Securities Registration: Employee Benefit Plan (s-8)
11 2월 2021 - 6:48AM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on February 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
AVADEL PHARMACEUTICALS PLC
(Exact Name of Registrant as Specified
in Its Charter)
Ireland
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98-1341933
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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 Earlsfort Terrace
Dublin 2, Ireland, D02 T380
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Not Applicable
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(Address of Principal Executive Offices)
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(Zip Code)
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Avadel Pharmaceuticals plc 2020 Omnibus
Incentive Compensation Plan
(Full Title of the Plan)
Greg Divis
Chief Executive Officer
Avadel Pharmaceuticals plc
16640 Chesterfield Grove Road
Suite 200
Chesterfield, MO 63005
(636) 449-1830
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
With copies to:
Robert E. Puopolo, Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
(617) 570-1000
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Christopher McLaughlin
Arthur Cox
10 Earlsfort Terrace
Dublin 2, Ireland
D02 T380
(+353) 1 920 1026
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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 12b2 of the Exchange Act.
Large accelerated filer
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¨
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Accelerated filer
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x
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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
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(4)
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Proposed
Maximum
Aggregate
Offering Price(4)
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Amount of
Registration Fee
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Ordinary Shares, $0.01 nominal value
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6,000,000 (3)
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$
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8.52
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$
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51,120,000
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$
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5,577.19
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(1)
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Each Ordinary Share is represented by one American Depositary Share ("ADS").
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(2)
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In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
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(3)
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Consists of 6,000,000 Ordinary Shares, $0.01 nominal value each, of Avadel Pharmaceuticals plc (the "Registrant") issuable under the 2020 Omnibus Incentive Compensation Plan, pursuant to the terms of such plan.
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(4)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act and based upon the average of the high and low sale prices of the Registrant’s ADSs as reported on the Nasdaq Global Select Market on February 5, 2021.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Information required in Part I of Form S-8 to be contained in
a prospectus meeting the requirements of Section 10(a) of the Securities Act of 1933, as amended (the “Securities Act”)
is not required to be filed with the Securities and Exchange Commission (the “Commission”) and is omitted from this
registration statement in accordance with the explanatory note to Part I of Form S-8 and Rule 428 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant is subject to the informational and reporting
requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and in accordance therewith files reports, proxy statements and other information with the Commission. The following documents,
which are on file with the Commission, are incorporated in this registration statement by reference:
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(c)
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The registrant’s Current Reports on Form 8-K filed on January 10, 2020 (solely with respect to items 8.01 and 9.01 therein), February 24, 2020 (solely with respect to items 1.01, 3.02, 5.03 and 9.01 therein), April 27, 2020 (solely with respect to items 8.01 and 9.01 therein), April 29, 2020 (solely with respect to items 1.01 and 9.01 therein), July 2, 2020 (solely with respect to items 1.01, 2.01 and 9.01 therein), July 13, 2020, August 6, 2020 (as amended), August 28, 2020, September 14, 2020, and December 16, 2020;
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(d)
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The descriptions of the registrant's ordinary shares, $0.01 nominal value each and the registrant’s American Depositary Shares are incorporated by reference to Exhibit 4.6 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2019, including any amendments or reports filed for the purpose of updating such description.
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All documents subsequently filed by the registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in this registration statement and to be 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
for the purposes of this registration statement 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 statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Under no circumstances will any information filed under current
items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
If a director or officer of an Irish company is found to have
breached his or her fiduciary duties to that company, he or she may be held personally liable to the company in respect of that
breach of duty. Irish law permits a company to pay the costs or discharge the liability of a director, secretary or assistant secretary
only where favorable judgment is given in any civil or criminal action in respect of such costs or liability, or where an Irish
court grants relief because the director, secretary or assistant secretary acted honestly and reasonably and ought fairly to be
excused. This restriction does not apply to executives who are not directors, the secretary or assistant secretary of the Registrant.
The Registrant's constitution contains indemnification and expense advancement provisions for persons who are not directors, the
secretary or assistant secretaries of the Registrant. The Registrant's constitution also (i) confers a more limited indemnity on
its directors, secretary and assistant secretaries for certain costs, and (ii) discharges the liability of a director, the secretary
or assistant secretary where judgment is found in favor of such director, secretary or assistant secretary in any civil or criminal
action in respect of such costs or liability, or where an Irish court grants relief because the director, secretary or assistant
secretary acted honestly and reasonably and ought fairly to be excused. Any provision which seeks to indemnify a director, secretary
or assistant secretary of an Irish company over and above this shall be void under Irish law, whether contained in its constitution
or any contract between the director and the company.
Under Irish law, a company may not exempt its directors from
liability for negligence or a breach of duty. However, where a breach of duty has been established, directors may be exempted by
an Irish court from personal liability for negligence or breach of duty if, among other things, the court determines that they
have acted honestly and reasonably, and that they may fairly be excused as a result.
In addition to the indemnification provided for under the Registrant’s
constitution, the Registrant has entered into indemnification agreements with its directors and certain of its officers and intends
to enter into indemnification agreements with any new directors and certain officers in the future. Irish companies may take out
directors' and officers' liability insurance, as well as other types of insurance, for their directors and officers. The Registrant
has taken out directors' and officers' liability insurance, as well as other types of insurance, for its directors and officers.
The Registrant has purchased and intends to maintain insurance on behalf of any person who is or was a director or officer against
any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain
exclusions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act.
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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.
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(iii)
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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.
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Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section shall 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 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference
into 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.
(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 Securities and Exchange 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, State of Missouri, on this 10th day of February, 2021.
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AVADEL PHARMACEUTICALS PLC
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By:
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/s/ Gregory J. Divis
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Gregory J. Divis
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Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Avadel Pharmaceuticals
plc, hereby severally constitute and appoint Gregory J. Divis and Thomas S. McHugh, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below,
the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and
generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Avadel Pharmaceuticals
plc to comply with the provisions of the Securities Act of 1933, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration
statement and any and all amendments thereto.
Pursuant to the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates indicated.
Name
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Title
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Date
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/s/ Gregory
J. Divis
Gregory J. Divis
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Director, Chief Executive Officer
and Principal Executive Officer
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February 10, 2021
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/s/ Thomas
S. McHugh
Thomas S. McHugh
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Chief Financial Officer and Principal
Financial and Accounting Officer
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February 10, 2021
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/s/ Geoffrey
M. Glass
Geoffrey M. Glass
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Non-Executive Chairman and
Director
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February 10, 2021
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/s/ Eric
J. Ende
Eric J. Ende, MD
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Director
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February 10, 2021
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/s/ Mark
A. McCamish
Mark A. McCamish, MD, PhD
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Director
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February 10, 2021
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/s/ Linda
S. Palczuk
Linda S. Palczuk
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Director
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February 10, 2021
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/s/ Peter
Thornton
Peter Thornton
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Director
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February 10, 2021
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Avadel Pharmaceuticals (NASDAQ:AVDL)
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