As Filed with the Securities and Exchange Commission on August 6, 2020
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
Endo International plc
(Exact name of registrant as specified in its charter)
|(State or other jurisdiction of incorporation or organization)||(IRS Employer Identification No.)|
First Floor, Minerva House, Simmonscourt Road,
Ballsbridge, Dublin 4, Ireland
|(Address of principal executive offices)||(Zip Code)|
Endo International plc Amended and Restated 2015 Stock Incentive Plan
(Full Title of the Plan)
Matthew J. Maletta, Esq.
Executive Vice President, Chief Legal Officer and Company Secretary
Endo International plc
1400 Atwater Drive
Malvern, Pennsylvania 19355
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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||☐|
|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. ☐
CALCULATION OF REGISTRATION FEE
|Title of securities
to be registered
|Amount to be
offering price per
Ordinary shares, nominal value $0.0001 per share
This registration statement on Form S-8 (the Registration Statement) registers the issuance of an aggregate of 7,000,000 ordinary shares, nominal value $0.0001 per share (Ordinary Shares), of Endo International plc (the Company or the Registrant), that have been added to the award pool pursuant to the Endo International plc Amended and Restated 2015 Stock Incentive Plan, as further amended on June 11, 2020.
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement also covers an indeterminate number of additional Ordinary Shares of the Company which may be offered and issued to prevent dilution resulting from adjustments as a result of stock dividends, stock splits, reverse stock splits, recapitalizations, reclassifications, mergers, split-ups, reorganizations, consolidations and other capital adjustments.
Pursuant to Rules 457(c) and 457(h) under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering are estimated solely for the purpose of calculating the amount of the registration fee and are based on the average of the high and low prices of the Companys Ordinary Shares as reported on the Nasdaq Global Market on July 30, 2020.
This Registration Statement is filed pursuant to General Instruction E to Form S-8 for the purpose of registering an additional 7,000,000 Ordinary Shares of the Company that are reserved for future award grants pursuant to the Companys Amended and Restated 2015 Stock Incentive Plan (the Plan), as amended and restated on June 11, 2020 (as in effect, the Amended Plan).
On April 28, 2020, the Company filed its definitive proxy statement (the Proxy Statement) with the Securities and Exchange Commission (the Commission). Proposal 3 in the Proxy Statement requested that shareholders of the Company approve the Amended Plan, which, among other things, increases the authorized number of Ordinary Shares that may be issued under the Amended Plan by 7,000,000. On June 11, 2020, the shareholders of the Company approved the Amended Plan. The newly added 7,000,000 Ordinary Shares are being registered on this Registration Statement.
Previously, Ordinary Shares were registered for issuance under the Plan pursuant to the Registrants registration statements on Form S-8 filed on June 15, 2015 (File No. 333-204958), on August 9, 2017 (File No. 333-219806), on August 8, 2018 (File No. 333-226677) and on August 5, 2019 (File No. 333-233029) (collectively, the Prior Registration Statements). The Ordinary Shares registered pursuant to this Registration Statement are of the same class of securities as the Ordinary Shares registered pursuant to the Prior Registration Statements. In accordance with General Instruction E to Form S-8, the contents of the Prior Registration Statements, including any amendments thereto or filings incorporated therein, are incorporated herein by reference.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|ITEM 3.|| |
INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated herein by reference (except for any portions of Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission):
The Companys Registration Statements on Form S-8 (File No. 333-204958) filed on June 15, 2015, Form S-8 (File No. 333-219806) filed on August 9, 2017, Form S-8 (File No. 333-226677) filed on August 8, 2018 and Form S-8 (File No. 333-233029) filed on August 5, 2019;
The Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed on February 26, 2020;
The Companys Current Reports on Form 8-K filed on January 6, 2020, February 19, 2020, April 28, 2020, May 14, 2020, May 28, 2020, May 29, 2020, June 2, 2020, June 11, 2020, June 16, 2020 and July 29, 2020;
Those portions of the Companys Definitive Proxy Statement on Schedule 14A, filed on April 28, 2020, that are incorporated by reference into Part III of the Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed on February 26, 2020; and
The description of the Companys Ordinary Shares contained in Exhibit 4.1 to the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed on February 26, 2020.
All documents that the Company files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), subsequent to the effective date of this Registration Statement (except for any portions of the Companys Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with Commission), but prior to the filing of a post-effective amendment to this Registration Statement indicating 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 a part hereof from the date of filing 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 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 superseded, to constitute a part of this Registration Statement.
|ITEM 6.|| |
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to our memorandum and articles of association, subject to the provisions of and so far as may be permitted by the Irish Companies Act 2014 (the Companies Act), each of our directors and our secretary shall be entitled to be indemnified by us against all costs, charges, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or her duties or in relation thereto including any liability incurred by him or her in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him or her as an officer or employee of the Company and in which judgment is given in his or her favor (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his or her part) or in which he or she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him or her by the court.
Pursuant to our memorandum and articles of association and so far as is permissible under the Companies Act, we shall indemnify any of our current or former executive officers (excluding any of our present or former directors or our secretary), or any person who is serving or has served at our request as a director or executive officer of another company, joint venture, trust or other enterprise, including any of our subsidiaries, each of which we refer to in this Registration Statement as a covered person, against any expenses, including attorneys fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, to which he or she was, is, or is threatened to be made a party, or is otherwise involved, by reason of the fact that he or she is or was a covered person.
In addition, we have entered into deeds of indemnification with our directors and corporate secretary providing for the indemnification of, and advancement of expenses to, such persons, to the fullest extent permitted by law.
The foregoing summaries are qualified in their entirety by reference to the terms and provisions of such arrangements.
|ITEM 8.|| |
|3.1||Certificate of Incorporation on re-registration as a public limited company of Endo International plc (incorporated by reference to Exhibit 3.1 of the Endo International plc Current Report on Form 8-K12B, filed with the Commission on February 28, 2014)|
|3.2||Memorandum and Articles of Association of Endo International plc (incorporated by reference to Exhibit 3.1 of the Endo International plc Quarterly Report on Form 10-Q for the quarter ended June 30, 2017, filed with the Commission on August 8, 2017)|
|4.1||Specimen Share Certificate of Endo International plc (incorporated by reference to Exhibit 4.3 of the Endo International plc Form S-8, filed with the Commission on February 28, 2014)|
|5.1||Opinion of A&L Goodbody (filed herewith)|
|10.1||Endo International plc Amended and Restated 2015 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Endo International plc Current Report on Form 8-K, filed with the Commission on June 11, 2020)|
|23.1||Consent of PricewaterhouseCoopers, LLP, independent registered public accounting firm for Endo International plc (filed herewith)|
|23.2||Consent of A&L Goodbody (contained in Exhibit 5.1 to this Registration Statement)|
|24.1||Powers of Attorney (included as part of the signature page hereto)|
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 Dublin, Ireland, on August 6, 2020.
|ENDO INTERNATIONAL PLC|
|By:||/s/ Blaise A. Coleman|
Name: Blaise A. Coleman
Title: President and Chief Executive Officer
BE IT KNOWN BY THESE PRESENTS: That each person whose name is signed hereto has made, constituted and appointed, and does hereby make, constitute and appoint Blaise A. Coleman, Mark T. Bradley and Matthew J. Maletta his or her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution for him or her and his or her name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and the other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, each acting alone, 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 to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorney-in-fact or his substitutes, each acting alone, may lawfully do or cause to be done by virtue thereof.
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 dates indicated.
|/s/ Blaise A. Coleman||
President, Chief Executive Officer and Director
(principal executive officer)
|August 6, 2020|
|Blaise A. Coleman|
|/s/ Mark T. Bradley||
Executive Vice President and Chief Financial Officer
(principal financial officer)
|August 6, 2020|
|Mark T. Bradley|
|/s/ Jack Boyle||Senior Vice President, Controller and Chief Accounting Officer (principal accounting officer)||August 6, 2020|
|/s/ Paul V. Campanelli||Chairman of the Board of Directors||August 6, 2020|
|Paul V. Campanelli|
|/s/ Roger H. Kimmel||Senior Independent Director||August 6, 2020|
|Roger H. Kimmel|
|/s/ Mark G. Barberio||Director||August 6, 2020|
|Mark G. Barberio|
|/s/ Shane M. Cooke||Director||August 6, 2020|
|Shane M. Cooke|
|/s/ Nancy J. Hutson||Director||August 6, 2020|
|Nancy J. Hutson, Ph.D.|
|/s/ Michael Hyatt||Director||August 6, 2020|
|/s/ William P. Montague||Director||August 6, 2020|
|William P. Montague|
|/s/ Matthew J. Maletta||Authorized Representative in the United States||August 6, 2020|
|Matthew J. Maletta|
International Financial Services Centre
25-28 North Wall Quay, Dublin 1
T: +353 1 649 2000
DX: 29 Dublin | www.algoodbody.com
|6 August 2020|
Endo International plc
Endo International plc (the Company)
We are acting as Irish counsel to the Company, a public limited company incorporated under the laws of Ireland (registered number 534814), in connection with the proposed registration by the Company of 7,000,000 ordinary shares of the Company, par value $0.0001 per share (the Shares), pursuant to a Registration Statement on Form S-8 (the Registration Statement) to be filed by the Company under the Securities Act of 1933, as amended.
The Shares are issuable under the Endo International plc Amended and Restated 2015 Stock Incentive Plan (the Plan), which was adopted by the Companys shareholders on 9 June 2015 and further amended by shareholder approval on each of 9 June 2016, 8 June 2017, 7 June 2018, 11 June 2019 and 11 June 2020.
In connection with this opinion, we have reviewed copies of such corporate records of the Company as we have deemed necessary as a basis for the opinions hereinafter expressed. In rendering this opinion, we have examined, and have assumed the truth and accuracy of the contents of, such documents and certificates of officers of the Company and of public officials as to factual matters and have conducted such searches, as of 6 August 2020, being the latest practicable date prior to the date hereof, in public registries in Ireland as we have deemed necessary or appropriate for the purposes of this opinion but have made no independent investigation regarding such factual matters. In our examination we have assumed the (continued) truth and accuracy of the information contained in such documents, 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 or photostatic copies and the authenticity of the originals of such documents.
We have further assumed that none of the resolutions and authorities of the shareholders or directors of the Company upon which we have relied have been varied, amended or revoked in any respect or have expired and that the Shares will be issued in accordance with such resolutions and authorities and the terms of the Plan.
We have further assumed the absence of fraud on the part of the Company and its respective officers, employees, agents and advisers.
PM Law CE Gill JG Grennan J Coman PD White VJ Power LA Kennedy SM Doggett B McDermott C Duffy PV Maher S ORiordan MP McKenna KA Feeney M Sherlock EP Conlon E MacNeill KP Allen EA Roberts C Rogers G OToole JN Kelly N OSullivan MJ Ward AC Burke D Widger C Christle S OCroinin JW Yarr DR Baxter A McCarthy JF Whelan JB Somerville MF Barr AM Curran A Roberts M Dale RM Moore D Main J Cahir M Traynor PM Murray P Walker K Furlong PT Fahy D Inverarity M Coghlan DR Francis A Casey B Hosty M OBrien L Mulleady K Ryan E Hurley G Stanley D Dagostino C Clarkin R Grey R Lyons J Sheehy C Morrissey C Carroll SE Carson P Diggin J Williams A OBeirne MD Cole G Conheady J Dallas SM Lynch M McElhinney C Owens AD Ion K OConnor JH Milne T Casey M Doyle CJ Comerford R Marron D Berkery K OShaughnessy S OConnor SE Murphy D Nangle L Butler A Lawler C Ó Conluain N McMahon HP Brandt Consultants: SW Haughey Professor JCW Wylie AF Browne MA Greene AV Fanagan JA OFarrell IB Moore
Having made such further investigation and reviewed such other documents as we have considered requisite or desirable, subject to the foregoing and to the within additional qualifications and assumptions, and provided that the Registration Statement, as finally amended, has become effective, we are of the opinion that:
the Shares have been duly authorised and when issued in accordance with the Registration Statement, the Plan and the options or other equity awards granted or to be granted thereunder, will be validly issued, fully paid and not subject to calls for any additional payments (non-assessable) (except for Shares issued pursuant to deferred payment arrangements, which shall be fully paid upon the satisfaction of such payment obligations); and
in any proceedings taken in Ireland for the enforcement of the Plan, the choice of the following law of the State of Delaware as the governing law of the contractual rights and obligations of the parties under the applicable Plan would be upheld by the Irish Courts unless it were considered contrary to public policy, illegal, or made in bad faith.
In rendering this opinion, we have confined ourselves to matters of Irish law. We express no opinion on any laws other than the laws of Ireland (and the interpretation thereof) in force as at the date hereof. This opinion speaks only as of its date.
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement.
This opinion is being delivered to you and may not be relied upon or distributed to any other person without our prior written consent.
The opinion is governed by and construed in accordance with the laws of Ireland.
/s/ A&L Goodbody
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Endo International plc of our report dated February 26, 2020 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Endo International plcs Annual Report on Form 10-K for the year ended December 31, 2019.
/s/ PricewaterhouseCoopers LLP
August 6, 2020