Post-effective Amendment to an S-8 Filing (s-8 Pos)
October 16 2019 - 12:16PM
Edgar (US Regulatory)
Registration
No. 333-232591
As filed with the Securities and Exchange
Commission on October 16, 2019
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1 TO
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
APTORUM
GROUP LIMITED
(Exact
name of registrant as specified in its charter)
Cayman
Islands
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2834
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Not
Applicable
|
(State
or Other Jurisdiction of
Incorporation or Organization)
|
|
(Primary
Standard Industrial
Classification Code Number)
|
|
(I.R.S.
Employer
Identification
No.)
|
17th
Floor, Guangdong Investment Tower
148
Connaught Road Central
Hong
Kong
Telephone:
+852 2117 6611
(Address
of principal executive offices, including zip code)
Aptorum
Group Limited 2017 Share Option Plan
(the
“2017 Share Option Plan”)
(Full
title of the plan)
Copies
to:
Louis
Taubman, Esq.
Hunter
Taubman Fischer & Li LLC
1450
Broadway, 26th Floor
New
York, NY 10018
Tel:
917.512.0827
Fax:
212.202.6380
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,” “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 ☐
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Non-accelerated
filer ☒
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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 7(a)(2)(B) of the Securities Act.
☐
CALCULATION
OF REGISTRATION FEE
Title of securities to be registered
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Amount to be registered
|
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Proposed
maximum
offering price per share
|
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Proposed maximum
aggregate offering
price(1)
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Amount of
registration fee
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Class A Ordinary Shares, par value $1.00:
|
|
|
|
|
|
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|
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-
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Outstanding under the 2017 Share Option Plan
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|
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218,222
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(2)(3)
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$
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23.29
|
|
|
$
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5,082,390.38
|
|
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$
|
615.98
|
|
-
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Shares reserved for future grant under the 2017 Share Option Plan
|
|
|
5,281,778
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(4)
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$
|
23.29
|
|
|
$
|
123,012,609.62
|
|
|
$
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14,909.13
|
|
TOTAL:
|
|
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5,500,000
|
|
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$
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23.29
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|
|
$
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128,095,000.00
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$
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15,525.11
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(1)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act, based
on the average of the high and low selling prices of the Company’s ordinary shares as reported on the Nasdaq Stock Market
on July 8, 2019.
|
(2)
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Represents
Class A Ordinary Shares reserved for issuance pursuant to outstanding share option awards under Aptorum Group Limited’s
2017 Share Option Plan (the “2017 Share Option Plan”).
|
(3)
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Pursuant
to the 2017 Share Option Plan, if, after the Effective Date of the 2017 Share Option Plan, any shares underlying an Option
are forfeited, or if an Option otherwise terminates without the delivery of shares or of other consideration, then the shares
underlying such Option, or the number of shares otherwise counted against the aggregate number of shares available under the
2017 Share Option Plan with respect to the Option, to the extent of any such forfeiture or termination, shall again be, or
shall become, available for granting options under the 2017 Share Option Plan.
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(4)
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The
number of shares reserved for issuance under the 2017 Share Option Plan will automatically increase on each January 1, starting
with January 1, 2020 and continuing through January 1, 2027, by the lesser of (A) 2% of the outstanding number of Ordinary
Shares (on a fully-diluted basis) on the immediately preceding December 31, and (B) such lower number of Ordinary Shares as
may be determined by the Compensation Committee of the Company, subject in all cases to adjustment as provided in the 2017
Share Option Plan.
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EXPLANATORY
NOTE
We are filing this Post-Effective Amendment
No. 1 (this “Post-Effective Amendment”) to the Registration Statement
on Form S-8 (No. 333-232591) (“Registration Statement”) we initially filed with the Securities and Exchange Commission
(the “Commission”) on July 10, 2019 (the “Registration Statement”), to revise Item 9 of the original Registration
Statement. Specifically, we are removing the undertaking to file a post-effective
amendment to the registration statement to include any financial statements required by “Item 8.A. of Form 20-F (17 CFR 249.220f)”
because it is not required as per Note (2) to Item 9 of Form S-8 since we are a Foreign Private Issuer and therefore should not
have been included in the original Registration Statement, as is the case for the Item 512(i) undertaking. We are also removing
a duplicated undertaking and adding the undertaking required by Item 512(b) of Regulation S-K, which was accidentally omitted from
the original Registration Statement.
The information included in this filing
updates the Registration Statement and the prospectus contained therein (the “Prospectus”) to the extent provided
herein. No additional securities are being registered under this Post-Effective Amendment. All applicable registration fees were
paid at the time of the original filing of the Registration Statement.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information.*
Item
2. Registrant Information and Employee Plan Annual Information.*
*
|
The
documents containing the information specified in this Part I of Form S-8 (Plan Information and Registration Information and
Employee Plan Annual Information) will be sent or given to recipients of the grants under the Aptorum Group Limited 2017 Share
Option Plan adopted by the Board of Directors of the Company (the “2017 Share Option Plan”) as specified by the
Commission pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents
are not required to be and are not filed with the Commission either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability
without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including
the statement in the preceding sentence. The written statement to all participants will indicate the availability without
charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b), and will include
the address and telephone number to which the request is to be directed.
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PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
Aptorum
Group Limited (the “Company”) is subject to the informational requirements of the Securities Exchange Act of 1934,
as amended (the “1934 Act”) and, accordingly, files periodic reports and other information with the Commission. Reports
and other information concerning the Company filed with the Commission may be inspected and copies may be obtained (at prescribed
rates) at the Commission’s Public Reference Section, Room 1024, 100 F Street, N.E., Room 1580, Washington, D.C. 20549. The
Commission also maintains a Web site that contains reports, proxy and information statements and other information regarding registrants
that file electronically with the Commission, including the Company. The address for the Commission’s Web site is “http://www.sec.gov”.
The following documents are incorporated by reference in this Registration Statement:
(a)
The Company’s Annual Report on Form 20-F and Form 20-F/A for the fiscal year ended December 31, 2018 filed with the Commission
on April 15, 2019 and April 22, 2019, respectively.
(b)
The Company’s Current Reports on Form 6-K furnished to the Commission on September 26, 2019, September 9, 2019, August 14, 2019, July 8, 2019, May
31, 2019, May 22,
2019, April 24,
2019, April 15,
2019, April 1,
2019, March 4,
2019 and December
18, 2018 respectively; and
(c)
The description of the Company’s Share Capital contained in the registration statement on Form F-1 (File No. 333-227198)
filed with the Commission on September 5, 2018, which was later amended and declared effective on December 3, 2018.
Except
to the extent such information is deemed furnished and not filed pursuant to securities laws and regulations, all documents subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and, to the extent specifically designated therein, reports on Form 6-K furnished by the Company to the Commission,
in each case, prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities
offered under this Registration Statement have been sold, or deregistering 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 or furnishing of
such documents.
Any
statement contained herein or in a document all or a portion of which is 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 or is 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.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
None.
Item
6. Indemnification of Directors and Officers.
Cayman
Islands law does not limit the extent to which a company’s memorandum and articles of association may provide for indemnification
of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to
public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. Our Memorandum
and Articles permit indemnification of officers and directors for losses, damages, costs and expenses incurred in their capacities
as such unless such losses or damages arise from dishonesty of such directors or officers. This standard of conduct is generally
the same as permitted under the Delaware General Corporation Law for a Delaware corporation.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, may be permitted
to our directors, officers or persons controlling us under the foregoing provisions, we have been informed that in the opinion
of the Securities and Exchange Commission, or 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.
For
a list of all exhibits filed or included as part of this Registration Statement, see “Index to Exhibits” at the end
of this Registration Statement.
Item
9. Undertakings.
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 Securities and Exchange Commission 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.
The
undersigned registrant hereby undertakes:
(1)
That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains
a form of prospectus 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.
(2)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(a)
To include any prospectus required by section 10(a)(3) of the Securities Act;
(b)
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) (§230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(c)
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.
(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.
(4)
The undersigned registrant hereby undertakes that, for 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 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.
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 Post-Effective No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on October 16,
2019.
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Aptorum
Group Limited
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Date:
October 16, 2019
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By:
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/s/
Ian Huen
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Ian
Huen
Chief
Executive Officer,
Chairman of the Board of Directors
(Principal
Executive Officer)
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Date:
October 16, 2019
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By:
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/s/
Sabrina Khan
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Sabrina
Khan
Chief
Financial Officer
(Principal
Financial and Accounting Officer)
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POWER
OF ATTORNEY
Each person whose signature
appears below hereby appoints Ian Huen and Sabrina Khan, and each of them severally, acting alone and without the other, his or
her true and lawful attorney-in-fact with full power of substitution or re-substitution, for such person and in such person’s
name, place and stead, in any and all capacities, to sign on such person’s behalf, individually and in each capacity stated
below, any and all amendments, including post-effective amendments to this Registration Statement, and to sign any and all additional
registration statements relating to the same offering of securities of the Registration Statement that are filed pursuant to Rule
462 of the Securities Act of 1933, 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, 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 fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, Post-Effective Amendment No. 1 to the Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Ian Huen
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Chief Executive Officer
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October 16, 2019
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Name: Ian Huen
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(principal executive officer) and Executive Director
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/s/ Sabrina Khan
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Chief Financial Officer
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October 16, 2019
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Name: Sabrina Khan
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(principal financial officer and principal accounting officer)
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/s/ Darren Lui
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President and Executive Director
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October 16, 2019
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Name: Darren Lui
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/s/ Clark Cheng
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Chief Medical Officer and Executive Director
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October 16, 2019
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Name: Clark Cheng
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/s/ Douglas Arner
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Director
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October 16, 2019
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Name: Douglas Arner
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/s/ Charles Bathurst
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Director
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October 16, 2019
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Name: Charles Bathurst
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/s/ Mirko Scherer
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Director
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October 16, 2019
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Name: Mirko Scherer
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/s/ Justin Wu
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Director
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October 16, 2019
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Name: Justin Wu
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EXHIBIT
INDEX
(1)
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Incorporated
by reference to Aptorum Group Limited’s Registration Statement on Form F-1 or amendments thereto (File No. 333-227198).
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(2)
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Incorporated by reference to Exhibit 5.1 of the Registration Statement on Form S-8 filed on July 10, 2019.
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