As filed with the Securities and Exchange Commission on March 10, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Flexion Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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26-1388364
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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10 Mall Road, Suite 301
Burlington, Massachusetts
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01803
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(Address of Principal Executive Offices)
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(Zip Code)
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2013 Equity Incentive Plan
2013 Employee Stock Purchase Plan
(Full titles of the plans)
Michael D. Clayman, M.D.
Chief Executive Officer
Flexion Therapeutics, Inc.
10 Mall Road, Suite 301
Burlington, MA 01803
(781) 305-7777
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Thomas A. Coll, Esq.
Sean M. Clayton, Esq.
Cooley LLP
4401 Eastgate Mall
San Diego, CA 92121
(858) 550-6000
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Mark S. Levine
General Counsel and Corporate Secretary
Flexion Therapeutics, Inc.
10 Mall Road, Suite 301
Burlington, MA 01803
(781) 305-7777
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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.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount to be
registered (1)
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Proposed maximum offering price
per share (2)
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Proposed maximum aggregate
offering price (2)
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Amount of
registration fee
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2013 Equity Incentive Plan
Common Stock, $0.001 par value per share
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1,976,121 shares (3)
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$11.19
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$22,112,793.99
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$2,412.51
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2013 Employee Stock Purchase Plan
Common Stock, $0.001 par value per share
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375,768 shares (4)
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$11.19
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$4,204,843.92
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$458.75
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 shall also cover any additional shares of the Registrant’s Common Stock (“Common Stock”) that become issuable under the Flexion Therapeutics, Inc. 2013 Equity Incentive Plan (the “2013 EIP”) or the Flexion Therapeutics, Inc. 2013 Employee Stock Purchase Plan (the “2013 ESPP”) by reason of any stock dividend, stock split, recapitalization, or other similar transaction.
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(2)
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This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock on March 5, 2021, as reported on the Nasdaq Stock Market.
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(3)
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Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2013 EIP on January 1, 2021, pursuant to an “evergreen” provision contained in the 2013 EIP. Pursuant to such provision, on January 1 of each year from 2015 until 2023, the number of shares authorized for issuance under the 2013 EIP is automatically increased by: (a) a number equal to 4% of the total number of shares of Common Stock outstanding on December 31 of the preceding calendar year; or (b) a number determined by the Registrant’s board of directors that is less than the amount set forth in the foregoing clause (a).
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(4)
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Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2013 ESPP on January 1, 2021, pursuant to an “evergreen” provision contained in the 2013 ESPP. Pursuant to such provision, on January 1 of each year from 2015 until 2023, the number of shares authorized for issuance under the 2013 ESPP is automatically increased by a number equal to the least of: (a) 1% of the total number of shares of Common Stock outstanding on December 31 of the preceding calendar year; (b) 375,768 shares of Common Stock; or (c) a number determined by the Registrant’s board of directors that is less than the amounts set forth in the foregoing clauses (a) and (b).
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INCORPORATION OF DOCUMENTS BY REFERENCE
This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which a Registration Statement of the Registrant on Form S-8 relating to the same employee benefit plans is effective.
The Registrant previously registered shares of its Common Stock for issuance under the 2013 EIP and the 2013 ESPP under Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on February 12, 2014 (File No. 333-193907), on March 24, 2015 (File No. 333-202957), on March 11, 2016 (File No. 333-210111), on March 10, 2017 (File No. 333-216615), on November 6, 2017 (File No. 333-221373), on March 8, 2018 (File No. 333-223532), on February 28, 2019 (File No. 333-229969), and on March 12, 2020 (File No. 333-237132). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.
ITEM 8.EXHIBITS.
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Exhibit
Number
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Description
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4.1
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Amended and Restated Certificate of Incorporation of the Registrant (Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the Commission on February 19, 2014).
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4.2
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Amended and Restated Bylaws of the Registrant (Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed with the Commission on February 19, 2014).
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4.3
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Form of Common Stock Certificate of the Registrant (Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1, File No. 333-193233, originally filed with the Commission on January 8, 2014, as amended).
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5.1
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Opinion of Cooley LLP.
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
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23.2
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Consent of Cooley LLP. Reference is made to Exhibit 5.1.
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24.1
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Power of Attorney. Reference is made to the signature page hereto.
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99.1
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Flexion Therapeutics, Inc. 2013 Equity Incentive Plan, as amended, and Forms of Stock Option Agreement, Notice of Exercise and Stock Option Grant Notice thereunder (Exhibit 99.1 to the Registrant’s Current Report on Form 8-K, filed with the Commission on September 14, 2017).
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99.2
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Flexion Therapeutics, Inc. 2013 Employee Stock Purchase Plan (Exhibit 10.4 to the Registrant’s Registration Statement on Form S-1, File No. 333-193233, originally filed with the Commission on January 8, 2014, as amended).
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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 Burlington, State of Massachusetts, on March 10, 2021.
FLEXION THERAPEUTICS, INC.
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By:
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/s/ Michael D. Clayman, M.D.
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Michael D. Clayman, M.D.
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael D. Clayman and Mark S. Levine, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him or her and in his or her name, place, or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (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 and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, 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 has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Michael D. Clayman, M.D.
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President, Chief Executive Officer and Member of the Board of Directors
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March 10, 2021
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Michael D. Clayman, M.D.
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(Principal Executive Officer)
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/s/ David Arkowitz
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Chief Financial Officer
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March 10, 2021
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David Arkowitz
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(Principal Financial and Accounting Officer)
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/s/ Patrick J. Mahaffy
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Chairman of the Board of Directors
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March 10, 2021
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Patrick J. Mahaffy
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/s/ Scott A. Canute
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Member of the Board of Directors
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March 10, 2021
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Scott A. Canute
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/s/ Samuel D. Colella
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Member of the Board of Directors
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March 10, 2021
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Samuel D. Colella
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/s/ Elizabeth Kwo, M.D.
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Member of the Board of Directors
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March 10, 2021
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Elizabeth Kwo, M.D.
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/s/ Heath Lukatch, Ph.D.
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Member of the Board of Directors
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March 10, 2021
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Heath Lukatch, Ph.D.
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/s/ Sandesh Mahatme
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Member of the Board of Directors
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March 10, 2021
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Sandesh Mahatme
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/s/ Ann Merrifield
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Member of the Board of Directors
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March 10, 2021
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Ann Merrifield
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/s/ Alan W. Milinazzo
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Member of the Board of Directors
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March 10, 2021
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Alan W. Milinazzo
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/s/ Mark Stejbach
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Member of the Board of Directors
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March 10, 2021
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Mark Stejbach
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Exhibit 5.1
Sean M. Clayton
T: +1 858 550 6034
sclayton@cooley.com
March 10, 2021
Flexion Therapeutics, Inc.
10 Mall Road, Suite 301
Burlington, MA 01803
Ladies and Gentlemen:
We have represented Flexion Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a registration statement on Form S‑8 (the “Registration Statement”) with the Securities and Exchange Commission, covering the offering of up to 2,351,889 shares (the “Shares”) of the Company’s Common Stock, $0.001 par value (“Common Stock”), including (i) 1,976,121 shares reserved for issuance pursuant to the Company’s 2013 Equity Incentive Plan, as amended (the “2013 Plan”), and (ii) 375,768 shares reserved for issuance pursuant to the Company’s 2013 Employee Stock Purchase Plan (together with the 2013 Plan, the “Plans”).
In connection with this opinion, we have examined and relied upon the Registration Statement and the related prospectuses included therein, the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, as currently in effect, the Plans and originals or copies certified to our satisfaction of such other records, documents, certificates, memoranda and other instruments as we deem necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, 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 by all persons other than the Company where due authorization, execution and delivery are a prerequisite to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and related prospectuses, will be validly issued, fully paid, and nonassessable (except as to Shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
Cooley LLP 4401 Eastgate Mall San Diego, CA 92121-1909
t: (858) 550-6000 f: (858) 550-6420 cooley.com
Flexion Therapeutics, Inc.
March 10, 2021
Page 2
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Sincerely,
Cooley LLP
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By:/s/ Sean M. Clayton
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Sean M. Clayton
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Cooley LLP 4401 Eastgate Mall San Diego, CA 92121-1909
t: (858) 550-6000 f: (858) 550-6420 cooley.com