As filed with the Securities and Exchange Commission on March 6, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INSYS THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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51-0327886 |
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(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
444 South Ellis Street
Chandler, Arizona 85224
(602) 910-2617
(Address of Principal Executive Offices)
2013 Equity Incentive Plan
2013 Employee Stock Purchase Plan
(Full titles of the plans)
Michael L. Babich
President and Chief Executive Officer
Insys Therapeutics, Inc.
444 South Ellis Street
Chandler, Arizona 85224
(602) 910-2617
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Matthew T. Browne Charles S. Kim Sean M. Clayton Cooley LLP 4401 Eastgate Mall San Diego, California 92121 (858) 550-6000 |
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Franc Del Fosse General Counsel Insys Therapeutics, Inc. 444 South Ellis Street Chandler, Arizona 85224 (602) 910-2617 |
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):
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Large Accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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☐ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered |
Amount to be registered (1) |
Proposed maximum offering price per share (2) |
Proposed maximum aggregate offering price (2) |
Amount of registration fee |
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2013 Equity Incentive Plan Common Stock, $0.0002145 par value per share |
884,929 shares (3) |
$80.30 |
$71,059,798.70 |
$9,152.50 |
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2013 Employee Stock Purchase Plan Common Stock, $0.0002145 par value per share |
200,000 shares (4) |
$80.30 |
$16,060,000.00 |
$2,068.53 |
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(1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock (the “Common Stock”) that become issuable under the plans by reason of any stock dividend, stock split, recapitalization or other similar transaction. |
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(2) |
This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) of the 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, 2014, as reported on the Nasdaq Stock Market. |
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(3) |
Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2013 Equity Incentive Plan (the “2013 EIP”), on January 1, 2014 pursuant to an “evergreen” provision contained in the 2013 EIP. Pursuant to such provision, on January 1 of each year until 2023, the number of shares authorized for issuance under the 2013 EIP is automatically increased by a number equal to: (a) 4.0% of the total number of shares of Common Stock outstanding on December 31 of the preceding calendar year; or (b) a number of shares of Common Stock that may be determined each year by the Registrant’s board of directors that is less than the preceding clause (a). |
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(4) |
Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2013 Employee Stock Purchase Plan (the “2013 ESPP”), on January 1, 2014 pursuant to an “evergreen” provision contained in the 2013 ESPP. Pursuant to such provision, on January 1 of each year 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) 1.0% of the total number of shares of Common Stock outstanding on December 31 of the preceding calendar year; (b) 200,000 shares of Common Stock; or (c) a number of shares of Common Stock that may be determined each year by the Registrant’s board of directors that is less than (a) and (b). |
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
Pursuant to General Instruction E of Form S-8, Insys Therapeutics, Inc., or the Registrant, is filing this Registration Statement with the Securities and Exchange Commission, or the SEC, to register 884,929 additional shares of common stock under the Registrant's 2013 Equity Incentive Plan and 200,000 additional shares of common stock under the Registrant's 2013 Employee Stock Purchase Plan, pursuant to the provisions of those plans providing for an automatic increase in the number of shares reserved for issuance under such plans. The Registrant’s Registration Statement on Form S-8 previously filed with the SEC on May 2, 2013 (File No. 333-188306) is incorporated by reference in this Registration Statement, pursuant to General Instruction E to Form S-8.
| ITEM 8. | EXHIBITS. | |||
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Exhibit Number |
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Description | ||
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4.1(1) |
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Amended and Restated Certificate of Incorporation of the Registrant. | ||
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4.2(1) |
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Amended and Restated Bylaws of the Registrant. | ||
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4.3(2) |
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Form of Common Stock Certificate of the Registrant. | ||
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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 BDO USA, 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(3) |
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2013 Equity Incentive Plan and Form of Stock Option Agreement and Form of Stock Option Grant Notice thereunder. | ||
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99.2(3) |
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2013 Employee Stock Purchase Plan. | ||
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(1) |
Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K, filed with the SEC on May 8, 2013, and incorporated herein by reference. |
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(2) |
Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-1 (No. 333-173154), filed with the SEC on June 9, 2011, and incorporated herein by reference. |
| (3) | Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-8 (File No. 333-188306), filed with the SEC on May 2, 2013, and incorporated herein by reference. |
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 Chandler, State of Arizona, on March 6, 2014.
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Insys Therapeutics, Inc. | ||
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By: |
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/s/ Michael L. Babich |
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Michael L. Babich |
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President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Darryl S. Baker and Franc Del Fosse, and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him and in his 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 connection therewith, 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 substitutes or substitute, 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 L. Babich |
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President, Chief Executive Officer and Member of the Board of Directors |
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March 6, 2014 |
| Michael L. Babich | (Principal Executive Officer) | |||
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/s/ Darryl S. Baker |
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Chief Financial Officer |
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March 6, 2014 |
| Darryl S. Baker | (Principal Financial and Accounting Officer) | |||
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/s/ John N. Kapoor, Ph.D. |
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Executive Chairman of the Board of Directors |
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March 6, 2014 |
| John N. Kapoor, Ph.D. | ||||
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/s/ Patrick P. Fourteau |
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Member of Board of Directors |
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March 6, 2014 |
| Patrick P. Fourteau | ||||
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/s/ Steven Meyer |
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Member of Board of Directors |
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March 6, 2014 |
| Steven Meyer | ||||
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Member of Board of Directors |
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March 6, 2014 |
| Brian Tambi | ||||
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/s/ Pierre Lapalme |
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Member of Board of Directors |
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March 6, 2014 |
| Pierre Lapalme | ||||
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/s/ Theodore H. Stanley, M.D. |
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Member of Board of Directors |
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March 6, 2014 |
| Theodore H. Stanley, M.D. | ||||
EXHIBIT INDEX
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Exhibit Number |
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Description | ||
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4.1(1) |
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Amended and Restated Certificate of Incorporation of the Registrant. | ||
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4.2(1) |
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Amended and Restated Bylaws of the Registrant. | ||
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4.3(2) |
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Form of Common Stock Certificate of the Registrant. | ||
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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 BDO USA, 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(3) |
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2013 Equity Incentive Plan and Form of Stock Option Agreement and Form of Stock Option Grant Notice thereunder. | ||
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99.2(3) |
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2013 Employee Stock Purchase Plan. | ||
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(1) |
Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K, filed with the SEC on May 8, 2013, and incorporated herein by reference. |
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(2) |
Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-1 (No. 333-173154), filed with the SEC on June 9, 2011, and incorporated herein by reference. |
| (3) | Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-8 (File No. 333-188306), filed with the SEC on May 2, 2013, and incorporated herein by reference. |