As filed with the Securities and Exchange Commission on March 15, 2017
Registration No. 333-_______________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
STRATA Skin Sciences, Inc.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) | 13-3986004 (I.R.S. employer identification no.) | |||
100 Lakeside Drive, Suite 100 Horsham, Pennsylvania (Address of principal executive offices) | 19044 (Zip code) |
STRATA Skin Sciences, Inc.
2016 Omnibus Incentive Plan
Frank J. McCaney
Chief Executive Officer
Chief Executive Officer
STRATA Skin Sciences
100 Lakeside Drive, Suite 100
Horsham, Pennsylvania 19044
(Name and address of agent for service)
(215) 619-3200
(Telephone number, including area code, of agent for service)
Copy to: John W. Kauffman, Esq. Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103 (215) 979-1227 |
Indicate by check mark whether the resitrant 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" amd " smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ | Accelerated filer ☐ | Smaller reporting company ☒ | ||
Non-acclerated filer ☐ | (Do not check if a smaller reporting company) |
CALCULATION OF REGISTRATION FEE
Title of securities to be registered | Amount to be registered (1) | Proposed maximum offering price per share(2) | Proposed maximum aggregate offering price(2) | Amount of registration fee |
Common stock, $0.001 par value | 10,565,648 shares | (2) | $5,869,280 | $ 680.25 |
(1) | This registration statement shall also cover any additional shares of STRATA Skin Sciences, Inc. common stock that become issuable under such plan being registered pursuant to this registration statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration that results in an increase in the number of outstanding shares STRATA Skin Sciences, Inc. common stock. |
(2) | Pursuant to Rule 457(h), the maximum aggregate offering price was calculated by adding (i) $1,100,000 with respect to 2,000,000 shares issuable upon exercise of outstanding stock options, at the per share exercise price of those options, and (ii) $4,769,280 with respect to the remaining 8,294,400 shares issuable under the plan, at the price of $0.58 per share based upon the average of the high and low sales prices of STRATA Skin Sciences, Inc. common stock on March 9, 2017, which is a date within five business days prior to the filing of this registration statement, as reported on the NASDAQ Capital Market. |
Introductory Note
This Registration Statement relates solely to the registration of securities under the Company's 2016 Omnibus Incentive Plan and are the same class of securities for which a registration statement on the same form is already effective relating to an employee benefit plan.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents that we have filed with the SEC (File No. 0-51481) are incorporated by reference into this registration statement:
· | Our annual report on Form 10-K for the fiscal year ended December 31, 2016 filed on March 13, 2017; and |
· | The description of our common stock contained in our registration statement on Form 8-A, filed with the SEC on August 8, 2005, and any amendments or reports filed for the purpose of updating such description. |
All documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, or the Exchange Act, after the date of this registration statement and until the offering under this registration statement is completed will be deemed to be incorporated by reference into this registration statement and will be a part of this registration statement from the date of the filing of the document. Any statement contained in a document incorporated or deemed to be incorporated by reference into this registration statement will be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement or in any other subsequently filed document that also is or is deemed to be incorporated by reference into this registration statement conflicts with, negates, modifies or supersedes that statement. Any statement that is modified or superseded will not constitute a part of this registration statement, except as modified or superseded.
Item 4. Description of Securities.
No answer to this item is required because the class of securities to which this registration statement relates is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our amended and restated certificate of incorporation includes provisions that eliminate, to the fullest extent permitted by the Delaware General Corporation Law (the "DGCL"), the personal liability of our directors to us or our stockholders for monetary damages for breach of fiduciary duty as a director. Our amended and restated bylaws require us to indemnify our directors and officers to the fullest extent permitted by the DGCL. Pursuant to these provisions, we have entered into indemnity agreements with our directors and officers.
Pursuant to Section 145 of the DGCL, a corporation generally has the power to indemnify its present and former directors, officers, employees and agents against expenses incurred by them in connection with any suit to which they are, or are threatened to be made, a party by reason of their serving in such positions so long as they acted in good faith and in a manner that they reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action, had no reasonable cause to believe their conduct was unlawful.
These provisions do not eliminate the duty of care, and in appropriate circumstances, equitable remedies, such as injunctive or other forms of non-monetary relief, may remain available under Delaware law. Each director will continue to be subject to liability for breach of the director's duty of loyalty to us or our stockholders, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, for unlawful payments of dividends or unlawful stock repurchases or redemptions under Section 174 of the DGCL or for any transaction from which the director derived an improper personal benefit. These provisions also generally do not affect a director's responsibilities under any other laws, such as the federal securities laws.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. | Description of Exhibit |
5.1 | Opinion of Duane Morris LLP (filed herewith). |
23.1 | Consent of Independent Registered Public Accounting Firm (filed herewith). |
23.2 | Consent of Duane Morris LLP (included in Exhibit 5.1). |
24.1 | Powers of attorney (included with the signature pages) |
Item 9. Undertakings.
We hereby undertake:
(a) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement 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;
(b) 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; and
(c) 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.
We hereby further undertake that, for purposes of determining any liability under the Securities Act, each filing of our 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.
We hereby further undertake that, insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons, we have 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 us of expenses incurred or paid by any of our directors, officers or controlling persons 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us 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, 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 Horsham, Pennsylvania, on March 15, 2017.
STRATA SKIN SCIENCES, INC. By: _/s/ Frank J. McCaney Frank J. McCaney Chief Executive Officer |
Know all men by these presents, that each person whose signature appears below constitutes and appoints Frank J. McCaney and Christina L. Allgeier, and each or either of them, as such person's true and lawful attorneys-in-fact and agents, with full power of substitution, for such person, and in such person's name, place and stead, in any and all capacities to sign any or all amendments or 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 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 such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their 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.
Signature | Title | Date | ||
/s/ Frank J. McCaney | ||||
Frank J. McCaney /s/Christina L. Allgeier | Chief Executive Officer and Director (principal executive officer) | March 15, 2017 | ||
Christina L. Allgeier /s/Jeffrey F. O'Donnell, Sr. | Chief Financial Officer (principal financial and accounting officer) | March 15, 2017 | ||
Jeffrey F. O'Donnell, Sr. /s/R. Rox Anderson | Chairman of the Board | March 15, 2017 | ||
R. Rox Anderson /s/ Samuel E. Navarro | Director | March 15, 2017 | ||
Samuel E. Navarro | Director | March 15, 2017 |
Signature | Title | Date | ||
/s/ David K. Stone | ||||
David K. Stone /s/ Kathryn Swintek | Director | March 15, 2017 | ||
Kathryn Swintek /s/ LuAnn Via | Director | March 15, 2017 | ||
LuAnn Via | Director | March 15, 2017 |
EXHIBIT INDEX
Exhibit No. | Description of Exhibit |
5.1 | Opinion of Duane Morris LLP (filed herewith). |
23.1 | Consent of Independent Registered Public Accounting Firm (filed herewith). |
23.2 | Consent of Duane Morris LLP (included in Exhibit 5.1). |
24.1 | Powers of attorney (included with the signature pages) |