Securities Registration: Employee Benefit Plan (s-8)
October 31 2013 - 5:11PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on October 31, 2013
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HARVARD APPARATUS REGENERATIVE TECHNOLOGY,
INC.
(Exact name of registrant as specified
in its charter)
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Delaware
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45-5210462
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer
Identification No.)
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84 October Hill Road
Holliston, MA
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01746
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(Address of Principal Executive Offices)
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(Zip Code)
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Harvard
Apparatus Regenerative Technology, Inc.
Employee Stock Purchase Plan
(Full title of the plan)
_____________________________________________________________________________________________________________________
David Green
President and Chief Executive Officer
Harvard Apparatus Regenerative Technology, Inc.
84 October Hill Road, Holliston, MA 01746
(Name and address
of agent for service)
____________________________________________________________________________________________________________________________
(774) 233-7300
(Telephone number, including area code,
of agent for service)
____________________________________________________________________________________________________________________________
With copies to:
Josef B. Volman, Esq.
Chad J. Porter, Esq.
Burns & Levinson LLP
125 Summer Street
Boston, Massachusetts 02110
(617) 345-3000
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):
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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x
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount
to be
registered(1)
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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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Common stock, $0.01 par value per share
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150,000 (2)
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$6.00 (3)
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$900,000 (3)
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$116
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(1)
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In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
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(2)
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Consists of 150,000 shares issuable under the Registrant’s Employee Stock Purchase Plan.
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(3)
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Estimated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee. Such computation is based on the average of the high and low prices of the Registrant’s common stock as reported on the NASDAQ Capital Market on October 28, 2013 with respect to trading under the ticker symbol “HARTV”.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
The information required by Item 1
is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1)
of the Securities Act of 1933, as amended (the “Securities Act”).
Item 2. Registrant Information
and Employee Plan Annual Information.
The written statement required by Item 2
is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents
by Reference.
The registrant is subject to the informational
and reporting requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange
Commission (the “Commission”). The following documents, which are on file with the Commission, are incorporated in
this registration statement by reference:
(a) The registrant’s effective registration
statement on Form 10 filed on July 31, 2013, as amended on September 20, 2013 and October 11, 2013; and
(b) All other reports filed by the registrant
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December
31, 2012; and
(c) The description of the registrant’s
common stock contained in the registrant’s Amendment No. 2 to Registration Statement on Form 10 (File No. 001-35853) filed
with the Commission on October 11, 2013 under the Exchange Act, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the
registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment
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 the 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 the purposes of this registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this registration statement.
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 102 of the Delaware General
Corporation Law permits a corporation to eliminate the personal liability of its directors or its stockholders for monetary damages
for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock
repurchase in violation of Delaware corporate law or obtained an improper personal benefit.
Section 145 of the Delaware General
Corporation Law provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation
and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action,
suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if such person 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,
in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case
of actions brought by or in the right of the corporation, indemnification can only be given for expenses and no indemnification
shall be made with 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 other adjudicating court determines that, despite the adjudication
of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnify for
such expenses which the Court of Chancery or such other court shall deem proper.
The registrant’s amended and restated
certificate of incorporation and bylaws authorize the indemnification of officers and directors of the registrant consistent with
Section 145 of the Delaware General Corporation Law, and the registrant has entered into indemnification agreements with its
directors and executive officers.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding
the exhibits is incorporated herein by reference.
Item 9. Undertakings.
1. The undersigned registrant 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 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 the registration statement or any material change to such
information in the registration statement;
provided, however,
that paragraphs
(1)(i) and (1)(ii) 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 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.
2. 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.
3. 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, 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 Holliston, Commonwealth of Massachusetts, on this 31
st
day of October, 2013.
Harvard Apparatus Regenerative Technology, Inc.
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By:
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/s/ David Green
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David Green
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President and Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS that
each individual whose signature appears below constitutes and appoints David Green and Thomas McNaughton, and each of them, his
true and lawful attorneys-in-fact and agents with full power of substitution, and each of them singly, to sign for us and in our
names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments
to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers
and directors to enable Harvard Apparatus Regenerative Technology, Inc. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures
as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
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.
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Signature
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Title
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Date
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/s/ David Green
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David Green
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President and Chief Executive Officer and Chairman (Principal Executive Officer)
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October 31, 2013
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/s/ Thomas McNaughton
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Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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October 31, 2013
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Thomas McNaughton
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/s/ John Canepa
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Director
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October 31, 2013
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John Canepa
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/s/ John F. Kennedy
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Director
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October 31, 2013
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John F. Kennedy
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/s/ James McGorry
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Director
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October 31, 2013
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James McGorry
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/s/ Thomas Robinson
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Director
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October 31, 2013
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Thomas Robinson
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INDEX TO EXHIBITS
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Number
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Description
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4.1(1)
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Amended and Restated Certificate of Incorporation of the Registrant
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4.2(2)
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By-laws of the Registrant
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5.1
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Opinion of Burns & Levinson LLP, counsel to the Registrant
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23.1
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Consent of KPMG LLP
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23.2
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Consent of Burns & Levinson LLP (included in Exhibit 5.1)
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24.1
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Power of attorney (included on the signature pages of this registration statement)
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99.1(3
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Harvard Apparatus Regenerative Technology, Inc. Employee Stock Purchase Plan
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(1)
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Previously filed with the Securities and Exchange Commission as Exhibit 3.1 to the Registrant’s Registration Statement on Form 10 filed on July 31, 2013, as amended (File No. 001-35853) and incorporated herein by reference.
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(2)
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Previously filed with the Securities and Exchange Commission as Exhibit 3.2 to the Registrant’s Registration Statement on Form 10 filed on July 31, 2013, as amended (File No. 001-35853) and incorporated herein by reference.
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(3)
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Previously filed with the Securities and Exchange Commission as Exhibit 10.9 to the Registrant’s Registration Statement on Form 10 filed on July 31, 2013, as amended (File No. 001-35853) and incorporated herein by reference.
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