As filed with the U.S. Securities and Exchange Commission on March 13, 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
NEOS THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
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27-0395455 |
(State or Other Jurisdiction of
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(I.R.S. Employer
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2940 N. Highway 360
Grand Prairie, TX 75050
(972) 408-1300
(Address of Registrant’s Principal Executive Offices)
NEOS THERAPEUTICS, INC. 2015 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Gerald McLaughlin
President and Chief Executive Officer
Neos Therapeutics, Inc.
2940 N. Highway 360
Grand Prairie, TX 75050
(972) 408-1300
(Name, address and telephone number of agent for service)
Copies to:
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Mitchell S. Bloom, Esq. Joseph C. Theis, Jr., Esq. Goodwin Procter LLP |
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John M. Limongelli, Esq. SVP, General Counsel & Corporate Secretary Neos Therapeutics, Inc. |
100 Northern Avenue
Boston, Massachusetts 02210
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1787 Sentry Parkway West Veva 16, Suite 130
Blue Bell, PA 19422
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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. (Check one):
Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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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 pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
CALCULATION OF REGISTRATION FEE
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Title of Securities
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Amount
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Proposed
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Proposed
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Amount of
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Common Stock, $0.001 par value per share |
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2,486,633 shares |
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(1) |
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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 which become issuable under the Registrant’s 2015 Stock Option and Incentive Plan (the “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 the Registrant’s outstanding shares of common stock. |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act, and based on the average of the high and low sale prices of the Registrant’s common stock, as quoted on the Nasdaq Global Market, on March 9, 2020. |
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Represents an automatic increase of 2,486,633 shares of Common Stock to the number of shares available for issuance under the Plan, effective January 1, 2020. Shares available for issuance under the Plan were previously registered on a registration statement on Form S-8 filed with the Securities and Exchange Commission on March 18, 2019 (Registration No. 333-230356), March 16, 2018 (Registration No. 333-223696), March 15, 2017 (Registration No. 333-216698), March 18, 2016 (Registration No. 333-210267) and July 29, 2015 (Registration No. 333-205937). |
EXPLANATORY NOTE
This Registration Statement on Form S-8 registers 2,486,633 additional shares of Common Stock under the Registrant’s 2015 Stock Option and Incentive Plan (the “Plan”). The number of shares of Common Stock reserved and available for issuance under the Plan is subject to an automatic annual increase on each January 1, beginning in 2016, by an amount equal to five percent of the number of shares of Common Stock issued and outstanding on the immediately preceding December 31 or such lesser number of shares of Common Stock as determined by the Administrator (as defined in the Plan). Accordingly, on January 1, 2020, the number of shares of Common Stock reserved and available for issuance under the Plan increased by 2,486,633. The additional shares are of the same class as other securities relating to the Plan for which the Registrant’s registration statement filed on Form S-8 (Registration No. 333-205937) on July 29, 2015, is effective.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The contents of the Registration Statements on Form S-8 previously filed with the Securities and Exchange Commission on March 18, 2019 (Registration No. 333-230356), March 16, 2018 (Registration No. 333-223696), March 15, 2017 (Registration No. 333-216698), March 18, 2016 (Registration No. 333-210267) and July 29, 2015 (Registration No. 333-205937) are incorporated by reference herein pursuant to General Instruction E.
Item 8.Exhibits.
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Exhibit No. |
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Description |
4.1 |
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4.2 |
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4.3 |
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4.4 |
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4.5 |
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5.1* |
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23.1* |
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Consent of RSM US LLP, independent registered public accounting firm |
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23.2 |
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Consent of Goodwin Procter LLP (included in Exhibit 5.1) |
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24.1 |
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Power of Attorney (see page II-1 of this Registration Statement on Form S-8) |
*Filed herewith.
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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 Grand Prairie, State of Texas, on March 13, 2020.
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Neos Therapeutics, Inc. |
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By: |
/s/ Gerald McLaughlin |
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Gerald McLaughlin |
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Chief Executive Officer and Director |
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Gerald McLaughlin and Richard Eisenstadt, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them, for him and in his name, place and stead, in any and all capacities, to sign for us and in our names in the capacities indicated below the Registration Statement on Form S-8 of Neos Therapeutics, Inc., and any or all amendments (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith 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 attorneys-in-fact and agents or any of them, or their 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, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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/s/ Gerald McLaughlin |
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Chief Executive Officer and Director |
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March 13, 2020 |
Gerald McLaughlin |
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(Principal Executive Officer) |
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/s/ Richard Eisenstadt |
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Chief Financial Officer |
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March 13, 2020 |
Richard Eisenstadt |
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(Principal Accounting and Financial Officer) |
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/s/ Alan Heller |
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Chairman of the Board of Director |
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March 13, 2020 |
Alan Heller |
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/s/ Beth Hecht |
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Director |
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March 13, 2020 |
Beth Hecht |
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/s/ Bryant Fong |
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Director |
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March 13, 2020 |
Bryant Fong |
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/s/ Greg Robitaille |
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Director |
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March 13, 2020 |
Greg Robitaille |
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/s/ John Schmid |
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Director |
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March 13, 2020 |
John Schmid |
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/s/ Linda M. Szyper |
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Director |
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March 13, 2020 |
Linda M. Szyper |
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/s/ James Robinson |
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Director |
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March 13, 2020 |
James Robinson |
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Exhibit 5.1
March 13, 2020
Neos Therapeutics, Inc.
2940 N. Highway 360
Grand Prairie, TX 75050
Re: Securities Being Registered under Registration Statement on Form S-8
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to an aggregate of 2,486,633 shares (the “Shares”) of Common Stock, $0.001 par value per share (“Common Stock”), of Neos Therapeutics, Inc., a Delaware corporation (the “Company”), that may be issued pursuant to the Company’s 2015 Stock Option and Incentive Plan (the “Plan”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Delaware General Corporation Law.
For purposes of the opinion set forth below, we have assumed that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not 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 thereunder.
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Very truly yours, |
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/S/ GOODWIN PROCTER LLP |
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GOODWIN PROCTER LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of Neos Therapeutics, Inc. of our report dated March 13, 2020, relating to the consolidated financial statements and the financial statement schedule of Neos Therapeutics, Inc. and Subsidiaries, appearing in the Annual Report on Form 10-K of Neos Therapeutics, Inc. for the year ended December 31, 2019.
/s/ RSM US LLP
Dallas, Texas
March 13, 2020