As filed with the Securities and Exchange Commission on May 15,
2023
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Assertio Holdings, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
100 South Saunders Road, Suite 300
Lake Forest, Illinois 60045
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85-0598378 |
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Address of Principal Executive Offices
Including Zip Code) |
(I.R.S. Employer
Identification No.)
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Assertio Holdings, Inc. Amended and Restated 2014 Omnibus
Incentive Plan
Assertio Therapeutics, Inc. Inducement Award Program
(Full Title of the Plans)
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Daniel A. Peisert
100 South Saunders Road, Suite 300
Lake Forest, Illinois 60045
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Copies to:
Ryan A. Murr, Esq.
Gibson, Dunn & Crutcher LLP
555 Mission Street, Suite 3000
San Francisco, California 94105
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(Name and Address of Agent For Service)
(224) 419-7106
(Telephone Number, Including Area Code, of Agent For
Service)
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 |
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Accelerated filer |
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| Non-accelerated filer |
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Smaller reporting company |
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| Emerging growth
company |
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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. ¨
EXPLANATORY NOTE
This Registration Statement
on Form S-8 is being filed by Assertio Holdings, Inc.
(the “Company” or the “Registrant”) relating to up to (i) 4,150,000
shares of the Company’s Common Stock, par value $0.0001 per share
(the “Common Stock”) issuable under the Assertio
Holdings, Inc. Amended and Restated 2014 Omnibus Incentive
Plan (the “2014 Plan”), (ii) 58,572 shares of Company Common Stock
issuable pursuant to stock option awards granted to newly-hired
employees of the Registrant as inducement awards in connection with
their commencement of employment with the Company and (iii) 500,000
shares of Company Common Stock issuable pursuant to future equity
awards that may be granted to newly-hired employees of the
Registrant as inducement awards in connection with their
commencement of employment with the Company.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required in Part I of this Registration Statement
is included in one or more prospectuses that are not filed as part
of this Registration Statement in accordance with Rule 428 of the
Securities Act of 1933, as amended (the “Securities Act”) and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. |
Incorporation of Documents by Reference. |
The following documents, previously filed by the Registrant (or its
predecessor issuer pursuant to Rule 12g-3 of the Exchange Act) with
the Securities and Exchange Commission (the “Commission”), are
incorporated by reference herein and shall be deemed to be a part
hereof:
In addition, all documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, excluding any information
furnished under Item 2.02 or Item 7.01 of any Current Report on
Form 8-K and corresponding information furnished under Item 9.01 or
included as an exhibit, prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all such
securities 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 filing of such documents. Any
statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for 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 such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
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Item 4. |
Description of Securities. |
Not applicable.
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Item 5. |
Interests of Named Experts and Counsel. |
Not applicable.
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Item 6. |
Indemnification of Directors and Officers. |
Section 145 of the General Corporation Law of the State of
Delaware, or the DGCL, permits a corporation to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with such action.
In an action brought to obtain a judgment in the corporation’s
favor, whether by the corporation itself or derivatively by a
stockholder, the corporation may only indemnify for expenses,
including attorneys’ fees, actually and reasonably incurred in
connection with the defense or settlement of such action, and the
corporation may not indemnify for amounts paid in satisfaction of a
judgment or in settlement of the claim. In any such action, no
indemnification may be paid in respect of any claim, issue or
matter as to which such person shall have been adjudged liable to
the corporation except as otherwise approved by the Delaware Court
of Chancery or the court in which the claim was brought. In any
other type of proceeding, the indemnification may extend to
judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as
well as to expenses (including attorneys’ fees).
The statute does not permit indemnification unless the person
seeking indemnification has acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests
of the corporation and, in the case of criminal actions or
proceedings, the person had no reasonable cause to believe his
conduct was unlawful. There are additional limitations applicable
to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether a person seeking
indemnification has met the required standard of conduct is to be
made (i) by a majority vote of a quorum of disinterested
members of the board of directors, (ii) by independent legal
counsel in a written opinion, if such a quorum does not exist or if
the disinterested directors so direct, or (iii) by the
stockholders.
Section 145 of the DGCL permits indemnification of officers
and directors under certain circumstances in connection with
liabilities (including reimbursement for expenses incurred) arising
under the Securities Act.
Registrant is authorized by its Charter and Bylaws to indemnify its
directors and officers to the fullest extent permitted under
Delaware law. Registrant has entered into indemnification
agreements with each of its directors and executive officers. These
agreements provide that the Registrant will indemnify each of its
directors and such officers to the fullest extent permitted by law
and by the Charter or Bylaws.
Section 102(b)(7) of the DGCL provides that a
corporation’s certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that such provision shall
not eliminate or limit the liability of a director (i) for any
breach of the director’s duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal
benefit.
The Certificate of Incorporation of Registrant provides for the
elimination of personal monetary liability of directors to the
fullest extent permissible under Delaware law.
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Item 7. |
Exemption from Registration Claimed. |
Not applicable.
Exhibit
No. |
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Description |
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| 4.1 |
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Certificate
of Amendment to the Amended and Restated Certificate of
Incorporation, dated May 13, 2021 (incorporated by reference to
Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on
May 17, 2021). |
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| 4.2 |
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Amended and Restated Certificate of
Incorporation of the Company, dated May 19, 2020 (incorporated by
reference to Exhibit 3.1 to the Company’s Current Report on Form
8-K12B filed on May 19, 2020). |
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| 4.3 |
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Amended
and Restated Bylaws of the Company, dated November 2, 2022
(incorporated by reference to Exhibit 3.1 to the Company’s Current
Report on Form 8-K filed on November 8, 2022). |
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| 5.1* |
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Opinion of
Gibson, Dunn & Crutcher LLP. |
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| 23.1* |
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Consent of
Gibson, Dunn & Crutcher LLP (contained in Exhibit
5.1). |
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| 23.2* |
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Consent of Independent Registered Public
Accounting Firm. |
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| 24.1* |
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Power of Attorney (contained on signature
page). |
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| 99.1 |
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Amended
and Restated 2014 Omnibus Incentive Plan (incorporated by reference
to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed
on May 15, 2023). |
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99.2 |
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Form of Equity Award Documents for
Inducement Grants (incorporated by reference to Exhibit 10.6 to the
Company's Annual Report on Form 10-K filed on March 8,
2023). |
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| 107.1* |
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Filing Fee
Table. |
*Filed herewith.
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1. |
The undersigned Registrant hereby
undertakes: |
(a) 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 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 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 this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs
(1)(a)(i) and (1)(a)(ii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement;
(b) 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
(c) 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.
2.
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 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.
3.
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 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, 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 on Form S-8 to
be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lake Forest, State of Illinois, on May
15, 2023.
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Assertio Holdings, Inc. |
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By: |
/s/
Daniel A. Peisert |
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Name: |
Daniel
A. Peisert |
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Title: |
President and Chief Executive
Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Daniel A.
Peisert and Paul Schwichtenberg, and each of them acting
individually, as his true and lawful attorneys-in-fact and agents,
each with full power of substitution, for him in any and all
capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form
S-8 and to file the same, with exhibits thereto and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, with
full power of each to act alone, 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 for 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 his or their
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of
1934, this Registration Statement has been signed below by the
following persons on behalf of the Registrant and 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/ Daniel A.
Peisert |
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President and Chief Executive Officer (Principal
Executive Officer) |
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May 15, 2023 |
| Daniel A. Peisert |
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/s/ Paul Schwichtenberg |
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Chief
Financial Officer (Principal Financial Officer) |
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May 15, 2023 |
| Paul Schwichtenberg |
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/s/ Ajay Patel |
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Chief
Accounting Officer (Principal Accounting Officer) |
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May 15, 2023 |
| Ajay Patel |
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/s/ Peter D. Staple |
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Chairman of the Board of Directors |
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May 15, 2023 |
| Peter D. Staple |
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/s/ William T. McKee |
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Director |
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May 15, 2023 |
| William T. McKee |
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/s/ Heather L. Mason |
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Director |
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May 15, 2023 |
| Heather L. Mason |
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/s/ James L. Tyree |
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Director |
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May 15, 2023 |
| James L. Tyree |
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