As filed with the Securities and Exchange Commission on August 11, 2022
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Collegium Pharmaceutical, Inc.
(Exact name of registrant as specified in its charter)
| Virginia | 100
Technology Center Drive Stoughton, MA 02072 |
03-0416362 | ||
| (State
or other jurisdiction of incorporation or organization) |
(Address,
including zip code, of Principal Executive Offices) |
(I.R.S.
Employer Identification No.) |
AMENDED AND RESTATED 2014 STOCK INCENTIVE PLAN
2015 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Joseph Ciaffoni
President and Chief Executive Officer
100 Technology Center
Drive
Stoughton, MA 02072
(781) 713-3699
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| Jennifer L. Porter, Esq. | Shirley R. Kuhlmann, Esq. | |
| Troutman Pepper Hamilton Sanders LLP | Executive Vice President | |
| 3000 Two Logan Square | and General Counsel | |
| Eighteenth and Arch Streets | 100 Technology Center Drive, Suite 300 | |
| Philadelphia, PA 19103 | Stoughton, MA 02072 | |
| (215) 981-4000 | (781) 713-3699 |
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 | x | Accelerated filer | ¨ |
| Non-accelerated filer | ¨ | Smaller reporting company | ¨ |
| 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 for the purpose of registering an additional 1,682,770 shares of Common Stock of the Registrant that were added to the shares authorized for issuance under the Collegium Pharmaceutical, Inc. Amended and Restated 2014 Stock Incentive Plan (the “Stock Incentive Plan”) and the Collegium Pharmaceutical, Inc. 2015 Employee Stock Purchase Plan (the “ESPP”) for which a Registration Statement on Form S-8 relating to the same employee benefit plans is effective. Pursuant to General Instruction E to Form S-8, the contents of the Registration Statements on Form S-8 (File Nos. 333-207744, 333-218767, 333-225498, 333-233092, 333-245649 and 333-258752) filed with the Securities and Exchange Commission (the “Commission”) on November 2, 2015, June 15, 2017, June 7, 2018, August 7, 2019, August 13, 2020 and August 12, 2021 are incorporated herein by reference except to the extent supplemented, amended or superseded by the information set forth herein. Only those items of Form S-8 containing new information not contained in the earlier registration statements are presented herein.
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, 2021, filed with the Commission on February 24, 2022; |
| (b) | The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022 and June 30, 2022, filed with the Commission on May 10, 2022 and August 4, 2022, respectively; |
| (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 on February 14, 2022, March 23, 2022 (as amended on May 13, 2022), April 6, 2022 and May 23, 2022; and |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. 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 8. Exhibits.
(1) Previously filed as an exhibit to the Registrant’s Quarterly Report on Form 10-Q, filed with the Commission on August 5, 2020.
(2) Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K filed with the Commission on December 4, 2017.
(3) Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-8 (File No. 333-207744) filed with the Commission on November 2, 2015.
(4) Previously filed as an exhibit to the Registrant’s Quarterly Report on Form 10-Q, filed with the Commission on May 8, 2019.
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 Town of Stoughton, Commonwealth of Massachusetts, on this 11th day of August, 2022.
| COLLEGIUM PHARMACEUTICAL, INC. | ||
| By: | /s/ Joseph Ciaffoni | |
| Joseph Ciaffoni | ||
| President and Chief Executive Officer | ||
We, the undersigned officers and directors of Collegium Pharmaceutical, Inc., hereby severally constitute and appoint Joseph Ciaffoni, Colleen Tupper and Shirley R. Kuhlmann, 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, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Collegium Pharmaceutical, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities indicated on August 11, 2022.
| Signature | Title | ||
| /s/ Joseph Ciaffoni | President and Chief Executive Officer (Principal Executive Officer) and Director | ||
| Joseph Ciaffoni | |||
| /s/ Colleen Tupper | Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | ||
| Colleen Tupper | |||
| /s/ Michael T. Heffernan, R.Ph. | Chairman of the Board and Director | ||
| Michael T. Heffernan, R.Ph. | |||
| /s/ Rita Balice-Gordon, Ph.D. | Director | ||
| Rita Balice-Gordon, Ph.D. | |||
| /s/ Garen G. Bohlin | Director | ||
| Garen G. Bohlin | |||
| /s/ John A. Fallon, M.D. | Director | ||
| John A. Fallon, M.D. | |||
| /s/ John G. Freund, M.D. | Director | ||
| John G. Freund, M.D. | |||
| /s/ Neil F. McFarlane | Director | ||
| Neil F. McFarlane | |||
| /s/ Gwen A. Melincoff | Director | ||
| Gwen A. Melincoff | |||
| /s/ Gino Santini | Director | ||
| Gino Santini |
Exhibit 5.1
| Troutman Pepper Hamilton Sanders LLP |  |
| Eighteenth and Arch Streets | |
| Philadelphia, PA 19103-2799 | |
| troutman.com |
August 11, 2022
Board of Directors
Collegium Pharmaceutical, Inc.
100 Technology Center Drive, Suite 300
Stoughton, MA 02072
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
Reference is made to the registration statement on Form S-8 (the “Registration Statement”) of Collegium Pharmaceutical, Inc., a Virginia corporation (the “Company”), filed on the date hereof with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement covers an aggregate of 1,682,770 shares of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”), including (i) 1,346,216 shares of Common Stock (the “2014 Plan Shares”) pursuant to the Company’s Amended and Restated 2014 Stock Incentive Plan (the “2014 Plan”), and (ii) 336,554 shares of Common Stock (the “2015 ESPP Shares”, and together with the 2014 Plan Shares, the “Shares”) pursuant to the Company’s 2015 Employee Stock Purchase Plan (the “2015 ESPP”, and together with the 2014 Plan, the “Plans”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined the Registration Statement, including the exhibits thereto, the originals or copies, certified or otherwise identified to our satisfaction, of the Third Amended and Restated Articles of Incorporation and the Amended and Restated Bylaws of the Company, the Plans and such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
Based on the foregoing, we are of the opinion that the Shares, when issued in accordance with the terms of the Plans, as applicable, will be legally issued, fully paid and non-assessable. This opinion is being furnished to you solely for submission to the Commission as an exhibit to the Registration Statement and, accordingly, may not be relied upon, quoted in any manner to, or delivered to any other person or entity, without in each instance our prior written consent.
Collegium Pharmaceutical, Inc.
Page 2
We express no opinion herein as to the law of any state or jurisdiction other than the Virginia Stock Corporation Act of the Commonwealth of Virginia, including statutory provisions and all applicable provisions of the Constitution of the Commonwealth of Virginia and reported judicial decisions interpreting such laws of the Commonwealth of Virginia and the federal laws of the United States of America.
We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
We hereby 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 come within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.
| Very truly yours, | |
| /s/ Troutman Pepper Hamilton Sanders LLP | |
| Troutman Pepper Hamilton Sanders LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 24, 2022, relating to the financial statements of Collegium Pharmaceutical, Inc. and the effectiveness of Collegium Pharmaceutical, Inc.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Collegium Pharmaceutical, Inc. for the year ended December 31, 2021.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
August 11, 2022
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the Amended and Restated 2014 Stock Incentive Plan and the 2015 Employee Stock Purchase Plan of Collegium Pharmaceutical, Inc. of our report dated March 9, 2022, with respect to the consolidated financial statements of Biodelivery Sciences International, Inc. included in Biodelivery Sciences International, Inc.’s Annual Report (Form 10-K) for the years ended December 31, 2021 and 2020, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Raleigh, NC
August 11, 2022
Exhibit 23.3
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Collegium Pharmaceutical, Inc. of our report dated March 12, 2020 related to the financial statements of BioDelivery Sciences International, Inc. and subsidiaries as of and for the year ended December 31, 2019, which is incorporated by reference in this Registration Statement on Form S-8.
/s/ Cherry Bekaert LLP
Raleigh, North Carolina
August 11, 2022
Exhibit 107
CALCULATION OF FILING FEE TABLES
Form S-8
(Form Type)
Collegium Pharmaceutical, 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 Share (2) | Maximum Aggregate Offering Price | Fee Rate | Amount Of Registration Fee |
|||||||||||||||||||
| Equity | Common Stock, $0.001 par value per share – Amended and Restated 2014 Stock Incentive Plan | 457(c) and 457(h) | 1,346,216 | (3) | $ | 19.21 | $ | 25,860,809.36 | .0000927 | $ | 2,397.30 | |||||||||||||||
| Equity | Common Stock, $0.001 par value per share – 2015 Employee Stock Purchase Plan | 457(c) and 457(h) | 336,554 | (4) | $ | 19.21 | $ | 6,465,202.34 | .0000927 | $ | 599.32 | |||||||||||||||
| Total Offering Amounts | 1,682,770 | — | $ | 32,326,011.70 | $ | 2,996.62 | ||||||||||||||||||||
| Total Fee Offsets | (5) | --- | ||||||||||||||||||||||||
| Net Fee Due | 2,996.62 | |||||||||||||||||||||||||
(1) In accordance with Rule 416 under the Securities Act of 1933, as amended, this Registration Statement on Form S-8 shall be deemed to cover any additional shares of common stock, $0.001 par value per share (the “Common Stock”), of Collegium Pharmaceutical, Inc., a Virginia corporation (the “Registrant”), which become issuable under the above-named plans by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of the Registrant. Pursuant to Rule 416(c) under the Securities Act, this registration statement shall also cover an indeterminate amount of interests to be offered or sold pursuant to the Collegium Pharmaceutical, Inc. 2015 Employee Stock Purchase Plan (the “ESPP”).
(2) Estimated in accordance with Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee on the basis of the average of the high and low prices of the Registrant’s common stock as reported on The NASDAQ Global Select Market on August 8, 2022.
(3) Represents 1,346,216 shares of Common Stock of the Registrant that were added to the shares authorized for issuance under the Collegium Pharmaceutical, Inc. Amended and Restated 2014 Stock Incentive Plan (the “Stock Incentive Plan”) on January 1, 2022, pursuant to an “evergreen” provision contained in the Stock Incentive Plan. Pursuant to such provision in the Stock Incentive Plan, as of the first day of each fiscal year, from January 1, 2016 until the expiration of the Stock Incentive Plan, the number of shares authorized for issuance under the Stock Incentive Plan is increased by a number of shares of Common Stock equal to 4% of the total number of outstanding shares of Common Stock on December 31st of the immediately preceding calendar year or such lesser number of shares of Common Stock as determined by the Board of Directors of the Registrant.
(4) Represents 336,554 shares of Common Stock of the Registrant that were added to the shares authorized for issuance under the ESPP on January 1, 2022, pursuant to an “evergreen” provision contained in the ESPP. Pursuant to such provision in the ESPP, as of the first day of each fiscal year, from January 1, 2016 until December 31, 2025, the number of shares authorized for issuance under the ESPP is increased by a number equal to the least of (i) 400,000 shares of Common Stock, (ii) 1% of the outstanding shares of Common Stock on such date or (iii) an amount determined by the Board of Directors of the Registrant.
(5) The Registrant does not have any fee offsets.