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 registrant’s 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 registrant’s 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 registrant’s common stock as quoted on the Nasdaq Global Market on September 23, 2019.

 

3.

Represents 247,360 shares of the registrant’s 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 registrant’s 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 registrant’s 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 registrant’s 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 registrant’s 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.

 

Exhibit
number

  

Description

3.1    Fifth Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on April 1, 2014)
3.2    Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the SEC on April 1, 2014)
4.1    Specimen certificate evidencing shares of common stock (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 (File No. 333-193309))
4.2    Applied Genetic Technologies Corporation 2013 Equity And Incentive Plan (incorporated by reference to Exhibit 10.15 to the Company’s Registration Statement on Form S-1 (File No. 333-193309))
5.1    Opinion of Foley Hoag LLP. Filed herewith.
23.1    Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. Filed herewith.
23.2    Consent of Foley Hoag LLP (included in Exhibit 5.1). Filed herewith.
24.1    Power of attorney (included on signature page of this Registration Statement). Filed herewith.

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 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 person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person 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 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

 

LOGO  

 

 

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 Company’s 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 Company’s 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 Company’s 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 Association’s 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