As filed with the Securities and Exchange Commission on August 14, 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
Outlook Therapeutics, Inc.
(Exact name of Registrant as specified in its charter)
|
Delaware (State or other jurisdiction of Incorporation or organization) |
38-3982704 (I.R.S. Employer Identification No.) |
|
111 S. Wood Avenue, Unit #100 Iselin, New Jersey (Address of principal executive offices) |
08830 (Zip code) |
Outlook Therapeutics, Inc. 2024 Equity Incentive Plan
(Full title of the plan)
Lawrence A. Kenyon
Chief Financial Officer
Outlook Therapeutics, Inc.
111 S. Wood Avenue, Unit #100
Iselin, New Jersey 08830
(Name and address of agent for service)
(609) 619-3990
(Telephone number, including area code, of agent for service)
Copies to:
Yvan-Claude Pierre
Courtney M.W. Tygesson
Cooley LLP
110 N. Wacker Drive
Suite 4200
Chicago, IL 60606-1511
(312) 881-6500
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 ¨ | Accelerated filer ¨ | |
| Non-accelerated filer x | Smaller reporting company x | |
| 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
On June 13, 2024, the Board of Directors of Outlook Therapeutics, Inc., a Delaware corporation (the “Registrant”), approved the amendment and restatement of the Outlook Therapeutics, Inc. 2015 Equity Incentive Plan, which was previously amended as of September 21, 2018, September 12, 2019, and September 17, 2020 (the “2015 Plan”), subject to approval by stockholders at the 2024 Special Meeting of Stockholders. On August 12, 2024, the Registrant’s stockholders approved the amendment and restatement of the 2015 Plan and, in connection with amending and restating the 2015 Plan, the name of the 2015 Plan was updated to the Outlook Therapeutics, Inc. 2024 Equity Incentive Plan (the “2024 Plan”).
The Registrant is filing this Registration Statement on Form S-8 (the “Registration Statement”) for the purpose of registering up to an additional 4,800,000 shares of common stock, par value $0.01 per share (the “Common Stock”), comprising (i) up to 4,698,755 new shares of Common Stock issuable to eligible persons under the 2024 Plan and (ii) 101,245 shares of Common Stock issuable upon the exercise of outstanding options granted under the 2024 Plan, which Common Stock is in addition to the shares of Common Stock registered on the Registrant’s Form S-8s filed on May 13, 2016 (File No. 333-211362), February 15, 2017 (File No. 333-216081), February 15, 2018 (File No. 333-223064), February 14, 2019 (File No. 333-229685), September 30, 2019 (File No. 333-234024), February 14, 2020 (File No. 333-236471), March 26, 2021 (File No. 333-254777), February 15, 2022 (File No. 333-262731) February 14, 2023 (File No. 333-269770) and March 28, 2024 (File No. 333-278343) (the “Prior Form S-8s”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Registrant shall send or give to each participant in the 2024 Plan the document(s) containing the information specified in Part I of Form S-8 as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the SEC, such documents are not being filed with or included in this Registration Statement. These documents, and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Pursuant to General Instruction E to Form S-8, the contents of the Prior Form S-8s filed by the Registrant are incorporated by reference herein. In addition, the following documents filed by the Registrant with the Securities and Exchange Commission (“SEC”) are incorporated by reference into this Registration Statement:
| (a) | The Registrant’s latest annual report on Form 10-K for the fiscal year ended September 30, 2023, filed with the SEC on December 22, 2023, as amended by Amendment No. 1, filed with the SEC on January 24, 2024; |
| (b) | The Registrant’s quarterly reports on Form 10-Q for the fiscal quarters ended December 31, 2023, March 31, 2024 and June 30, 2024 filed with the SEC on February 14, 2024, May 15, 2024 and August 14, 2024, respectively; |
| (c) | The Registrant’s current reports on Form 8-K, filed with the SEC on October 20, 2023, November 2, 2023, December 6, 2023, January 24, 2024, March 7, 2024, March 18, 2024, March 26, 2024, April 2, 2024, April 12, 2024, April 15, 2024, May 1, 2024, May 13, 2024, May 28, 2024, and July 8, 2024; |
| (d) | The description of the Registrant’s Common Stock contained in the Registrant’s registration statement on Form 8-A, filed with the SEC on April 29, 2016, as amended on May 11, 2016, including any further amendments thereto or reports filed for the purposes of updating such description, including Exhibit 4.1 of the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2023, filed with the SEC on December 22, 2023; and |
| (e) | All documents, reports and definitive proxy or information statements filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after the date of this Registration Statement and 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 then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of 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 purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that also 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. |
ITEM 8. EXHIBITS
* Filed herewith.
| 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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Iselin, New Jersey, on August 14, 2024.
| Outlook Therapeutics, Inc. | ||
| By: | /s/ Lawrence A. Kenyon | |
| Lawrence A. Kenyon | ||
| Chief Financial Officer | ||
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Lawrence A. Kenyon and C. Russell Trenary III, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all 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, 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 and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or each of them, or their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ C. Russell Trenary III | President and Chief Executive Officer | August 14, 2024 | ||
| C. Russell Trenary III | (Principal Executive Officer) | |||
| /s/ Lawrence A. Kenyon | Chief Financial Officer, Treasurer, Secretary and Director | August 14, 2024 | ||
| Lawrence A. Kenyon | (Principal Accounting and Financial Officer) | |||
| /s/ Ralph H. Thurman | Executive Chairman | August 14, 2024 | ||
| Ralph H. Thurman | ||||
| /s/ Gerd Auffarth | Director | August 14, 2024 | ||
| Gerd Auffarth | ||||
| /s/ Julian Gangolli | Director | August 14, 2024 | ||
| Julian Gangolli | ||||
| /s/ Yezan Haddadin | Director | August 14, 2024 | ||
| Yezan Haddadin | ||||
| /s/ Kurt J. Hilzinger | Director | August 14, 2024 | ||
| Kurt J. Hilzinger | ||||
| /s/ Andong Huang | Director | August 14, 2024 | ||
| Andong Huang | ||||
| /s/ Faisal Sukhtian | Director | August 14, 2024 | ||
| Faisal Sukhtian | ||||
| /s/ Julia A. Haller | Director | August 14, 2024 | ||
| Julia A. Haller |
Exhibit 5.1
Yvan-Claude Pierre
+1 212 479 6721
yypierre@cooley.com
August 14, 2024
Outlook Therapeutics, Inc.
111 S. Wood Avenue
Unit #100
Iselin, New Jersey 08830
Ladies and Gentlemen:
We have acted as counsel to Outlook Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) covering the offering of up to 4,800,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share, issuable pursuant to the Company’s 2024 Equity Incentive Plan (the “Plan”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and the related prospectus, (b) the Plan, (c) the Company’s certificate of incorporation and bylaws, each as currently in effect, and (d) such other records, documents, opinions, certificates, memoranda and instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and the related prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
This opinion is limited to the matters expressly set forth in this letter, and no opinion has been or should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we have no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
Yvan-Claude Pierre
+1 212 479 6721
yypierre@cooley.com
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such 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 of 1933, as amended, or the rules and regulations of the Commission thereunder.
Sincerely,
| Cooley LLP | ||
| By: | /s/ Yvan-Claude Pierre | |
| Yvan-Claude Pierre | ||
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated December 22, 2023, with respect to the consolidated financial statements of Outlook Therapeutics, Inc., incorporated herein by reference.
/s/ KPMG LLP
Philadelphia, Pennsylvania
August 14, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Outlook Therapeutics, 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(1) | Proposed Maximum Offering Price Per Unit(2) | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | |||||||||||||||||||
| Fees to be Paid | Equity | Common Stock, par value $0.01 per share | Rule 457(c) and (h) | 4,698,755 | (2) | $ | 7.42 | (3) | $ | 34,864,762.10 | 0.00014760 | $ | 5,146.04 | |||||||||||||
| Fees to be Paid | Equity | Common Stock, par value $0.01 per share | Rule 457(h) | 101,245 | (4) | $ | 6.78 | (5) | $ | 686,441.10 | 0.00014760 | $ | 101.32 | |||||||||||||
| Total Offering Amounts | – | $ | 35,551,203.20 | – | $ | 5,247.36 | ||||||||||||||||||||
| Total Fees Previously Paid | – | – | – | – | ||||||||||||||||||||||
| Total Fee Offsets | – | – | – | – | ||||||||||||||||||||||
| Net Fee Due | – | – | – | $ | 5,247.36 | |||||||||||||||||||||
| (1) | Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock, par value $0.01 (the “Common Stock”), of Outlook Therapeutics, Inc. (the “Registrant”) that become issuable under the above-mentioned plans, set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected that results in an increase to the number of outstanding shares of Common Stock. |
| (2) | Represents new shares of Common Stock issuable to eligible persons under the Outlook Therapeutics, Inc. 2024 Equity Incentive Plan (the “2024 Plan”). |
| (3) | Estimated in accordance with Rule 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of the average of the high ($7.55) and low ($7.29) sale prices of the Registrant’s Common Stock as reported on The Nasdaq Capital Market on August 9, 2024, which is a date within five business days prior to filing this Registration Statement. |
| (4) | Represents shares of Common Stock issuable upon the exercise of outstanding options granted under the 2024 Plan. |
| (5) | Calculated pursuant to Rule 457(h) solely for the purpose of calculating the registration fee. The proposed maximum offering price per share is calculated using the exercise price for such shares. |