AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 27, 2009

REGISTRATION NO. 333-                

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT UNDER

THE SECURITIES ACT OF 1933

 

 

GTC BIOTHERAPEUTICS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Massachusetts   04-3186494
(State or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)
175 Crossing Boulevard, Framingham, Massachusetts   01702
(Address of Principal Executive Offices)   (Zip Code)

2002 EQUITY INCENTIVE PLAN (as amended and restated)

(Full title of the plan)

 

 

Geoffrey F. Cox

Chairman, Chief Executive Officer and President

GTC Biotherapeutics, Inc.

175 Crossing Boulevard

Framingham, Massachusetts 01702

(Name and address of agent for service)

(508) 620-9700

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

 

 

Copy to:

Nathaniel S. Gardiner, Esq.

Edwards Angell Palmer & Dodge LLP

111 Huntington Avenue

Boston, Massachusetts 02199

(617) 239-0100

 

 

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 “accelerated filer,” “large accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer  ¨     Accelerated filer  ¨     Non-accelerated filer  x     Smaller reporting company  ¨

 

 

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, $.01 par value per share (3)

  200,000 shares(4)   $3.45   $690,000   $38.51
 
 
(1) Pursuant to Rule 416 under the Securities Act of 1933, to the extent additional shares of our Common Stock may be issued or issuable as a result of a stock split or other distribution declared at any time by our Board of Directors while this Registration Statement is in effect, this Registration Statement is hereby deemed to cover all such additional Common Stock. The amount to be registered has been adjusted to reflect a 1 for 10 reverse stock split of the Registrant’s Common Stock that became effective at 11:59 p.m. on Tuesday, May 26, 2009.
(2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h)(1) of the Securities Act of 1933. The price per share and aggregate offering price are based upon the average of the high and low asked prices of the registrant’s Common Stock on May 26, 2009 as reported on The Nasdaq National Market. The price has been adjusted to reflect a 1 for 10 reverse stock split of the Registrant’s Common Stock that became effective at 11:59 p.m. on Tuesday, May 26, 2009.
(3) Includes associated purchase rights which currently are evidenced by certificate for shares of GTC Biotherapeutics, Inc. Common Stock, and automatically trade with such shares.
(4) This Registration Statement registers 200,000 shares not previously registered which are issuable under the Registrant’s 2002 Equity Incentive Plan, as amended and restated (the “2002 Plan”). An aggregate of 450,000 shares issuable under the 2002 Plan have previously been registered under prior registration statements (Registration No. 333-91470 (250,000 shares) and Registration No. 333-117923 (200,000 shares)), as well as (i) 18,723 shares that were previously registered but which may no longer be issued under the Registrant’s Amended and Restated 1993 Equity Incentive Plan (the “1993 Plan”) and were carried forward for issuance under the 2002 Plan; and (ii) 199,116 shares subject to awards previously granted under the 1993 Plan that may expire or terminate unexercised or may be forfeited or settled in a manner that results in fewer shares outstanding than were awarded under the 1993 Plan which were also registered under a prior registration statement (Registration No. 333-117923). All such registered shares have been adjusted to reflect a 1 for 10 reverse stock split of the Registrant’s Common Stock that became effective at 11:59 p.m. on Tuesday, May 26, 2009.

 

 

 

STATEMENT REGARDING INCORPORATION BY REFERENCE

FROM EFFECTIVE REGISTRATION STATEMENTS

Pursuant to Instruction E to Form S-8, the contents of GTC Biotherapeutics, Inc.’s (“GTC”) Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on June 28, 2002 (File No. 333-91470) relating to the registration of 2,500,000 shares (250,000 after giving effect to a one for ten reverse stock split effected on May 26, 2009) of GTC’s Common Stock, $0.01 par value per share (the “Common Stock”), and August 4, 2004 (File No. 333-117923) relating to the registration of 2,000,000 shares (200,000 after giving effect to a one for ten reverse stock split effected on May 26, 2009) of GTC’s Common Stock, plus a number of shares which on or after April 2, 2004, expire or terminate unexercised or are forfeited or settled in a manner that results in fewer shares outstanding than were awarded under the GTC’s Amended and Restated 1993 Equity Incentive Plan (such shares were previously registered by a registration statement on Form S-8, filed with the Commission on June 2, 2000, File No. 333-03494 and were carried forward to Registration Statement No. 333-117923), authorized for issuance under GTC’s 2002 Equity Incentive Plan (the “2002 Plan”), are incorporated by reference in their entirety in this Registration Statement. Pursuant to an amendment to the 2002 Plan adopted by GTC’s shareholders on May 27, 2009, the 2002 Plan was increased by 2,000,000 shares of Common Stock (200,000 after giving effect to a one for ten reverse stock split effected on May 26, 2009).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8. Exhibits.

See Exhibit Index immediately following the signature page.

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 registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Framingham, Commonwealth of Massachusetts, on May 27, 2009.

 

GTC BIOTHERAPEUTICS, INC.
By:   /s/ Geoffrey F. Cox
 

Geoffrey F. Cox

Chairman, Chief Executive Officer and President

POWER OF ATTORNEY AND SIGNATURES

We, the undersigned officers and directors of GTC Biotherapeutics, Inc., hereby severally constitute and appoint Geoffrey F. Cox and John B. Green, and each of them singly, our true and lawful attorneys-in-fact, with full power to them in any and all capacities, to sign any amendments to this Registration Statement on Form S-8 (including any post-effective amendments thereto), and to file the same with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all such things in our name and behalf in our capacities as officers and directors to enable GTC Biotherapeutics, 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 all that each of said attorneys-in-fact may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated.

 

Signature

  

Title

 

Date

/s/ Geoffrey F. Cox

Geoffrey F. Cox

   Chairman, Chief Executive Officer and President (Principal Executive Officer)   May 27, 2009

/s/ John B. Green

John B. Green

  

Treasurer, Senior Vice President, Finance

and Chief Financial Officer

(Principal Financial and Accounting Officer)

  May 27, 2009

/s/ Kenneth A. Bauer

Kenneth A. Bauer

   Director   May 27, 2009

/s/ Robert W. Baldridge

Robert W. Baldridge

   Director   May 27, 2009

 

Christian Béchon

   Director  

Signature

  

Title

 

Date

/s/ Francis J. Bullock

Francis J. Bullock

   Director   May 27, 2009

/s/ James A. Geraghty

James A. Geraghty

   Director   May 27, 2009

 

Mary Ann Gray

   Director  

/s/ Michael J. Landine

Michael J. Landine

   Director   May 27, 2009

/s/ Pamela W. McNamara

Pamela W. McNamara

   Director   May 27, 2009

 

Marvin L. Miller

   Director  

/s/ Alan W. Tuck

Alan W. Tuck

   Director   May 27, 2009

EXHIBIT INDEX

 

Exhibit
Number

  

Exhibit

4.1    Restated Articles of Organization of the GTC Biotherapeutics, Inc. (the “Company”) filed with the Secretary of the Commonwealth of Massachusetts on May 8, 2009. Previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 0-21794) filed on May 13, 2009 and incorporated herein by reference.
4.2    Articles of Amendment to the Restated Articles of Organization of the Company. Filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 0-21794) filed on May 27, 2009 and incorporated herein by reference.
4.3    By-Laws of the Company, as amended. Filed as Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended July 4, 1999 (File No. 0-21794) filed on August 18, 1999 and incorporated herein by reference.
4.4    Specimen Common Stock Certificate. Filed as Exhibit 4.1 to the Company’s Registration Statement on Form S-1 (File No. 33-62782) and incorporated herein by reference.
4.5    Shareholder Rights Agreement, dated as of May 31, 2001, by and between the Company and American Stock Transfer and Trust Company, as Rights Agent. Filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 0-21794) filed on June 1, 2001 and incorporated herein by reference.
4.6    Amendment No. 1 to Shareholder Rights Agreement, dated as of December 14, 2006, by and between the Company and American Stock Transfer and Trust Company. Filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 0-21794) filed on December 20, 2006 and incorporated herein by reference.
4.7    Amendment No. 2 to Shareholder Rights Agreement dated as of December 22, 2008, by and between the Company and American Stock Transfer and Trust Company. Filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 0-21794) filed on December 24, 2008 and incorporated herein by reference.
5.1    Opinion of Edwards Angell Palmer & Dodge LLP as to the legality of the securities registered hereunder. Filed herewith.
23.1    Consent of PricewaterhouseCoopers LLP, an independent registered public accounting firm. Filed herewith.
23.2    Consent of Edwards Angell Palmer & Dodge LLP. Included in its opinion filed as Exhibit 5.1.
24.1    Power of Attorney (included in the signature page hereto).
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