Investor Relations: SEC Filing | AVITA Medical, Inc.

View:

Download DOC

Download PDF

Download XLS

S-8

As filed with the Securities and Exchange Commission on August 8, 2024

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8 REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

AVITA MEDICAL, INC.

(Exact name of registrant as specified in its charter)

    Delaware

    85-1021707

    (State or other jurisdiction of
 incorporation or organization)

    I.R.S. Employer 
Identification No.

28159 Avenue Stanford, Suite 220

Valencia, CA 91355

(661) 367-9170

(Address of Principal Executive Offices)

Individual Stock Option Award Agreements

(Full Title of the Plans)

Nicole Kelsey

28159 Avenue Stanford, Suite 220

Valencia, CA 91355

(661) 367-9170

(Name, Address and Telephone Number, Including Area Code, of Agent for Service)

Copy to:

Christopher H. Cunningham

Coleman Wombwell

K&L Gates LLP

925 Fourth Avenue, Suite 2900

Seattle, Washington 98104

(206) 623-7580

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” 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. ☐

EXPLANATORY NOTE

This Registration Statement on Form S-8 is being filed to register (i) an aggregate of 428,858 shares of common stock that are issuable upon the exercise of stock options and the vesting of restricted stock units ("RSUs") granted pursuant to individual stock option award and RSU award agreements approved by the Registrant’s stockholders at the Registrant’s 2024 Annual Meetings of Stockholders.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The documents containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) of the Securities Act. These documents and the documents incorporated by reference into this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

In this registration statement, AVITA Medical, Inc. is sometimes referred to as “Registrant,” “we,” “us,” “our,” or “AVITA”.

Item 3. Incorporation of Documents by Reference.

The Securities and Exchange Commission (the “Commission”) allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this registration statement, and later information filed with the SEC will update and supersede this information.

We hereby incorporate by reference into this registration statement the following documents previously filed with the SEC:

(a)

Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 as filed with the Commission on February 22, 2024;

(b)

Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024 as filed with the Commission on May 13, 2024;

(c)

Our Current Reports on Form 8-K dated January 10, 2023, May 30, 2024 , June 6, 2024 , July 1, 2024 and July 31, 2024;

(d)

The description of the Registrant’s common stock set forth on the Form 8-K12B filed June 30, 2020, including any Amendment or reports filed for the purpose of updating this description.

In addition, all documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers 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 such documents, except as to specific sections of such statements as set forth therein. Any statement contained in a document 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 incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement contained herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in any subsequently filed document which also is incorporated or 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.

Not applicable.

Item 6. Indemnification of Directors and Officers.

We are a Delaware corporation and certain provisions of Delaware law and our bylaws provide for indemnification of our officers and directors against liabilities that they may incur in such capacities. A summary of the circumstances in which indemnification is provided is discussed below, but this description is qualified in its entirety by reference to our bylaws and to the statutory provisions.

Section 145 of the Delaware General Corporation Law (“DGCL”) provides for, under certain circumstances, the indemnification of our officers, directors, employees and agents against liabilities that they may incur in such capacities. A summary of the circumstances in which such indemnification provided for is contained herein, but that description is qualified in its entirety by reference to the relevant Section of the DGCL.

In general, the statute provides that any director, officer, employee or agent of a corporation may be indemnified against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred in a proceeding (including any civil, criminal, administrative or investigative proceeding) to which the individual was a party by reason of such status. Such indemnity may be provided if the indemnified person’s actions resulting in the liabilities: (i) were taken in good faith; (ii) were reasonably believed to have been in or not opposed to our best interest; and (iii) with respect to any criminal action, such person had no reasonable cause to believe the actions were unlawful. Unless ordered by a court, indemnification generally may be awarded only after a determination of independent members of the Board of Directors or a committee thereof, by independent legal counsel or by vote of the stockholders that the applicable standard of conduct was met by the individual to be indemnified. The statutory provisions further provide that to the extent a director, officer, employee or agent is wholly successful on the merits or otherwise in defense of any proceeding to which he was a party, he is entitled to receive indemnification against

expenses, including attorneys’ fees, actually and reasonably incurred in connection with the proceeding.

Indemnification in connection with a proceeding by or in the right of the Company in which the director, officer, employee or agent is successful is permitted only with respect to expenses, including attorneys’ fees actually and reasonably incurred in connection with the defense. In such actions, the person to be indemnified must have acted in good faith, in a manner believed to have been in our best interest and must not have been adjudged liable to us unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expense which the Court of Chancery or such other court shall deem proper. Indemnification is otherwise prohibited in connection with a proceeding brought on behalf of the Company in which a director is adjudged liable to us, or in connection with any proceeding charging improper personal benefit to the director in which the director is adjudged liable for receipt of an improper personal benefit.

Delaware law authorizes us to reimburse or pay reasonable expenses incurred by a director, officer, employee or agent in connection with a proceeding in advance of a final disposition of the matter. Such advances of expenses are permitted if the person furnishes to us a written agreement to repay such advances if it is determined that he is not entitled to be indemnified by us.

The statutory section cited above further specifies that any provisions for indemnification of or advances for expenses does not exclude other rights under our certificate of incorporation, corporate bylaws, resolutions of our stockholders or disinterested directors, or otherwise. These indemnification provisions continue for a person who has ceased to be a director, officer, employee or agent of the corporation and inure to the benefit of the heirs, executors and administrators of such persons.

The statutory provision cited above also grants the power to the Company to purchase and maintain insurance policies that protect any director, officer, employee or agent against any liability asserted against or incurred by him in such capacity arising out of his status as such. Such policies may provide for indemnification whether or not the corporation would otherwise have the power to provide for it.

Articles V and VI of our certificate of incorporation provide that we shall indemnify our directors and officers to the fullest extent permitted by the DGCL.

We have purchased directors’ and officers’ liability insurance in order to limit the exposure to liability for indemnification of directors and officers, including liabilities under the Securities Act of 1933.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted for our directors, officers, employees, or agents pursuant to the foregoing provisions or otherwise, we have been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and, therefore, may be unenforceable.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

EXHIBIT INDEX


Exhibit No.		Description
4.1		Form of Stock Option Grant (incorporated by reference to Exhibit 10.19 to the registrant's Form 10-K filed on February 23, 2023)†

4.2		Form of RSU Agreement (incorporated by reference to Exhibit 10.20 to the registrant's Form 10-K filed on February 23, 2023)†

5.1		Opinion of K&L Gates LLP*

23.1		Consent of Grant Thornton LLP*

23.2		Consent of K&L Gates LLP (included in Exhibit 5.1)*

24.1		Power of Attorney (see Signature Page)

107		Filing Fee Table*

† Compensation arrangement

* Filed herewith.

Item 9. Undertakings.

(a)

The undersigned Registrant hereby undertakes:

(1)

To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement,

(i)

to include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii)

to reflect in the prospectus any facts or events arising after the effective date of this 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 this 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% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii)

to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this 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 Exchange Act that are incorporated by reference in this registration statement.

(2)

That, for the purpose of determining any liability under the Securities Act, 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 initial bona fide offering thereof.

(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.

(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 this 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.

(c)

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, employees or agents of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and, therefore, may be 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, employee or agent 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.

SIGNATURES

Pursuant to the requirements of the Securities Act, 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 Valencia, California, on August 8, 2024.

AVITA MEDICAL, INC.

    By: /s/ James Corbett

   

    James Corbett
Chief Executive Officer and Director

Power of Attorney

Each person whose signature appears below hereby constitutes and appoints James Corbett and Nicole Kelsey, and each of them severally, to serve as his or her true and lawful attorney-in-fact with power of substitution and resubstitution to sign in his or her name, place and stead in any and all capacities the Registration Statement and any and all amendments thereto (including post-effective amendments) and any documents in connection therewith, and to file the same with the Securities and Exchange Commission, granting unto each of said attorneys full power to act with or without the other, and full power and authority to do and perform, in his or her name and on his or her behalf, every act whatsoever which such attorneys, or any one of them, may deem necessary or desirable to be done in connection therewith as fully and to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, or any of them, 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, this Registration Statement has been signed below by the following persons in the capacities indicated on August 8, 2024.


/s/ James Corbett	Chief Executive Officer and Director
James Corbett	(Principal Executive Officer)

/s/ David O'Toole	Chief Financial Officer
David O'Toole	(Principal Financial and Accounting Officer)

/s/ Lou Panaccio	Director
Lou Panaccio

/s/ Jeremy Curnock Cook	Director
Jeremy Curnock Cook

/s/ Suzanne Crowe	Director
Suzanne Crowe

/s/ Jan Reed Stern	Director
Jan Reed Stern

/s/ Robert McNamara	Director
Robert McNamara

/s/ Cary Vance	Director
Cary Vance

EX-5.1

Exhibit 5.1

August 8, 2024

AVITA MEDICAL, INC.

28159 Avenue Stanford, Suite 220

Valencia, CA 91355

Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as special counsel to AVITA Medical, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company on the date hereof with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder, for the registration of 428,858 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), which are issuable upon the exercise of stock options and the vesting of restricted stock units granted pursuant to individual stock option award and restricted stock unit award agreements substantially in the form referenced in Exhibits 4.3 and 4.4 of the Registration Statement (collectively, the “Award Agreements”).

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

For the purposes of rendering the opinion stated herein, we have examined (a) the Registration Statement; (b) the Company’s Certificate of Incorporation; (c) the Company’s Amended and Restated Bylaws (as amended December 22, 2021) (the “Bylaws”); (d) resolutions adopted by, and/or minutes of meetings of, the board of directors of the Company (the “Board”) on January 3, 2024 and February 21, 2024, authorizing and approving the issuance of the Shares and other related matters (collectively, the “Authorizations”); (e) a good standing certificate with respect to the Company as issued by the Secretary of State of the State of Delaware; (f) the Award Agreements; and (g) a certificate of an officer of the Company, dated the date hereof (the “Fact Certificate”).

We have also examined such questions of law, and the originals or copies, certified or otherwise identified to our satisfaction, of such instruments, documents and records as we have deemed necessary or appropriate as a basis for the opinion stated herein. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all documents submitted to us as originals, and the conformity to the originals of all documents submitted to us as copies. As to matters of fact relevant to our opinion set forth below, we have relied, without independent investigation, on certificates of public officials and the Fact Certificate.

In rendering our opinion below, we also have assumed that (i) the Company will have sufficient authorized and unissued shares of Common Stock at the time of each issuance of any Shares, (ii) either (A) the Shares will be evidenced by appropriate certificates, duly executed and delivered, or (B) the Board will adopt a resolution providing that all shares of Common Stock shall be uncertificated in accordance with Section 158 of the General Corporation Law of the State of Delaware (the “DGCL”) prior to the issuance of the Shares and, within a reasonable time after the issuance of such uncertified Shares, the registered owner thereof shall be given notice in writing or by electronic transmission in compliance with Section 151(f) of the DGCL; (iii) the issuance of each Share will be properly recorded in the books and records of the Company, (iv) each Award Agreement has been duly executed and delivered and constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms; (v) the Company will receive consideration for each Share at least equal to the par value of such share of Common Stock and in the amount required by the Authorizations; (vi) the Listing Rules of ASX Limited (“ASX”) and any other rules of ASX which are applicable while the Company is admitted to the official list of ASX, each as amended or replaced from time to time, except to the extent of any express waiver by ASX (the “Listing Rules”), do not prohibit any act relevant to our opinion below; (vii) no provision of the Listing Rules requires the Bylaws to contain any provision that is not contained in the Bylaws; and (viii) no provision of the Bylaws is inconsistent with the Listing Rules.

Our opinion set forth below is limited to the DGCL and reported decisions interpreting the DGCL and we have not considered and express no opinion on the effect of any other laws of the State of Delaware or the laws of any other state or jurisdiction, including state and federal laws relating to securities or the laws, rules and regulations of any stock exchange or any other regulatory body.

Based upon and subject to the foregoing, it is our opinion that the Shares, when issued and paid for in accordance with the terms of the Authorizations will be validly issued, fully paid, and non-assessable.

We hereby consent to the filing of this opinion letter with the SEC as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

Yours truly,

/s/ K&L Gates LLP

K&L Gates LLP

EX-23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We have issued our report dated February 22, 2024 with respect to the consolidated financial statements of AVITA Medical, Inc. included in the Annual Report on Form 10-K for the year ended December 31, 2023, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned report in this Registration Statement.

/s/ GRANT THORNTON LLP

Los Angeles, California

August 8, 2024

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

AVITA Medical, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered and Carry Forward Securities


Security Type	Security Class Title	Fee Calculation Rule	Amount Registered			Proposed Maximum Offering Price Per Unit (4)		Maximum Aggregate Offering Price (4)		Fee Rate	Amount of Registration Fee
Equity	Common Stock, par value $0.0001 per share	Rule 457(h)		350,000	(1)	$	12.64	$	4,424,000.00	0.00014760	$	652.98
Equity	Common Stock, par value $0.0001 per share	Rule 457(h)		23,658	(2)	$	9.51	$	224,987.58	0.00014760	$	33.21
Equity	Common Stock, par value $0.0001 per share	Rule 457(h)		55,200	(3)	$	9.51	$	524,952.00	0.00014760	$	77.48
Total Offering Amounts								$	5,173,939.58		$	763.67
Total Fee Offsets												-
Net Fee Due											$	763.67

(1)

Represents 350,000 shares of Common Stock issuable to the Chief Executive Officer upon the exercise of outstanding stock options issued pursuant to individual stock option award agreements in 2024.

(2)

Represents 23,658 shares of Common Stock issuable to the Directors upon the exercise of outstanding stock options issued pursuant vto individual stock option award agreements in 2024.

(3)

Represents 55,200 shares of Common Stock issuable to the Directors upon the vesting of restricted stock units (“RSUs”) issued vpursuant to individual RSU award agreements in 2024.

(4)

Estimated solely for purposes of calculating the proposed maximum aggregate offering price and the registration fee in accordance with Rules 457(c) and 457(h) of the Securities Act, on the basis of the highest exercise price of the options to be registered and the grant date fair value of the RSUs.