As filed with the Securities and Exchange Commission on September 26, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Applied Genetic Technologies Corporation
(Exact name of registrant as specified in its charter)
Delaware |
59-3553710 |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
14193 NW 119th Terrace
Suite 10
Alachua, Florida 32615
(Address of principal executive offices)
Applied Genetic Technologies Corporation 2013 Equity and Incentive Plan
(Full title of the plan(s))
Susan B. Washer
President and Chief Executive Officer
Applied Genetic Technologies Corporation
11801 Research Drive, Suite D
Alachua, Florida 32615
(Name and address of agent for service)
(386) 462-2204
(Telephone number, including area code, of agent for service)
Copies to:
Stacie S. Aarestad, Esq. Hemmie Chang, Esq. Foley Hoag LLP 155 Seaport Boulevard Boston, Massachusetts 02210 Telephone: (617) 832-1000 Telecopy: (617) 832-7000 |
Brian Krex General Counsel Applied Genetic Technologies Corporation One Kendall Square, 1400W Cambridge, MA 02139 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
Non-accelerated filer | ☒ | Smaller reporting company | ☒ | |||
Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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 |
Amount of registration fee |
||||
Common Stock, $0.001 par value |
247,360(3) | $3.49 | $863,286.40 | $104.63 | ||||
Common Stock, $0.001 par value |
721,918(4) | $3.49 | $2,519,493.82 | $305.36 | ||||
Common Stock, $0.001 par value |
723,511(5) | $3.49 | $2,525,053.39 | $306.04 | ||||
Common Stock, $0.001 par value |
725,057(6) | $3.49 | $2,530,448.93 | $306.69 | ||||
Common Stock, $0.001 par value |
728,294(7) | $3.49 | $2,541,746.06 | $308.06 | ||||
Total: |
3,146,140 | $10,980,028.60 | $1,330.78 | |||||
|
||||||||
|
1. |
Pursuant to Rule 416(a) under the Securities Act, this Registration Statement shall also cover any additional shares of the registrants common stock that become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the registrants outstanding shares of common stock. |
2. |
The proposed maximum offering price per share has been estimated in accordance with Rule 457(c) and Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee with respect to shares reserved for future issuance based on the average of the high and low price of the registrants common stock as quoted on the Nasdaq Global Market on September 23, 2019. |
3. |
Represents 247,360 shares of the registrants common stock issuable under the Applied Genetic Technologies Corporation 2013 Equity and Incentive Plan (the 2013 Plan) as the result of an automatic annual increase on July 1, 2015. |
4. |
Represents 721,918 shares of the registrants common stock issuable under the 2013 Plan as the result of an automatic annual increase on July 1, 2016. |
5. |
Represents 723,511 shares of the registrants common stock issuable under the 2013 Plan as the result of an automatic annual increase on July 1, 2017. |
6. |
Represents 725,057 shares of the registrants common stock issuable under the 2013 Plan as the result of an automatic annual increase on July 1, 2018. |
7. |
Represents 728,294 shares of the registrants common stock issuable under the 2013 Plan as the result of an automatic annual increase on July 1, 2019. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Explanatory Note Pursuant to General Instruction E of Form S-8
This Registration Statement registers additional securities of the same class as other securities for which a Registration Statement filed on Form S-8 relating to our 2013 Plan is already effective. Pursuant to Instruction E to Form S-8, we incorporate by reference into this Registration Statement the contents of the Registration Statement we filed on Form S-8 (File No. 333-198979) with the Securities and Exchange Commission on September 26, 2014, in its entirety and including exhibits thereto, relating to, among other things, the registration of 2,089,191 shares of our common stock, $0.001 par value per share, authorized for issuance under the 2013 Plan.
The number of shares of our common stock available for issuance under the 2013 Plan is subject to an automatic annual increase on each July 1st equal to the lesser of: (i) four percent (4%) of the number of shares of common stock issued and outstanding on the immediately preceding June 30th or (ii) such lesser number of shares of Stock as determined by the Compensation Committee. Accordingly, on July 1, 2015, July 1, 2016, July 1, 2017, July 1, 2018 and July 1, 2019, the number of shares of Common Stock reserved and available for issuance under the 2013 Plan increased by 247,360 shares, 721,918 shares, 723,511 shares, 725,057 shares and 728,294 shares, respectively.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
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 the city of Alachua, Florida, as of September 26, 2019.
APPLIED GENETIC TECHNOLOGIES CORPORATION | ||
By: | /s/ Susan B. Washer | |
Susan B. Washer | ||
Chief Executive Officer and President |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints each of Susan B. Washer and William A. Sullivan as such persons true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person in such persons 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 all documents in connection therewith, with the SEC, 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 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 any said attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
In accordance with 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/ Susan B. Washer Susan B. Washer |
Chief Executive Officer, President and Director (Principal Executive Officer) |
September 26, 2019 | ||
/s/ William A. Sullivan William A. Sullivan |
Chief Financial Officer (Principal Financial and Accounting Officer) |
September 26, 2019 | ||
/s/ Scott Koenig Scott Koenig |
Director | September 26, 2019 | ||
/s/ William Aliski William Aliski |
Director | September 26, 2019 | ||
/s/ Ed Hurwitz Ed Hurwitz |
Director | September 26, 2019 | ||
/s/ Ivana Magovcevic-Liebisch Ivana Magovcevic-Liebisch |
Director | September 26, 2019 | ||
/s/ Anne VanLent Anne VanLent |
Director | September 26, 2019 | ||
/s/ James Rosen James Rosen |
Director | September 26, 2019 |
Exhibit 5.1
|
Seaport West 155 Seaport Boulevard Boston, MA 02210-2600
617 832 1000 main 617 832 7000 fax |
September 26, 2019
Applied Genetic Technologies Corporation
14193 NW 119th Terrace, Suite 10
Alachua, FL 32615
Re: |
Registration Statement on Form S-8 |
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the Registration Statement) being filed by Applied Genetic Technologies Corporation, a Delaware corporation (the Company), with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act), on the date hereof. The Registration Statement relates to the offer and sale by the Company of up to 3,146,140 shares (the Shares) of its common stock, par value $0.001 per share (Common Stock), issuable under the Companys 2013 Equity and Incentive Plan (the 2013 Plan).
In arriving at the opinion expressed below, we have examined and relied upon the Certificate of Incorporation, as amended and restated to date, and Bylaws, as amended and restated to date, of the Company, the records of meetings and consents of the Companys Board of Directors and of its stockholders, and the 2013 Plan, each as provided to us by the Company. In addition, we have examined and relied on the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other documents and certificates of public officials, officers and representatives of the Company and such other persons, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinion expressed below.
We have assumed that all Shares to be issued under the 2013 Plan, whether issued directly or upon the exercise or vesting of awards under the 2013 Plan, will be issued in accordance with the applicable terms of the 2013 Plan and such awards. We have also assumed that the consideration to be received by the Company for the Shares have a value that equals or exceeds the par value thereof.
In rendering the opinion expressed below, we express no opinion other than as to the federal laws of the United States and the Delaware General Corporation Law, including the statutory provisions contained therein, applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting these provisions.
Based upon and subject to the foregoing, it is our opinion that the Shares, when issued and delivered by the Company in accordance with the terms of the 2013 Plan and the awards thereunder against the Companys receipt of the purchase price or other consideration therefor, will be validly issued, fully paid and non-assessable.
This opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
This opinion is being delivered solely for the benefit of the Company and such other persons as are entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This opinion may not be used, quoted, relied upon or referred to for any other purpose, nor may this opinion be used, quoted, relied upon or referred to by any other person, for any purpose, without our prior written consent.
We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading Item 5. Interests of Named Experts and Counsel in the Registration Statement. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
This opinion letter shall be interpreted in accordance with the Core Opinion Principles jointly issued by the Committee on Legal Opinions of the American Bar Associations Business Law Section and the Working Group on Legal Opinions Foundation as published in 74 Business Lawyer 815 (2019).
Very truly yours, | ||
FOLEY HOAG LLP | ||
By: | /s/ Stacie S. Aarestad | |
a Partner |
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2013 Equity and Incentive Plan of Applied Genetic Technologies Corporation of our report dated September 26, 2019, with respect to the financial statements and financial statement schedule of Applied Genetic Technologies Corporation included in its Annual Report (Form 10-K) for the year ended June 30, 2019, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Tampa, Florida
September 26, 2019