As filed with the Securities and Exchange Commission on May 1, 2018

Registration No. 333-                

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

 

NeuroOne Medical Technologies Corporation

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   27-0863354

(State of

Incorporation)

 

(I.R.S. Employer

Identification No.)

 

10006 Liatris Lane

Eden Prairie, MN 55347

(Address of principal executive offices)

 

NeuroOne Medical Technologies Corporation 2016 Equity Incentive Plan
NeuroOne Medical Technologies Corporation 2017 Equity Incentive Plan

(Full titles of the plans)

 

David A. Rosa

Chief Executive Officer

NeuroOne Medical Technologies Corporation

10006 Liatris Lane

Eden Prairie, MN 55347

952-237-7412

(Name and address of agent for service)

 

Copies to:

Phillip D. Torrence, Esq.

Meredith Ervine, Esq.
Honigman Miller Schwartz and Cohn LLP
650 Trade Centre Way, Suite 200
Kalamazoo, Michigan 49002
(269) 337-7700

 

 

 

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 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   ☐  (Do not check if a smaller reporting company)
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 $0.001 per share                        
--2016 Equity Incentive Plan     365,716 (2)   $ 0.035 (3)   $ 12,800.06 (3)   $ 1.60  
--2017 Equity Incentive Plan     1,300,000 (4)   $ 3.96 (5)   $ 5,141,500.00 (5)   $ 640.12  
Total     1,665,716             $ 5,154,300.06     $ 641.72  

 

(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Act”), this Registration Statement shall cover any additional shares of the Registrant’s common stock that become issuable by reason of any stock dividend, stock split, recapitalization or any other similar transaction.
(2) Represents 365,716 shares of common stock subject to outstanding option awards under the 2016 Equity Incentive Plan.  
(3) Calculated pursuant to Rule 457(h) upon the basis of the price at which the options may be exercised.
(4) Represents 1,300,000 shares of common stock reserved for future grant under the 2017 Equity Incentive Plan. The 2017 Equity Incentive Plan provides that an additional number of shares will automatically be added to the shares authorized for issuance under the 2017 Equity Incentive Plan on January 1 of each year, from January 1, 2018 to and including January 1, 2027, so that the total amount reserved equals 13% of the fully-diluted shares of common stock outstanding as of December 31 of the prior calendar year or such lesser number of shares of common stock as is determined by the Registrant’s board of directors.   
(5) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) under the Act. The offering price per share and aggregate offering price are based on the average of the bid and ask price of the Registrant’s Common Stock as quoted on The OTCQB on April 26, 2018, a date within five business days prior to the date of filing of this Registration Statement.  

 

 

 

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information required in this Part I will be delivered to the participants in the Plan, as specified in Rule 428(b)(1) of the Securities Act. Such documents are not required to be filed with the Securities and Exchange Commission (the “Commission”) as part of this Registration Statement.

 

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PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents filed with the Commission by the Registrant are hereby incorporated by reference in this Registration Statement:

 

(a)       the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017 filed with the Commission on April 16, 2018 (including information specifically incorporated by reference herein from the Registrant’s Proxy Statement filed with the Commission on April 27, 2018);

 

(b)       the Registrant’s Current Reports on Form 8-K filed with the Commission on January 5, 2018, January 19, 2018, January 29, 2018, February 20, 2018, March 2, 2018, March 16, 2018 (as amended by Form 8-K/A filed with the Commission on April 2, 2018), March 26, 2018, April 9, 2018 (as amended by Form 8-K/A filed with the Commission on April 16, 2018) and April 19, 2018;

 

(c)       the description of the Registrant’s common stock under “Item 11. Description of Capital Stock” in the Registrant’s Current Report on Form 8-K filed with the Commission on July 20, 2017, including any amendments or reports filed for the purpose of updating such description.

 

In addition, all documents the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after 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 which deregisters all securities covered hereby then remaining unsold are incorporated by reference in this Registration Statement and are a part hereof from the date of filing of such documents.  Notwithstanding anything herein, the Registrant is not incorporating by reference any information furnished under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless, and to the extent, specified in any such Current Report on Form 8-K.

 

Any statement herein or 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 herein, or in any subsequently filed document, which also is or is deemed to be incorporated by reference herein, modifies or supersedes such prior statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

  2  

 

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

The Registrant is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any persons who were, are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who were, are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation's best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys' fees) actually and reasonably incurred.

 

The Registrant’s certificate of incorporation provides for the indemnification of its directors to the fullest extent permitted under the Delaware General Corporation Law. The Registrant’s bylaws provide for the indemnification of its directors and officers to the fullest extent permitted under the Delaware General Corporation Law.

 

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:

 

  ● transaction from which the director derives an improper personal benefit;

 

  ● act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

  ● unlawful payment of dividends or redemption of shares; or

 

  ● breach of a director's duty of loyalty to the corporation or its stockholders.

 

The Registrant’s certificate of incorporation includes such a provision. Under the Registrant’s bylaws, expenses incurred by any director or officers in defending any such action, suit or proceeding in advance of its final disposition shall be paid by the Registrant upon delivery to it of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Registrant, as long as such undertaking remains required by the Delaware General Corporation Law.

 

  3  

 

 

Section 174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

 

As permitted by the Delaware General Corporation Law, we have entered into indemnity agreements with each of our directors and executive officers, that require us to indemnify such persons against any and all expenses (including reasonable attorneys' fees), witness fees, damages, judgments, fines, settlements and other amounts incurred (including expenses of a derivative action) in connection with any action, suit or proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director, an officer or an employee of the Registrant or any of its affiliated enterprises, provided that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to our best interests and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder.

 

There is at present no pending litigation or proceeding involving any of the Registrant’s directors or executive officers as to which indemnification is required or permitted, and the Registrant is not aware of any threatened litigation or proceeding that may result in a claim for indemnification, other than the letter received by the Registrant in May 2017 from the former employer of Mark Christianson and Wade Frederickson claiming, among other things, certain breaches of non-competition obligations and confidentiality and non-disclosure obligations to such prior employer and federal and state law by virtue of such officers’ work for the Registrant. See “Item 2.01. Completion of Acquisition or Disposition of Assets—Form 10 Information—Item 1A. Risk Factors—We may be subject to damages resulting from claims that we, or our employees, have wrongfully used or disclosed alleged trade secrets of our competitors or are in breach of non-competition or non-solicitation agreements with our competitors” in the Registrant’s Current Report on Form 8-K filed with the Commission on July 20, 2017.

 

The Registrant has an insurance policy that covers its officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.

 

Item 7. Exemption from Registration Claimed.

 

Not Applicable.

 

  4  

 

 

Item 8. Exhibits.

 

Exhibit Number Description
     
4.1   Certificate of Incorporation of NeuroOne Medical Technologies Corporation (incorporated by reference to Exhibit 3.4 on the Registrant’s Current Report on Form 8-K filed on June, 29, 2017).
     
4.2   Bylaws of NeuroOne Medical Technologies Corporation (incorporated by reference to Exhibit 3.5 on the Registrant’s Current Report on Form 8-K filed on June 29, 2017).
     
4.3   Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 on the Registrant’s Current Report on Form 8-K filed on July 20, 2017).
     
5.1*   Opinion of Honigman Miller Schwartz and Cohn LLP.
     
23.1*   Consent of BDO USA, LLP, independent registered public accounting firm.
     
23.3*   Consent of Honigman Miller Schwartz and Cohn LLP (included in its opinion filed as Exhibit 5.1 to this Registration Statement).
     
24.1*   Power of Attorney (included after the signature of the Registrant contained on Signature Page of this Registration Statement).
     
99.1   2016 Equity Incentive Plan (incorporated by reference to Exhibit 10.11 on the Registrant’s Current Report on Form 8-K filed on July 20, 2017).
     
99.2   Form of Stock Option Award Agreement pursuant to 2016 Equity Incentive Plan (incorporated by reference  to Exhibit 10.12 on the Registrant’s Current Report on Form 8-K filed on July 20, 2017).  
     
99.3   2017 Equity Incentive Plan (incorporated by reference to Appendix G to Schedule 14C filed on April 20, 2017).  
     
99.4   NeuroOne Medical Technologies Corporation 2017 Equity Incentive Plan Option Agreement (incorporated by reference  to Exhibit 10.15 on the Registrant’s Current Report on Form 8-K filed on July 20, 2017).  
     
99.5   NeuroOne Medical Technologies Corporation 2017 Equity Incentive Plan Restricted Stock Unit Agreement (incorporated by reference to Exhibit 10.16 on the Registrant’s Current Report on Form 8-K filed on July 20, 2017). 

 

*

Filed herewith.

 

  5  

 

 

Item 9. Undertakings.

 

(a)  The 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;

 

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

 

  (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 offer 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.

 

(b) The Registrant hereby undertakes that, for the purpose 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 the 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.

 

(c) 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.

 

  6  

 

 

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 Eden Prairie, State of Minnesota, on this 1st day of May, 2018.

 

  NeuroOne Medical Technologies Corporation  
   
By:  

/s/ David A. Rosa

   

David A. Rosa

Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints David A. Rosa, as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, 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 might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, 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, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

     

/s/ David A. Rosa

David A. Rosa

  Chief Executive Officer (Principal Executive, Financial and Accounting Officer)   May 1, 2018
     

/s/ Paul Buckman

Paul Buckman

  Chairman of the Board of Directors   May 1, 2018
     

/s/ Suraj Kalia

Suraj Kalia

  Member of the Board of Directors   May 1, 2018
     

/s/ Jeffrey Mathiesen

Jeffrey Mathiesen

  Member of the Board of Directors   May 1, 2018

 

 

7

 

Exhibit 5.1

 

 Phone: (269) 337-7700

Fax: (269) 337-7701

www.honigman.com

   

May 1, 2018

 

NeuroOne Medical Technologies Corporation
c/o David A. Rosa
10006 Liatris Lane

Eden Prairie, MN 55347

 

RE:  Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to NeuroOne Medical Technologies Corporation, a Delaware corporation (the “ Company ”), in connection with a Registration Statement on Form S-8 (the “ Registration Statement ”) filed by the Company with the Securities and Exchange Commission (the “ Commission ”). The Registration Statement relates to the registration under the Securities Act of 1933, as amended (the “ Securities Act ”), of (i) 365,716 shares (the “ 2016 Plan Shares ”) of the Company’s common stock, par value $0.001 per share (the “ Common Stock ”), subject to outstanding awards under the Company’s 2016 Equity Incentive Plan (the “ 2016 Plan ”) and (ii) a maximum of 1,300,000 shares of Common Stock (the “ 2017 Plan Shares ”) reserved for issuance under the Company’s 2017 Equity Incentive Plan (the “ 2017 Plan ”).

 

In connection with this opinion letter, we have examined and relied upon originals or copies of such records, documents, certificates, opinions, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinions expressed below. As to certain factual matters, we have relied upon a certificate of officers of the Company and have not independently sought to verify such matters.

 

In rendering the opinions in this opinion letter, we have assumed the genuineness and authenticity of all signatures on original documents; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents.

 

Our opinions herein are expressed solely with respect to the General Corporation Law of the State of Delaware, as amended.  Our opinions are based on these laws as in effect on the date hereof. We express no opinion as to whether the laws of any jurisdiction are applicable to the subject matter hereof.  We are not rendering any opinion as to compliance with any federal or state antifraud law, rule or regulation relating to securities, or to the sale or issuance thereof.  It is understood that this opinion letter is to be used only in connection with the offer and sale of the 2016 Plan Shares and 2017 Plan Shares while the Registration Statement is in effect and only speaks as of the date of this opinion letter.

 

On the basis of the foregoing and in reliance thereon, and subject to the qualifications herein stated, we are of the opinion that: (i) the 2016 Plan Shares are duly authorized and, when issued and sold by the Company in accordance with the 2016 Plan, the awards thereunder, the Registration Statement and related prospectus, will be validly issued, fully paid and non-assessable and (ii) the 2017 Plan Shares are duly authorized and, when issued and sold by the Company in accordance with the 2017 Plan, the awards thereunder, the Registration Statement and related prospectus, will be validly issued, fully paid and non-assessable.

 

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 within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations promulgated thereunder by the Commission.  This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable law.

 

  Very truly yours,     
   
  /s/ HONIGMAN MILLER SCHWARTZ AND COHN LLP    

 

PDT/MLE/GLS/EJB/REW

 

 

650 Trade Centre Way ● Suite 200 ● Kalamazoo, Michigan 49002
Grand Rapids ● Detroit ● Ann Arbor ● Bloomfield Hills ● Chicago ● Kalamazoo ● Lansing

  

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

NeuroOne Medical Technologies Corporation

Eden Prairie, MN

 

We hereby consent to the incorporation by reference in the Registration Statement Form S-8, of our report dated April 16, 2018, relating to the consolidated financial statements of NeuroOne Medical Technologies Corporation appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2017. Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.

 

/s/ BDO USA, LLP
Minneapolis, MN
April 26, 2018