As filed with the Securities and Exchange Commission on June 30, 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
Histogenics Corporation
(Exact name of Registrant as specified in its charter)
| Delaware | 04-3522315 | |
|
(State or Other Jurisdiction of Incorporation or Organization) |
(IRS Employer
Identification No.) |
830 Winter Street, 3rd Floor
Waltham, Massachusetts 02451
(781) 547-7900
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
2013 Equity Incentive Plan
(Full title of plans)
Jonathan Lieber
Chief Financial Officer
830 Winter Street, 3rd Floor
Waltham, Massachusetts 02451
(Name and address of agent for service)
(781) 547-7900
(Telephone number, including area code, of agent for service)
Please send copies of all communications to:
Marc F. Dupré, Esq.
Albert W. Vanderlaan, Esq.
Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
One Marina Park Drive, Suite 900
Boston, Massachusetts 02210
Telephone: (617) 648-9100
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 | x | |||
CALCULATION OF REGISTRATION FEE
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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 |
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|
Common Stock, $0.01 par value per share |
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|
—2013 Equity Incentive Plan |
300,000 | $1.76 | $528,000.00 | $53.17 | ||||
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TOTAL |
300,000 | $528,000.00 | $53.17 | |||||
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| (1) | Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Registrant’s Common Stock that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Registrant’s Common Stock, as applicable. |
| (2) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act. The offering price per share and aggregate offering price for the unissued stock options and shares of Common Stock are based upon the average of the high and low prices of the Registrant’s common stock as reported on The NASDAQ Stock Exchange Global Market on June 27, 2016. |
EXPLANATORY NOTE
Information Required in the Section 10(a) Prospectus
Pursuant to General Instruction E to Form S-8 under the Securities, this Registration Statement is filed by Histogenics Corporation (the “Company”) for the purpose of registering additional shares of Common Stock under the Company’s 2013 Equity Incentive Plan, as amended (the “EIP”).
On June 22, 2016, the Company’s stockholders approved an amendment to the EIP to increase the number of shares of Common Stock available for issuance under the EIP by 300,000 shares and increase the number of shares of Common Stock automatically added to the EIP on January 1 of each year during the term of the EIP, starting with January 1, 2017 (the “EIP Amendment”). Following adoption of the EIP Amendment, the number of shares of Common Stock available for issuance under the EIP is subject to an automatic annual increase on the first day of the Company’s calendar year beginning in 2017 equal to the lesser of (a) 4.0% of the total number of shares of Common Stock outstanding on December 31 of the prior year or, (b) the number determined by the Company’s Board of Directors. This Registration Statement registers the 300,000 additional shares of Common Stock available for issuance under the EIP as a result of the EIP Amendment.
Of the 1,196,957 shares currently authorized by the EIP, 896,957 have already been registered pursuant to the currently effective Registration Statements on Form S-8 (Registration Nos. 333-201552 and 333-210075) filed on January 16, 2015 and March 3, 2016, respectively (together, the “Original Registration Statement”). The contents of the Original Registration Statement, including any amendments thereto or filings incorporated therein, are incorporated herein by this reference. Any items in the Original Registration Statement not expressly changed hereby shall be as set forth in the Original Registration Statement.
I-1
PART II
Information Required in the Registration Statement
| Item 8. | Exhibits . |
|
Exhibit Number |
Exhibit Description |
Incorporated by Reference |
Filed Herewith |
|||||||||
|
Form |
File No. |
Exhibit |
Filing Date |
|||||||||
| 5.1 | Opinion and Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. | X | ||||||||||
| 10.3 | 2013 Equity Incentive Plan. | 8-K | 001-36751 | 10.3 | May 4, 2016 | |||||||
| 10.3A | Amendment No. 1 to 2013 Equity Incentive Plan. | X | ||||||||||
| 23.1 | Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm. | X | ||||||||||
| 23.2 | Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (contained in Exhibit 5.1). | X | ||||||||||
| 24.1 | Power of Attorney (incorporated by reference to the signature page of this Registration Statement). | X | ||||||||||
II-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Waltham, Commonwealth of Massachusetts, on this 30 th day of June, 2016.
| HISTOGENICS CORPORATION |
|
/s/ Jonathan Lieber |
| Jonathan Lieber |
| Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS , that the undersigned officers and directors of Histogenics Corporation, a Delaware corporation, do hereby constitute and appoint Adam Gridley and Jonathan Lieber, and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant in the capacities and on the dates indicated.
|
Signature |
Title |
Date |
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/s/ Adam Gridley Adam Gridley |
Chief Executive Officer, President and Director (Principal Executive Officer) |
June 30, 2016 | ||
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/s/ Jonathan Lieber Jonathan Lieber |
Chief Financial Officer (Principal Financial and Accounting Officer) |
June 30, 2016 | ||
|
/s/ Garheng Kong, M.D., Ph.D. Garheng Kong, M.D., Ph.D. |
Chairman of the Board |
June 30, 2016 | ||
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/s/ Joshua Baltzell Joshua Baltzell |
Director |
June 30, 2016 | ||
|
/s/ David Gill David Gill |
Director |
June 30, 2016 | ||
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/s/ John H. Johnson John H. Johnson |
Director |
June 30, 2016 | ||
|
/s/ Michael Lewis Michael Lewis |
Director |
June 30, 2016 | ||
|
/s/ Kevin Rakin Kevin Rakin |
Director |
June 30, 2016 | ||
EXHIBIT INDEX
|
Exhibit Number |
Exhibit Description |
Incorporated by Reference |
Filed Herewith |
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|
Form |
File No. |
Exhibit |
Filing Date |
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| 5.1 | Opinion and Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. | X | ||||||||||
| 10.3 | 2013 Equity Incentive Plan. | 8-K | 001-36751 | 10.3 | May 4, 2016 | |||||||
| 10.3A | Amendment No. 1 to 2013 Equity Incentive Plan. | X | ||||||||||
| 23.1 | Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm. | X | ||||||||||
| 23.2 | Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (contained in Exhibit 5.1). | X | ||||||||||
| 24.1 | Power of Attorney (incorporated by reference to the signature page of this Registration Statement). | X | ||||||||||
Exhibit 5.1
June 30, 2016
Histogenics Corporation
830 Winter Street, 3 rd Floor
Waltham, MA 02451
Ladies and Gentlemen:
We refer to the registration statement on Form S-8 (the “Registration Statement”) to be filed by Histogenics Corporation, a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) in connection with the registration under the Securities Act of 1933, as amended (the “Act”), of an aggregate of up to 300,000 shares of the Company’s common stock, $0.01 par value (“Common Stock”) reserved for issuance under the Company’s 2013 Equity Incentive Plan, as amended (the “Plan”).
In connection with this opinion, we have reviewed the actions proposed to be taken by you in connection with the issuance and sale of the Stock to be issued under the Plan. We have also examined and relied upon the Registration Statement and the originals or copies certified to our satisfaction of such other documents, records, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. With your consent, we have relied upon certificates and other assurances of officers of the Company as to factual matters without having independently verified such factual matters. We have assumed the genuineness and authenticity of all documents submitted to us as originals, and the conformity to originals of all documents submitted to us as copies thereof and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof.
This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, other than as expressly stated herein with respect to the issue of the Stock. Our opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. Our opinion herein is expressed solely with respect to the federal laws of the United States and the General Corporation Law of the State of Delaware. Our opinion is based on these laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. We are not rendering any opinion as to compliance with any federal or state antifraud law, rule or regulation relating to securities, or to the sale or issuance thereof.
Based upon and subject to the foregoing, we advise you that, in our opinion, when the Stock has been issued and sold by the Company pursuant to the applicable provisions of the Plan and pursuant to the agreements which accompany the Plan, and in accordance with the Registration Statement, such Stock will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby 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 Commission thereunder.
Very truly yours,
/s/ Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP
Exhibit 10.3A
AMENDMENT NO. 1 TO THE HISTOGENICS CORPORATION
2013 EQUITY INCENTIVE PLAN
Histogenics Corporation, a Delaware corporation (the “ Company ”), adopted the 2013 Equity Incentive Plan on November 13, 2013 (the “ Plan ”). Unless otherwise defined herein, all capitalized terms shall have the meaning set forth in the Plan.
1. Sections 3.1 and 3.2 of the Plan shall be amended and restated in their entirety to read as follows:
“ 3.1 Basic Limitation . Common Shares issued pursuant to the Plan may be authorized but unissued shares or treasury shares. The aggregate number of Common Shares issued under the Plan shall not exceed the sum of (a) 818,327 Common Shares, (b) the number of Common Shares reserved under the Predecessor Plan that are not issued or subject to outstanding awards under the Predecessor Plan on the Registration Date, (c) any Common Shares subject to outstanding options under the Predecessor Plan on the Registration Date that subsequently expire or lapse unexercised and Common Shares issued pursuant to awards granted under the Predecessor Plans that are outstanding on the Registration Date and that are subsequently forfeited to or repurchased by the Company and (d) the additional Common Shares described in Articles 3.2 and 3.3; provided, however, that no more than 505,431 Common Shares, in the aggregate, shall be added to the Plan pursuant to clauses (b) and (c). The number of Common Shares that are subject to Stock Awards outstanding at any time under the Plan may not exceed the number of Common Shares that then remain available for issuance under the Plan. The numerical limitations in this Article 3.1 shall be subject to adjustment pursuant to Article 9.
3.2 Annual Increase in Shares . As of the first business day of each fiscal year of the Company during the term of the Plan, commencing on January 1, 2015 and ending on December 31, 2016, the aggregate number of Common Shares that may be issued under the Plan shall automatically increase by a number equal to the least of (a) 3.5% of the total number of Common Shares outstanding on December 31 of the prior year, (b) subject to adjustment under Article 9, 181,414 Common Shares, or (c) a number of Common Shares determined by the Board. As of the first business day of each fiscal year of the Company during the term of the Plan, commencing on January 1, 2017, the aggregate number of Common Shares that may be issued under the Plan shall automatically increase by a number equal to the lesser of (a) 4.0% of the total number of Common Shares outstanding on December 31 of the prior year or (b) a number of Common Shares determined by the Board.”
Except as expressly amended hereby, the Plan shall remain unchanged and in full force and effect and is hereby ratified and confirmed.
| Adopted by the Company’s Board of Directors: | April 19, 2016 | |
| Adopted by the Company’s Stockholders: | June 22, 2016 |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated March 10, 2016, with respect to the consolidated financial statements of Histogenics Corporation included in the Annual Report on Form 10-K for the year ended December 31, 2015, which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned report in this Registration Statement.
/s/ GRANT THORNTON LLP
Boston, MA
June 30, 2016