Form S-8 - Securities to be offered to employees in employee benefit plans

Registration No.

 

Securities and Exchange Commission

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

 

UNDER THE SECURITIES ACT OF 1933

 

PSYCHEMEDICS CORPORATION

(Exact name of issuer as specified

in its charter)

 

DELAWARE		58-1701987
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

289 Great Road, Acton, Massachusetts, 01720

(Address of principal executive offices)

 

PSYCHEMEDICS CORPORATION

Inducement Stock Option Agreements (2023)

(Full title of the plan)

 

Brian Hullinger

PSYCHEMEDICS CORPORATION

289 Great Road, Acton, Massachusetts 01720

[phone]

(Name, address and telephone number of agent for service)

Copies to:

Patrick J. Kinney, Jr., Esq.

Lynch Fink Harrington & Gray LLP

6 Beacon Street, Suite 415

Boston, Massachusetts 02108

[phone]

________________________

 

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 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 ☒
		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. ☐

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1. Plan Information.

 

The information required by Item 1 is omitted from this registration statement and included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).

 

Item 2. Registrant Information and Employee Plan Annual Information.

 

The written statement required by Item 2 is omitted from this registration statement and included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.

 

The registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the “Commission”). The following documents, which are on file with the Commission, are incorporated in this registration statement by reference:

 

(a) The registrant’s latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the registrant’s latest fiscal year for which such statements have been filed;

 

(b) The registrant’s latest definitive proxy statement filed pursuant to Section 14(a) of the Exchange Act;

 

(c) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above; and

 

(d) the information set forth under "Description of Registrant's Securities to be Registered" in the registrant's Registration Statement on Form 8-A dated July 31, 2002 (File No. 1-13738).

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 in this registration statement and to be part hereof from the date of the 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 the 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 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.

 

Lynch Fink Harrington & Gray LLP, 6 Beacon Street, Suite 415, Boston, Massachusetts 02108, has rendered its opinion to the registrant that the shares included in this offering will, when sold in accordance with the terms of the above referenced Time-Based Stock Option Agreement and Performance-Based Stock Option Agreement, be legally issued, fully paid and non-assessable. Patrick J. Kinney, Jr., a partner of Lynch Fink Harrington & Gray LLP, is Secretary of the registrant.

 

Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

 

Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) provides, generally, that a corporation shall have the power to 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 (except actions by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation against all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person 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 or her conduct was unlawful. A corporation may similarly indemnify such person for expenses actually and reasonably incurred by such person in connection with the defense or settlement of any action or suit by or in the right of the corporation, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in the case of claims, issues and matters as to which such person shall have been adjudged liable to the corporation, provided that a court shall have determined, upon application, that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

 

Section 102(b)(7) of the DGCL provides, generally, that the registrant’s certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, provided that such provision may not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. No such provision may eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision became effective.

 

 

 

The registrant’s charter and bylaws provide for the indemnification of its directors and officers to the fullest extent permitted under the DGCL. As permitted by the DGCL, the registrant has also entered into and expects to continue to enter into agreements to indemnify its directors, executive officers and other employees as determined by the registrant’s board of directors. Under the terms of the registrant’s indemnification agreements, the registrant is required to indemnify each of its directors and officers, to the fullest extent permitted by the laws of the State of Delaware, if the basis of the indemnitee’s involvement was by reason of the fact that the indemnitee is or was a director, or officer, of the registrant or any of its subsidiaries or was serving at the registrant’s request in an official capacity for another entity. The registrant must indemnify its officers and directors against (1) attorneys’ fees and (2) all other costs of any type or nature whatsoever, including any and all expenses and obligations paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal) or preparing to defend, be a witness or participate in any completed, actual, pending or threatened action, suit, claim or proceeding, whether civil, criminal, administrative or investigative, or establishing or enforcing a right to indemnification under the indemnification agreement. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. These indemnification provisions and the indemnification agreements may be sufficiently broad to permit indemnification of the registrant’s officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.

 

In addition, the registrant has purchased a policy of directors’ and officers’ liability insurance that insures the registrant’s directors and officers against the cost of defense, settlement or payment of a judgment in some circumstances.

 

Item 7. EXEMPTION FROM REGISTRATION CLAIMED.

 

Not Applicable

 

Item 8. EXHIBITS.

 

The following exhibits are incorporated herein by reference:

 

 

Exhibit Number		Description
4.1		Amended and Restated Certificate of Incorporation filed with the State of Delaware on August 1, 2002 — (Incorporated by reference from the Registrant’s Quarterly Report on Form 10-Q for the Quarter ended September 30, 2002).
4.2		Amended and Restated By-Laws of the Company — (Incorporated by reference from the Registrant’s Current Report on Form 8-K filed on July 31, 2015).
4.3		Specimen Stock Certificate — (Incorporated by reference from the Registrant’s Registration Statement on Form 8-A filed on July 31, 2002).
5*		Opinion of Lynch Fink Harrington & Gray LLP LLP.
23.1		Consent of Lynch Fink Harrington & Gray LLP (included in Exhibit 5).
23.2*		Consent of BDO USA, P.A., Independent Registered Public Accounting Firm.
24.1*		Power of Attorney.
99.1		Non Qualified Stock Option Agreement (Time-Based Inducement Grant) dated August 17, 2023, with Brian Hullinger (Incorporated by reference to the registrant's Current Report on Form 8-K filed on August 21, 2023).
99.2		Non Qualified Stock Option Agreement (Performance-Based Inducement Grant) dated August 17, 2023, with Brian Hullinger (Incorporated by reference to the registrant's Current Report on Form 8-K filed on August 21, 2023).
107*		Filing fee table

 

* Each document marked with an asterisk is filed herewith.

 

 

 

Item 9. UNDERTAKINGS.

 

 

1.	Item 512(a) of Regulation S-K. 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 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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(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 (1)(i) and (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 Section 15(d) of the Exchange Act that are incorporated by reference in the 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.

 

 

 

2.

Item 512(b) of Regulation S-K. 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 Section 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 the 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.

 

3.

Item 512(h) of Regulation S-K. 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 Securities and Exchange 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, 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 Acton, Massachusetts, on this 22nd day of August, 2023.

 

	PSYCHEMEDICS CORPORATION
	By	/s/ Brian Hullinger
		Brian Hullinger, President and Chief Executive Officer

 

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 dates indicated on August 22, 2023.

 

 

Signature	Title
/s/Brian Hullinger*	President, Chief
Brian Hullinger	Executive Officer,
	Director (principal
	executive officer)
/s/ Michael S. Weisenhoff*	Assistant Controller
Michael S. Weisenhoff	(principal financial
	officer)
/s/ Robyn C. Davis*	Director
Robyn C. Davis
/s/ Peter H. Kamin*	Director
Peter H. Kamin
/s/ Darius G. Nevin*	Director
Darius G. Nevin
/s/ Andrew M. Reynolds*	Director
Andrew M. Reynolds
*By:/s/ Patrick J. Kinney, Jr.
As Attorney-in-Fact

 

 

 

 

Exhibit 5

 

 

August 22, 2023

 

Psychemedics Corporation

289 Great Road

Acton, Massachusetts, 01720

 

	RE:	Registration of 300,000 shares of Common Stock of Psychemedics
		Corporation on SEC Form S-8 Registration Statement

 

Ladies and Gentlemen:

 

We have acted as counsel to Psychemedics Corporation (the “Corporation”) in connection with the preparation of the Registration Statement on Form S-8 filed today under the Securities Act of 1933, as amended (the “Registration Statement”), covering an aggregate of 300,000 shares (the “Option Shares”) of common stock, pursuant to inducement stock option agreements providing for employee inducement stock option grants between the Company and an employee which were or will be entered into in connection with the entry into such employee’s employment with the Company pursuant to Nasdaq Stock Market Rule 5635(c)(4) (collectively, the “Inducement Option Agreements”).

 

We have examined the Certificate of Incorporation and Bylaws of the Corporation, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Corporation, the Registration Statement and such other documents relating to the Corporation as we have deemed material for the purposes of this opinion.

 

In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.

 

We assume that the appropriate action will be taken, prior to the offer and sale of the Option Shares, in accordance with the Inducement Option Agreements, to register and qualify the Option Shares for sale under all applicable state securities or “blue sky” laws.

 

We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of the General Corporation Law of the State of Delaware and the federal laws of the United States of America.

 

It is understood that this opinion is to be used only in connection with the offer and sale of the Option Shares while the Registration Statement is in effect.

 

 

 

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.

 

Based on the foregoing, we are of the opinion that the Option Shares have been duly authorized for issuance and, when the Option Shares are issued and paid for in accordance with the terms and conditions of the Inducement Option Agreements the Option Shares will be validly issued, fully paid and nonassessable.

 

We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby 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 of the Commission.

 

	Very truly yours
	/s/ Lynch Fink Harrington & Gray LLP
	LYNCH FINK HARRINGTON & GRAY LLP

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

 

Psychemedics Corporation

Acton, Massachusetts

 

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 24, 2023, relating to the consolidated financial statements of Psychemedics Corporation appearing in Psychemedics Corporation’s Annual Report on Form 10-K for the year ended December 31, 2022.

 

 

/s/ BDO USA, P.A.

 

Boston, Massachusetts

August 22, 2023

 

 

 

 

 

 

 

 

 

Exhibit 24.1

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being a director, officer or both, of PSYCHEMEDICS CORPORATION, a Delaware corporation (hereinafter the “Corporation”), does hereby severally constitute and appoint, BRIAN HULLINGER and PATRICK J. KINNEY, JR., with full power to each of them to act alone, as the true and lawful attorneys and agents of the undersigned, with full power of substitution and resubstitution to each of said attorneys, to execute, file or deliver any and all instruments and to do any and all acts and things which said attorneys and agents, or either of them, deem advisable to enable them to comply with the Securities Act of 1933, as amended, (the “Securities Act”) and any requirements of the Securities and Exchange Commission in respect thereof, in connection with the registration under said Securities Act of up to 300,000 shares of common stock of the Corporation which may be offered or delivered under that certain inducement option agreements dated August 17, 2023 with the Corporation’s Chief Executive Officer, Brian Hullinger, including specifically, but without limitation of the general authority hereby granted, the power of authority to sign his or her name as director or officer, or both, of the Corporation, as indicated below opposite his or her signature to the registration statement on Form S-8, or any amendments, post-effective amendments, deregistrations or papers supplemental thereto, to be filed in respect of said shares of common stock of the Corporation and to the prospectus or any amendments, supplements or revisions thereof, to be filed with said registration statement on Form S-8 or with any amendments or post-effective amendments to said registration statement on Form S-8.

 

 

[signatures on next page]

 

 

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, each of the undersigned has subscribed these presents this 17^th day of August, 2023.

 

Signature	Title
/s/ Brian Hullinger	President, Chief
Brian Hullinger	Executive Officer,
	Director (principal
	executive officer)
/s/ Michael S. Weisenhoff	Assistant Controller
Michael S. Weisenhoff	(principal financial
	officer)
/s/ Robyn C. Davis	Director
Robyn C. Davis
/s/ Peter H. Kamin	Director
Peter H. Kamin
/s/ Darius G. Nevin	Director
Darius G. Nevin
/s/ Andrew M. Reynolds	Director
Andrew M. Reynolds

 

 

 

 

 

 

 

Exhibit 107

 

Calculation of Filing Fee Table

 

Form S-8

(Form Type)

 

Psychemedics Corporation

(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

Maximum Aggregate Offering Price

Fee Rate

Amount of Registration Fee

Equity

Common Stock $0.001 par value per share

Other

300,000 (2)

$4.71 (3)

$1,413,000.00 (3)

$110.20 per $1,000,000

$155.71

Total Offering Amounts

$1,413,000.00

$155.71

Total Fee Offsets

—

Net Fee Due

$155.71

 

(1)

In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

 

(2)	Consists of shares issuable under new hire inducement stock option awards granted on August 17, 2023, to an employee of the registrant as an inducement material to entry into employment with the registrant in accordance with Nasdaq Listing Rule 5635(c)(4).

 

(3)	Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act and based upon the closing price of the registrant’s Common Stock as reported on the Nasdaq Stock Market on August 18, 2023.

 

 

 

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