As filed with the Securities and Exchange Commission on August 1, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDGENICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 98-0217544 |
| (State or Other Jurisdiction of | (I.R.S. Employer |
| Incorporation or Organization) | Identification No.) |
555 California Street, Suite 365
San Francisco, California 94104
(Address, Including Zip Code, of Principal Executive Offices)
Medgenics, Inc. Stock Incentive Plan
Non-Plan Inducement Stock Option Award
(Full Title of the Plans)
Andrew L. Pearlman
President and Chief Executive Officer
Medgenics, Inc.
555 California Street, Suite 365
San Francisco, California 94104
(415) 568-2245
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Gretchen Anne Trofa, Esq.
Barack Ferrazzano Kirschbaum & Nagelberg LLP
200 West Madison Street, Suite 3900
Chicago, Illinois
(312) 984-3100
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 Securities Exchange Act of 1934, as amended (the “Exchange Act”):
Large accelerated filer ¨ Accelerated filer ¨ Non-accelerated filer ¨ Smaller reporting company x
CALCULATION OF REGISTRATION FEE
|
Title of
Securities to be Registered |
Amount
to be Registered(1) |
Proposed
Maximum Offering Price Per Share |
Proposed
Maximum Aggregate Offering Price |
Amount of
Registration Fee |
||||||||||||
| Common Stock, par value $0.0001 per share, issuable under the Medgenics, Inc. Stock Incentive Plan | 1,466,864 shares | (2) | $ | 5.55 | (5) | $ | 8,141,095.20 | $ | 932.97 | |||||||
| Common Stock, par value $0.0001 per share, issuable under the Medgenics, Inc. Stock Incentive Plan | 688,938 shares | (3) | $ | 11.17 | (6) | $ | 7,695,437.46 | $ | 881.90 | |||||||
| Common Stock, par value $0.0001 per share, issuable pursuant to a Non-Plan Inducement Stock Option Award | 900,000 shares | (4) | $ | 10.80 | (7) | $ | 9,720,000.00 | $ | 1,113.92 | |||||||
| Total | 3,055,802 shares | $ | 25,556,532.66 | $ | 2,928.79 | |||||||||||
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the registrant’s common stock which become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of the registrant’s common stock. |
| (2) | Represents shares of common stock issuable upon the exercise of outstanding stock options granted under the Medgenics, Inc. Stock Incentive Plan (the “Plan”). |
| (3) | Represents shares of common stock available for future issuance under the Plan. |
| (4) | Represents shares issuable upon exercise of an outstanding inducement stock option granted to Sol J. Barer. |
| (5) | Based on the weighted average exercise price of $5.55 per share of the outstanding stock options granted under the Plan. |
| (6) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) of the Securities Act based upon a $11.17 per share average of high and low prices of the registrant’s common stock on the NYSE MKT on July 26, 2012. |
| (7) | Based on the exercise price of $10.80 per share of the outstanding inducement stock option granted to Sol J. Barer. |
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the “Note” to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference |
The following documents filed by Medgenics, Inc. (the “Company”) with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference in this Registration Statement:
| (a) | The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011 (filed on March 6, 2012); |
| (b) | The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2011 (filed on May 14, 2012); |
| (c) | The Company’s Current Reports on Form 8-K filed with the SEC on January 25, 2012, April 5, 2012, June 19, 2012 (except for Item 7.01 and Exhibit 99.1) and July 2, 2012 (except for Item 7.01 and Exhibit 99.1); and |
| (c) | The description of the Company’s common stock contained in the Company’s registration statement on Form 8-A filed with the SEC on March 24, 2011. |
All documents subsequently filed by the Company with the SEC pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference into this Registration Statement and to be a part thereof from the date of the filing of such documents, except that we are not incorporating, in each case, any documents or information deemed to have been furnished and not filed in accordance with SEC rules. Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus which is a part hereof (the “Prospectus”) to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein 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 and the Prospectus.
| 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 102 of the Delaware General Corporation Law allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our amended and restated certificate of incorporation provides that to the fullest extent permitted by the Delaware General Corporation Law, our directors shall not be liable to us or to our stockholders for monetary damages for breach of fiduciary duty as a director.
Section 145 of the Delaware General Corporation Law provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he is or is threatened to be made a party by reason of such position, if such person shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation, and, in any criminal proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided, that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances. Our amended and restated certificate of incorporation and bylaws provide that any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of our company, or by reason of the fact that he or she was serving at the request of our company as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified (and we must advance expenses incurred in connection with the defense of such actions, suit or proceedings) to the full extent now or hereafter permitted by law.
We maintain directors and officers insurance providing indemnification for certain of our directors, officers, affiliates, partners and employees for certain liabilities.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors and officers pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
| Item 8. | Exhibits |
See the attached Exhibit Index, which is incorporated herein 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 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) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that provisions (1)(i) and (1)(ii) of this undertaking 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 Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 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 Misgav, Israel, on this 1 st day of August, 2012.
| MEDGENICS, INC. | ||
| By: | /s/ Andrew L. Pearlman | |
| Andrew L. Pearlman | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below hereby severally constitutes and appoints Andrew L. Pearlman, Phyllis K. Bellin and Sol J. Barer , and each of them acting singly, as his or her true and lawful attorney-in-fact and agent, with full and several power of substitution and resubstitution, to sign for him or her and in his or her name, place and stead, in any and all capacities indicated below, 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 do and perform each and every act and thing requisite and necessary to be done, 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 or his or her substitute, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, the Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Name | Title | Date | ||
| /s/ Andrew L. Pearlman | President, Chief Executive Officer and Director | August 1, 2012 | ||
| Andrew L. Pearlman | (Principal Executive Officer) | |||
| /s/ Phyllis K. Bellin | Vice President Administration, Treasurer and Secretary | August 1, 2012 | ||
| Phyllis K. Bellin | (Principal Financial and Accounting Officer) | |||
| /s/ Sol J. Barer | Chairman of the Board of Directors | August 1, 2012 | ||
| Sol J. Barer | ||||
| /s/ Eugene A. Bauer | Director | August 1, 2012 | ||
| Eugene A. Bauer | ||||
| /s/ Joel S. Kanter | Director | August 1, 2012 | ||
| Joel S. Kanter | ||||
| /s/ Stephen D. McMurray | Director | August 1, 2012 | ||
| Stephen D. McMurray | ||||
| Director | ||||
| Gary A. Brukardt | ||||
| /s/ Alastair Clemow | Director | August 1, 2012 | ||
| Alastair Clemow | ||||
| /s/ Isaac Blech | Director | August 1, 2012 | ||
| Isaac Blech |
EXHIBIT INDEX
| Exhibit No. | Description | |
| 4.1 | Amended and Restated Certificate of Incorporation (previously filed as Exhibit 3.1 to the Company’s Registration Statement on Form S-1 filed November 5, 2010 (File No. 333-170425) and incorporated herein by reference). | |
| 4.2 | Certificate of Amendment to Amended and Restated Certificate of Incorporation dated as of June 4, 2009 (previously filed as Exhibit 3.2 to the Company’s Registration Statement on Form S-1 filed November 5, 2010 (File No. 333-170425) and incorporated herein by reference). | |
| 4.3 | Certificate of Amendment to Amended and Restated Certificate of Incorporation dated as of February 14, 2011 (previously filed as Exhibit 4.3 to the Company’s Post-Effective Amendment No. 1 to Form S-1 on Form S-3 filed July 16, 2012 (File No. 333-170425) and incorporated herein by reference). | |
| 4.4 | Second Amended and Restated By-Laws (previously filed as Exhibit 3.3 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2011 (File No. 001-35112) and incorporated herein by reference). | |
| 4.5 | Specimen Common Stock Certificate (previously filed as Exhibit 4.1 to the Company’s Amendment No. 4 to Registration Statement on Form S-1 filed February 22, 2011 (File No. 333-170425) and incorporated herein by reference). | |
| 4.6 | Medgenics, Inc. Stock Incentive Plan, as amended and restated effective March 5, 2012 (previously filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed April 5, 2012 (File No. 001-35112) and incorporated herein by reference). | |
| 4.7 | Medgenics, Inc. Non-Qualified Stock Option Award Terms (filed herewith). | |
| 5.1 | Opinion of Barack Ferrazzano Kirschbaum & Nagelberg LLP (filed herewith). | |
| 23.1 | Consent of Kost Forer Gabbay & Kasierer (Ernst & Young) (filed herewith). | |
| 23.2 | Consent of Barack Ferrazzano Kirschbaum & Nagelberg LLP (included in Exhibit 5.1). | |
| 24.1 | Powers of Attorney (included on the signature pages hereto). |
Exhibit 4.7
MEDGENICS, INC.
Non-Qualified Stock Option Award Terms
Pursuant to the employment inducement grant exception to the shareholder approval requirements contained in Section 711 of the NYSE MKT Rules, the Participant specified below has been granted an Option by Medgenics, Inc. , a Delaware corporation (the “ Company ”), it being understood that such grant has not been made pursuant to the Medgenics, Inc. Stock Incentive Plan , as amended from time to time (the “ Incentive Plan ”) or any other equity-based incentive plan of the Company or its Affiliates; provided that, other than as is inconsistent with the Option Terms, the Option Terms shall be administered consistent with the provisions of the Incentive Plan, the terms of which are incorporated herein by reference. The Option shall be subject to the following terms and conditions (the “ Option Terms ”):
Section 1. Terms of Award . The following words and phrases relating to the grant of the Option shall have the following meanings:
(a) The “ Participant ” is Sol J. Barer.
(b) The “ Date of Grant ” is June 30, 2012.
(c) The number of “ Covered Shares ” is 900,000 shares of Common Stock.
(d) The “ Exercise Price ” is $10.80 per share of Common Stock.
(e) The “ Effective Date ” is the date the additional listing application for the issuance of the Covered Shares is approved by the NYSE MKT has been approved by the NYSE MKT.
Except where the context clearly implies to the contrary, any capitalized term in the Option Terms shall have the meaning ascribed to that term under the Incentive Plan.
Section 2. Non-Qualified Stock Option . The Option is not intended to constitute an “incentive stock option” as that term is used in Code Section 422.
Section 3. Date of Exercise . Each installment of Covered Shares of the Option (“ Installment ”) shall become vested and exercisable on and after the “ Vesting Date ” for such Installment as described in the following schedule (but only if the Participant’s Termination of Service has not occurred before the Vesting Date):
| VESTING DATE | ||
| INSTALLMENT | APPLICABLE TO INSTALLMENT | |
| 300,000 Covered Shares | Effective Date | |
| 300,000 Covered Shares | June 30, 2013 | |
| 300,000 Covered Shares | June 30, 2014 |
(a) Notwithstanding the foregoing provisions of this Section 3 , the Option shall become fully exercisable upon a Change in Control that occurs on or before the Participant’s Termination of Service.
(b) The Option may be exercised on or after the Participant’s Termination of Service only as to that portion of the Covered Shares for which it was exercisable immediately prior to the Participant’s Termination of Service, or became exercisable on the date of the Participant’s Termination of Service.
Section 4. Expiration . The Option shall not be exercisable after the Company’s close of business on the last business day that occurs prior to the Expiration Date. The “ Expiration Date ” shall be the earliest to occur of:
(a) June 30, 2017; or
(b) the 12-month anniversary of the Participant’s Termination of Service if such termination occurs due to death or Disability; or
(c) the 90 th day following the Participant’s Termination of Service if such termination occurs for any reason other than death, Disability or Cause; or
(d) the effective date of a Termination of Service where such Termination of Service is for Cause.
For purposes of this Agreement, “ Cause ” shall have the meaning set forth in the employment or similar agreement entered into by and between the Participant and the Company, if any. In the absence of any such agreement, “Cause” shall mean (1) any act by the Participant of (A) fraud or intentional misrepresentation, or (B) embezzlement, misappropriation or conversion of assets or opportunities of the Company or any Affiliate, or (2) any willful violation of any law, rule or regulation in connection with the performance of the Participant’s duties (other than traffic violations or similar offenses), or (3) with respect to any employee of the Company or any Affiliate, commission of any act of moral turpitude or conviction of a felony, or (4) the willful or negligent failure of the Participant to perform his duties in any material respect.
Section 5. Method of Option Exercise . Subject to the Option Terms, the Option may be exercised in whole or in part by filing a written notice with the Secretary of the Company at its corporate headquarters prior to the Company’s close of business on the last business day that occurs prior to the Expiration Date, together with a signed Investment Representation Statement in a form substantially similar to the form attached hereto as Exhibit A in the event that the Common Stock to be issued to the holder will not be registered under the Securities Act of 1933, as amended. Such notice shall specify the number of shares of Common Stock which the Participant elects to purchase, and shall be accompanied by payment of the Exercise Price for such shares of Common Stock indicated by the Participant’s election. Payment of the Exercise Price shall be in cash or by wire transfer of immediately available funds. The Option shall not be exercisable if and to the extent the Company determines that such exercise would violate applicable state or federal securities laws or the rules and regulations of any securities exchange on which the Common Stock is traded and shall not be exercisable during any blackout period established by the Company from time to time.
| 2 |
Section 6. Withholding . The exercise of the Option is subject to withholding of all applicable taxes. At the election of the Participant, and subject to such rules and limitations as may be established by the Committee from time to time, such withholding obligations shall be satisfied through cash payment or wire transfer of immediately available funds by the Participant.
Section 7. Transferability . Without the prior approval of the Company, the Option is not transferable by the Participant other than by will or by the laws of descent and distribution, and during the Participant’s life, may be exercised only by the Participant. Without the prior approval of the Company, the Option may not be assigned, transferred (except as aforesaid), pledged or hypothecated by the Participant in any way whether by operation of law or otherwise, and shall not be subject to execution, attachment or similar process. Any attempt at assignment, transfer, pledge or hypothecation, or other disposition of the Option contrary to the provisions hereof, and the levy of any attachment or similar process upon the Option, shall be null and void and without effect.
Section 8. Heirs and Successors . The Option Terms shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company’s assets and business. If any rights of the Participant or benefits distributable to the Participant under the Option Terms have not been exercised or distributed, respectively, at the time of the Participant’s death, such rights shall be exercisable by the Designated Beneficiary, and such benefits shall be distributed to the Designated Beneficiary, in accordance with the provisions of the Option Terms and the Incentive Plan. The “ Designated Beneficiary ” shall be the beneficiary or beneficiaries designated by the Participant in a writing filed with the Committee in such form and at such time as the Committee shall require. If a Participant fails to designate a beneficiary, or if the Designated Beneficiary does not survive the Participant, any rights that would have been exercisable by the Participant and any benefits distributable to the Participant shall be exercised by or distributed to the legal representative of the estate of the Participant. If a Participant designates a beneficiary and the Designated Beneficiary survives the Participant but dies before the Designated Beneficiary’s exercise of all rights under the Option Terms or before the complete distribution of benefits to the Designated Beneficiary under the Option Terms, then any rights that would have been exercisable by the Designated Beneficiary shall be exercised by the legal representative of the estate of the Designated Beneficiary, and any benefits distributable to the Designated Beneficiary shall be distributed to the legal representative of the estate of the Designated Beneficiary.
Section 9. Administration . The authority to manage and control the operation and administration of the Option Terms and the Incentive Plan shall be vested in the Committee, and the Committee shall have all powers with respect to the Option Terms as it has with respect to the Incentive Plan. Any interpretation of the Option Terms or the Incentive Plan by the Committee and any decision made by it with respect to the Option Terms or the Incentive Plan are final and binding on all persons.
| 3 |
Section 10. Incentive Plan Governs . Notwithstanding anything in the Option Terms to the contrary, the Option Terms shall be subject to the terms of the Incentive Plan, a copy of which may be obtained by the Participant from the Secretary of the Company, in a manner consistent as if the Option were granted pursuant to the Incentive Plan; and the Option Terms shall be subject to all interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to and applicable to awards granted under the Incentive Plan; provided , however , that payment of the Exercise Price under the Option shall in all events be in cash or by wire transfer of immediately available funds. Notwithstanding anything in the Option Terms to the contrary, in the event of any discrepancy between the corporate records of the Company and the Option Terms, the corporate records of the Company shall control.
Section 11. Not An Employment Contract . The Option shall not confer on the Participant any right with respect to continuance of employment or other service with the Company or any Affiliate, nor shall it interfere in any way with any right the Company or any Affiliate would otherwise have to terminate or modify the terms of such Participant’s employment or other service at any time.
Section 12. No Rights As Shareholder . The Participant shall not have any rights of a shareholder with respect to the Covered Shares subject to the Option until the Participant becomes the holder of record of such Covered Shares.
Section 13. Amendment . The Option Terms may be amended in accordance with the provisions of the Incentive Plan as applicable to awards granted under the Incentive Plan, and may otherwise be amended by written agreement of the Participant and the Company without the consent of any other person.
Section 14. Validity. If any provision of the Option Terms is determined to be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but the Option Terms shall be construed and enforced as if such illegal or invalid provision had never been included herein.
Section 15 Section 409A Amendment . The Committee reserves the right (including the right to delegate such right) to unilaterally amend the Option Terms without the consent of the Participant to maintain compliance with Code Section 409A. The Participant’s acceptance of the Option constitutes acknowledgement and consent to such rights of the Committee.
Section 16. Clawback . The Option shall be subject to potential cancellation, recoupment, rescission, payback or other similar action in accordance with the terms of any applicable Company clawback policy (the “ Policy ”) or any applicable law. The Participant’s acceptance of the Option constitutes acknowledgement and consent to the Company’s application, implementation and enforcement of (a) the Policy and any similar policy established by the Company that may apply to the Participant and (b) any provision of applicable law relating to cancellation, rescission, payback or recoupment of compensation, as well as the Participant’s express agreement that the Company may take such actions as are necessary to effectuate the Policy, any similar policy and applicable law, without further consideration or action.
| 4 |
IN WITNESS WHEREOF , the Company has caused the Option Terms to be executed on its behalf by a duly authorized officer and Participant has executed the Option Terms.
| PARTICIPANT | MEDGENICS, INC. |
| /s/ Sol J. Barer | By: | /s/ Phyllis K. Bellin | |
| Signature | |||
| Sol J. Barer | Its: Vice President – Administration | ||
| Print Name |
Exhibit A
INVESTMENT REPRESENTATION STATEMENT
[This form is to be completed at the
time the Option is exercised, unless the stock to be issued
upon exercise of the Option has been registered under the Securities
Act of 1933, as amended]
Effective as of ___________________ [insert date of option exercise] (the “Effective Date”), the undersigned (“Participant”) has elected to purchase ___________________ shares of the Common Stock (the “Shares”) of Medgenics, Inc. (the “Company”) under and pursuant to the Non-Qualified Stock Option Terms dated ___________________ [insert grant date of option] (the “Option Terms”). The Participant hereby makes the following certifications, representations, warranties and agreements with respect to the purchase of the Shares:
The Participant acknowledges that he or she is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Shares. The Participant represents and warrants to the Company that he or she is acquiring these Shares for investment for the Participant’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).
The Participant further acknowledges that the Shares have not been registered under the Securities Act, are deemed to constitute “restricted securities” under Rule 701 and Rule 144 promulgated under the Securities Act and must be held indefinitely unless they are subsequently registered under the Securities Act and qualified under any applicable state securities laws or an exemption from such registration and qualification is available. The Participant further acknowledges that the Company is under no obligation to register the Shares.
The Participant further acknowledges that he or she is familiar with the provisions of Rule 144, which, in substance, permits limited public resale of “restricted securities” acquired, directly or indirectly from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. The Participant further acknowledges that in the event all of the applicable requirements of Rule 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required in order to resell the Shares. The Participant understands that no assurances can be given that any such registration will be made or any such exemption will be available in such event.
The Participant further acknowledges and understands that all certificates representing any of the Shares shall have endorsed thereon appropriate legends reflecting the foregoing limitations, as well as any legends reflecting any other restrictions pursuant to the Company’s Articles of Incorporation, Bylaws, the Option Terms, the Medgenics, Inc. Stock Incentive Plan and/or applicable securities laws.
| A- 1 |
The Participant further agrees that, if so requested by the Company or any representative of the underwriters (the “Managing Underwriter”) in connection with any registration of the offering of any securities of the Company under the Securities Act, the Participant shall not sell or otherwise transfer any Shares or other securities of the Company during the 180-day period, or such other period as may be requested in writing by the Managing Underwriter and agreed to in writing by the Company (the “Market Standoff Period”), following the effective date of a registration statement of the Company filed under the Securities Act. Such restriction shall apply only to the first registration statement of the Company to become effective under the Securities Act that includes securities to be sold on behalf of the Company to the public in an underwritten public offering under the Securities Act. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such Market Standoff Period.
The Participant further acknowledges and agrees that the Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the representations, warranties, agreements or other provisions contained in this Investment Representation Statement or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
| Submitted by Participant: | |
| Signature |
| A- 2 |
Exhibit 5.1
Barack Ferrazzano Kirschbaum & Nagelberg llp
200 WEST MADISON STREET, SUITE 3900
CHICAGO, ILLINOIS 60606
Telephone (312) 984-3100
Facsimile (312) 984-3150
August 1, 2012
Medgenics, Inc.
555 California Street, Suite 365
San Francisco, California 94104
Ladies and Gentlemen:
This opinion is being rendered to you in connection with the filing by Medgenics, Inc., a Delaware corporation (the “ Company ”), with the Securities and Exchange Commission (the “ Commission ”) of a registration statement on Form S-8 (the “ Registration Statement ”), pursuant to the Securities Act of 1933, as amended (the “ Act ”), relating to the offer and sale by the Company of (i) an aggregate of 2,155,802 shares (the “ Plan Shares ”) of common stock of the Company, par value $0.0001 per share (“ Common Stock ”), issuable under the Medgenics, Inc. Stock Incentive Plan, as amended and restated effective March 5, 2012 (the “ Plan ”), and (ii) 900,000 shares (the “ Inducement Shares ”) of Common Stock issuable upon exercise of an inducement stock option granted to Sol J. Barer pursuant to the Non-Qualified Stock Option Award Terms filed as Exhibit 4.7 to the Registration Statement (the “ Inducement Award ”).
We have made such legal and factual investigation as we deemed necessary for purposes of this opinion. We have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement, (ii) the Amended and Restated Certificate of Incorporation of the Company, dated as of December 3, 2007, as amended by a Certificate of Amendment dated as of June 4, 2009 and as further amended by a Certificate of Amendment dated as of February 14, 2011, (iii) the Second Amended and Restated By-Laws of the Company dated as of March 5, 2012, (iv) the Plan, (v) the Inducement Award, (vi) resolutions of the Board of Directors of the Company relating to the Plan and the Inducement Award, and (vii) such other certificates, statutes and other instruments and documents as were considered appropriate for purposes of the opinions hereafter expressed. In our investigation, we have assumed the genuineness of all signatures, the proper execution of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies and the authenticity of the originals of such copies. We have not independently established or verified any facts relevant to the opinions expressed herein, but have relied upon statements and representations of officers and other representatives of the Company. For the purpose of the opinion rendered in (1) below, we have assumed that in connection with the issuance of shares under the Plan, the Company will receive consideration in an amount not less than the aggregate par value of the Plan Shares covered by each such issuance.
Barack Ferrazzano Kirschbaum & Nagelberg llp
Medgenics, Inc.
August 1, 2012
Page 2
Based upon the foregoing, and subject to the qualifications, assumptions and limitations set forth herein, it is our opinion that:
| (1) | the Plan Shares have been duly authorized and, when issued and sold in accordance with the Plan, will be validly issued, fully paid and nonassessable; and |
| (2) | the Inducement Shares have been duly authorized and, when issued and sold in accordance with the Inducement Award, will be validly issued, fully paid and nonassessable. |
We express no opinion concerning the laws of any jurisdiction other than the General Corporation Law of the State of Delaware.
We express no opinion with respect to any specific legal issues other than those explicitly addressed herein. We assume no obligation to update this opinion letter after the date hereof or otherwise advise you with respect to any facts or circumstances or changes in law that may occur or come to our attention after such date (even though the change may affect the legal conclusions stated in this opinion letter).
We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
| Very truly yours, | |
| /s/ Barack Ferrazzano Kirschbaum & Nagelberg LLP | |
| BARACK FERRAZZANO KIRSCHBAUM & NAGELBERG LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Medgenics, Inc. Stock Incentive Plan and the Non-Plan Inducement Stock Option Award of our report dated March 1, 2012 with respect to the consolidated financial statements of Medgenics, Inc. included in the Annual Report on Form 10-K of Medgenics, Inc. for the year ended December 31, 2011, filed with the Securities and Exchange Commission.
| /s/ Kost Forer Gabbay & Kasierer | |
| Haifa, Israel | Kost Forer Gabbay & Kasierer |
| August 1, 2012 | A member of Ernst & Young Global |