S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on April 27, 2010
As
filed with the Securities and Exchange Commission on April 27, 2010
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
CryoPort,
Inc.
(Exact
name of registrant as specified in its charter)
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Nevada
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88-0313393
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(State
or other jurisdiction of
of
incorporation or organization)
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(IRS
Employer
Identification
No.)
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20382
Barents Sea Circle
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Lake
Forest, California
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92630
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(Address
of principal executive offices)
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(Zip
Code)
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2002
Stock Incentive Plan (“2002 Plan”)
2009
Stock Incentive Plan (“2009 Plan”)
(Full
title of the plan)
Larry
G. Stambaugh
Chief
Executive Officer
20382
Barents Sea Circle
Lake
Forest, California 92630
(949)
470-2300
(Name,
address and telephone number, including area code, of agent for
service)
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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o
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Accelerated
filer
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o
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Non-accelerated
filer
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o (Do not check if
a smaller reporting company)
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Smaller
reporting company
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þ
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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, $0.001 par value per share
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75,451 shares(2)
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$ | 6.24 | (6) | $ | 470,814 | $ | 33.57 | ||||||
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Common
Stock, $0.001 par value per share
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383,680 shares(3)
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1.86 | (7) | 713,645 | 50.88 | |||||||||
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Common
Stock, $0.001 par value per share
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191,953 shares(4)
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3.07 | (6) | 589,296 | 42.02 | |||||||||
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Common
Stock, $0.001 par value per share
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1,008,047 shares(5)
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1.86 | (7) | 1,874,967 | 133.69 | |||||||||
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Total
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1,659,131
shares
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$ | 3,648,722 | $ | 260.16 | |||||||||
________________________
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(1)
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Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended (the
“Securities Act”), there are also being registered additional shares of
common stock that may become available for purchase in accordance with the
provisions of the 2002 Plan and 2009 Plan to prevent dilution in the event
of any future change in the outstanding shares of common stock as a result
of a recapitalization, stock dividends, stock splits or similar
adjustments. The number of shares being registered has been
adjusted to give effect to the Company's one-for-ten reverse stock split
which was effective as of the close of business on February 5,
2010.
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(2)
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Represents
shares of common stock issuable to certain employees, non-employee
directors and consultants of the registrant upon exercise of outstanding
stock options granted under the 2002 Plan.
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(3)
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Represents
shares of common stock reserved for issuance upon the exercise of stock
options and grant of stock awards that may be granted under the 2002
Plan.
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(4)
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Represents
shares of common stock issuable to certain employees, non-employee
directors and consultants of the registrant upon exercise of outstanding
stock options granted under the 2009 Plan.
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(5)
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Represents
shares of common stock reserved for issuance upon the exercise of stock
options and grant of stock awards that may be granted under the 2009
Plan.
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(6)
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Calculated
solely for purposes of computing the registration fee pursuant to Rules
457(c) and 457(h) of the Securities Act based on the weighted average
exercise price of the outstanding stock options.
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(7)
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Estimated
solely for purposes of calculating the registration fee pursuant to Rules
457(c) and 457(h) based upon the last sales price of the Company's common
stock as reported on the OTC Bulletin Board on April 26,
2010.
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TABLE OF
CONTENTS
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PART
I
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PART
II
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Item 3.
Incorporation of Documents by Reference.
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Item 4.
Description of Securities.
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Item 5.
Interests of Named Experts and Counsel.
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Item 6.
Indemnification of Directors and Officers.
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Item 7.
Exemption from Registration Claimed.
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Item 8.
Exhibits.
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Item 9.
Undertakings.
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SIGNATURES
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EXHIBIT
INDEX
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EX-5.1
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EX-23.1
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Part I of this Form S-8 will
be delivered to each employee who is eligible to participate in the CryoPort,
Inc. 2002 Stock Incentive Plan (the “2002 Plan”) and the CryoPort, Inc. 2009
Stock Incentive Plan (the “2009 Plan”) in accordance with Rule 428(b)(1) under
the Securities Act of 1933, as amended (the “Securities Act”). These
documents are not being filed with the Securities and Exchange Commission (the
“SEC”) either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities
Act. These documents and the documents incorporated by reference into
this registration statement pursuant to Item 3 of Part II of this Form S-8,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PART
II
Item 3.
Incorporation of Documents by Reference.
The
following documents filed by CryoPort, Inc. (the “Company”) with the Securities
and Exchange Commission (the “SEC”) are incorporated by reference into this
Registration Statement and are deemed to be a part hereof from the date of
filing:
(a) The
Company’s Annual Report on Form 10-K for the fiscal year ended March 31, 2009,
as filed with the SEC on July 1, 2009.
(b)
The Company's Definitive Proxy Statement with respect to the 2009 Annual Meeting
of Stockholders held on October 9, 2009, as filed with the SEC on September 11,
2009.
(c) The
Company’s Quarterly Reports on Form 10-Q for the quarterly periods ended
June 30, 2009, September 30, 2009 and December 31, 2009, as filed with the
SEC on August 19, 2009, November 16, 2009 and February 16, 2010, respectively,
and the Company’s Form 10-Q/A for the quarter ended June 30, 2009, as filed with
the SEC on November 2, 2009.
(d) The
Company’s Current Reports on Form 8-K filed with the SEC on May 8, 2009, May 19,
2009, July 17, 2009, July 24, 2009, August 4, 2009, August 24, 2009, August 27,
2009, September 23, 2009, October 15, 2009, October 30, 2009, January 13, 2010,
January 15, 2010, January 20, 2010, February 3, 2010, February 5, 2010, February
16, 2010 and February 26, 2010.
(e) The
description of the Company’s Common Stock, $0.001 par value (the “Common
Stock”), is contained in the Company’s Registration Statement on Form 10-SB
filed with the SEC on October 20, 2005, including any amendments or reports
filed for the purpose of updating such information.
In
addition, all documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the “Act”), after the date of this Registration Statement and prior
to the filing of a post-effective amendment that indicates that all securities
offered have been sold or that deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference into 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 of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
that is incorporated by reference herein modifies or supersedes such earlier
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.
Nothing
in this registration statement shall be deemed to incorporate information
furnished but not filed with the SEC pursuant to Item 2.02 or Item 7.01 of Form
8-K.
Item 4.
Description of Securities.
Item 5.
Interests of Named Experts and Counsel.
None.
1
Item 6.
Indemnification of Directors and Officers.
Under the
Nevada General Corporation Law and our Amended and Restated Articles of
Incorporation, as amended, our directors will have no personal liability to the
Company or its stockholders for monetary damages incurred as the result of the
breach or alleged breach by a director of his “duty of care.” This provision
does not apply to (a) director's (i) acts or omissions that involve
intentional misconduct or a knowing and culpable violation of law,
(ii) acts or omissions that a director believes to be contrary to the best
interests of the corporation or its stockholders or that involve the absence of
good faith on the part of the director, (iii) approval of any transaction
from which a director derives an improper personal benefit, (iv) acts or
omissions that show a reckless disregard for the director’s duty to the
corporation or its stockholders in circumstances in which the director was
aware, or should have been aware, in the ordinary course of performing a
director’s duties, of a risk of serious injury to the corporation or its
stockholders, (v) acts or omissions that constituted an unexcused pattern
of inattention that amounts to an abdication of the director’s duty to the
corporation or its stockholders, or (vi) approval of an unlawful dividend,
distribution, stock repurchase or redemption. This provision would generally
absolve directors of personal liability for negligence in the performance of
duties, including gross negligence.
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 SEC 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.
We have
in place a directors’ and officers’ liability insurance policy that, subject to
the terms and conditions of the policy, insures our directors and officers
against losses arising from any wrongful act (as defined by the policy) in his
or her capacity as a director or officer. The policy reimburses us for amounts
for which we lawfully indemnify or are required or permitted by law to indemnify
our directors and officers.
Item 7.
Exemption from Registration Claimed.
Item 8.
Exhibits.
See
Exhibit Index.
2
Item 9.
Undertakings.
a. The
undersigned registrant hereby undertakes:
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(1)
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To
file, during any period in which offers of sales are being made, a
post-effective amendment to this registration
statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
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(ii)
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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.
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(iii)
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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;
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Provided, however, That
Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
registration statement is on Form S-8, and 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
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(2)
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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
initialbona
fide offering thereof.
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(3)
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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.
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b. 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.
h. 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 pubic 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 Securities
Act and will be governed by the final adjudication of such
issue.
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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 on Form S-8
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Lake Forest, State of California, on April 27, 2010.
CRYOPORT,
INC.
By: /s/ Larry G. Stambaugh
Larry
G. Stambaugh,
Chief
Executive Officer,
POWER
OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS,
that each person whose signature appears below hereby constitutes and appoints,
Larry G. Stambaugh and Catherine Doll, and each of them, as his
attorney-in-fact, each with full power of substitution, for him in any and all
capacities, to sign any and all amendments to this Registration Statement
(including post-effective amendments), and any and all Registration Statements
filed pursuant to Rule 462 under the Securities Act of 1933, as amended, in
connection with or related to the Offering contemplated by this Registration
Statement and its amendments, if any, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorney to any and all amendments to said Registration
Statement.
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/ Larry G. Stambaugh
Larry
G. Stambaugh
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Director
and Chief Executive Officer|(Principal Executive Officer)
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April
27, 2010
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/s/ Catherine Doll
Catherine
Doll
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Chief
Financial Officer|(Principal Financial and Accounting
Officer)
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April
27, 2010
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/s/ Carlton M. Johnson, Jr.
Carlton
M. Johnson, Jr.
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Director
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April
27, 2010
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/s/ Adam M. Michelin
Adam
M. Michelin
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Director
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April
27, 2010
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/s/ John H.
Bonde
John H. Bonde |
Director
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April
27, 2010
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4
EXHIBIT
INDEX
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Exhibit Number
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Exhibit
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3.13
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2002
Stock Incentive Plan (Incorporated by reference to Exhibit 3.13 to
Registrant's Registration Statement on Form 10-SB/A4 filed with the SEC on
February 23, 2006).
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3.14
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Stock
Option Agreement ISO (Incentive Stock Option Award Agreement (Incorporated
by reference to Exhibit 3.14 to Registrant's Registration Statement on
Form 10-SB/A4 filed with the SEC on February 23, 2006).
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3.15
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Stock
Option Agreement NSO (Incorporated by reference to Exhibit 3.15 to
Registrant's Registration Statement on Form 10-SB/A4 filed with the SEC on
February 23, 2006).
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10.22
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2009
Stock Incentive Plan (Incorporated by reference to Exhibit10.21 to
Registrant’s Current Report on Form 8-k filed with the SEC on October 15,
2009).
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10.23
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Form
of Stock Option Award Agreement (Incorporated by reference to Exhibit10.22
to Registrant’s Current Report on Form 8-k filed with the SEC on October
15, 2009).
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| 10.25 |
Form
of Non-Qualified Stock Option Award Agreement. *
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5.1
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Opinion
of Counsel *
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23.1
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Consent
of Independent Registered Public Accounting Firm *
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23.2
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Consent
of Counsel (included in Exhibit 5.1)
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24.1
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Power
of Attorney (on signature page) *
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* Filed herewith.
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