by the Company.

Please be advised that James Biehl, a director of the Company, is a partner in our firm.

We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby 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. We further advise you that the opinions given herein are given as of the date hereof and are limited by facts, circumstances and laws in effect as of such date, and that by rendering these opinions, we undertake no obligation to advise you with respect to any changes therein.

Very truly yours,

/s/ DRINKER BIDDLE & REATH LLP

Drinker Biddle & Reath LLP

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We have issued our reports dated June 13, 2018 with respect to the consolidated financial statements and internal control over financial reporting of Tyme Technologies, Inc. included in the Annual Report on Form 10-K for the year ended March 31, 2018, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement.

LOGO

New York, New York

August 28, 2018