Securities Registration: Employee Benefit Plan (s-8)
20 7월 2016 - 5:32AM
Edgar (US Regulatory)
As filed with
the Securities and Exchange Commission on July 19, 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
________________
FLAMEL TECHNOLOGIES S.A.
(Exact name of Registrant as specified in
its charter)
Republic of France
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43-1050617
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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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Parc Club du Moulin à
Vent
33, avenue du Docteur Georges
Levy
Vénissieux France
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69200
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(Address of Principal Executive Offices)
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(Zip Code)
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________________
2012 Stock Option
Plan
2013 Stock Option
Plan
2014 Stock Option
Plan
2013 Plan Allocation
for Warrants
2014 Plan Allocation
for Warrants
2015 Plan Allocation
for Warrants
2012 Plan Allocation
for Free Shares
2013 Plan Allocation
for Free Shares
2014 Plan Allocation
for Free Shares
(Full title of the plans)
Phillandas T. Thompson, Esq.
Flamel Technologies S.A.
702 Spirit 40 Drive
Suite #108
Chesterfield, MO 63005
(Name and address of agent for service)
(636) 449-1840
(Telephone number, including area code,
of agent for service)
________________
Copies
of all correspondence to:
Timothy I Kahler, Esq.
Joseph Walsh, Esq.
Troutman Sanders LLP
875 Third Avenue
New York, NY 10022
(212) 704-6000
________________
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 definitions of
“large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2
of the Exchange Act.
Large accelerated filer
x
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Accelerated filer
¨
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Non-accelerated filer
¨
(Do not check if a smaller reporting company)
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Smaller reporting company
¨
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CALCULATION OF REGISTRATION FEE
Title of
Securities to be Registered
(1)
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Amount to be Registered
(2)
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Proposed
Maximum
Offering Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of Registration Fee
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Ordinary Shares, €0.122 nominal value
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4,900,000
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$12.335
(3)
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$60,441,500
(3)
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$6,086.46
(3)
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(1)
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Each Ordinary Share is represented by one American
Depositary Share.
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate number of additional Ordinary
Shares, €0.122 nominal value, of the Registrant, which may be offered and issued
to prevent dilution resulting from adjustments as a result of stock dividends, stock
splits, reverse stock splits, recapitalizations, reclassifications, mergers, split-ups,
reorganizations, consolidations and other capital adjustments.
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(3)
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Estimated solely for the purpose of calculating the registration
fee and computed in accordance with Rule 457(c) and (h) under the Securities Act
of 1933, as amended, using the average of the high and low sale prices of the Ordinary
Shares of the Registrant as reported on The NASDAQ Global Market on July 14, 2016, which
was $12.335 per share.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
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ITEM 1.
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Plan Information
.
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Not required to be
filed with this Registration Statement.
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ITEM 2.
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Registrant Information and Employee Plan Annual
Information
.
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Not required to be
filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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ITEM 3.
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Incorporation of Documents by Reference
.
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The Registrant hereby incorporates by reference
into this Registration Statement the following documents previously filed by the Registrant with the Securities and Exchange Commission
(the “Commission”):
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·
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The Registrant’s Annual Report on Form 10-K (File No. 000-28508) for the year ended December
31, 2015, filed with the Commission on March 15, 2016, as amended by the Registrant's Annual Report on Form 10-K/A (File No. 000-28508)
for the year ended December 31, 2015, filed with the Commission on April 29, 2016.
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·
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The Registrant’s Quarterly Report on Form 10-Q (File No. 000-28508) for the quarterly period
ended March 31, 2016, filed with the Commission on May 10, 2016.
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·
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The Registrant’s Current Reports on Form 8-K (File No. 000-28508) filed with the Commission
on January 11, 2016, February 2, 2016, February 11, 2016, March 10, 2016, March 14, 2016, March 31, 2016, April 19, 2016, May 2,
2016, May 4, 2016, May 27, 2016, June 2, 2016, June 16, 2016 and July 1, 2016.
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·
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The description of the Registrant’s Ordinary Shares
and
the American Depositary Shares representing the Ordinary Shares,
contained in the Registrant’s Registration Statement
on Form
F-1
(Registration No. 333-3854), filed by the Registrant with the Commission
on April 19, 1996, including any amendments or reports filed for the purpose of updating such description.
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All documents that the Registrant subsequently
files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934, as amended, prior to the filing
of a post-effective amendment to this Registration Statement which indicates that all of the Ordinary Shares offered have been
sold or which deregisters all of such Ordinary Shares then remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Notwithstanding the above, information
that is “furnished to” the Commission shall not be deemed “filed with” the Commission and shall not be
deemed incorporated by reference into this Registration Statement.
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ITEM 4.
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Description of Securities
.
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Not applicable.
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ITEM 5.
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Interests of Named Experts and Counsel
.
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Not applicable.
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ITEM 6.
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Indemnification of Directors and Officers
.
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Under
French law, a company may purchase directors’ and officers’ insurance for all or part of the members of its management.
A French corporation is responsible to third parties for the consequences of the decisions of its board of directors. However,
if those decisions qualify as mismanagement, the relevant member of the board of directors may have to fully or partly indemnify
the company.
The Registrant maintains liability insurance for its directors and principal executive officers, including
insurance against liabilities under the Securities Act of 1933, as amended.
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ITEM 7.
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Exemption from Registration Claimed
.
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Not applicable.
Reference
is made to the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this Registration
Statement, which Exhibit Index is incorporated herein by reference.
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(a)
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The undersigned Registrant hereby undertakes:
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(1) To file, during any
period in which offers or sales are being made, a post-effective amendment to the 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 the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration fee” table in the effective Registration Statement; and
(iii) 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;
provided, however,
that paragraphs
(1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those clauses is
contained in periodic 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 into the 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; and
(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.
(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 into 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 indemnification provisions summarized in Item 6 above, 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 Chesterfield, Missouri, on July 19, 2016.
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FLAMEL TECHNOLOGIES S.A.
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By:
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/s/ Michael S. Anderson
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Michael S. Anderson
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY
THESE PRESENTS, that each of Craig R. Stapleton, Guillaume Cerutti, Francis J.T. Fildes, Benoit Van Assche and Christophe Navarre
constitutes and appoints Michael S. Anderson and Phillandas T. Thompson, and each of them, as his true and lawful attorney-in-fact
and agent, upon the action of such appointee, with full power of substitution and resubstitution, to do any and all acts and things
and execute, in the name of the undersigned, any and all instruments which each of said attorneys-in-fact and agents may deem necessary
or advisable in order to enable Flamel Technologies S.A. to comply with the Securities Act of 1933, as amended (the “Securities
Act”), and any requirements of the Securities and Exchange Commission (the “Commission”) in respect thereof,
in connection with the filing with the Commission of this Registration Statement on Form S-8 under the Securities Act, including
specifically but without limitation, power and authority to sign the name of the undersigned to such Registration Statement, and
any amendments to such Registration Statement (including post-effective amendments), and to file the same with all exhibits thereto
and other documents in connection therewith, with the Commission, to sign any and all applications, Registration Statements, notices
or other documents necessary or advisable to comply with applicable state securities laws, and to file the same, together with
other documents in connection therewith with the appropriate state securities authorities, granting unto each of said attorneys-in-fact
and agents full power and authority to do and to perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated.
Signature
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Title
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Date
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/s/ Michael
S. Anderson
Michael S. Anderson
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Chief Executive Officer (Principal Executive Officer) and Director
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July 19, 2016
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/s/ Michael
F. Kanan
Michael F. Kanan
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Chief Financial Officer (Principal Financial Officer)
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July 19, 2016
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/s/ David
P. Gusky
David P. Gusky
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Corporate Controller (Principal Accounting Officer)
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July 19, 2016
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/s/ Craig
R. Stapleton
Craig R. Stapleton
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Non-Executive Chairman of the Board and Director
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July 19, 2016
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/s/ Guillaume
Cerutti
Guillaume Cerutti
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Director
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July 19, 2016
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/s/ Francis
J.T. Fildes
Francis J.T. Fildes
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Director
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July 19, 2016
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/s/ Benoit
Van Assche
Benoit Van Assche
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Director
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July 19, 2016
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/s/ Christophe
Navarre
Christophe Navarre
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Director
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July 19, 2016
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INDEX TO EXHIBITS
Exhibit
Number
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Description
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3.1
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Revised
Statuts
or ByLaws of the Company (1)
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5.1
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Opinion of Fidal Law Firm
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23.1
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Consent of PricewaterhouseCoopers Audit
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23.2
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Consent of Fidal Law Firm (2)
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24.1
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Power of Attorney (included on signature page)
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_________________________________
(1) Incorporated by reference to the Flamel Technologies S.A.’s
Annual Report on Form 20-F (File No. 000-28508) for the year ended December 31, 2014, filed on April 30, 2015.
(2) Included in Exhibit 5.1.
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