S-8

As filed with the Securities and Exchange Commission on February 4, 2022

Registration No. __________________

United States

SECURITIES AND EXCHANGE cOMMISSION

Washington, D.C. 20549

fOrm S-8

registration statement

under the securities act of 1933

Lannett Company, Inc.

(Exact name of registrant as specified in its charter)

Delaware (State or other jurisdiction of incorporation or organization)	23-0787699 (I.R.S. Employer Identification No.)
1150 Northbrook Drive, Suite 155 Trevose, PA (Address of Principal Executive Offices)	19053 (Zip Code)

Lannett Company, Inc. 2022 Employee Stock Purchase Plan

(Full title of the plan)

Timothy C. Crew
Chief Executive Officer
Lannett Company, Inc.
1150 Northbrook Drive, Suite 155

Trevose, PA 19053
(Name and address of agent for service)

(215) 333-9000

(Telephone number, including area code, of agent for service)

Copies requested to:

Bradley S. Rodos, Esquire

Fox Rothschild LLP
2000 Market Street, 20^th Floor
Philadelphia, Pennsylvania 19103

(215) 299-2000

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  x
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

The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Lannett Company, Inc. Employee Stock Purchase Plan (“ESPP”) in accordance with Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to be, and are not being, filed with the Securities Exchange Commission (the “Commission”) either as part of this Registration Statement on Form S-8 (this “Registration Statement”) or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act, but constitute, along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof, a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

Information Required In The Registration Statement

Item 3. Incorporation of Documents by Reference.

The Company hereby incorporates by reference into this Registration Statement the following documents, which have been previously filed (not furnished) with the Commission:

(a) The Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2021 (File No. 001-31298);

(b) The Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended September 30, 2021 and December 31, 2021 (File No. 001-31298);

(c) The Company’s Current Reports on Form 8-K dated January 20, 2022 and January 27, 2022 (File No. 001-31298); and

(d) The description of the Common Stock contained in Exhibit 4.4 to the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2019, including any amendments or reports filed for the purpose of updating such description (File No. 001-31298).

In addition, all other documents filed (not furnished) by the Company pursuant to Section 13(a), Section 13(c), Section 14 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated in this Registration Statement by reference and to be a part of this Registration Statement from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished to and not filed with the Commission in accordance with the rules of the Commission shall not be deemed incorporated by reference into 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 for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also 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.

The Company’s certificate of incorporation and bylaws provide that the Company will indemnify its directors, officers, employees and agents against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement reasonably incurred, including liabilities under the Securities Act, provided they act in good faith and in a manner reasonably believed to be in or not opposed to the Company’s best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful.

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        Pursuant to Section 102 of the Delaware General Corporation Law (“DGCL”), a director's liability is not eliminated (1) for any breach of such director's duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL (relating to the declaration of dividends and purchase or redemption of shares in violation of the DGCL) or (4) for any transaction from which such director derived an improper personal benefit.

       The Company believes that the indemnification provisions contained in its certificate of incorporation and bylaws are necessary to attract and retain qualified persons as directors and officers. These provisions do not eliminate a directors’ or officers’ duty of care, and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under the DGCL. The indemnification provisions also do not affect a director’s responsibilities under any other law, such as federal securities laws or state or federal environmental laws.

       If the Company fails to pay in full a claim for indemnification within 30 days, then the person claiming an indemnification right may bring suit to enforce the indemnification claim. The Company must prove the person claiming indemnification has failed to meet the standards of conduct that make it permissible under the DGCL for us to indemnify such person.

       At present, there is no pending litigation or proceeding involving any of the Company’s executive officers or directors to which indemnification is being sought, nor is the Company aware of any threatened litigation that may result in claims for indemnification by any executive officer or director.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

The following exhibits are filed with or incorporated by reference into this Registration Statement:

Exhibit No.	Description
3.1	Updated and Amended Certificate of Incorporation (incorporated by reference to Exhibit 3.5 to the Annual Report on Form 10-K for the fiscal year ended June 30, 2014) (File No. 001-31298))
3.2	Amended and Restated Bylaws of Lannett Company Inc., as amended through July 6, 2015 (incorporated by reference to Exhibit 3.8 to the Current Report on Form 8-K dated July 9, 2015) (File No. 001-31298))
5.1	Opinion of Fox Rothschild LLP regarding the validity of the shares of Common Stock being registered (filed herewith)
23.1	Consent of Fox Rothschild LLP (included within the opinion filed as Exhibit 5.1)
23.2	Consent of Independent Registered Public Accounting Firm (filed herewith)
24.1	Power of Attorney (included on signature page to this Registration Statement)
99.1	Lannett Company, Inc. 2022 Employee Stock Purchase Plan (incorporated by reference to the Appendix to the Registrant’s Definitive Proxy Statement for its 2022 Annual Meeting of Stockholders previously filed with the Commission on December 10, 2021)
107	Filing Fee Table

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Item 9. Undertakings.

(a)The 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% 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 (a)(1)(i) and (a)(1)(ii) herein 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.

(b)The 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.

(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 final adjudication of such issue.

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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 the City of Trevose, Commonwealth of Pennsylvania on the 4^th day of February, 2022.

LANNETT COMPANY, INC.
By:	/s/ Timothy C. Crew
	Timothy C. Crew
	Chief Executive Officer

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POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Timothy C. Crew as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name 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 other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to be done in and about the premises, as fully to 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 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 by the following persons in the capacities and on the dates indicated:

Date: February 4, 2022	By:	/s/ Timothy C. Crew
		Timothy C. Crew
		Director and Chief Executive Officer
Date: February 4, 2022	By:	/s/ John Kozlowski
		John Kozlowski
		Vice President of Finance, Chief Financial Officer
Date: February 4, 2022	By:	/s/ John C. Chapman
		John C. Chapman
		Director
Date: February 4, 2022	By:	/s/ David Drabik
		David Drabik
		Director
Date: February 4, 2022	By:	/s/ Jeffrey Farber
		Jeffrey Farber
		Director
Date: February 4, 2022	By:	/s/ Patrick G. LePore
		Patrick G. LePore
		Chairman of the Board of Directors
Date: February 4, 2022	By:	/s/ Melissa Rewolinski
		Melissa Rewolinski
		Director

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EX-5.1

Exhibit 5.1

 

2000 Market Street, 20th Floor

Philadelphia, Pennsylvania 19103

Tel (215) 299-2000

www.foxrothschild.com

February 4, 2022

Lannett Company, Inc.

1150 Northbrook Drive, Suite 155

Trevose, Pennsylvania 19053

Re: Lannett Company, Inc. – Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to Lannett Company, Inc., a Delaware corporation (the “Company”), in connection with the Company’s registration of 1,500,000 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable under the Lannett Company, Inc. 2022 Employee Stock Purchase Plan (the “ESPP”) pursuant to a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended, filed by the Company with the Securities and Exchange Commission (the “SEC”) on the date hereof. The 1,500,000 shares of Common Stock of the ESPP are collectively referred to herein as the “ESPP Shares.”

In connection with this opinion, we have examined and relied upon the originals, or copies certified or otherwise identified to our satisfaction, of such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to enable us to render the opinions expressed below. As to certain factual matters, we have relied upon certificates of the officers of the Company and have not sought to independently verify such matters.

In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents, including signatures made and/or transmitted using electronic signature technology (e.g., via DocuSign or similar electronic signature technology), that any such signed electronic record shall be valid and as effective to bind the party so signing as a paper copy bearing such party’s handwritten signature; the legal capacity of all natural persons; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as certified or photocopies; the authenticity of the originals of such latter documents; the accuracy and completeness of all documents and records reviewed by us; the accuracy, completeness and authenticity of certificates issued by any governmental official, office or agency and the absence of change in the information contained therein from the effective date of any such certificate; and the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents.

 

 

February 4, 2022

Page 2

On the basis of the foregoing, and in reliance thereon and subject to the qualifications herein stated, we are of the opinion that the ESPP Shares have been duly and validly authorized and reserved for issuance and that upon the issuance of the ESPP Shares and payment therefor in accordance with the provisions of the ESPP, the ESPP Shares will be validly issued, fully paid and non-assessable.

Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing) and is based on these laws as in effect on the date hereof. We express no opinion herein as to any other statutes, rules or regulations. We express no opinion herein as to whether the laws of any jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or other state law, rule or regulation relating to securities, or to the sale or issuance thereof.

We consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC thereunder. 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 law.

Very truly yours,

/s/ Fox Rothschild LLP

EX-23.2

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We have issued our reports dated August 26, 2021 with respect to the consolidated financial statements and internal control over financial reporting of Lannett Company, Inc. included in the Annual Report on Form 10-K for the year ended June 30, 2021, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement.

/s/ GRANT THORNTON LLP

Philadelphia, Pennsylvania
February 4, 2022

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

Lannett Company, 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			Maximum Aggregate Offering Price			Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.001 par value per share	Other(2)		1,500,000	(3)	$	1.54015	(2)	$	2,310,225.00	(2)	$92.70 per $1,000,000	$	214.16
Total Offering Amounts									$	2,310,225.00			$	214.16
Total Fee Offsets													$	0.00
Net Fee Due													$	214.16

(1)	Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional shares of the registrant’s common stock that become issuable under the Lannett Company, Inc. 2022 Employee Stock Purchase Plan (“ESPP”) by reason of any recapitalization, stock split, stock dividend or other similar transaction effected without receipt of consideration where the registrant’s outstanding shares of common stock are increased, converted or exchanged.
(2)	Estimated solely for the purpose of calculating the amount of the registration fee and calculated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act based on the average of the high and low sales prices of the registrant’s common stock, as reported by the New York Stock Exchange on February 1, 2022.
(3)	Represents 1,500,000 shares of the registrant’s common stock available for issuance under the ESPP.