As filed with the Securities and Exchange
Commission on November 6, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OCATA
THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in
its Charter)
Delaware |
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87- 0656515 |
(State
or Other Jurisdiction of
Incorporation
or Organization) |
|
(I.R.S.
Employer
Identification
No.) |
33 Locke
Drive
Marlborough,
MA 01752
(508) 756-1212
(Address of
Principal Executive Offices, including zip code)
Ocata Therapeutics,
Inc. 2014 Stock Option and Incentive Plan
First Amendment
to the Ocata Therapeutics, Inc. 2014 Stock Option and Incentive Plan
(Full Title
of the Plans)
Paul Wotton
President
and Chief Executive Officer
33 Locke
Drive
Marlborough,
MA 01752
(Name, Address
and Telephone Number, including area code, of Agent For Service)
Copies
to:
Mitchell
Bloom, Esq.
William
Collins, Esq.
Goodwin Procter
LLP
Exchange Place
53 State Street
Boston, MA
02109
(617) 570-1000
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. (Check one):
Large accelerated filer |
o |
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Accelerated filer |
x |
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|
Non-accelerated filer |
o |
(Do not check if a smaller reporting company) |
Smaller reporting company |
o |
CALCULATION
OF REGISTRATION FEE
Title of Securities
to be Registered |
|
Amount
to be
Registered(1) |
|
Proposed
Maximum
Offering Price
per Share |
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Proposed
Maximum
Aggregate
Offering Price |
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Amount of
Registration Fee |
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Ocata Therapeutics,
Inc. 2014 Stock Option and Incentive Plan |
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Shares Reserved for Grant |
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Common Stock, $0.01
par value per share |
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250,000
shares |
(2) |
$ |
4.41 |
(3) |
$ |
1,102,500.00 |
(3) |
$ |
111.03 |
|
First Amendment
to the Ocata Therapeutics, Inc. 2014 Stock Option and Incentive Plan |
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Shares Reserved for Grant |
|
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Common Stock, $0.01 par value
per share |
|
3,750,000
shares |
(4) |
$ |
4.41 |
(3) |
$ |
16,537,500.00 |
(3) |
$ |
1,665.33 |
|
TOTAL |
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4,000,000
shares |
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|
$ |
17,640,000.00 |
|
$ |
1,776.36 |
|
(1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended
(the “Securities Act”), this Registration Statement shall also be deemed to cover such additional
securities which become issuable by reason of any stock dividend, stock split, recapitalization or any other similar transactions. |
(2) |
Represents shares of common stock issuable pursuant to the Ocata Therapeutics, Inc.
2014 Stock Option and Incentive Plan on November 12, 2014 |
(3) |
Estimated solely for the purpose of calculating the registration fee in accordance with
Rules 457(c) and 457(h) of the Securities Act. The proposed maximum aggregate offering price is based upon
the average of the high and low sales prices of the Registrant’s Common Stock, as reported on the Nasdaq Global
Select Market on October 30, 2015. |
(4) |
Represents shares of common stock issuable pursuant to the First Amendment to the Ocata Therapeutics,
Inc. 2014 Stock Option and Incentive Plan on July 22, 2015. |
EXPLANATORY NOTE
At the 2014 annual meeting of stockholders
of Ocata Therapeutics, Inc. (the “Company”), which was held on November 12, 2014 (the “2014 Annual Meeting”),
the Company’s stockholders approved the Company’s 2014 Stock Option and Incentive Plan (the “2014 Stock Option
Plan”). The 2014 Stock Option Plan previously had been approved, subject to stockholder approval, by the Company’s
Board of Directors on September 8, 2014. The Company’s executive officers and directors are eligible to receive awards under
the 2014 Stock Option Plan, including stock options and restricted stock units, in accordance with the terms and conditions of
the 2014 Stock Option Plan.
At the 2015 annual meeting of the Company,
which was held on July 22, 2015 (the “2015 Annual Meeting”), the Company’s stockholders approved the First Amendment
to the Company’s 2014 Stock Option and Incentive Plan (the “Plan Amendment”). The Plan Amendment previously had
been approved, subject to stockholder approval, by the Company’s Board of Directors on June 9, 2015. The Plan Amendment increases
the aggregate number of shares authorized for issuance under the 2014 Stock Option Plan by 3,750,000 shares from 250,000 shares
to 4,000,000 shares.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. |
Plan Information.* |
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|
Item 2. |
Registrant Information and Employee Plan Annual Information.* |
* |
Information required by Part I 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 Registrant hereby incorporates by
reference into this Registration Statement the following documents filed by the Registrant with the Commission (excluding any portions
of such documents that have been “furnished” but not “filed” for purposes of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)):
(a) the Registrant’s Annual
Report on Form 10-K for the year ended December 31, 2014 (File No. 001-36855), filed with the Commission on March
16, 2015 (including, for the avoidance of doubt, information specifically incorporated by reference in the Registrant’s Form 10-K
from the Registrant’s Definitive Proxy Statement for its 2015 Annual Meeting of Stockholders, filed with the Commission on
June 11, 2015);
(b) the Registrant’s Quarterly
Reports on Form 10-Q for the fiscal quarter ended March 31, 2015 as filed with the Commission on May 6, 2015 and for
the fiscal quarter ended June 30, 2015, as filed with the Commission on August 6, 2015;
(c) the Registrant’s Current
Reports on Form 8-K as filed with the Commission on February 26, 2015, June 17, 2015, July 24, 2015, August 19, 2015 and August
31, 2015;
(d) all other documents filed with
the Commission by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the document referred to in (a) above; and
(e) the description of the Registrant’s
outstanding Common Stock contained in the Registrant’s Registration Statement on Form S-8 as filed with the Commission
on August 19, 2005, including any amendment or report filed for the purpose of updating such description, and in the Registrant’s
Registration Statement on Form 8-A as filed with the Commission on February 23, 2015.
In addition, all documents subsequently
filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, on or
after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such
documents.
Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein 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.
Under no circumstances will any information
filed under current items 2.02 or 7.01 of a Current Report on Form 8-K be deemed incorporated herein by reference unless such
Form 8-K expressly provides to the contrary.
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 145 of the General Corporation
Law of Delaware (the “DGCL”), empowers a corporation to indemnify 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, officer, employee or agent of the corporation or another
enterprise if serving at the request of the corporation. Depending on the character of the proceeding, a corporation may indemnify
against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding if the person indemnified acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful. In the case of an action by or in the right of the corporation,
no indemnification may be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was
brought shall determine that despite the adjudication of liability, but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses that the court shall deem proper. Section 145 further provides
that to the extent a present or former director or officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to above, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorney's fees) actually and reasonably incurred by him or her in connection therewith.
The Registrant's certificate of incorporation,
as amended, provides that the Registrant shall, to the fullest extent permitted by the DGCL, indemnify any director or officer
which it shall have the power to indemnify under the DGCL against any expenses, liabilities, or other matters referred to in or
covered by Section 145 of the DGCL. This indemnification continues after such person ceases to be a director or officer and
inures to the benefit of the heirs, executors and administrators of said person. The Registrant shall not be required to indemnify
a person in connection with such action, suit or proceeding initiated by such person if it was not authorized by the Registrant's
board except under limited circumstances. The certificate of incorporation also provides that the right to indemnification includes
the right to be paid by the Registrant for the expenses incurred in defending any such proceeding in advance of its final disposition;
provided, however, that the payment of such expenses incurred by a director or officer in advance of the final disposition of a
proceeding shall be made only upon delivery by the Registrant of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified
under the certificate of incorporation or otherwise. The certificate of incorporation provides that the Registrant, by action of
its board, may provide indemnification to employees and agents of the Registrant with the same scope and effect as the indemnification
of directors and officers. The certificate of incorporation also contains a provision eliminating the liability of directors of
the Registrant to the Registrant or its stockholders for monetary damage, to the fullest extent permitted by law. The certificate
of incorporation also permits the Registrant to purchase and maintain insurance to protect itself and any director, officer, employee
or agent against any expense, liability, or loss incurred by him or her if the Registrant would have the power to indemnify such
persons against such expense, liability or loss under the DGCL. The certificate of incorporation also permits the Registrant to
enter into agreements with any director, officer, employee or agent providing for indemnification rights equivalent to or greater
than the indemnification rights set forth in the certificate of incorporation. The Registrant has entered into indemnification
agreements with all of its directors and executive officers and maintains insurance for each director and executive officer.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
Item 7.
Exemption from Registration Claimed.
Not applicable.
Item 8.
Exhibits.
The exhibits listed below represent a
complete list of exhibits filed or incorporated by reference as part of this Registration Statement:
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4.1 |
Ocata Therapeutics, Inc. 2014 Stock Option and Incentive Plan (incorporated herein by reference to Appendix C to the Registrant’s Definitive Proxy Statement on Schedule 14A filed September 26, 2014, 000-50295). |
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4.2 |
First Amendment to Ocata Therapeutics, Inc. 2014 Stock Option and Incentive Plan (incorporated herein by reference to Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed June 11, 2015, 001-36855). |
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5.1* |
Legal opinion of Goodwin Procter LLP. |
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23.1* |
Consent of SingerLewak LLP, Independent Registered Public Accounting Firm. |
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23.2* |
Consent of BDO USA, LLP, Independent Registered Public
Accounting Firm. |
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23.3* |
Consent of Goodwin Procter LLP (contained in the opinion filed as Exhibit 5.1 to this Registration Statement). |
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24.1* |
Power of attorney (included in the signature page to this Registration Statement). |
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* Filed herewith.
Item 9.
Undertakings.
The Company 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 the 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 the 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) if, in the
aggregate, the changes in volume and price represent no more than a 20% 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 the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) herein 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 Exchange Act (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining
any liability under the Securities Act, 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.
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
Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the 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.
The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented
by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus
to provide such interim financial information.
Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
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 Marlborough, Commonwealth of Massachusetts, on the 6th day of November, 2015.
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OCATA THERAPEUTICS, INC. |
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By: |
/s/ Paul K. Wotton |
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Paul K. Wotton |
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President and Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned officers and directors
of Ocata Therapeutics, Inc., hereby severally constitute and appoint Paul K. Wotton and Edward Myles, and each of them singly
(with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign for us and
in our names in the 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 attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the premises, as full to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully 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 in the capacities indicated below
on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Paul K. Wotton |
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Chief Executive Officer and Director (Principal Executive Officer) |
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November 6, 2015 |
Paul K. Wotton |
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/s/ Edward Myles |
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Chief Operating Officer and Chief Financial Officer (Principal Financial and Accounting Officer) |
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November 6, 2015 |
Edward Myles |
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/s/ Michael Heffernan |
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Director |
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November 6, 2015 |
Michael Heffernan |
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/s/ Alan
C. Shapiro |
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Director |
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November 6, 2015 |
Alan C. Shapiro |
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/s/ Robert Langer |
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Director |
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November 6, 2015 |
Robert Langer |
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/s/ Zohar Loshitzer |
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Director |
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November 6, 2015 |
Zohar Loshitzer |
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Director |
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November 6, 2015 |
Gregory D. Perry |
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/s/ Brian Levy |
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Director |
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November 6, 2015 |
Brian Levy |
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EXHIBIT INDEX
Exhibit
No. |
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Description |
4.1 |
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Ocata Therapeutics, Inc. 2014 Stock Option and Incentive Plan (incorporated herein by reference to Appendix C to the Registrant’s Definitive Proxy Statement on Schedule 14A filed September 26, 2014, 000-50295). |
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4.2 |
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First Amendment to the Ocata Therapeutics, Inc. 2014 Stock Option and Incentive Plan (incorporated herein by reference to Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed June 11, 2015, 001-36855). |
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5.1* |
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Legal opinion of Goodwin Procter LLP. |
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23.1* |
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Consent of SingerLewak LLP, Independent Registered Public
Accounting Firm. |
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23.2* |
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Consent of BDO USA, LLP, Independent Registered Public
Accounting Firm. |
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23.3* |
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Consent of Goodwin Procter LLP (contained in the opinion filed as Exhibit 5.1 to this Registration Statement). |
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24.1* |
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Power of attorney (included in the signature page to this Registration Statement). |
* Filed herewith.
Exhibit 5.1
November 6, 2015
Ocata Therapeutics, Inc.
33 Locke Drive
Marlborough, MA 01752
| Re: | Securities Being Registered under Registration Statement
on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to you in connection
with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities
Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to an aggregate of 4,000,000 shares
(the “Shares”) of Common Stock, $0.001 par value per share, of Ocata Therapeutics, Inc., a Delaware corporation (the
“Company”), that may be issued pursuant to the Company’s 2014 Stock Option and Incentive Plan (the “Plan”)
and the First Amendment to the Plan (the “Plan Amendment”).
We have reviewed such documents and made
such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent
verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates
of officers of the Company.
The opinion set forth below is limited to
the Delaware General Corporation Law (which includes reported judicial decisions interpreting the Delaware General Corporation
Law).
For purposes of the opinion set forth below,
we have assumed that a sufficient number of authorized but unissued shares of the Company’s Common Stock will be available
for issuance when the Shares are issued.
Based on the foregoing, we are of the opinion
that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms
of the Plan and Plan Amendment, will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this
opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
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Very truly yours,
/s/
GOODWIN PROCTER LLP
GOODWIN PROCTER LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-8 of Ocata Therapeutics, Inc. formerly, Advanced
Cell Technology, Inc. and Subsidiary (collectively, the “Company”) of our report dated April 1, 2014, except for the
reclassification paragraph in Note 2 as to which the date is March 16, 2015, relating to our audit of the consolidated financial
statements, which appears in the Annual Report on Form 10-K of Ocata Therapeutics, Inc. for the year ended December 31, 2014.
/s/SingerLewak LLP
SingerLewak LLP
Los Angeles, California
November 6, 2015
Exhibit 23.2
Consent of Independent
Registered Public Accounting Firm
Ocata Therapeutics, Inc.
Marlborough, Massachusetts
We hereby consent to the
incorporation by reference in the Prospectus constituting a part of this Registration Statement of our reports dated March 16,
2015, relating to the consolidated financial statements and the effectiveness of Ocata Therapeutics, Inc.’s internal control
over financial reporting appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2014. Our
report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.
/s/ BDO USA, LLP
Boston, Massachusetts
November 6, 2015
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