As filed with the Securities and Exchange Commission on March 15, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CYTORI THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | | 33-0827593 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
| | | |
3020 Callan Road San Diego, California | | 92121 |
| (Address of Principal Executive Offices) | | (Zip Code) |
Cytori Therapeutics, Inc. 2014 Equity Incentive Plan
Cytori Therapeutics, Inc. 2015 New Employee Incentive Plan
(Full title of the plans)
Marc H. Hedrick, MD
President and Chief Executive Officer
Cytori Therapeutics, Inc.
3020 Callan Road
San Diego, California 92121
(858) 458-0900
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Jeffrey T. Baglio, Esq.
DLA Piper LLP (US)
4365 Executive Drive, Suite 1100
San Diego, CA 92121
Tel: (858) 677-1400
Fax: (858) 677-1401
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.
| Large accelerated filer | | | | Accelerated filer | | ☒ |
| | | | |
| Non-accelerated filer | | (Do not check if a smaller reporting company) | | Smaller reporting company | | |
| CALCULATION OF REGISTRATION FEE | |
Title of Securities to be Registered | Amount to be Registered(1) | | Proposed Maximum Offering Price Per Share (4) | | Proposed Maximum Aggregate Offering Price (4) | | Amount of Registration Fee | |
Common Stock, $0.001 par value, reserved for issuance pursuant to the Cytori Therapeutics, Inc. 2014 Equity Incentive Plan | | | 4,527,000 | (2) | | $ | 0.185 | | | $ | 837,495 | | | $ | 85 | |
Common Stock, $0.001 par value, reserved for issuance pursuant to the Cytori Therapeutics, Inc. 2015 New Employee Incentive Plan | | | 1,000,000 | (3) | | $ | 0.185 | | | $ | 185,000 | | | $ | 19 | |
Total | | | 5,527,000 | | | | N/A | | | $ | 1,022,495 | | | $ | 104 | |
(1) This Registration Statement on Form S-8 (this "Registration Statement") covers (i) shares of Common Stock, par value $0.001 per share ("Common Stock"), of Cytori Therapeutics, Inc. (the "Registrant"), issuable pursuant to the Cytori Therapeutics, Inc. 2014 Equity Incentive Plan (the "2014 Plan") and the Cytori Therapeutics, Inc. 2015 New Employee Incentive Plan (the "2015 Plan" and together with the 2014 Plan, the "Plans"); and (ii) pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the "Securities Act"), any additional shares of Common Stock that become issuable under the Plans by reason of any stock dividend, stock split or other similar transaction.
(2) Represents 4,527,000 shares of Common Stock available for future issuance under the 2014 Plan.
(3) Represents 1,000,000 shares of Common Stock available for future issuance under the 2015 Plan.
(4) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, solely for the purpose of computing the registration fee, based on the average of the high and low prices reported for a share of Common Stock on the NASDAQ Capital Market on March 14, 2016.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and 2, will be sent or given to participants in accordance with Form S-8 and Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act"). In accordance with the rules and regulations of the Securities and Exchange Commission (the "Commission") and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Commission are incorporated herein by reference (excluding any portions of such documents that have been "furnished" but not "filed" for purposes of the Securities Exchange Act of 1934, as amended (the "Exchange Act")):
(a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 2015 filed with the Commission on March 11, 2016;
(b) All reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act, subsequent to the end of the fiscal year covered by the form referred to in (a) above; and
(c) The description of our common stock contained in our registration statement on Form 10/A filed with the SEC on July 16, 2001 (File No. 000-32501).
In addition, 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 to this registration statement which indicates that all securities offered 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 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 purposes of this registration statement to the extent that a statement contained herein, (or in any other subsequently filed document which also is incorporated or 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.
Under no circumstances will any information filed under current items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
You may request a copy of these filings, at no cost, by writing or telephoning the Registrant at:
3020 Callan Road
San Diego, California 92121
Telephone: 858-458-0900
Attn: Investor Relations
You should rely only on the information provided or incorporated by reference in this registration statement or any related prospectus. The Registrant has not authorized anyone to provide you with different information. You should not assume that the information in this registration statement or any related prospectus is accurate as of any date other than the date on the front of the document.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, or DGCL, authorizes a court to award or a corporation's board of directors to grant indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended, or the Securities Act.
Our amended and restated certificate of incorporation, as amended (our "Certificate"), includes a provision that, to the fullest extent permitted by the DGCL, eliminates the personal liability of our directors for monetary damages for breach of fiduciary duty as a director. In addition, together our Certificate and our amended and restated bylaws, as amended (our "Bylaws"), require us to indemnify, to the fullest extent permitted by law, any person made or threatened to be made a party to an action or proceeding (whether criminal, civil, administrative or investigative) by reason of the fact that such person is or was a director, officer or employee of Cytori or any predecessor of ours, or serves or served at any other enterprise as a director, officer or employee at our request or the request of any predecessor of ours, against expenses (including attorneys' fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of ours. Our Bylaws also provide that we may, to the fullest extent provided by law, indemnify any person against expenses (including attorneys' fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an agent of ours. We are required to advance expenses incurred by our directors, officers, employees and agents in defending any action or proceeding for which indemnification is required or permitted, subject to certain limited exceptions. The indemnification rights conferred by our Bylaws are not exclusive.
We have obtained directors and officers liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
For a list of exhibits, see the Exhibit Index in this registration statement, which is incorporated into this Item 8 by reference.
Item 9. Undertakings.
(a) 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 this 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 this registration statement. Notwithstanding the foregoing, any increase or decrease in the 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 a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate 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 (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.
(b) 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 any 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 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 San Diego, California, on this 15th day of March, 2016.
| | CYTORI THERAPEUTICS, INC. |
| | | |
| | By: | | /s/ Marc H. Hedrick, M.D. |
| | | | Marc H. Hedrick, M.D. |
| | | | President and Chief Executive Officer |
| | | | (Duly Authorized Officer) |
POWER OF ATTORNEY AND SIGNATURES
Each director and/or officer of Cytori Therapeutics, Inc. whose signature appears below constitutes and appoints Marc H. Hedrick, M.D. and Tiago Girão, and each of them, as such person's true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in such person's 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 other documents in connection therewith, with the Commission granting unto each said attorney-in-fact and agent, 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 such person might or could do in person, hereby ratifying and confirming that each said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the date indicated:
| Signature | | Title | | Date | |
/s/ Marc H. Hedrick, M.D. Marc H. Hedrick, M.D. | | President, Chief Executive Officer, and Director (Principal Executive Officer) | | | March 15, 2016 | |
/s/ Tiago Girão Tiago Girão | | Chief Financial Officer (Principal Financial and Accounting officer) | | | March 15, 2016 | |
/s/ David M. Rickey David M. Rickey | | Chairman of the Board | | | March 15, 2016 | |
/s/ Richard J. Hawkins Richard J. Hawkins | | Director | | | March 15, 2016 | |
/s/ Paul W. Hawran Paul W. Hawran | | Director | | | March 15, 2016 | |
/s/ Gail K. Naughton, Ph.D. Gail K. Naughton, Ph.D. | | Director | | | March 15, 2016 | |
/s/ Gary A. Lyons Gary A. Lyons | | Director | | | March 15, 2016 | |
/s/ Tommy G. Thompson Tommy G. Thompson | | Director | | | March 15, 2016 | |
EXHIBIT INDEX
| | |
| | |
| 4.1(1) | | Composite Certificate of Incorporation. |
| | |
| 4.2(2) | | Amended and Restated Bylaws. |
| | | |
| 4.3(3) | | Amendment to Amended and Restated Bylaws |
| | |
| 5.1 | | Opinion of DLA Piper LLP (US). |
| | |
| 23.1 | | Consent of KPMG LLP, Independent Registered Public Accounting Firm. |
| | |
| 23.2 | | Consent of DLA Piper LLP (US) (filed as a part of Exhibit 5.1). |
| | |
| 24.1 | | Power of Attorney (contained on signature page). |
| | |
| 99.1(4) | | Cytori Therapeutics, Inc. 2014 Equity Incentive Plan. |
| | | |
| 99.2 | | First Amendment to the Cytori Therapeutics, Inc. 2014 Equity Incentive Plan. |
| | | |
| 99.3(5) | | 2015 New Employee Incentive Plan |
| | | |
| 99.4 | | Form of Stock Option Agreement under the 2015 Plan |
| | | |
| 99.5 | | Form of Notice of Grant of Stock Option under the 2015 Plan |
| (1) | Incorporated by reference to Exhibit 3.1 to the Registrant's Annual Report on Form 10-K (File No. 001-34375) filed on March 11, 2016. |
| (2) | Incorporated by reference to Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q (File No. 000-32501) filed on August 14, 2003. |
| (3) | Incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K (File No. 001-34375) filed on May 6, 2014. |
| (4) | Incorporated by reference to Appendix A to the Registrant's definitive proxy statement on Schedule 14A (File No. 001-34375), filed on June 12, 2014. |
| (5) | Incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K (File No. 001-34375) filed on January 5, 2016. |
