Blueprint
As
filed with the Securities and Exchange Commission on November 15,
2016
Registration
No. 333-______
______________________________________________________________________________________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________________
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
__________________________
PALATIN
TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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95-4078884
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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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4B
Cedar Brook DriveCranbury, New Jersey
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08512
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(Address of
Principal Executive Offices)
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(Zip
Code)
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Palatin
Technologies, Inc. 2011 Stock Incentive Plan
(Full
title of the plan)
Stephen
T. Wills, Chief Financial Officer
4B
Cedar Brook Drive
Cranbury,
New Jersey 08512
(Name
and address of agent for service)
(609)
495-2200
(Telephone number,
including area code, of agent for service)
Please
send copies of all communications to:
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Faith
L. Charles, Esq.
Thompson
Hine LLP
335
Madison Avenue, 12th
Floor
New
York, NY 10017
(212)
908-3905
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Stephen
A. Slusher, Esq.
Chief
Legal Officer
4B
Cedar Brook Drive
Cranbury,
NJ 08512
(609)
495-2200
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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.
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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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(Do not
check if a smaller reporting company)
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Calculation
of Registration Fee
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Title of
securitiesto be registered
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Amount to
beregistered (1)
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Proposed
maximumoffering priceper share (2)
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Proposed
maximumaggregate offeringprice
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Amount
ofregistration fee (3)
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Common stock,
par value $.01 per
share
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2,500,000
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$0.515
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$1,287,500.00
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$149.23
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NOTES
TO FEE TABLE:
(1)
Consists of
additional shares of common stock, not previously registered, which
may be issued under the 2011 Stock Incentive Plan, as amended on
June 9, 2016 (the “Plan”). The maximum number of shares
which may be issued under the Plan is subject to adjustment in
accordance with anti-dilution and other provisions of the Plan.
Accordingly, pursuant to Rule 416 under the Securities Act of 1933,
this registration statement covers, in addition to the number of
shares stated above, an indeterminate number of shares which may be
subject to grant or otherwise issuable after the operation of any
such anti-dilution and other provisions.
(2)
The proposed
maximum offering price per share was calculated pursuant to Rules
457(c) and 457(h) under the Securities Act of 1933, based on the
average of the high and low sale prices of the registrant’s
common stock reported on the NYSE MKT LLC exchange on November 10,
2016.
Explanatory
Note
This registration statement on Form S-8 registers 2,500,000
additional shares of common stock available for issuance under the
2011 Stock Incentive Plan, as amended on June 9, 2016 (as amended,
the “Plan”). Up to 4,488,696 shares of common stock available for
issuance under the 2011 Stock Incentive Plan were previously
registered on Form S-8, filed by the Company on May 16, 2011, File
No. 333-174257; up to 3,500,000 shares of common stock available
for issuance under the 2011 Stock Incentive Plan were previously
registered on Form S-8, filed by the Company on September 30, 2013,
File No. 333-191467; and up to 3,000,000 shares of common stock
available for issuance under the 2011 Stock Incentive Plan were
previously registered on Form S-8, filed by the Company on July 31,
2015, File No. 333-206009. The contents of each of the foregoing
Forms S-8 are incorporated by reference in this registration
statement.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
The
information required by Part I is included in documents sent or
given to participants in the Plan pursuant to Rule 428(b)(1) under
the Securities Act of 1933, as amended, and has been omitted from
this registration statement in accordance with the Note to Part I
of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by
Reference. The following documents, which we have filed with
the Securities and Exchange Commission (SEC), are incorporated by
reference in this registration statement:
●
The Company’s
Annual Report on Form 10-K for the fiscal year ended June 30, 2016,
filed with the SEC on September 19, 2016;
●
The Company’s
Current Report on Form 8-K, filed with the SEC on November 2,
2016;
●
The Company’s
Quarterly Report on Form 10-Q for the quarter ended September 30,
2016, filed with the SEC on November 14, 2016; and
●
The description of
our common stock contained in our registration statement on Form
8-A, filed with the SEC on December 13, 1999, File No. 001-15543,
including any amendment or report filed for the purpose of updating
such description.
All
documents subsequently 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 that
indicates that all shares of common stock offered hereby have been
sold or which deregisters all shares of common stock then remaining
unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part thereof from the date of
filing of such documents. Any statement contained herein or in a
document, all or a portion of which is 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 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 amended, to constitute a part
of this registration statement.
Item 4. Description of
Securities.
Item 5. Interests of Named Experts and
Counsel.
Item 6. Indemnification of Directors and
Officers.
Section
102(b)(7) of the Delaware General Corporation Law (DGCL) allows a
corporation to provide in its certificate of incorporation for the
elimination or limitation of personal liability of a director to
the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, with some exceptions. Article V,
Section 3 of our amended and restated certificate of incorporation
provides that to the fullest extent permitted by the DGCL, no
director shall be personally liable to us or our stockholders for
monetary damages for breach of a fiduciary duty as a
director.
Section
145 of the DGCL provides that a corporation may 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 serving at the request of the
corporation in similar capacities, against expenses (including
attorneys’ fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he 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, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. In the case of an action or suit by or in
the right of the corporation, no indemnification shall be made with
respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only
to the extent that the court having jurisdiction shall determine
that such person is fairly and reasonably entitled to
indemnity.
Article
VI of our amended and restated certificate of incorporation and
Article IX of our bylaws provide that we shall make the
indemnification permitted under the DGCL, as summarized above, but
only (unless ordered by a court) upon a determination by a majority
of a quorum of disinterested directors, by independent legal
counsel in a written opinion, or by the stockholders, that the
indemnified person has met the applicable standard of
conduct.
Article
VI of our amended and restated certificate of incorporation and
Article IX of our bylaws further provide that we may advance
expenses for defending actions, suits or proceedings upon such
terms and conditions as our board of directors deems appropriate,
and that we may purchase insurance on behalf of indemnified persons
whether or not we would have the power to indemnify such persons
under Section 145 of the DGCL. We have obtained a directors’
and officers’ liability insurance policy which covers, among
other things, certain liabilities arising under the Securities Act
of 1933.
Item 7. Exemption from Registration
Claimed.
Item 8. Exhibits. The following exhibits
are filed with this registration statement, or incorporated by
reference as noted:
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Exhibit Number
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Description
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Filed Herewith
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Form
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Filing Date
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SEC File No.
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4.1
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Restated
Certificate of Incorporation of Palatin Technologies, Inc., as
amended.
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10-K
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September 27,
2013
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001-15543
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4.2
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Bylaws
of Palatin Technologies, Inc.
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10-Q
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February 8,
2008
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001-15543
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4.3
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2011
Stock Incentive Plan, as amended on June 9, 2016.
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8-K
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June
13, 2016
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001-15543
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Opinion of
Thompson Hine LLP.
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X
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23.1
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Consent of
Thompson Hine LLP.†
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X
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Consent of
Independent Registered Public Accounting Firm.
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X
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24.1
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Power
of Attorney.††
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X
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†
Included in Exhibit
5.1.
††
Included in the
signature page of this registration statement.
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 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 Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% 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
reports filed with or furnished to the Commission 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 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 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.
(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 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.
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 Township of
Cranbury, State of New Jersey, on November 15, 2016.
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PALATIN
TECHNOLOGIES, INC.
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By:
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/s/
Stephen
T. Wills
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Stephen
T. Wills |
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Vice President,
Chief Financial Officer and Chief Operating Officer |
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POWER
OF ATTORNEY
We, the
undersigned officers and directors of Palatin Technologies, Inc.,
severally constitute Carl Spana and Stephen T. Wills, and each of
them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names in the
capacities indicated below, the registration statement on Form S-8
filed herewith and any and all subsequent amendments to said
registration statement, including post-effective amendments, to
file the same, with all exhibits thereto, with the Securities and
Exchange Commission, and generally to do all such things in our
names and on our behalf in our capacities as officers and directors
to enable Palatin Technologies, Inc. to comply with all
requirements of the Securities and Exchange
Commission.
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 date indicated.
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Signature
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Title
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Date
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/s/
Carl Spana
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President, Chief
Executive Officer and Director (principal executive
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November 15,
2016
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Carl
Spana
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officer)
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/s/
Stephen T. Wills
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Executive Vice President, Chief Financial
Officer and Chief Operating Officer
(principal
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November 15,
2016
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Stephen
T. Wills
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financial and
accounting officer)
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/s/
John K.A. Prendergast
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Chairman and
Director
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November 15,
2016
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John
K.A. Prendergast
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/s/
Robert K. deVeer, Jr
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Director
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November 15,
2016
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Robert
K. deVeer, Jr.
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/s/ J.
Stanley Hull
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Director
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November 15,
2016
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J.
Stanley Hull
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/s/
Alan W. Dunton
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Director
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November 15,
2016
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Alan W.
Dunton
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/s/
Angela Rossetti
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Director
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November 15,
2016
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Angela
Rossetti
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/s/
Arlene M. Morris
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Director
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November 15,
2016
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Arlene
M. Morris
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EXHIBIT
INDEX
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Exhibit Number
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Description
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Filed Herewith
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Form
|
Filing Date
|
SEC File No.
|
|
4.1
|
Restated
Certificate of Incorporation of Palatin Technologies, Inc., as
amended.
|
|
10-K
|
September 27,
2013
|
001-15543
|
|
4.2
|
Bylaws
of Palatin Technologies, Inc.
|
|
10-Q
|
February 8,
2008
|
001-15543
|
|
4.3
|
2011
Stock Incentive Plan, as amended on June 9, 2016.
|
|
8-K
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June
13, 2016
|
001-15543
|
|
|
Opinion of
Thompson Hine LLP.
|
X
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23.1
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Consent of
Thompson Hine LLP.†
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X
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Consent of
Independent Registered Public Accounting Firm.
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X
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24.1
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Power
of Attorney.††
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X
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†
Included in Exhibit
5.1.
††
Included in the
signature page of this registration statement.