As filed with the Securities and Exchange Commission
on June 17, 2024
Registration
No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUPERNUS PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its
charter)
| Delaware |
20-2590184 |
| (State or other jurisdiction
of incorporation or organization) |
(I.R.S. Employer Identification
No.) |
| |
|
| 9715 Key West Avenue,
Rockville, MD |
20850 |
| (Address of principal executive
offices) |
(Zip Code) |
Supernus Pharmaceuticals, Inc. Amended
and Restated
2021 Equity Incentive Plan
(Full title of the plan)
Jack A. Khattar
President and Chief Executive Officer
Supernus Pharmaceuticals, Inc.
9715 Key West Avenue
Rockville, Maryland 20850
(301) 838-2500
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies of all communications to:
Mark I. Gruhin
George A. Naya
Saul Ewing LLP
1919 Pennsylvania Avenue N.W.
Suite 550
Washington, DC 20006-3434
(202) 333-8800
See next page for calculation of registration
fee.
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.
| Large accelerated filer |
x |
Accelerated filer |
¨ |
| Non-accelerated filer |
¨ |
Smaller reporting company |
¨ |
| |
|
Emerging growth company |
¨ |
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. ¨
EXPLANATORY NOTE
This Registration Statement is being filed in
order to effect the registration of an additional 4,000,000 shares of Common Stock of Supernus Pharmaceuticals, Inc. (the “Registrant”)
under the Registrant’s Amended and Restated 2021 Equity Incentive Plan (the “Equity Plan”). Following the registration
of these additional shares, we will have registered an aggregate of 15,012,893 shares of Common Stock to be issued under the Equity Plan.
The Company previously filed a Registration Statement on Form S-8 with the Securities and Exchange Commission (the “SEC”)
on June 25, 2021 (File No. 333-257392) to register 11,012,893 shares of Common Stock issuable under the Equity Plan. Pursuant
to General Instruction E to Form S-8, the contents of the foregoing earlier registration statement on Form S-8 concerning the
Equity Plan filed with the SEC is incorporated herein by reference, except to the extent supplemented, amended or superseded by the information
set forth herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by Rule 428 under the Securities
Act of 1933, this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the
information specified in Part I will be delivered to the participants of the Equity Plan as required by Rule 428(b).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation
of Documents by Reference. |
The documents listed in clauses 1 through 5 below
are incorporated herein by this reference thereto, and all documents subsequently filed (other than respective filings or portions of
filings that are furnished, under applicable SEC rules, rather than filed) by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment, which indicates that
all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by
this reference in this registration statement and to be a part hereof from the date of filing of such documents:
| 2. | The
Registrant’s Current Reports on Form 8-K, filed with the SEC on February 5, 2024, February 21, 2024, February 28, 2024, April 8, 2024, April 24, 2024 (Date of Report April 22, 2024), May 9, 2024, and June 17, 2024; |
| 5. | The
description of the Registrant’s common stock, $0.001 par value per share, which is
contained in the Registrant’s Registration Statement on Form S-3 filed with the SEC on December 3, 2014, including any subsequently filed amendments and reports updating
such description. |
| Item 4. | Description
of Securities. |
Not applicable.
| Item 5. | Interests
of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification
of Directors and Officers. |
The Registrant’s amended and restated certificate
of incorporation contains provisions that eliminate, to the maximum extent permitted by the General Corporation Law of the State of Delaware,
the personal liability of directors and executive officers for monetary damages for breach of their fiduciary duties as a director or
officer. The Registrant’s amended and restated certificate of incorporation and bylaws provides that the Registrant shall indemnify
its directors and executive officers and may indemnify its employees and other agents to the fullest extent permitted by the General
Corporation Law of the State of Delaware.
Sections 145 and 102(b)(7) of the General
Corporation Law of the State of Delaware provide that a corporation may indemnify any person made a party to an action by reason of the
fact that he or she was a director, executive officer, employee or agent of the corporation or is or was serving at the request of the
corporation against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action if he or she acted in good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful, except that, in the case of an action by or in right of the corporation, no indemnification
may generally be made in respect of any claim as to which such person is adjudged to be liable to the corporation.
The Registrant has entered into indemnification
agreements with each of its directors and executive officers, in addition to the indemnification provided for in the Registrant’s
amended and restated certificate of incorporation and bylaws, and intends to enter into indemnification agreements with any new directors
and executive officers in the future.
The Registrant has purchased and intends to maintain
insurance on behalf of any person who is or was a director or officer of the Registrant 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.
The following is a list of exhibits filed with, or incorporated by
reference into, this Registration Statement:
(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 of 1933;
(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 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8
and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed
with or furnished to the SEC by the Registrant pursuant to Section 13 or 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 of 1933, 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 of 1933, each filing
of the Registrant’s annual report pursuant to Section 13(a) or 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 of 1933 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 SEC
such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 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 Rockville, State of Maryland, on June 17, 2024.
| |
SUPERNUS PHARMACEUTICALS, INC. |
| |
|
| |
By: |
/s/ Jack A. Khattar |
| |
Name: |
Jack A. Khattar |
| |
Title: |
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person
whose signature appears below hereby makes, constitutes and appoints Jack A. Khattar and Timothy C. Dec, and each of them, with full
power to act without the other, such person’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in such person’s name, place and 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 or necessary to be done in connection therewith, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any
of them, or any substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and on the date indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Jack A.
Khattar |
|
President and Chief Executive
Officer and Director |
|
June 17, 2024 |
| Jack A. Khattar |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Timothy
C. Dec |
|
Senior Vice President,
Chief Financial Officer |
|
June 17, 2024 |
| Timothy
C. Dec |
|
(Principal Financial Officer
and Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Charles
W. Newhall, III |
|
Director and Chairman of
the Board |
|
June 17, 2024 |
| Charles W. Newhall, III |
|
|
|
|
| |
|
|
|
|
| /s/ Carrolee
Barlow, M.D., Ph.D. |
|
Director |
|
June 17, 2024 |
| Carrolee Barlow, M.D., Ph.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Georges
Gemayel, Ph.D. |
|
Director |
|
June 17, 2024 |
| Georges Gemayel, Ph.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Frederick
M. Hudson |
|
Director |
|
June 17, 2024 |
| Frederick M. Hudson |
|
|
|
|
| |
|
|
|
|
| /s/ Bethany
L. Sensenig |
|
Director |
|
June 17, 2024 |
| Bethany L. Sensenig |
|
|
|
|
Exhibit 5.1
lawyers@saul.com
www.saul.com
Supernus Pharmaceuticals, Inc.
9715 Key West Avenue
Rockville, Maryland 20850
The Board of Directors:
We refer to the Registration
Statement on Form S-8 (the “Registration Statement”) of Supernus Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), to be filed with the Securities and Exchange Commission (the “Commission”) covering the registration
under the Securities Act of 1933, as amended (the “Securities Act”), of 4,000,000 shares of common stock, par value $0.001
per share, of the Company (the “Shares”) authorized pursuant to the Company’s Amended and Restated 2021 Equity Incentive
Plan (the “Plan”).
We have examined the Registration
Statement, the Amended and Restated Certificate of Incorporation of the Company and the Plan, each of which have been filed with the Commission
as exhibits to the Registration Statement. In addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates
or certified or conformed copies, of such records, agreements, documents and other instruments and such certificates or comparable documents
of public officials and of officers and representatives of the Company and have made such other investigations as we have deemed relevant
and necessary in connection with the opinion hereinafter set forth.
In rendering the opinion set
forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed
copies and the authenticity of the originals of such latter documents.
Based upon and subject to
the foregoing, we are of the opinion that the Shares to be issued pursuant to the terms of the Plan have been duly authorized and, when
issued in accordance with the terms of the Plan, will be duly and validly issued, fully paid and non-assessable.
We hereby consent to the use
of our name in the Registration Statement as counsel who will pass upon the legality of the Shares for the Company and as having prepared
this Opinion as an exhibit to the Registration Statement. In giving the foregoing consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities
and Exchange Commission thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ SAUL EWING LLP |
| |
Saul Ewing LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use of our reports dated February 27, 2024,
with respect to the consolidated financial statements of Supernus Pharmaceuticals, Inc. and subsidiaries, and the effectiveness of
internal control over financial reporting, incorporated herein by reference.
| /s/ KPMG LLP |
|
| Baltimore, Maryland |
|
| June 17, 2024 |
|
Exhibit 107
Calculation of Filing Fees Table
Form S-8
(Form Type)
SUPERNUS PHARMACEUTICALS, INC.
(Exact Name of Registrant
as Specified in its Charter)
Table 1: Newly Registered
Securities
Security
Type |
Security Class Title |
Fee Calculation
Rule |
Amount Registered(2) |
Proposed
Maximum
Offering Price Per
Unit(3) |
Maximum Aggregate Offering
Price(3) |
Fee Rate |
Amount of
Registration Fee |
| Equity |
Common Stock, $0.001 par value per Share
(“Common Stock”) |
Other(1) |
4,000,000 |
$25.98 |
$103,920,000 |
$0.0001476 |
$15,339 |
| Total Offering Amounts |
|
$103,920,000 |
|
$15,339 |
| Total Fee Offsets |
|
|
|
$– |
| Net Fee Due |
|
|
|
$15,339 |
| (1) | Fee calculated in accordance with Rules 457(c) and (h) under the Securities Act of 1933, as amended (the “Securities
Act”). |
| (2) | Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement also covers such additional shares
of Common Stock, of Supernus Pharmaceuticals, Inc. (the “Registrant”), as may be issued by reason of a stock dividend,
recapitalization, stock split, or combination or exchange of shares or similar transactions. |
| (3) | Estimated pursuant to Rule 457(c) and (h) solely for the purposes of calculating the Maximum Aggregate Offering Price
and the Amount of Registration Fee based upon the average of the high and low prices of the Registrant’s Common Stock as reported
on the NASDAQ Global Market on June 10, 2024. |
Supernus Pharmaceuticals (NASDAQ:SUPN)
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