As Filed With the Securities and Exchange Commission on March 27, 2015
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DARA BIOSCIENCES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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04-3216862
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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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8601 Six Forks Road, Suite 160
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Raleigh, North Carolina
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27615
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(Address of principal executive offices)
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(Zip Code)
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DARA BIOSCIENCES, INC. 2008 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN
(Full title of plans)
Christopher G. Clement
Chief Executive Officer
DARA BioSciences, Inc.
8601 Six Forks Road, Suite 160
Raleigh, NC 27615
(Name and address of agent for service)
(919) 872-5578
(Telephone number, including area code,
of agent for service)
With a copy to:
Mark R. Busch, Esq.
K&L Gates LLP
214 North Tryon Street, 47th Floor
Charlotte, N.C. 28202
(704) 331-7440
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 R
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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 Securities
to be Registered
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Amount to be
Registered (1)(2)
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Proposed
Maximum Offering
Price per Share (3)
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Proposed
Maximum Aggregate
Offering Price (3)
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Amount of
Registration Fee
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Common Stock, par value $0.01 per share
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4,154,748 shares
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$0.82
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$3,406,893.36
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$395.89
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(1)
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Pursuant to General Instruction E to Form S-8, this registration statement registers an additional 4,154,748 shares of the registrant’s common stock, par value $0.01 per share (“Common Stock”), issuable under the DARA BioSciences, Inc. 2008 Employee, Director and Consultant Stock Plan, as amended (the “2008 Plan”). The registrant has previously registered on Forms S-8 (File Nos. 333-150129, 333-187602 and 333-193733) an aggregate of 1,630,148 shares of Common Stock issuable pursuant to the 2008 Plan. Following the filing of this Registration Statement, there will be an aggregate of 5,784,896 shares of Common Stock registered and authorized for issuance pursuant to the 2008 Plan.
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(2)
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In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such indeterminate number of additional shares of Common Stock as may be issuable pursuant to the 2008 Plan, to eliminate any dilutive effect of any future stock split, stock dividend or similar transaction.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and 457(h) of the Securities Act, and based on the average of the high and low prices for a share of the Common Stock on March 24, 2015 as reported on the Nasdaq Capital Market.
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EXPLANATORY NOTE
This Registration Statement is being filed by DARA BioSciences, Inc. (the “Company” or the “registrant”) pursuant to General Instruction E to Form S-8 (Registration of Additional Securities), to register an additional 4,154,748 shares of the Company's common stock, par value $0.01 per share (“Common Stock”), issuable pursuant to the registrant’s 2008 Employee, Director and Consultant Stock Plan, as amended (the “2008 Plan”). The Company has previously registered on Forms S-8 (File Nos. 333-150129, 333-187602 and 333-193733) an aggregate of 1,630,148 shares of Common Stock issuable pursuant to the 2008 Plan (after giving effect to the 1-for-16 reverse stock split effected by the Company on May 12, 2010 with respect to the shares registered pursuant to File No. 333-150129 and after giving effect to the 1-for-5 reverse stock split effected by the Company on February 10, 2014 with respect to the shares registered pursuant to File Nos. 333-150129, 333-187602 and 333-193733). The contents of the prior registration statements (File Nos. 333-150129, 333-187602 and 333-193733) are hereby incorporated by reference and made a part hereof. Following the filing of this Registration Statement, there will be an aggregate of 5,784,896 shares of Common Stock registered and authorized for issuance pursuant to the 2008 Plan.
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 have been filed by the Company with the Securities and Exchange Commission (the “SEC”) and are incorporated herein by reference:
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Annual Report on Form 10-K for the fiscal year ended December 31, 2014 filed on March 3, 2015;
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Current Reports on Form 8-K filed on January 6, 2015 and March 10, 2015 (excluding any information deemed furnished pursuant to Item 2.02 or Item 7.01 of such Current Report on Form 8-K, including related exhibits, which information is not incorporated by reference herein); and
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·
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The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A, filed with the SEC on April 4, 1994 (including any further amendments or reports filed with the SEC for the purpose of updating such description).
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All reports and other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof, and 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. The Company is not incorporating by reference any documents or portions thereof that are not considered to be “filed” with the SEC.
Any statement contained herein or in a document incorporated or deemed to be incorporated herein by reference 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 herein by reference modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Reference is made to the attached Exhibit Index, which is incorporated herein by reference.
SIGNATURES
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 Raleigh, State of North Carolina, on March 27, 2015.
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DARA BIOSCIENCES, INC. |
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By |
/s/ Christopher G. Clement
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Name: Christopher G. Clement
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Title: President and Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and appoints Christopher G. Clement and David Tousley his or her true and lawful attorneys-in-fact and agents, each acting alone, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all parties, 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, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, 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 below by the following persons in the capacities and on the date indicated.
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Name
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Title
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Date
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/s/ Christopher G. Clement
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Director, President and Chief
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March 27, 2015
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Christopher G. Clement
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Executive Officer (Principal
Executive Officer)
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/s/ David Tousley
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Chief Financial Officer
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March 27, 2015
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David Tousley
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(Principal Financial Officer and
Principal Accounting Officer)
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/s/ David Drutz
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Director, Executive Chairman and
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March 27, 2015
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David Drutz
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Chief Medical Officer
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/s/ Haywood Cochrane
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Director
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March 27, 2015
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Haywood Cochrane
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/s/ Timothy Heady
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Director
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March 27, 2015
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Timothy Heady
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/s/ Gail Lieberman
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Director
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March 27, 2015
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Gail Lieberman
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/s/ Paul J. Richardson
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Director
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March 27, 2015
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Paul J. Richardson
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EXHIBIT INDEX
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Exhibit
Number
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Description |
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4.1
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Certificate of Incorporation of DARA BioSciences, Inc., as amended, restated, supplemented or otherwise modified as of June 3, 2014, as certified by the Secretary of State of Delaware (incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2014)
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4.2
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Amended and Restated By-Laws of DARA BioSciences, Inc. (incorporated by reference to Exhbit 3.2 to the Company’s Current Report on Form 8-K filed on February 12, 2008)
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4.3
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DARA BioSciences, Inc. 2008 Employee, Director and Consultant Stock Plan (incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-8 (File No. 333-150129) filed on April 8, 2008)
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4.4
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Amendment No. 1 to DARA BioSciences, Inc. 2008 Employee, Director and Consultant Stock Plan (incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2012 filed on August 14, 2012)
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4.5
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Form of Stock Option Award for 2008 Employee, Director and Consultant Stock Plan (Incentive Stock Options) (incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-8 (File No. 333-150129) filed on April 8, 2008)
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4.6
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Form of Stock Option Award for 2008 Employee, Director and Consultant Stock Plan (Non-Qualified Options) (incorporated by reference to Exhibit 4.4 to the Company’s Registration Statement on Form S-8 (File No. 333-150129) filed on April 8, 2008)
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4.7
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Form of Restricted Stock Award Agreement for 2008 Employee, Director and Consultant Stock Plan (incorporated by reference to Exhibit 4.5 to the Company’s Registration Statement on Form S-8 (File No. 333-150129) filed on April 8, 2008)
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4.8
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Form of Restricted Stock Unit Award Agreement for 2008 Employee, Director and Consultant Stock Plan (incorporated by reference to Exhibit 4.6 to the Company’s Registration Statement on Form S-8 (File No. 333-150129) filed on April 8, 2008)
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5.1
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Opinion of K&L Gates LLP*
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23.1
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Consent of Horne LLP*
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23.2
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Consent of K&L Gates LLP (contained in Exhibit 5.1)*
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24.1
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Power of Attorney (included on the signature page of this registration statement)*
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________________
* Filed herewith
5
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47TH FLOOR
214 NORTH TRYON STREET
CHARLOTTE, NC 28202
T 704.331.7400 F 704.331.7598 klgates.com
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March 27, 2015
8601 Six Forks Road, Suite 160
Raleigh, NC 27615
Ladies and Gentlemen:
We have acted as counsel to DARA BioSciences, Inc., a Delaware corporation (the “Company”), in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of 4,154,748 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”), pursuant to a registration statement on Form S-8 (such registration statement, as amended or supplemented, is hereinafter referred to as the “Registration Statement”) under the Securities Act filed with the Securities and Exchange Commission (the “Commission”) in connection with the DARA BioSciences, Inc. 2008 Employee, Director and Consultant Stock Plan, as amended (the “Plan”).
You have requested our opinion as to the matters set forth below in connection with the Registration Statement. For purposes of rendering that opinion, we have examined : (a) the Registration Statement, (b) the Company’s Restated Certificate of Incorporation, as amended and supplemented through the date hereof, (c) the Company’s Amended and Restated By-laws as in effect on the date hereof, (d) the Plan, and (e) a certificate of an officer of the Company, dated as of the date hereof. Other than our review of the documents listed in (a)-(e) above, we have not reviewed any other documents or made any independent investigation for the purpose of rendering this opinion and we make no representation as to the scope or sufficiency of our document review for your purposes. With your consent, our opinion is qualified in all respects by the scope of such document examination.
For the purposes of this opinion letter, we have assumed that: (a) each document submitted to us is accurate and complete; (b) each such document that is an original is authentic; (c) each such document that is a copy conforms to an authentic original; (d) all signatures on each such document are genuine; and (e) the Company is and shall remain at all times a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. We have further assumed the legal capacity of natural persons, and we have assumed that each party to the documents we have examined or relied on has the legal capacity or authority and has satisfied all legal requirements that are applicable to that party to the extent necessary to make such documents enforceable against that party. We have not verified any of those assumptions.
DARA BioSciences, Inc.
March 27, 2015
Page 2
In rendering our opinion below, we also have assumed that: (a) the Company will have sufficient authorized and unissued shares of Common Stock at the time of each issuance of a Share under the Plan; (b) the Shares will be evidenced be appropriate certificates, duly executed and delivered or the Company’s Board of Directors will adopt a resolution, providing that all Shares shall be uncertificated in accordance with Section 158 of the Delaware General Corporation Law (the “DGCL”), prior to their issuance; (c) the issuance of each Share will be duly noted in the Company’s stock ledger upon its issuance; and (d) the Company will receive consideration for each Share at least equal to the par value of such share of Common Stock, in the amount required by the Plan and approved by the Company’s Board of Directors pursuant to a resolution authorizing the issuance of such Share adopted at a meeting or by unanimous consent to action without a meeting in accordance with the DGCL.
Our opinion set forth below is limited to the DGCL, including applicable provisions of the Delaware Constitution and reported judicial decisions interpreting those laws.
Based upon and subject to the foregoing, it is our opinion that the Shares are duly authorized for issuance by the Company and, when, and if, issued pursuant to the terms of the Plan will be validly issued, fully paid, and nonassessable.
This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
We hereby consent to the filing of this opinion letter with the Commission as Exhibit 5.1 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 or the rules and regulations thereunder.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated March 3, 2015 with respect to the consolidated financial statements of DARA BioSciences, Inc. and subsidiaries included in the Annual Report on Form 10-K for the year ended December 31, 2014 of DARA BioSciences, Inc., which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned report.
/s/ HORNE LLP
Ridgeland, Mississippi
March 27, 2015
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