As filed with the Securities and Exchange Commission on September 18, 2020

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Applied Genetic Technologies Corporation

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   59-3553710

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. employer

identification no.)

14193 NW 119th Terrace

Suite 10

Alachua, Florida 32615

(Address of principal executive offices)

Applied Genetic Technologies Corporation 2013 Equity and Incentive Plan

(Full title of the plan)

 

 

Susan B. Washer

President and Chief Executive Officer

Applied Genetic Technologies Corporation

14193 NW 119th Terrace

Suite 10

Alachua, Florida 32615

(Name and address of agent for service)

(386) 462-2204

(Telephone number, including area code, of agent for service)

 

 

Copies to:

Stacie S. Aarestad, Esq.

Hemmie Chang, Esq.

Foley Hoag LLP

Seaport West

155 Seaport Boulevard

Boston, Massachusetts 02210

Telephone: (617) 832-1000

Telecopy: (617) 832-7000

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of securities

to be registered

 

Amount

to be

registered(1)

 

Proposed

maximum

offering price

per share(2)

 

Proposed

maximum

aggregate

offering price

 

Amount of

registration fee

Common Stock, $0.001 par value

  1,031,743(3)  

$4.55

 

$4,694,430.65

  $ 609.34

 

 

1.

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the registrant’s common stock that become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the registrant’s outstanding shares of common stock.

2.

The proposed maximum offering price per share has been estimated in accordance with Rule 457(c) and Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee with respect to shares reserved for future issuance based on the average of the high and low price of the registrant’s common stock as quoted on the Nasdaq Global Market on September 14, 2020.

3.

Represents 1,031,743 shares of the registrant’s common stock issuable under the Applied Genetic Technologies Corporation 2013 Equity and Incentive Plan (the “2013 Plan”) as the result of an automatic annual increase on July 1, 2020.

 

 

 


EXPLANATORY NOTE PURSUANT TO GENERAL INSTRUCTION E OF FORM S-8

This Registration Statement registers additional securities of the same class as other securities for which a Registration Statement filed on Form S-8 relating to our 2013 Plan is already effective. Pursuant to Instruction E to Form S-8, we incorporate by reference into this Registration Statement the contents of the Registration Statements we filed on Form S-8 with the Securities and Exchange Commission on September 26, 2014 (File No. 333-198979) and on September 26, 2019 (File No. 333-233955), each in its entirety and including exhibits thereto.

The number of shares of our common stock available for issuance under the 2013 Plan is subject to an automatic annual increase on each July 1st equal to the lesser of: (i) four percent (4%) of the number of shares of our common stock issued and outstanding on the immediately preceding June 30th or (ii) such lesser number of shares of our common stock as determined by our compensation committee. Accordingly, on July 1, 2020, the number of shares of our common stock reserved and available for issuance under the 2013 Plan increased by 1,031,743 shares.


PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8. Exhibits.

 

Exhibit

number

  

Description

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


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Alachua, Florida, as of September 18, 2020.

 

APPLIED GENETIC TECHNOLOGIES CORPORATION
By:  

/s/ Susan B. Washer

  Susan B. Washer
  Chief Executive Officer and President

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints each of Susan B. Washer and William A. Sullivan as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the SEC, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

In accordance with the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ Susan B. Washer

  

Chief Executive Officer, President and Director (Principal Executive Officer)

  September 18, 2020
Susan B. Washer  

/s/ William A. Sullivan

  

Chief Financial Officer (Principal Financial and Accounting Officer)

  September 18, 2020
William A. Sullivan  

/s/ Scott Koenig

  

Director

  September 18, 2020
Scott Koenig     

/s/ William Aliski

  

Director

  September 18, 2020
William Aliski     

/s/ Ed Hurwitz

  

Director

  September 18, 2020
Ed Hurwitz     

/s/ Ivana Magovcevic-Liebisch

  

Director

  September 18, 2020
Ivana Magovcevic-Liebisch     

/s/ Anne VanLent

  

Director

  September 18, 2020
Anne VanLent     

/s/ James Rosen

  

Director

  September 18, 2020
James Rosen     
EX-5.1

Exhibit 5.1

 

LOGO

 

 

  

Seaport West

155 Seaport Boulevard

Boston, MA 02210-2600

 

617 832 1000 main

617 832 7000 fax

September 18, 2020

Applied Genetic Technologies Corporation

14193 NW 119th Terrace, Suite 10

Alachua, FL 32615

 

  Re:

Registration Statement on Form S-8

Ladies and Gentlemen:

We are familiar with the Registration Statement on Form S-8 (the “Registration Statement”) being filed by Applied Genetic Technologies Corporation, a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on the date hereof. The Registration Statement relates to the offer and sale by the Company of up to 1,031,743 shares (the “Shares”) of its common stock, par value $0.001 per share (“Common Stock”), issuable under the Company’s 2013 Equity and Incentive Plan (the “2013 Plan”).

In arriving at the opinion expressed below, we have examined and relied upon the Certificate of Incorporation, as amended and restated to date, and Bylaws, as amended and restated to date, of the Company, the records of meetings and consents of the Company’s Board of Directors and of its stockholders, and the 2013 Plan, each as provided to us by the Company. In addition, we have examined and relied on the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other documents and certificates of public officials, officers and representatives of the Company and such other persons, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinion expressed below.

We have assumed that the purchase price or other consideration to be received by the Company for the Shares will be valid consideration equal to or in excess of the par value thereof.

In rendering the opinion expressed below, we express no opinion other than as to the Delaware General Corporation Law.

On the basis of the foregoing, it is our opinion that the Shares, when issued and delivered by the Company in accordance with the applicable terms of the 2013 Plan and the awards thereunder against the Company’s receipt of the purchase price or other consideration therefor, will be validly issued, fully paid and non-assessable.

This opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.

This opinion is being delivered solely for the benefit of the Company and such other persons as are entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This opinion may not be used, quoted, relied upon or referred to for any other purpose, nor may this opinion be used, quoted, relied upon or referred to by any other person, for any purpose, without our prior written consent.

We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.


This opinion letter shall be interpreted in accordance with the Core Opinion Principles jointly issued by the Committee on Legal Opinions of the American Bar Association’s Business Law Section and the Working Group on Legal Opinions Foundation as published in 74 Business Lawyer 815 (2019).

 

Very truly yours,
FOLEY HOAG LLP
By:  

/s/ Stacie S. Aarestad

  a Partner
EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2013 Equity and Incentive Plan of Applied Genetic Technologies Corporation of our report dated September 18, 2020, with respect to the financial statements and financial statement schedule of Applied Genetic Technologies Corporation included in its Annual Report (Form 10-K) for the year ended June 30, 2020, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Tampa, Florida

September 18, 2020