As filed with the Securities and Exchange Commission on September 25, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BIOFORM MEDICAL, INC.
(Exact name of Registrant as specified in its charter)
| Delaware | 39-1979642 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
1875 South Grant Street, Suite 200
San Mateo, California 94402
(Address of principal executive offices)
2007 EQUITY INCENTIVE PLAN
(Full title of the plan)
Steven L. Basta
Chief Executive Officer
BioForm Medical, Inc.
1875 South Grant Street, Suite 200
San Mateo, California 94402
(650) 286-4000
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
David J. Saul, Esq.
Ropes & Gray LLP
1900 University Avenue, 6th Floor
East Palo Alto, California 94303
(650) 617-4000
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 definition of “large accelerated filer”, “accelerated filer”, or “smaller reporting company” in Rule 12b-2 of the Exchange Act. (check one):
| Large accelerated filer | ¨. | Accelerated filer | ¨. | |||
| Non-accelerated filer | x. (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 | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee | ||||
Common Stock, par value $0.01 per share | 4,052,194 shares (1) | $3.50(2) | $14,182,679 | $791.39 | ||||
| (1) | Represents the number of additional shares authorized for future issuance under the 2007 Equity Incentive Plan. |
| (2) | Estimated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the total registration fee. Computation based on the average of the high and low prices of the common stock as reported on The Nasdaq Stock Market on September 24, 2009. |
BIOFORM MEDICAL, INC.
REGISTRATION STATEMENT ON FORM S-8
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 4,052,194 shares of the Registrant’s common stock to be issued pursuant to the Registrant’s 2007 Equity Incentive Plan (the “2007 Plan”), which consists of 1,854,028 shares and 1,851,993 shares added on July 1, 2009 and July 1, 2008, respectively, pursuant to the annual increase provisions of its 2007 Plan and 1,811,717 shares added due to the exchange of options granted under its 2003 (Active) Stock Plan (the “2003 Plan”) for replacement options granted under its 2007 Plan in connection with its option exchange program completed on January 22, 2009, 728,177 shares granted under the 2003 Plan that were otherwise cancelled between December 12, 2008 and June 30, 2009 and returned to the 2007 Plan, less 2,193,721 shares previously registered on Registrant’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission on November 27, 2007 (File no. 333-147647) in excess of the 4,000,000 shares originally reserved under the 2007 Plan.
PART II
INCORPORATION OF PREVIOUS REGISTRATION STATEMENT
The contents of the earlier registration statement relating to the 2007 Plan previously filed with the Securities and Exchange Commission on November 27, 2007 (File no. 333-147647) is incorporated herein by reference and made a part hereof.
| Item 8. | Exhibits. |
Exhibit | Description | |
| 4.1* | Specimen Common Stock certificate of the Registrant | |
| 5.1 | Opinion of Ropes & Gray LLP | |
| 10.1* | 2003 (Active) Stock Plan. | |
| 10.2* | 2007 Equity Incentive Plan | |
| 10.23** | First amendment to the 2003 (Active) Stock Plan, dated November 24, 2008 | |
| 10.24** | First and second amendments to the 2007 Equity Incentive Plan, dated November 24, 2008 and December 21, 2008, respectively | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Ropes & Gray LLP (see Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on the signature page hereto) |
| * | Incorporated by reference to exhibits filed with the Registrant’s Registration Statement on Form S-1 (Registration No. 333-145584), and as declared effective on November 6, 2007. |
| ** | Incorporated by reference to an exhibit with the same number filed with the Registrant’s Quarterly Form 10-Q on February 13, 2009 |
II-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant, BioForm Medical, Inc., a corporation organized and existing under the laws of the State of Delaware, 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 San Mateo, State of California, on this 25th day of September, 2009.
| BIOFORM MEDICAL, Inc. | ||
| By: | /s/ STEVEN L. BASTA | |
| Steven L. Basta | ||
| Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Steven L. Basta and Frederick Lwee, jointly and severally, as his attorneys-in-fact, with full power of substitution in each, for him in any and all capacities to sign any amendments to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitutes, may 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 below by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/S/ STEVEN L. BASTA Steven L. Basta | Chief Executive Officer and Director (Principal Executive Officer) | September 25, 2009 | ||
/S/ FREDERICK LWEE Frederick Lwee | Principal Financial Officer (Principal Financial and Accounting Officer) | September 25, 2009 | ||
/S/ DENNIS CONDON Dennis Condon | Director | September 25, 2009 | ||
/S/ CHRIS DENNIS Chris Dennis | Director | September 25, 2009 | ||
/S/ N.C. JOSEPH LAI N.C. Joseph Lai | Director | September 25, 2009 | ||
/S/ TIMOTHY P. LYNCH Timothy P. Lynch | Director | September 25, 2009 | ||
/S/ JEFFREY NUGENT Jeffrey Nugent | Director | September 25, 2009 | ||
/S/ KEVIN K. SIDOW Kevin K. Sidow | Director | September 25, 2009 | ||
/S/ MARTIN SUTTER Martin Sutter | Director | September 25, 2009 | ||
II-2
INDEX TO EXHIBITS
Exhibit | Description | |
| 4.1* | Specimen Common Stock certificate of the Registrant | |
| 5.1 | Opinion of Ropes & Gray LLP | |
| 10.1* | 2003 (Active) Stock Plan. | |
| 10.2* | 2007 Equity Incentive Plan | |
| 10.23** | First amendment to the 2003 (Active) Stock Plan, dated November 24, 2008 | |
| 10.24** | First and second amendments to the 2007 Equity Incentive Plan, dated November 24, 2008 and December 21, 2008, respectively | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Ropes & Gray LLP (see Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on the signature page hereto) |
| * | Incorporated by reference to exhibits filed with the Registrant’s Registration Statement on Form S-1 (Registration No. 333-145584), and as declared effective on November 6, 2007. |
| ** | Incorporated by reference to an exhibit with the same number filed with the Registrant’s Quarterly Form 10-Q on February 13, 2009 |
