As filed with the Securities and Exchange Commission on May 19, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
BG MEDICINE, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
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04-3506204 |
(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification No.) |
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880 Winter Street, Suite 210, Waltham, Massachusetts |
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02451 |
(Address of Principal Executive Offices) |
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(Zip Code) |
BG MEDICINE, INC. 2010 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN
BG MEDICINE, INC. 2010 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
Paul R. Sohmer, M.D.
President and Chief Executive Officer
BG Medicine, Inc.
880
Winter Street, Suite 210
Waltham, Massachusetts 02451
(781) 890-1199
(Name,
Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
William T. Whelan, Esq.
Linda K. Rockett, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
Facsimile: (617) 542-2241
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.
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Large accelerated filer |
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Accelerated filer |
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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 |
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(2) |
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Proposed
Maximum Aggregate
Offering Price(2) |
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Amount of
Registration Fee |
Common Stock, par value $0.001 per share |
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380,762 shares
114,228 shares |
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$0.64
$0.82 |
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$243,687.68
$93,666.96 |
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$28.32
$10.89 |
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494,990 shares |
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$337,354.64 |
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$39.21 |
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(1) |
The number of shares of common stock, par value $0.001 per share (Common Stock), of BG Medicine, Inc. (the Registrant) stated above consists of (a) 449,991 additional shares of Common
Stock reserved under the BG Medicine, Inc. 2010 Employee, Director and Consultant Stock Plan (the 2010 Stock Plan) as a result of the automatic increase in shares reserved thereunder on January 1, 2015 pursuant to the terms of the
2010 Stock Plan, including 114,228 shares which may be issued upon the exercise of options which have been granted under the 2010 Stock Plan; and (b) 44,999 additional shares of Common Stock reserved under the BG Medicine, Inc. 2010
Employee Stock Purchase Plan (the 2010 ESPP and together with the 2010 Stock Plan, the Plans) as a result of the automatic increase in shares reserved thereunder on January 1, 2015 pursuant to the terms of the 2010 ESPP.
In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement covers, in addition to the number of shares stated above, an indeterminate number of shares which may
be subject to grant or otherwise issuable after the operation of certain anti-dilution and other provisions of the Plans. |
(2) |
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act as follows: (a) the offering price per share and the
aggregate offering price for the shares of Common Stock which may be issued upon exercise of outstanding options are based on the price ($0.8201) at which the options may be exercised; and (b) the offering price per share and the aggregate offering
price for the additional shares reserved for future grant or issuance under the 2010 Stock Plan and additional shares reserved for future issuance under the 2010 ESPP, are based on the average ($0.6375) of the high and the low price of
Registrants Common Stock as reported on The NASDAQ Capital Market as of a date (May 15, 2015) within five business days prior to filing this Registration Statement. |
This Registration Statement registers additional securities of the same class as other securities for which
the registration statement filed on Form S-8 (SEC File No. 333-172208) of the Registrant is effective. The information contained in the Registrants registration statement on Form S-8 (SEC File No. 333-172208) is hereby incorporated
by reference pursuant to General Instruction E.
PART II
Item 8. Exhibits.
The Index of Exhibits immediately
following the signatures to this Registration Statement is incorporated herein by reference.
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 Waltham, Massachusetts on May 19, 2015.
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BG MEDICINE, INC. |
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By |
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/s/ Paul R. Sohmer, M.D. |
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Paul R. Sohmer, M.D. |
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President and Chief Executive Officer |
Each person whose signature appears below constitutes and appoints Paul R. Sohmer, M.D. and Stephen P. Hall, and each of
them singly, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form S-8 of BG Medicine, Inc., and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting to the attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that the attorneys-in-fact and agents or any of each of them or their substitute may lawfully do or cause to be done by virtue hereof.
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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Signatures |
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Title |
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Date |
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By: |
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/s/ Paul R. Sohmer
Paul R. Sohmer, M.D. |
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President and Chief Executive Officer and Director (principal executive officer) |
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May 19, 2015 |
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By: |
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/s/ Stephen P. Hall
Stephen P. Hall |
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Executive Vice President, Chief Financial Officer and Treasurer (principal financial officer and principal accounting officer) |
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May 19, 2015 |
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By: |
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/s/ Noubar B. Afeyan, Ph.D.
Noubar B. Afeyan, Ph.D. |
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Director |
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May 19, 2015 |
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By: |
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/s/ Harrison Bains
Harrison M. Bains |
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Director |
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May 19, 2015 |
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By: |
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/s/ Timothy Harris, Ph.D., D.Sc.
Timothy Harris, Ph.D., D.Sc. |
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Director |
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May 19, 2015 |
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By: |
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/s/ Stelios Papadopoulos, Ph.D.
Stelios Papadopoulos, Ph.D. |
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Director |
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May 19, 2015 |
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By: |
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/s/ Harry W. Wilcox
Harry W. Wilcox |
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Director |
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May 19, 2015 |
INDEX OF EXHIBITS
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Exhibit
Number |
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Description |
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5.1 |
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Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to the legality of shares being registered. |
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23.1 |
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in opinion of counsel filed as Exhibit 5.1). |
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23.2 |
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Consent of Deloitte & Touche LLP. |
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24.1 |
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Power of Attorney to file future amendments (set forth on the signature page of this Registration Statement). |
Exhibit 5.1
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One Financial Center
Boston, MA 02111
617-542-6000
617-542-2241 fax
www.mintz.com |
May 19, 2015
BG
Medicine, Inc.
880 Winter Street, Suite 210
Waltham, MA
02451
Ladies and Gentlemen:
We have acted as legal
counsel to BG Medicine, Inc., a Delaware corporation (the Company), in connection with the preparation and filing with the Securities and Exchange Commission (the Commission) of a Registration Statement on Form S-8 (the
Registration Statement), pursuant to which the Company is registering the issuance under the Securities Act of 1933, as amended (the Securities Act), of an aggregate of 494,990 shares (the Shares) of the
Companys common stock, $0.001 par value per share (the Common Stock) that may be issued pursuant to the BG Medicine, Inc. 2010 Employee, Director and Consultant Stock Plan (the 2010 Stock Plan) and the BG Medicine, Inc.
2010 Employee Stock Purchase Plan (the 2010 ESPP, and together with the 2010 Stock Plan, the Plans). This opinion is being rendered in connection with the filing of the Registration Statement with the Commission. All
capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement.
In connection
with this opinion, we have examined the Companys Restated Certificate of Incorporation and Restated Bylaws, each as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Companys
officers as we have deemed relevant; and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the
originals of such copies. In addition, we have assumed that the Company will receive any required consideration in accordance with the terms of the Plans.
Our opinion is limited to the General Corporation Law of the State of Delaware and we express no opinion with respect to the laws of any other jurisdiction.
No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is
based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters
or opinions set forth herein.
Based upon the foregoing, we are of the opinion that the Shares, when issued and delivered in accordance with the terms of
the Plans, will be validly issued, fully paid and non-assessable.
We understand that you wish to file this opinion with the Commission as an exhibit to
the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act, and we hereby consent thereto. In giving this 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.
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Very truly yours, |
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/s/ Mintz, Levin, Cohn, Ferris, |
Glovsky and Popeo, P.C. |
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Mintz, Levin, Cohn, Ferris, |
Glovsky and Popeo, P.C. |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 31, 2015, relating to the consolidated
financial statements of BG Medicine, Inc. and subsidiary (which report expresses an unqualified opinion on the consolidated financial statements and includes an explanatory paragraph relating to the substantial doubt about the Companys ability
to continue as a going concern), dated March 31, 2015, appearing in the Annual Report on Form 10-K of BG Medicine, Inc. for the year ended December 31, 2014.
/s/ DELOITTE & TOUCHE LLP
Boston, Massachusetts
May 19, 2015
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