Securities Registration: Employee Benefit Plan (s-8)
September 22 2016 - 2:01PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on September __, 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
_________________________________
SKYLINE MEDICAL INC.
(Exact
name of registrant as specified in its charter)
Delaware
|
|
33-1007393
|
(State or other jurisdiction of
|
2915 Commers Drive, Suite 900
Eagan, Minnesota 55121
|
(I.R.S. Employer
|
Incorporation or organization)
|
Identification No.)
|
(Address
of principal executive offices)
_______________________________
AMENDED AND RESTATED 2012 STOCK INCENTIVE
PLAN
(Full
title of the Plan)
_______________________________
Bob Myers
Chief
Financial Officer
Skyline
Medical Inc.
2915 Commers
Drive, Suite 900
Eagan,
Minnesota 55121
Telephone:
(651) 389-4800
(Name
and address of agent for service)
|
Copy to:
Martin
R. Rosenbaum, Esq.
Maslon
LLP
3300 Wells
Fargo Center
90 South
7th Street
Minneapolis,
Minnesota 55402
Telephone:
(612) 672-8200
Facsimile:
(612) 672-8397
|
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 definition of “large accelerated filer,” “accelerate filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act. (Check one):
|
Large Accelerated Filer ☐
|
|
Accelerated Filer
☐
|
|
|
Non- Accelerated Filer ☐
|
|
Smaller
reporting company ☒
|
|
____________________________________
CALCULATION OF REGISTRATION FEE
Title of
Securities to be Registered
|
Proposed Maximum Amount to be
Registered (1)
|
Proposed
Maximum
Offering Price
Per Share (2)
|
Aggregate
Offering Price (2)
|
Amount of
Registration Fee (2)
|
Common stock,
par value $.01 per share
|
98,666,666
(3)
|
$0.195
|
$19,239,999.87
|
$1,937.47
|
|
(1)
|
Pursuant to Rule 416(a), this Registration Statement also covers additional securities that may be offered as a result of stock
splits, stock dividends, or similar transactions relating to the shares covered by this registration statement. In addition, pursuant
to Rule 416(c) under the Securities Act of 1933, this registration statement covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
|
|
(2)
|
Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and (h) and based upon the average
of the high and low sale prices of the registrant’s common stock on September 19, 2016, as reported on The NASDAQ Capital
Market.
|
|
(3)
|
The registrant’s Amended and Restated 2012 Stock Incentive Plan authorizes the issuance of a maximum of 100,000,000 shares
of the registrant’s common stock, $.01 par value per share. Initially, 100,000,000 shares of common stock were authorized
under such plan, of which an aggregate of 20,000,000 shares were previously registered on Form S-8 (File No. 333-186464),
filed on February 5, 2013; 30,000,000 shares were previously registered on Form S-8 (File No. 333-188510), filed on May 10, 2013;
and 50,000,000 shares were previously registered on Form S-8 (File No. 333-198378), filed on August 27, 2014. The contents of the
prior registration statements are incorporated herein by reference. The registrant completed a 1-for-75 reverse stock split effective
October 24, 2014, which reduced the authorized shares from 100,000,000 to 1,333,334. On July 28, 2016, the registrant’s stockholders
approved an amendment to increase the reserve of shares of common stock under the Amended and Restated 2012 Plan to 100,000,000
shares. This registration statement registers an additional 98,666,666 shares under the Amended and Restated 2012 Stock Incentive
Plan.
|
INCORPORATION OF CONTENTS OF
REGISTRATION STATEMENTS BY REFERENCE
A registration statement on Form S-8 (File
No. 333-186464) was filed with the Securities and Exchange Commission on February 5, 2013, covering the registration of 20,000,000
shares initially authorized for issuance under the registrant’s 2012 Stock Incentive Plan (the “2012 Plan”).
Additional registration statements were filed on Form S-8 (File No. 333-188510) with the Securities and Exchange Commission on
May 10, 2013, covering the registration of an additional 30,000,000 shares authorized for issuance under the registrant’s
2012 Plan, and on Form S-8 (File No. 333-198378) with the Securities and Exchange Commission on August 27, 2014, covering the registration
of an additional 50,000,000 shares authorized for issuance under the registrant’s 2012 Plan. The contents of the prior registration
statements are incorporated herein by reference. This registration statement should also be considered a post-effective amendment
to the prior registration statements. The registrant completed a 1-for-75 reverse stock split effective October 24, 2014, which
reduced the authorized shares under the 2012 Plan from 100,000,000 to 1,333,334. On July 28, 2016, the registrant’s stockholders
approved an amendment to increase the reserve of shares of common stock under the Amended and Restated 2012 Plan to 100,000,000
shares. Pursuant to Rule 429 and General Instruction E of Form S-8, this registration statement is being filed to register an additional
98,666,666 shares under the 2012 Plan. If the registrant amends its certificate of incorporation to increase its authorized capital
stock, it intends to file a further registration statement covering additional shares under the 2012 Plan.
PART I
As permitted by the rules of the Securities
and Exchange Commission, this registration statement omits the information specified in Part I of Form S-8. The documents containing
the information specified in Part I of this registration statement will be sent or given to eligible employees as specified in
Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are
not being filed with the Securities and Exchange Commission either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 promulgated under the Securities Act.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant
with the Securities and Exchange Commission are hereby incorporated herein by this reference:
(a) Annual Report on Form 10-K for the
fiscal year ended December 31, 2015;
(b) Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2016 and June 30, 2016;
(c) Current Reports on Form 8-K filed on
January 12, 2016, January 14, 2016, January 27, 2016, March 24, 2016, April 18, 2016, May 11, 2016, June 17, 2016, July 29, 2016,
August 19, 2016 and September 16, 2016, and Amendment to Current Report on Form 8-K/A filed on August 9, 2016; and
(d) The description of the Company’s
common stock under the caption “Description of Securities – Common Stock”) in the Company’s Amendment No.
1 to registration statement on Form S-4 filed on March 25, 2016.
All documents subsequently filed by the
registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered 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 a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
We are a Delaware corporation and certain
provisions of the Delaware Statutes and our bylaws provide for indemnification of our officers and directors against liabilities
that they may incur in such capacities. A summary of the circumstances in which indemnification is provided is discussed
below, but this description is qualified in its entirety by reference to our bylaws and to the statutory provisions.
Section 145 of the Delaware General Corporation
Law provides for, under certain circumstances, the indemnification of our officers, directors, employees and agents against liabilities
that they may incur in such capacities. A summary of the circumstances in which such indemnification provided for is contained
herein, but that description is qualified in its entirety by reference to the relevant Section of the Delaware General Corporation
Law.
In general, the statute provides that any
director, officer, employee or agent of a corporation may be indemnified against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement, actually and reasonably incurred in a proceeding (including any civil, criminal, administrative
or investigative proceeding) to which the individual was a party by reason of such status. Such indemnity may be provided if the
indemnified person’s actions resulting in the liabilities: (i) were taken in good faith; (ii) were reasonably believed to
have been in or not opposed to our best interest; and (iii) with respect to any criminal action, such person had no reasonable
cause to believe the actions were unlawful. Unless ordered by a court, indemnification generally may be awarded only after a determination
of independent members of the Board of Directors or a committee thereof, by independent legal counsel or by vote of the stockholders
that the applicable standard of conduct was met by the individual to be indemnified.
The statutory provisions further provide
that to the extent a director, officer, employee or agent is wholly successful on the merits or otherwise in defense of any proceeding
to which he was a party, he is entitled to receive indemnification against expenses, including attorneys’ fees, actually
and reasonably incurred in connection with the proceeding.
Indemnification in connection with a proceeding
by or in the right of the Company in which the director, officer, employee or agent is successful is permitted only with respect
to expenses, including attorneys’ fees actually and reasonably incurred in connection with the defense. In such actions,
the person to be indemnified must have acted in good faith, in a manner believed to have been in our best interest and must not
have been adjudged liable to us unless and only to the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of liability, in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expense which the Court of Chancery or such other court
shall deem proper. Indemnification is otherwise prohibited in connection with a proceeding brought on behalf of the Company in
which a director is adjudged liable to us, or in connection with any proceeding charging improper personal benefit to the director
in which the director is adjudged liable for receipt of an improper personal benefit.
Delaware law authorizes us to reimburse
or pay reasonable expenses incurred by a director, officer, employee or agent in connection with a proceeding in advance of a final
disposition of the matter. Such advances of expenses are permitted if the person furnishes to us a written agreement to repay such
advances if it is determined that he is not entitled to be indemnified by us.
The statutory section cited above further
specifies that any provisions for indemnification of or advances for expenses does not exclude other rights under our certificate
of incorporation, corporate bylaws, resolutions of our stockholders or disinterested directors, or otherwise. These indemnification
provisions continue for a person who has ceased to be a director, officer, employee or agent of the corporation and inure to the
benefit of the heirs, executors and administrators of such persons.
The statutory provision cited above also
grants the power to the Company to purchase and maintain insurance policies that protect any director, officer, employee or agent
against any liability asserted against or incurred by him in such capacity arising out of his status as such. Such policies may
provide for indemnification whether or not the corporation would otherwise have the power to provide for it.
Articled 8 and 9 of our certificate of incorporation
provide that we shall indemnify our directors and officers to the fullest extent permitted by the Delaware General Corporation
Law.
We have purchased directors’ and officers’
liability insurance in order to limit the exposure to liability for indemnification of directors and officers, including liabilities
under the Securities Act of 1933.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted for our directors, officers, and controlling persons 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 and is, therefore, unenforceable.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
|
|
Description
|
|
|
|
4.1
|
|
Amended and Restated 2012 Stock Incentive Plan.
|
|
|
|
5.1
|
|
Opinion of Maslon LLP as to the legality of the securities being registered.
|
|
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm –
Olsen Thielen & Co., Ltd.
|
|
|
|
23.2
|
|
Consent of Maslon LLP (included in Exhibit 5.1).
|
|
|
|
24.1
|
|
Power of Attorney (included on signature page hereof).
|
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a)(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 of 1933;
(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 Securities and Exchange Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and prices represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(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 paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act 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 the purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 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.
(h) 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 SEC 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 the City of Eagan and the State of Minnesota, on this 22nd day of September, 2016.
|
SKYLINE MEDICAL INC.
|
|
|
|
|
By:
|
/s/
Bob Myers
|
|
|
Bob Myers,
Chief Financial Officer
|
|
|
|
POWER OF ATTORNEY
Each person whose signature to this registration
statement appears below hereby constitutes and appoints Carl Schwartz and Bob Myers, signing singly as his or her true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his behalf individually and in the capacity stated below
and to perform any acts necessary to be done in order to file all amendments to this registration statement and any and all instruments
or documents filed as part of or in connection with this registration statement or the amendments thereto and each of the undersigned
does hereby ratify and confirm all that said attorney-in-fact and agent, or his substitutes, shall do or cause to be done by virtue
hereof.
The undersigned also
grants to said attorney-in-fact, full power and authority to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted. This Power of Attorney shall remain in effect until revoked in writing by
the undersigned.
Pursuant to 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/
Carl Schwartz
|
|
Interim Chief Executive Officer
(principal executive officer)
and
Director
|
|
September 22, 2016
|
Carl Schwartz
|
|
|
|
|
|
|
|
|
|
/s/
Bob Myers
|
|
Chief Financial Officer (principal
financial and accounting officer)
|
|
September 22, 2016
|
Bob Myers
|
|
|
|
|
|
|
|
|
|
/s/
Thomas J. McGoldrick
|
|
Director, Chairman
|
|
September 22, 2016
|
Thomas J. McGoldrick
|
|
|
|
|
|
|
|
|
|
/s/
Andrew Reding
|
|
Director
|
|
September 22, 2016
|
Andrew Reding
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
4.1
|
|
Amended and Restated 2012 Stock Incentive Plan.
|
|
|
|
5.1
|
|
Opinion of Maslon LLP as to the legality of the securities being registered.
|
|
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm –
Olsen Thielen & Co., Ltd.
|
|
|
|
23.2
|
|
Consent of Maslon LLP (included in Exhibit 5.1).
|
|
|
|
24.1
|
|
Power of Attorney (included on signature page hereof).
|
Precision Therapeutics Inc. (NASDAQ:AIPT)
Historical Stock Chart
From Aug 2024 to Sep 2024
Precision Therapeutics Inc. (NASDAQ:AIPT)
Historical Stock Chart
From Sep 2023 to Sep 2024