As filed with the Securities and Exchange Commission on August 15, 2018
Registration No. 333-224924
Registration No. 333-211643
Registration No. 333-211642
Registration No. 333-196263
Registration No. 333-181710
Registration No. 333-167015
Registration No. 333-156538
Registration No. 333-145291
Registration No. 333-116697
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
Form S-8 Registration Statement No. 333-224924
Form S-8 Registration Statement No. 333-211643
Form S-8 Registration Statement No. 333-211642
Form S-8 Registration Statement No. 333-196263
Form S-8 Registration Statement No. 333-181710
Form S-8 Registration Statement No. 333-167015
Form S-8 Registration Statement No. 333-156538
Form S-8 Registration Statement No. 333-145291
Form S-8 Registration Statement No. 333-116697
UNDER
THE SECURITIES ACT OF 1933
Assertio Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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94-3229046
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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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100 S. Saunders Road, Suite 300
Lake Forest, IL 60045
(Address of Principal Executive Offices)
Assertio Therapeutics, Inc. Amended and Restated 2014 Omnibus Incentive Plan
Assertio Therapeutics, Inc. Amended and Restated 2004 Employee Stock Purchase Plan
Assertio Therapeutics, Inc. 2004 Equity Incentive Plan
(Full Titles of the Plans)
Arthur J. Higgins
President and Chief Executive Officer
100 S. Saunders Road, Suite 300
Lake Forest, IL 60045
Telephone: (224) 419-7106
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
Ryan A. Murr, Esq.
Gibson, Dunn & Crutcher LLP
555 Mission Street, Suite 3000
San Francisco, California 94105
Telephone: (415) 393-8373
Facsimile: (415) 374-8430
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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x
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Accelerated filer
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Non-accelerated filer
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o
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(Do not check if a smaller reporting company)
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Smaller reporting company
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o
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Emerging growth company
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o
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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.
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EXPLANATORY NOTE
This Post-Effective Amendment is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the “Securities Act”) and constitutes Post-Effective Amendment No. 1 to the Registration Statements (as defined below).
Pursuant to an Agreement and Plan of Merger dated as of August 10, 2018 (the “Merger Agreement” and, as consummated, the “Merger”), on August 14, 2018, at 11:59 p.m. Eastern, Depomed, Inc., a California corporation (“Depomed-California”), merged with and into Assertio Therapeutics, Inc., a Delaware corporation and wholly owned subsidiary of Depomed-California (the “Company” or the “Registrant”), with the Company continuing as the surviving corporation (the “Reincorporation and Name Change”). The Merger, including the resulting Reincorporation and Name Change, were approved by Depomed-California’s stockholders at the 2018 Annual of Stockholders on May 8, 2018 for which proxies were solicited pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
In connection with the Reincorporation and Name Change, the outstanding shares of Depomed-California’s common stock were converted on a one-for-one basis into shares of the Company and the Company assumed and continued any and all employee benefit and incentive compensation plans that existed immediately prior to the Reincorporation and Name Change, including the plans to which this registration statement relates. Further, each person that held rights to purchase or otherwise acquire shares of common stock of Depomed-California under such plans immediately prior to the Reincorporation and Name Change holds rights to purchase or otherwise acquire a corresponding number of shares of common stock of the Company. As part of the Reincorporation and Name Change, the Depomed-California equity plans to which this registration statement relates are now known as plans of Assertio Therapeutics, Inc.
This Amendment pertains to the adoption by the Registrant of the below-listed registration statements on Form S-8 (each, a “Registration Statement” and collectively, the “Registration Statements”):
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Registration Statement No. 333-224924, filed with the Securities and Exchange Commission (the “Commission”) on May 14, 2018;
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Registration Statement No. 333-211643, filed with the Commission on May 26, 2016;
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Registration Statement No. 333-211642, filed with the Commission on May 26, 2016;
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Registration Statement No. 333-196263, filed with the Commission on May 23, 2014;
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Registration Statement No. 333-181710, filed with the Commission on May 25, 2012;
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Registration Statement No. 333-167015, filed with the Commission on May 21, 2010;
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Registration Statement No. 333-156538, filed with the Commission on December 31, 2008;
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Registration Statement No. 333-145291, filed with the Commission on August 9, 2007; and
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Registration Statement No. 333-116697, filed with the Commission on June 21, 2004.
In accordance with Rule 414 of the Securities Act, this Post-Effective Amendment is being filed solely to reflect the Reincorporation and Name Change or as necessary to keep the Registration Statement from being misleading in any material respect. In accordance with paragraph (d) of Rule 414 of the Securities Act, except as modified by this Post-Effective Amendment, the Company, as successor issuer to Depomed-California pursuant to Rule 12g-3 of the Exchange Act, hereby expressly adopts each Registration Statement as the Company’s registration statements for all purposes of the Securities Act and the Exchange Act.
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Article IX of the Company’s Certificate of Incorporation provides that no director of the Company shall be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL and Article VI of the Company’s Bylaws provides for the indemnification of each of the Company’s directors, officers, employees or agents to the fullest extent permitted by the DGCL or other applicable laws presently or hereafter in effect. Specifically, Article VI of the Company’s Bylaws provides that each person who was or is a party or is threatened to be made a party to, or was or is otherwise involved in, any action, suit, arbitration, alternative dispute resolution mechanism, investigation, inquiry, judicial, administrative or legislative hearing, or any other threatened, pending or completed proceeding, whether brought by or in the right of the Company or otherwise, including any and all appeals, whether of a civil, criminal, administrative, legislative, investigative or other nature (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or an officer of the Company or while a director or officer of the Company is or was serving at the request of the Company as a director, officer, employee, agent or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), or by reason of anything done or not done by him or her in any such capacity, shall be indemnified and held harmless by the Company to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes, penalties and amounts paid in settlement by or on behalf of the indemnitee) actually and reasonably incurred by such indemnitee in connection therewith; provided, however, that, except as otherwise required by law or provided in the Bylaws with respect to suits to enforce indemnification rights under the Bylaws, the Company shall indemnify any such indemnitee in connection with a proceeding, or part thereof, voluntarily initiated by such indemnitee (including claims and counterclaims, whether such counterclaims are asserted by: (i) such indemnitee; or (ii) the Company in a proceeding initiated by such indemnitee) only if such proceeding, or part thereof, was authorized or ratified by the Board of Directors or the Board of Directors otherwise determines that indemnification or advancement of expenses is appropriate. In addition, an indemnity shall, to the fullest extent permitted by law, also have the right to be paid by the Company the expenses (including attorneys’ fees) incurred in defending any proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that an advancement of expenses shall be made only upon delivery to the Company of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such indemnitee is not entitled to be indemnified for such expenses.
The Company also maintains and pays premiums on a directors’ and officers’ liability insurance policy and has entered into indemnity agreements with its directors and officers providing for indemnification to the fullest extent permitted under the DGCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
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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:
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% 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
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however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do 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 SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in 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; and
(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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 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 Act and will be governed by the final adjudication of such issue.
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