As filed with the Securities and Exchange Commission on June 28, 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
MARINUS PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware |
| 20-0198082 |
(State or Other Jurisdiction of Incorporation | | (I.R.S. Employer |
5 Radnor Corporate Center, Suite 500 | | 19087 |
(Address of Principal Executive Offices) | | (Zip Code) |
Marinus Pharmaceuticals, Inc. 2014 Equity Incentive Plan, as amended
Individual Nonqualified Stock Option Awards (Inducement Grants)
Individual Restricted Stock Units (Inducement Grants)
(Full Title of the Plan)
Steven E. Pfanstiel
Chief Operating Officer and Chief Financial Officer
Marinus Pharmaceuticals, Inc.
5 Radnor Corporate Center, Suite 500
100 Matsonford Rd.
Radnor, Pennsylvania 19087
(Name and Address of Agent For Service)
(484) 801-4670
(Telephone Number, Including Area Code, of Agent For Service)
With Copies to:
Steven J. Abrams | Martha Manning |
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 ☒ | | Smaller reporting company | ☒ |
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| | 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 on Form S-8 is being filed by Marinus Pharmaceuticals, Inc., a Delaware corporation (the “Registrant”), to register (a) 2,020,111 additional shares of the Registrant’s common stock, $0.001 par value per share (the “Common Stock”), issuable under the Registrant’s 2014 Equity Incentive Plan, as amended (the “2014 Plan”) and (b) 728,799 shares of Common Stock issuable upon the exercise of individual nonqualified stock option awards and upon vesting and settlement of restricted stock units granted to employees of the Registrant as an inducement material to entry into employment with the Registrant, in accordance with Nasdaq Listing Rule 5635(c)(4).
Pursuant to General Instruction E to Form S-8, and only with respect to the Common Stock being registered under the 2014 Plan, this registration statement incorporates by reference the contents of: (i) the registration statement on Form S-8 (File No. 333-200701) filed by the Registrant on December 3, 2014 relating to the 2014 Plan; (ii) the registration statement on Form S-8 (File No. 333-219613) filed by the Registrant on August 1, 2017 relating to the 2014 Plan; (iii) the registration statement on Form S-8 (File No. 333-233131) filed by the Registrant on August 8, 2019 relating to the 2014 Plan; (iv) the registration statement on Form S-8 (File No. 333-239785) filed by the Registrant on July 10, 2020 relating to the 2014 Plan; (v) the registration statement on Form S-8 (File No. 333-258677) filed by the Registrant on August 10, 2021 relating to the 2014 Plan; and (vi) the registration statement on Form S-8 (File No. 333-265865) filed by the Registrant on June 28, 2022 relating to the 2014 Plan, in each case, 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 the rules of the Securities and Exchange Commission (the “Commission”), this registration statement on Form S-8 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 in the plans covered by this registration statement as required by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Documents by Reference.
The following documents of the Registrant filed with the Commission are incorporated by reference in this registration statement as of their respective dates:
(a) | the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March 9, 2023; |
(b) | the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2023, filed with the Commission on May 11, 2023; |
(c) | the Registrant’s Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such reports that are related to such items), filed with the Commission on January 5, 2023, January 30, 2023, March 7, 2023, March 10, 2023, March 23, 2023, March 31, 2023, April 18, 2023, May 11, 2023, May 17, 2023, May 30, 2023 and May 30, 2023; |
(d) | the information specifically incorporated by reference into the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022 from the Registrant’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 11, 2023; and |
(e) | the description of the Registrant’s securities included under the caption “Description of Registrant’s Securities” contained in the Registrant’s registration statement on Form 8-A, filed with the Commission on July 28, 2014, as updated by Exhibit 4.3 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on March 24, 2022, including any amendments or reports filed for the purpose of updating such description. |
All reports and other documents filed by the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), but prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents, except for the documents, or portions thereof, that are “furnished” rather than filed with the Commission.
For the purposes of this registration statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded 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.
Item 4.Description of Securities.
Not applicable.
Item 5.Interests of Named Experts and Counsel.
Not applicable.
Item 6.Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) generally permits a Delaware corporation to provide in its certificate of incorporation that a director or officer of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except for liability for (i) with respect to directors and officers, any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders; (ii) with respect to directors and officers, acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) with respect to directors, payments of unlawful dividends or unlawful stock repurchases or redemptions under Section 174 of the DGCL; (iv) with respect to directors and officers, any transaction from which the director or officer derived an improper personal benefit; or (v) with respect to officers, any action by or in the right of the corporation.
Section 145(a) of the DGCL provides, in general, that a Delaware 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 (other than an action by or in the right of the corporation) because that person 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 or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, so long as the person acted in good faith and in a manner he or she reasonably believed was in or not opposed to the corporation’s best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a Delaware 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 or suit by or in the right of the corporation to obtain a judgment in its favor because the person 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 or other enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action, so long as the person acted in good faith and in a manner the person reasonably believed was in or not opposed to the corporation’s best interests, except that no indemnification shall be permitted without judicial approval if a court has determined that the person is to be liable to the corporation with respect to such claim. Section 145(c) of the DGCL provides that, if a present or former director or officer has been successful in defense of any action referred to in Sections 145(a) and (b) of the DGCL, the corporation must indemnify such officer or director against the expenses (including attorneys’ fees) he or she actually and reasonably incurred in connection with such action.
Section 145(g) of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who 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 or other enterprise against any liability asserted against and incurred by such person, in any such capacity, or arising out of his or her status as such, whether or not the corporation could indemnify the person against such liability under Section 145 of the DGCL.
The Registrant’s fourth amended and restated certificate of incorporation and the Registrant’s amended and restated bylaws provide for the indemnification of its directors and officers to the fullest extent permitted under the DGCL.
The Registrant has entered into separate indemnification agreements with all of its directors in addition to the indemnification provided for in the Registrant’s fourth amended and restated certificate of incorporation and the Registrant’s amended and restated bylaws. These indemnification agreements provide, among other things, that the Registrant will indemnify its directors for certain expenses, including damages, judgments, fines, penalties, settlements and costs and attorneys’ fees and disbursements, incurred by a director in any claim, action or proceeding arising in his or her capacity as a director of the Registrant or in connection with service at the Registrant’s request for another corporation or entity. The indemnification agreements also provide for procedures that will apply in the event that a director makes a claim for indemnification.
The Registrant also maintains a directors’ and officers’ insurance policy pursuant to which the Registrant’s directors and officers are insured against liability for actions taken in their capacities as directors and officers.
Item 7.Exemption from Registration Claimed.
Not applicable.
Item 8.Exhibits.
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Exhibit No. |
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4.1 |
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4.2 |
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4.3 |
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4.4 |
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4.5 |
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4.6 |
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4.7 |
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4.8 |
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4.9 |
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5.1* |
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23.1* |
| Consent of Independent Registered Public Accounting Firm, Ernst & Young LLP. |
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23.2* |
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24.1* |
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107* |
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* | Filed herewith. |
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;
(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 hereof) 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 Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
(2)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.
(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, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 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, 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 Radnor, Pennsylvania, on this 28th day of June, 2023.
| MARINUS PHARMACEUTICALS, INC. | |
| | |
| By: | /s/ Scott Braunstein, M.D. |
| Name: | Scott Braunstein, M.D. |
| Title: | President and Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Scott Braunstein, M.D. and Steven E. Pfanstiel, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this registration statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorney-in-fact and agent 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 or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute, 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 by the following persons in the capacities and on the date indicated.
Signature |
| Title |
| Date |
| | | | |
/s/ Scott Braunstein, M.D. | | President, Chief Executive Officer (Principal Executive Officer), Chairman of the Board and Director | | June 28, 2023 |
Scott Braunstein, M.D. | | | | |
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/s/ Steven E. Pfanstiel | | Chief Operating Officer, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) | | June 28, 2023 |
Steven E. Pfanstiel | | | | |
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/s/ Charles Austin | | Director | | June 28, 2023 |
Charles Austin | | | | |
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/s/ Elan Ezickson | | Director | | June 28, 2023 |
Elan Ezickson | | | | |
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/s/ Seth H.Z. Fischer | | Director | | June 28, 2023 |
Seth H.Z. Fischer | | | | |
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/s/ Marvin H. Johnson, Jr. | | Director | | June 28, 2023 |
Marvin H. Johnson, Jr. | | | | |
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/s/ Timothy M. Mayleben | | Director | | June 28, 2023 |
Timothy M. Mayleben | | | | |
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/s/ Saraswathy V. Nochur, Ph.D. | | Director | | June 28, 2023 |
Saraswathy V. Nochur, Ph.D. | | | | |
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/s/ Sarah B. Noonberg, M.D., Ph.D. | | Director | | June 28, 2023 |
Sarah B. Noonberg, M.D., Ph.D. | | | | |
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/s/ Christine Silverstein | | Director | | June 28, 2023 |
Christine Silverstein | | | | |
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