As filed with the Securities and Exchange Commission on May 20, 2016

 

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Cerecor Inc.

(Exact name of Registrant as Specified in its charter)

 

---

 

Delaware		45-0705648
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

 

400 E. Pratt Street

Suite 606

Baltimore, Maryland

(410) 522-8707

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Cerecor Inc. 2016 Equity Incentive Plan

(Full title of the plan)

 

 

Uli Hacksell

President and Chief Executive Officer

Cerecor Inc.

400 E. Pratt Street

Suite 606

Baltimore, Maryland

(410) 522-8707

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

With copies to:

 

Brent B. Siler

Cooley LLP

1299 Pennsylvania Avenue, NW, Suite 700

Washington, DC 20004

(202) 842-7800

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

---

 

 

 

 

CALCULATION OF REGISTRATION FEE

Title of securities to be registered		Amount to be registered (1)		Proposed maximum offering price per share (2)			Proposed maximum aggregate offering price			Amount of registration fee
Common Stock, par value $0.001 per share		3,966,380 shares			$ 3.42 - $ 6.19		$	17,589,171		$	1,771.23

 

 

 

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock, par value $0.001 per share (“Common Stock”), which become issuable under the Registrant’s 2016 Equity Incentive Plan (the “2016 Plan”) by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of outstanding shares of Common Stock.

 

(2)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon (a) $6.19, which is the weighted-average exercise price for outstanding options granted under the Cerecor Inc. 2015 Omnibus Incentive Compensation Plan (the “2015 Plan”), (b) $3.52, which is the exercise price for outstanding options granted under the 2016 Plan and (c) $3.42, which is the average of the high and low prices of the Registrant’s Common Stock as reported on the NASDAQ Capital Market on May 18, 2016. The chart below details the calculation of the registration fee:

Securities		Number of shares		Offering price per share			Aggregate offering price			Amount of registration fee
Shares issuable upon the exercise of outstanding options granted under the 2015 Plan		1,450,952		$	6.19 (2)(a)		$	8,981,393		$	904.43
Shares issuable upon the exercise of outstanding options granted under the 2016 Plan		50,142		$	3.52 (2)(b)		$	176,500		$	17.77
Shares reserved for future grant under the 2016 Plan (3)		2,465,286		$	3.42 (2)(c)		$	8,431,278		$	849.03

 

(3)

Pursuant to the terms of the 2016 Plan, includes up to 1,450,952 shares subject to outstanding awards under the 2015 Plan, which to the extent such awards terminate, expire or are forfeited, would become available for issuance under the 2016 Plan.

 

 

 

 

 

 

 

 

 

 

 

 

---

 

PART 1

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.                           Plan Information.*

 

Item 2.                           Registrant Information and Employee Plan Annual Information.*

 

---

*                  The documents containing the information specified in Part I will be delivered to the participants of the 2016 Equity Incentive Plan in accordance with Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, 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 following documents, which have been filed by Cerecor Inc. (the “Registrant”) with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in this Registration Statement:

 

(1)          The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2015, filed with the SEC on March 23, 2016 (including, for the avoidance of doubt, information specifically incorporated by reference in the Registrant’s Form 10-K from the Registrant’s Definitive Proxy Statement for its 2016 Annual Meeting of Stockholders, filed with the SEC on April 8, 2016);

 

(2)          The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed with the SEC on May 16, 2016;

 

(3)          The Registrant’s Current Reports on Form 8-K (excluding any information and exhibits furnished under either Item 2.02 and Item 7.01 thereof), filed with the SEC on January 5, 2016, January 12, 2016, January 19, 2016, February 2, 2016, April 11, 2016 and May 20, 2016;

 

(4)          All other documents filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above; and

 

(5)          The description of the Registrant’s securities which is contained in the Registration Statement on Form 8-A filed with the SEC on October 9, 2015, pursuant to Section 12(b) of the Exchange Act including any amendment or report filed for the purpose of updating such description.

 

All reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, but prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Unless expressly incorporated into this Registration Statement, a report furnished under Item 2.02 or Item 7.01 but not filed on Form 8-K shall not be incorporated by reference into this Registration Statement to the extent furnished but not filed.

 

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 herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such 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.

 

Not applicable.

 

Item 5.                           Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6.                           Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law (the “DGCL”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act.

 

The Registrant’s amended and restated certificate of incorporation provides for indemnification of its directors, officers and agents to the maximum extent permitted by the DGCL, and the Registrant’s bylaws provide for indemnification of its directors, officers and agents to the maximum extent permitted by the DGCL.

 

In addition, the Registrant has indemnification agreements with its directors containing provisions which are in some respects broader than the specific indemnification provisions contained in the DGCL. The indemnification agreements require the Registrant, among other things, to indemnify its directors against certain liabilities that may arise by reason of their status or service as directors and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified.

 

The Registrant maintains insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his or her capacity as such.

 

Item 7.                           Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.                           Exhibits.

 

A list of exhibits filed herewith or incorporated by reference is contained in the Exhibit Index immediately following the signature pages and is incorporated herein by reference.

 

Item 9.                           Undertakings.

 

(a)          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

---

 

 

 

provided, however,  that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply 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 this 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.

 

(4)          That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

 

 

 

 

(b)          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 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.

 

 

 

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 Baltimore, State of Maryland on May 20, 2016.

 

	Cerecor Inc.
	By	/s/ Uli Hacksell
		Uli Hacksell
		President and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Uli Hacksell, 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 and all amendments to the Registration Statement on Form S-8 of Cerecor Inc., 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, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he 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 has been signed by the following persons in the capacities indicated on this 20th day of May, 2016.

 

Signature		Title
/s/ Uli Hacksell		President, Chief Executive Officer and Chairman of the Board
Uli Hacksell		(Principal Executive Officer)
/s/ Mariam E. Morris		Chief Financial Officer
Mariam E. Morris		(Principal Financial and Accounting Officer)
/s/ Thomas Aasen		Director
Thomas Aasen
/s/ Eugene A. Bauer		Director
Eugene A. Bauer
/s/ Isaac Blech		Director
Isaac Blech
/s/ Phil Gutry		Director
Phil Gutry
/s/ Magnus Persson		Director
Magnus Persson
/s/ Behshad Sheldon		Director
Behshad Sheldon

 

---