As filed with the Securities and Exchange Commission on February 5, 2020

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.

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

(Name and address of agent for service)

(212) 461-2315

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

 

 

Copies to:

Elizabeth A. Diffley, Esq.

Faegre 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.

 

Large accelerated filer   ☐    Accelerated filer   ☒
Non-accelerated filer   ☐    Smaller reporting company   ☒
     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.  ☐

 

 

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”)

  2,686,651   $1.42(2)   $3,815,044.42   $495.20

TOTAL

  2,686,651   $1.42(2)   $3,815,044.42   $495.20

 

 

(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 $1.42 per share, based upon the average of the high and low trading price as of February 3, 2020.

 

 

 

EXPLANATORY NOTE

This Registration Statement (this “Registration Statement”) is filed pursuant to General Instruction E to Form S-8 and consists of only those items required by General Instruction E. This Registration Statement is being filed by the Registrant to register the issuance of an additional 2,686,651 shares of Common Stock of the Registrant, which may be awarded under the 2015 Plan. The contents of the Registrant’s previous Registration Statements on Form S-8 filed on August 10, 2017 (File No. 333-219856) and August 28, 2018 (File No. 333-227077) relating to the 2015 Plan are incorporated herein by reference and made a part hereof.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

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 to Exhibit 3.1 of 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 to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed with the Commission on April 2, 2018.
  4.3    Certificate of Designation of Series A Convertible Preferred Stock, dated January  7, 2020, incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed with the Commission on January 8, 2020.
  4.4    Amended and Restated By-Laws of the Registrant, effective April  2, 2018, incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K filed with the Commission on April 2, 2018.
  4.5    2015 Equity Incentive Plan of the Registrant, incorporated by reference to Exhibit 10.8 of the Registrant’s Current Report on Form 8-K filed with the Commission on March 11, 2015.
  4.6    Amendment No. 1 to the 2015 Equity Incentive Plan of the Registrant, incorporated by reference to Exhibit 10.2 of the Registrant’s Quarterly Report on Form 10-Q filed with the Commission on August 9, 2016.
  4.7    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.
  5.1    Opinion of Faegre Drinker Biddle & Reath LLP. *
23.1    Consent of Grant Thornton LLP – Independent Registered Public Accounting Firm. *
23.2    Consent of Faegre 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.

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 February 5, 2020.

 

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 February 5, 2020.

 

Signature   Title    

/s/ Steve Hoffman

Steve Hoffman

 

Chief Executive Officer and Director

(Principal Executive Officer)

 

/s/ Ben R. Taylor

Ben R. Taylor

 

President and Chief Financial Officer

(Principal Financial Officer)

 

/s/ Barbara C. Galaini

Barbara C. Galaini

 

Corporate Controller

(Principal Accounting Officer)

 

/s/ Gerald Sokol

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/ Douglas A. Michels

Douglas A. Michels

  Director  

/s/ Tommy G. Thompson

Tommy G. Thompson

  Director  

/s/ Donald W. DeGolyer

Donald W. DeGolyer

  Director  

Exhibit 5.1

 

LOGO

 

     

      Faegre Drinker Biddle & Reath LLP

      One Logan Square, Suite 2000

      Philadelphia, Pennsylvania 19103

      +1 215 988 2700 main

      +1 215 988 2757 fax

February 5, 2020

Tyme Technologies, Inc.

17 State Street – 7th Floor

New York, NY 10004

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 the date hereof relating to an aggregate of 2,686,651 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 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 Certificate of Designation of Series A Convertible Preferred Stock, the Company’s Amended and Restated By-Laws, the 2015 Plan, certain minutes and resolutions of the Company’s Board of Directors relating to the Plan 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 2015 Plan, will be validly issued, fully paid and non-assessable by the Company.

      February 5, 2020

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/ FAEGRE DRINKER BIDDLE & REATH LLP

 

Faegre Drinker Biddle & Reath LLP

 

-2-

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We have issued our reports dated June 12, 2019 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, 2019, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement.

 

/s/ Grant Thornton LLP
New York, New York
February 5, 2020