Securities Registration: Employee Benefit Plan (s-8)
18 December 2021 - 12:31AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on December 17, 2021.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AVENUE THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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47-4113275
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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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1140 Avenue of the Americas, Floor 9
New York, New York 10036
(Address, including Zip Code, of Principal Executive
Offices)
Avenue Therapeutics, Inc. 2015 Incentive Plan,
as Amended
(Full title of the plan)
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Copy to:
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Lucy Lu, M.D.
President & CEO
Avenue Therapeutics, Inc.
1140 Avenue of the Americas, Floor 9
New York, New York 10036
(781) 652-4500
(Name, address and telephone number of agent for
service)
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Mark F. McElreath, Esq.
Matthew W. Mamak, Esq.
Alston & Bird LLP
90 Park Avenue, 14th Floor
New York, New York 10016
(212) 210-9400
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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
the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in
Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer ¨
Non-accelerated filer x
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Accelerated filer ¨
Smaller reporting company x
Emerging growth company x
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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
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Title of securities to
be registered
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Amount to be registered
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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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Common Stock, $0.0001 par value
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2,000,000 (1)
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$.965 (2)
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$1,930,000 (2)
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$178.91
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(1)
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Amount to be registered consists of an aggregate of 2,000,000 shares of Avenue Therapeutics,
Inc. Common Stock, par value $0.0001 per share (the “Common Stock”), including any additional shares that may become issuable
in accordance with the adjustment and anti-dilution provisions of the Avenue Therapeutics, Inc. 2015 Incentive Plan, as amended.
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(2)
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Determined in accordance with Rule 457(h) under the Securities Act of 1933, as amended,
the registration fee calculation for these shares is based on the average of the high and low prices of the Common Stock, reported on
the Nasdaq Capital Market on December 15, 2021.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The
documents constituting Part I of this registration statement on Form S-8 (this “Registration Statement”) will be delivered
to participants in the Avenue Therapeutics, Inc. 2015 Incentive Plan, as Amended (the “Plan”) as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the “Securities Act”). These documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
(b) Upon
written or oral request, Avenue Therapeutics, Inc. (the “Company”) will provide, without charge, the documents incorporated
by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a) prospectus.
The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant
to Rule 428(b). Requests for the above-mentioned information should be directed to Alston &
Bird LLP, the Company’s legal counsel, at the address and telephone number on the cover of 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 following documents, filed
with the Securities and Exchange Commission (the “Commission”) by the Company, are incorporated herein by reference:
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(a)
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The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed on March 31, 2021;
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(b)
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All reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”) since December 31, 2020 (excluding any portions of such documents that are deemed to
be “furnished” but not “filed” for purposes of the Exchange Act); and
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(c)
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All other documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of
the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered
have been sold or that deregisters all securities that remain unsold.
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Any statement contained in
a document incorporated or deemed to be 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
incorporated or 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.
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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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We have adopted provisions
in our Third Amended and Restated Certificate of Incorporation that limit the liability of our directors for monetary damages for breach
of their fiduciary duties, except for liability that cannot be eliminated under the Delaware General Corporation Law (“DGCL”).
Delaware law provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary
duties as directors, except liability for any of the following:
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any breach of their duty of loyalty to the corporation or the stockholder;
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acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; or
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any transaction from which the director derived an improper personal benefit.
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This limitation of liability
does not apply to liabilities arising under the federal securities laws and does not affect the availability of equitable remedies such
as injunctive relief or rescission.
Our Third Amended and Restated
Certificate of Incorporation and our Bylaws also provide that we will indemnify our directors and executive officers and may indemnify
our other officers and employees and other agents to the fullest extent permitted by law. We believe that indemnification under our Bylaws
covers at least negligence and gross negligence on the part of indemnified parties. Our Bylaws also permit us to secure insurance on behalf
of any officer, director, employee or other agent for any liability arising out of his or her actions in this capacity, regardless of
whether our Bylaws would permit indemnification. We have secured such insurance.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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(a)
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The Company hereby undertakes:
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(1)
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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) 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 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 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 this Registration Statement or any
material change to such information in this Registration Statement;
Provided, however, That
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(A)
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Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if this 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 reports filed
with or furnished to the Commission by the Company pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15
U.S.C. 78m or 78o(d)) that are incorporated by reference in this Registration Statement;
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(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; 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 Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of
the Company’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 this 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.
(h) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by
a director, officer or controlling person of the Company 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 Company 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.
SIGNATURES
The Registrant. Pursuant
to the requirements of the Securities Act of 1933, the Company 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 New York, state of New York, on this 17th day of December, 2021.
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AVENUE THERAPEUTICS, INC.
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By:
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/s/ Lucy Lu, M.D.
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Lucy Lu, M.D.
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President, Chief Executive Officer and Director
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POWER OF ATTORNEY
KNOW BY ALL MEN BY THESE
PRESENT, that each person whose signature appears below constitutes and appoints Lucy Lu, M.D., as true and lawful attorney-in-fact
and agent, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any amendments
(including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact,
or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement has been signed by the following persons 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/ Lindsay A. Rosenwald,
M.D.
Lindsay A. Rosenwald, M.D.
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Executive Chairman of the Board
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December 17, 2021
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/s/ Lucy Lu, M.D.
Lucy Lu, M.D.
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President, Chief Executive Officer and Director
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December 17, 2021
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/s/ Joseph Vazzano
Joseph Vazzano
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Chief Financial Officer
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December 17, 2021
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/s/ Elizabeth Garrett Ingram
Elizabeth Garrett Ingram
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Director
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December 17, 2021
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/s/ Neil Herskowitz
Neil Herskowitz
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Director
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December 17, 2021
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/s/ Jaideep Gogtav, M.D., Ph.D.
Jaideep Gogtav, M.D., Ph.D.
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Director
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December 17, 2021
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/s/ Curtis Oltmans
Curtis Oltmans
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Director
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December 17 2021
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/s/ Jay Kranzler, M.D., Ph.D.
Jay Kranzler, M.D., Ph.D.
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Director
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December 17, 2021
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