As filed with the Securities and Exchange Commission on September
13, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADIAL PHARMACEUTICALS, INC.
(Exact name of registrant as specified
in its charter)
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Delaware
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82-3074668
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer No.)
Identification Number)
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1180 Research Park Blvd., Suite 100
Charlottesville, VA 22911
(434) 422-9800
(Address, including
ZIP code, and telephone number, including area code, of registrant’s principal executive office)
ADIAL PHARMACEUTICALS, INC. 2017 EQUITY
INCENTIVE PLAN
(Full title of the Plan)
William B. Stilley
President and Chief Executive Officer
Adial Pharmaceuticals, Inc.
1100 Research Park Blvd., Suite 100
Charlottesville, VA 22911
(434) 422-9800
(Name, address and telephone number of
agent for service)
with copies to:
Leslie Marlow, Esq.
Hank Gracin, Esq.
Patrick J. Egan, Esq.
Gracin & Marlow, LLP
The Chrysler Building
405 Lexington Avenue, 26th
Floor
New York, New York 10174
(212) 907-6457
(Name, address and telephone number)
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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Accelerated filer ☐
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Non-accelerated filer þ
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Smaller reporting company þ
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Emerging growth company þ
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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 13(a) 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)(2)
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Proposed
Maximum
Aggregate
Offering Price
Per Share (3)
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee(4)
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Common Stock, par value $0.001 per share, under the 2017 Equity Incentive Plan
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1,750,000 shares
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$
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1.58
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$
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2,765,000
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$
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335.12
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(1)
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The securities to be registered include options and rights to acquire the common stock of Adial Pharmaceuticals, Inc.
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.
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(3)
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Estimated pursuant to Rule 457(c) and 457(h) of the Securities Act solely for purposes of calculating the registration fee. The price per share is based upon the average of the high and low prices of the common stock on September 10, 2019, as reported by the NASDAQ Capital Market.
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(4)
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Calculated under Section 6(b) of the Securities Act as 0.00012120 of the proposed maximum aggregate offering price.
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EXPLANATORY NOTE
Adial Pharmaceuticals,
Inc. (the “Registrant” or the “Company”) filed with the Securities and Exchange Commission (the “Commission”)
its Registration Statement on Form S-8 (Registration No. 333-226884) on August 16, 2018 (the “2018 Registration Statement”)
pursuant to and in accordance with the requirements of General Instruction E to Form S-8 for the purpose of registering under the
Securities Act of 1933, as amended (the “Securities Act”), 1,750,000 shares of common stock, par value $0.001 per share
(the “Common Stock”), to be offered and sold under the Registrant’s 2017 Equity Incentive Plan (hereinafter referred
to as the “Plan”). Pursuant to General Instruction E to Form S-8, the contents of the 2018 Registration
Statement are incorporated into this Registration Statement by reference.
In addition, the Registrant
is filing this Registration Statement on Form S-8 (the “Registration Statement”) to register an additional 1,750,000
shares of Common Stock that were added to the Plan by a vote of the Registrant’s stockholders at the Registrant’s 2019
Annual Meeting of Stockholders, which was held on August 16, 2019.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The information specified
in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 is omitted from this filing in accordance with the provisions
of Rule 428 under the Securities Act, and the introductory note to Part I of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the Plan as required by Rule 428(b)(1). Such documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and
Exchange Commission (the “Commission”) allows the Registrant to “incorporate by reference” the information
it files with it which means that it can disclose important information to you by referring you to those documents instead of having
to repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus,
and later information that the Registrant files with the Commission will automatically update and supersede this information. The
Registrant incorporates by reference the documents listed below and any future filings made with the Commission under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act between the date of this prospectus and the termination of the offering:
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The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018 (File No. 001-38323) filed with the Commission on February 19, 2019;
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The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2019 (File No. 001-38323) filed with the Commission on May 13, 2019;
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The Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2019 (File No. 001-38323) filed with the Commission on August 13, 2019;
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The Registrant’s Current Reports on Form 8-K (File No. 001-38323) filed with the Commission on January 25, 2019, January 25, 2019 (Form 8-K/A), February 26, 2019, March 14, 2019, March 26, 2019, June 19, 2019 and July 8, 2019; and
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The description of the Registrant’s common stock set forth in its registration statement on Form 8-A, filed with the Commission on December 11, 2017, as amended on July 23, 2018 (File No. 001-38323).
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All reports and other
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act shall be deemed
to be incorporated by reference in this Registration Statement and to be a part of this Registration Statement from the respective
date of filing of each of those reports or documents until the filing of a post-effective amendment to this Registration Statement
which indicates either that all securities offered by this Registration Statement have been sold or which deregisters all of the
securities under this Registration Statement then remaining unsold.
Any statement contained
in this Registration Statement or in a document incorporated or deemed to be incorporated by reference in this Registration Statement
shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained
in this Registration Statement or in any other subsequently filed document which also is or is deemed to be incorporated by reference
in this Registration Statement modifies or supersedes that statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
The class of securities to be offered is
registered under Section 12 of the Exchange Act.
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 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 and 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:
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transaction from which the director derives an improper personal benefit;
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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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unlawful payment of dividends or redemption of shares; or
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breach of a director’s duty of loyalty to the corporation or its stockholders.
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The Registrant’s
certificate of incorporation includes such a provision. Expenses incurred by any officer or director 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.
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, the Registrant has entered into indemnity agreements with each of its directors and executive
officers, that require the Registrant to indemnify such persons against any and all costs and expenses (including attorneys’,
witness or other professional fees) actually and reasonably incurred by such persons in connection with any action, suit or proceeding
(including derivative actions), 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 or officer or is or was acting or serving as an officer, director, employee or agent of the
Registrant or any of its affiliated enterprises. Under these agreements, the Registrant is not required to provide indemnification
for certain matters, including:
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indemnification beyond that permitted by the Delaware General Corporation Law;
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indemnification for any proceeding with respect to the unlawful payment of remuneration to the director or officer;
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indemnification for certain proceedings involving a final judgment that the director or officer is required to disgorge profits from the purchase or sale of the Registrant’s stock;
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indemnification for proceedings involving a final judgment that the director’s or officer’s conduct was in bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct or a breach of his or her duty of loyalty, but only to the extent of such specific determination;
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indemnification for proceedings or claims brought by an officer or director against us or any of the Registrant’s directors, officers, employees or agents, except for claims to establish a right of indemnification or proceedings or claims approved by the Registrant’s board of directors or required by law;
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indemnification for settlements the director or officer enters into without the Registrant’s consent; or
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indemnification in violation of any undertaking required by the Securities Act or in any registration statement filed by the Registrant.
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The indemnification
agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder.
The Registrant has
an insurance policy in place 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.
Item 8. Exhibits.
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(1)
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Incorporated by reference to the Registrant’s Form S-1, as amended (File No. 333-220368), filed with the Commission on October 25, 2017.
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(2)
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Incorporated by reference to the Registrant’s Form S-8 (File No. 333-226884) filed with the Commission on August 16, 2019.
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(3)
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Filed herewith.
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(4)
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Incorporated by reference to the Registrant’s Form S-1, as amended (File No. 333-220368), filed with the Commission on September 7, 2017.
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Item 9. Undertakings.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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 in the Registration Statement; and
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(iii)
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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;
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provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply to the Registration Statement on Form S-8 if 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.
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(2)
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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.
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(3)
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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.
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(b)
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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 (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.
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(c)
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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.
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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 Charlottesville, Virginia, on the 13th day of September, 2019.
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ADIAL PHARMACEUTICALS, INC.
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By:
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/s/ William B. Stilley, III
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Name:
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William B. Stilley, III
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Title:
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President and Chief Executive Officer
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POWER OF ATTORNEY
Each of the undersigned,
whose signature appears below, hereby constitutes and appoints each of William Stilley and Joseph Truluck, act singly, 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 to this Registration Statement, whether pre-effective or post-effective,
and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, or his substitute full power and authority to do and perform each and every act
and thing necessary or appropriate to be done with respect to this Registration Statement or any amendments hereto in 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, or any of them, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ William B. Stilley
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Chief Executive Officer and President
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William B. Stilley
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(Principal Executive Officer)
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September 13, 2019
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/s/ Joseph M. Truluck
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Chief Operating Officer and Chief Financial Officer
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Joseph M. Truluck
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(Principal Financial and Accounting Officer)
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September 13, 2019
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/s/ J. Kermit Anderson
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J. Kermit Anderson
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Member of the Board of Directors
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September 13, 2019
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/s/ Robertson H. Gilliland
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Robertson H. Gilliland
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Member of the Board of Directors
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September 13, 2019
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/s/ Tony Goodman
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Tony Goodman
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Member of the Board of Directors
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September 13, 2019
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/s/ James W. Newman, Jr.
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James W. Newman, Jr.
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Member of the Board of Directors
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September 13, 2019
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/s/ Kevin Schuyler, CFA
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Kevin Schuyler, CFA
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Member of the Board of Directors
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September 13, 2019
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Exhibit
Index
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(1)
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Incorporated by reference to the Registrant’s Form S-1, as amended (File No. 333-220368), filed with the Commission on October 25, 2017.
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(2)
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Incorporated by reference to the Registrant’s Form S-8 (File No. 333-226884) filed with the Commission on August 16, 2019.
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(3)
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Filed herewith.
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(4)
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Incorporated by reference to the Registrant’s Form S-1, as amended (File No. 333-220368), filed with the Commission on September 7, 2017.
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II-6
Exhibit 4.2
AMENDMENT NO. 1 TO THE
ADIAL PHARMACEUTICALS, INC.
2017
Equity Incentive Plan
This amendment (the
“Amendment”) to the Adial Pharmaceuticals, Inc. 2017 Equity Incentive Plan (the “Plan”),
is hereby adopted this 19th day of June, 2019, by the board of directors (the “Board”) of Adial Pharmaceuticals,
Inc. (the “Company”). All capitalized terms used in this Amendment and not otherwise defined herein shall have
the meanings set forth in the Plan.
WITNESSETH:
WHEREAS, the
Company adopted the Plan for the purposes set forth therein; and
WHEREAS, pursuant
to Section 15 of the Plan, the board of directors has the right to amend the Plan with respect to certain matters, provided that
any material increase in the number of Shares available under the Plan shall be subject to stockholder approval; and
WHEREAS, the
board of directors has approved and authorized this Amendment to the Plan and has recommended that the stockholders of the Company
approve this Amendment;
NOW, THEREFORE, BE
IT RESOLVED, that the Plan is hereby amended, subject to and effective as of the date of stockholder approval hereof, in the
following particulars:
2. Section
4(a) of the Plan is hereby amended by increasing the share references in such section from 1,750,000 to 3,500,000, so that Section
4(a) reads in its entirety as follows:
“(a) Shares
Available for Awards. The maximum aggregate number of shares of Company Stock reserved for issuance under the Plan (all of
which may be granted as Incentive Stock Options) shall be Three Million Five Hundred Thousand (3,500,000) shares. Shares reserved
under the Plan may be authorized but unissued Company Stock or authorized and issued Company Stock held in the Company’s
treasury. The Compensation Committee may direct that any stock certificate evidencing shares issued pursuant to the Plan shall
bear a legend setting forth such restrictions on transferability as may apply to such shares pursuant to the Plan.”
2. Except as specifically
set forth herein, the terms of the Plan shall be and remain unchanged, and the Plan as amended shall remain in full force and effect.
The foregoing is hereby
acknowledged as being the Amendment to the Adial Pharmaceuticals, Inc. 2017 Equity Incentive Plan, as adopted by the board of directors
on June 19, 2019, and approved by the Company’s stockholders on August 16, 2019.
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ADIAL PHARMACEUTICALS, INC.
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By:
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/s/ William B. Stilley
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Name:
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William B. Stilley
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Title:
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Chairman, President and
Chief Executive Officer
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Exhibit
5.1
The
Chrysler Building
405
Lexington Avenue, 26th Floor
New
York, New York 10174
Telephone:
(212) 907-6457
Facsimile:
(212) 208-4657
September
13, 2019
The
Board of Directors
Adial
Pharmaceuticals, Inc.
1100 Research Park Blvd., Suite 100
Charlottesville, VA 22911
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Re:
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Registration
Statement on Form S-8
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Gentlemen:
We
refer to the Registration Statement on Form S-8 (the “Registration Statement”) filed on even date by Adial
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission with
respect to the registration of up to an aggregate of 1,750,000 shares of the Company’s common stock, par value $0.001
per share (the “Shares”), to be issued in connection with the Company’s 2017 Equity Incentive Plan, as
amended (the “Plan”).
In
connection with rendering this opinion, we have examined or are familiar with the charter documents of the Company, the Plan,
the corporate proceedings with respect to the authorization of the Registration Statement and the Plan, and such other certificates,
instruments and documents as we have considered necessary or appropriate for purposes of this opinion. In such examination, we
have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, conformity to
the original documents of all documents submitted to us as copies and the authenticity of the originals of such latter documents. As
to any facts material to our opinion, we have, when relevant facts were not independently established, relied upon the Registration
Statement and the aforesaid records, certificates and documents. We have made such examination as we have deemed necessary for
the purpose of this opinion.
Based
upon such examination, it is our opinion, that, the Shares have been duly and validly authorized and when issued against receipt
of the consideration therefore in accordance with the provisions of the Plan and the Registration Statement, will be validly issued,
fully paid and non-assessable.
We
are members of the bar of the State of New York, and do not express any opinion herein concerning any law other than the Delaware
General Corporation Law and applicable reported judicial decisions. This opinion letter has been prepared for use in connection
with the Registration Statement. We assume no obligations to advise you of any change in the foregoing subsequent to the delivery
of this opinion letter.
We
hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such 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,
and the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
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Very truly yours,
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/s/ Gracin & Marlow, LLP
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