UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
REPLICEL LIFE SCIENCES INC.
(Exact name of registrant as specified in its charter)
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British
Columbia, Canada
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Not Applicable
|
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(State or other jurisdiction of incorporation or
organization)
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(I.R.S. Employer Identification No.)
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Suite 2020 – 401 West Georgia Street, Vancouver, British
Columbia V6B 5A1
(Address of Principal Executive Offices)(Zip
Code)
2010 Stock Option Plan
(Full title of
the plan)
David Hall, Suite 2020 – 401 West Georgia Street,
Vancouver, British Columbia V6B 5A1
(Name and address of
agent for service)
(604) 248-8697
(Telephone number,
including area code, of agent for service)
Copies of all communications to:
Clark Wilson
LLP
Suite 900 - 885 West Georgia Street
Vancouver, British
Columbia V6C 3H1, Canada
Telephone: (604) 687-5700
Attention: Mr. Virgil Z. Hlus
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 [ ]
(Do not check if a smaller
reporting company)
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Smaller reporting company
[X]
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CALCULATION OF REGISTRATION FEE
Title of securities to
be
registered
|
Amount to be
registered
(1),(2)
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Proposed
maximum
offering price
per share
(3),(4)
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Proposed
maximum
aggregate offering
price
(3)
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Amount of
registration
fee
|
|
Common Shares
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4,666,860
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$0.45
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$2,100,087
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$286.45
|
|
|
|
|
|
|
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(1)
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An indeterminate number of additional common shares shall
be issuable pursuant to Rule 416 under the Securities Act of 1933 to
prevent dilution resulting from stock splits, stock dividends or similar
transactions and in such an event the number of shares registered shall
automatically be increased to cover the additional shares in accordance
with Rule 416.
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|
|
|
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(2)
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Consists of up to 4,666,860 common shares of our company
issuable pursuant to our 2010 stock option plan. Our 2010 stock option
plan provides for the grant of stock options to acquire up to a maximum of
10% of the outstanding common shares of our company.
|
|
|
|
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(3)
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Estimated in accordance with Rule 457 (h) under the
Securities Act of 1933 solely for the purpose of computing the amount of
the registration fee, and based on the average of the high and low prices
of our common shares as reported on the OTC Bulletin Board on May 21,
2013.
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EXPLANATORY NOTE
We prepared this registration statement in accordance with the
requirements of Form S-8 under the Securities Act of 1933, to register an
aggregate of 4,666,860 common shares of our company that are issued or issuable
pursuant to our 2010 stock option plan. The purpose of our 2010 stock option
plan is to retain the services of directors, officers, valued key employees, and
consultants of our company and such other persons as the plan administrator
selects, and to encourage such persons to acquire a greater proprietary interest
in our company, thereby strengthening their incentive to achieve the objectives
of our shareholders, and to serve as an aid and inducement in the hiring of new
employees and to provide an equity incentive to persons selected by the plan
administrator.
Under cover of this registration statement on Form S-8 is our
reoffer prospectus prepared in accordance with Part I of Form F-3 under the
Securities Act of 1933 (in accordance with Section C of the General Instructions
to Form S-8). The reoffer prospectus may be used for reoffers and resales of up
to an aggregate of 1,815,000 “control securities” as such term is defined in
Form S-8 issuable upon exercise of the stock options granted pursuant to our
2010 stock option plan on a continuous or delayed basis in the future.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual
Information.*
* The document(s) containing the information specified in Part
I of Form S-8 will be sent or given to participants in our 2010 stock option
plan as specified by Rule 428(b)(1) under the Securities Act of 1933. Such
documents are not being filed with the Securities and Exchange Commission, but
constitute, along with the documents incorporated by reference into this
registration statement, a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933.
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Reoffer Prospectus
1,815,000 Common Shares
RepliCel Life Sciences Inc.
________________________________
The selling shareholders identified in this reoffer prospectus
may offer and sell up to 1,815,000 common shares of our company issued or
issuable upon exercise of stock options. We granted the stock options to such
selling shareholders pursuant to our 2010 stock option plan.
The selling shareholders may sell all or a portion of the
shares being offered pursuant to this reoffer prospectus at fixed prices, at
prevailing market prices at the time of sale, at varying prices or at negotiated
prices.
The selling shareholders and any brokers executing selling
orders on their behalf may be deemed to be “underwriters” within the meaning of
the Securities Act of 1933, in which event commissions received by such brokers
may be deemed to be underwriting commissions under the Securities Act of 1933.
We will not receive any proceeds from the sale of our common
shares by the selling shareholders. We may, however, receive proceeds upon
exercise of the stock options by the selling shareholders. We will pay for
expenses of this offering, except that the selling shareholders will pay any
broker discounts or commissions or equivalent expenses and expenses of their
legal counsel applicable to the sale of their shares.
Our common shares are quoted on Financial Industry Regulatory
Authority’s OTC Bulletin Board under the symbol “REPCF” and listed for trading
on the Canadian National Stock Exchange under the symbol “RP”. On May 17, 2013,
the last reported sales prices of our common shares on the OTC Bulletin Board
and the Canadian National Stock Exchange were $0.0.45 per share and CDN$0.41 per
share, respectively.
_________________________________
Investing in our common shares involves risks. See “Risk
Factors” beginning on page 8.
_________________________________
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
_________________________________
The date of this reoffer prospectus is May 21, 2013.
4
Table of Contents
5
As used in this reoffer prospectus, the terms “we”, “us”,
“our”, and “RepliCel” mean RepliCel Life Sciences Inc., a British Columbia
corporation and our wholly-owned subsidiary, TrichoScience Innovations Inc., a
Canadian corporation, as applicable. All dollar amounts refer to U.S. dollars
unless otherwise indicated.
Prospectus Summary
Our Business
RepliCel Life Sciences Inc. is a British Columbia, Canada,
Company that is in the business of developing autologous cell therapy for
certain diseases affected by cellular deficits. The diseases being addressed are
pattern baldness and tendinosis. Each disease state is consistent with a deficit
of a specific cell type which we believe is critical to normal function. These
technologies carry issued and filed patent applications. Our technology for
pattern baldness has the potential to become the world’s first autologous
cellular treatment for hair loss in men and women. This cellular replication and
implantation technology is designed to rejuvenate damaged, miniaturized hair
follicles in balding scalp skin. Our treatment for tendinosis has the potential
to be the first autologous cell treatment to heal injured tendons that have
reached a chronic stage of deterioration.
Our pattern baldness treatment has been developed over ten
years of research, experimentation and trials. The mechanics of our technology
for the treatment for pattern baldness named RepliCel Hair-01 (“RCH-01”) involve
the extraction of as few as 20 hair follicles from the back of a patient’s scalp
where healthy cycling hair follicles reside. Specific cells called dermal sheath
cup (“DSC”) cells are isolated from the hair follicles and are then replicated
in a current Good Manufacturing Practice (“
cGMP
”) compliant facility
through our proprietary cellular replication process and then reintroduced back
into balding areas on a patient’s scalp. The implanted cells are expected to
rejuvenate damaged hair follicles leading to the growth of new healthy hair
fibers. Our anticipated long-term result is the restoration and maintenance of a
patient’s hair.
Our technology for tendinosis has been developed over five
years of research, experimentation and trials. The mechanics of our treatment
named RepliCel Tendon-01 (“RCT-01”) involve the extraction of as few as 20 hair
follicles from the back of patient’s scalp. Specific cells called non-bulbar
dermal sheath (“NBDS”) cells are isolated from the hair follicles, replicated in
a cGMP facility and then reintroduced under ultrasound guidance into the area of
damaged tendon. The cells are expected to initiate and complete the healing of
the chronically injured tendon.
RCH-01 Treatment for Pattern Baldness
The product development path of RCH-01 effectively began in
2000/03 when Drs. McElwee and Hoffmann began focusing on
DSC
cells.
Together they hypothesized that these DSC cells were a reservoir of cells that
were responsible for the continued health of the hair follicle and the normal
cycling of the hair fiber. They believed that if these DSC cells were in deficit
due to sensitivity to androgen hormones (the cause of pattern baldness), then
isolating these same cells from a patient’s own scalp in an area where the cells
are unaffected by androgen and moving them to the affected area would resolve
the cellular deficit and rejuvenate the hair fibre producing cycle. Multiple
experiments on mice demonstrated that hair follicle DSC cells could induce new
follicular growth as well as cause resident hair follicles to grow thicker and
longer. The scientists’ landmark study was published in the peer-reviewed
Journal of Investigative Dermatology in ©2003. Together, the scientists filed
patent applications. To date, patents have been issued in Europe, Australia, and
the US, with additional patents pending in Canada, Japan and the US.
These results have led us to believe in the effectiveness of
the procedure and its potential to become a solution to hair loss for the hair
restoration market. From 2004 to 2007, the developers of our technology planned
for human clinical trials and cell culture laboratories, and sourced initial
funding. In 2007, the developers of the technology assigned the technology,
including the intellectual property, to TrichoScience Innovations Inc.
(“
TrichoScience
”), all of the shares of which we acquired, in stages,
between December 2010 and April 2011.
We believe our RCH-01 technology will offer several advantages
over current hair loss solutions. Traditional hair transplant surgery requires
the surgical removal of a prominent band of hair-bearing scalp from the back of
the head. This band is then dissected into hair follicles consisting of one to
three hairs which are then implanted into the balding region of the scalp.
Often, a number of similar surgical procedures are required to achieve the
desired result. In effect, surgical hair transplantation removes and
redistributes a patient’s own hair follicles to cover sections of bald scalp,
leaving a longitudinal scar across the back of a patient’s scalp where the strip
of skin tissue carrying the hair follicles was removed. In follicular unit extraction (“
FUE
”) transplants, follicular units
are grafted from the donor area separately; leaving the back of the scalp with
multiple small round wound marks where the micro extractions have occurred. The
wounds from either procedure may or may not be visible depending on the skill of
the surgeon.
6
In contrast, our technology is designed to replicate a
patient’s hair cells to rejuvenate miniaturized hair follicles, to grow from the
balding scalp with only a minor single suture closure from the tissue extraction
site. We believe there will be minimal pain involved and a short recovery
period. Our technology is designed to provide the ability to grow a patient’s
own hair back, rather than to redistribute hair follicles from the back of the
scalp to the front.
In addition, hair transplantation surgery requires a team of
six or more people, including up to four technicians trained in
micro-dissection. The surgical procedure takes up to eight hours to complete.
Our technology is designed to be fully performed by a single clinician who
requires minimal additional training. We expect the time involved in the clinic
to be less than thirty minutes for tissue collection and less than one hour for
cell injection.
RCT-01 Treatment for Tendinosis
The product development path of RCT-01 effectively began in
2008 when Dr. David Connell began focusing on fibroblast cells isolated from
adipose tissue. Dr. Connell
hypothesized that the main underlying reason
for chronic tendinosis was a deficit of tenocytes (fibroblasts) in the tendon.
As these fibroblasts are responsible for producing Type-1 collagen, the primary
cell type in human tendon, it was theorized that isolation and replication of a
source of fibroblasts for injection into the injury site could initiate
normalized healing. Dr. Connell conducted three Phase I clinical trials using
this approach producing evidence that treatment of tendinosis with autologous
expanded fibroblasts was both safe and effective and should be explored in
larger human trials. Dr. Connell filed patents covering the use of adipose
derived fibroblasts for the treatment of tendinosis. In 2011, RepliCel began
collaborating with Dr. Connell on the development of this technology. RepliCel
expanded on Dr. Connell’s approach by isolating fibroblasts from the hair
follicle. This was based on the knowledge that fibroblasts from the dermal
sheath of a hair follicle can produce upwards of five times the amount of Type-1
collagen than fibroblasts from adipose tissue as pursued by Dr. Connell. In
2013, Dr. Connell’s patents were licensed by RepliCel.
Dr. David Connell has conducted three Phase I human pilot
clinical trials focusing on each of Achilles, patellar and lateral elbow
tendinosis (tennis elbow) using adipose tissue derived fibroblasts. A total of
104 tendons were treated using autologous fibroblast cells. There were no
adverse events related to the cell therapy. RepliCel intends to initiate Phase
II trials, in all three indications, beginning with Achilles tendinosis using
our autologous cell product, RCT-01.
The pain and dysfunction associated with tendinosis is
currently controlled by many treatment modalities including the use of analgesic
and anti-inflammatory medications, rest, physical therapy, orthotics, ergonomic
adjustments, laser therapy, prolotherapy, platelet-rich plasma (PRP) injections
and surgery. However, there is currently no therapy to treat the underlying,
causative nature of the disease. We believe the reason that chronic tendinosis
is not successfully treated is a deficit of healthy fibroblasts to provide the
necessary production of Type-1 collagen for the repair of the open interstitial
tears in the tendon. Our treatment is designed to address that cellular deficit
in the healing process.
To date, we have not yet earned revenue from our business and
expect to incur further losses in the development of our business, which casts
substantial doubt about our ability to continue as a going concern. Our
financial statements do not include any adjustments relating to the
recoverability and classification of recorded assets, or the amounts of and
classification of liabilities that might be necessary in the event that we
cannot continue as a going concern.
Our principal executive office address is Suite 2020 – 401 West
Georgia Street, Vancouver, British Columbia V6B 5A1. Our telephone number is
(604) 248-8730.
The Offering
The selling shareholders identified in this reoffer prospectus
may offer and sell up to 1,815,000 common shares of our company issued or
issuable upon exercise of stock options. We granted the stock options to such
selling shareholders pursuant to our 2010 stock option plan.
The selling shareholders may sell all or a portion of the
shares being offered pursuant to this reoffer prospectus at fixed prices, at
prevailing market prices at the time of sale, at varying prices or at negotiated
prices.
7
Number of Shares Outstanding
There were 46,668,609 common shares of our company issued and
outstanding as at May 17, 2013.
Use of Proceeds
We will not receive any proceeds from the sale of any of our
common shares by the selling shareholders. We may, however, receive proceeds
upon exercise of the stock options by the selling shareholders. If we receive
proceeds upon exercise of these stock options, we intend to use these proceeds
for working capital and general corporate purposes.
Risk Factors
An investment in our common shares involves a number of very
significant risks. You should carefully consider the following risks and
uncertainties in addition to other information in this reoffer prospectus in
evaluating our company and our business before purchasing our common shares. Our
business, operating results and financial condition could be seriously harmed as
a result of the occurrence of any of the following risks. You could lose all or
part of your investment due to any of these risks. You should invest in our
common shares only if you can afford to lose your entire investment.
Risks Relating to Our Business
Our company currently does not generate revenue from its
planned operations, and as a result, it faces a high risk of business
failure.
We have not generated any revenues from our planned operations
to date. As of December 31, 2012, we had accumulated $10,233,396 in losses since
inception. Our business is focused on the development of a new hair cell
replication technology. In order to generate revenues, we will incur substantial
expenses in the development of our business. We therefore expect to incur
significant losses in the foreseeable future. Our company recognizes that if we
are unable to generate significant revenues from our activities, our entire
business may fail. There is no history upon which to base any assumption as to
the likelihood that we will be successful in our plan of operation, and we can
provide no assurance to investors that we will generate operating revenues or
achieve profitable operations in the future.
We had cash in the amount of $384,286 and a working capital of
$67,768 as of December 31, 2012 and we anticipate that we will require a minimum
of approximately $3,000,000 to proceed with our plan of operations for the
twelve month period ended December 31, 2012. In order to fund our plan of
operations for the next twelve months, we may seek to sell additional equity or
debt securities or obtain a credit facility. The sale of convertible debt
securities or additional equity securities could result in additional dilution
to our shareholders. The incurrence of indebtedness would result in increased
debt service obligations and could result in operating and financing covenants
that would restrict our operations and liquidity.
Our auditors’ opinion on our December 31, 2012 financial
statements includes an explanatory paragraph in respect of there being
substantial doubt about our ability to continue as a going concern.
We have incurred a net loss of $10,233,396 for the cumulative
period from September 7, 2006 (inception) to December 31, 2012. We anticipate
generating losses for at least the next 12 months. Therefore, there is
substantial doubt about our ability to continue operations in the future as a
going concern, as described by our auditors with respect to the financial
statements for the year ended December 31, 2012. Our financial statements do not
include any adjustments relating to the recoverability and classification of
recorded assets, or the amounts of and classification of liabilities that might
be necessary in the event that we cannot continue in existence. Our business
operations may fail if our actual cash requirements exceed our estimates and we
are not able to obtain further financing. If we cannot continue as a viable
entity, our shareholders may lose some or all of their investment in our
company.
Our business is at an early stage of development and
difficulties obtaining regulatory approval, technical deficiencies and other
challenges may hinder the development and marketing of our hair cell replication
technology.
Our hair cell replication technology is at an early stage of
development and we may not develop hair cell replication technology that can be
commercialized. We are still in the early stages of identifying and conducting
research on our technology. Our technology will require significant research
and development and preclinical and clinical testing prior to regulatory
approval, if required, being obtained in the United States or other countries.
We may not be able to obtain regulatory approvals, if required, to complete
necessary clinical trials for our hair cell replication technology, or to
commercialize it. Our technology may prove to have undesirable and unintended
side effects, or other characteristics adversely affecting its safety, efficacy
or cost-effectiveness could prevent or limit its use. Our technology may fail to
provide its intended benefit, or achieve benefits equal to or better than our
competitor’s products at the time of testing or production and, if so, our
business may fail.
8
Our clinical trials may fail to produce successful
results or could be suspended due to unacceptable safety risks, which could
cause our business to fail.
Clinical trials are subject to extensive regulatory
requirements, and are very expensive, time-consuming and difficult to design and
implement, in part because they may be subject to rigorous regulatory
requirements. Our products may fail to achieve necessary safety and efficacy
endpoints during clinical trials. We believe that our clinical trials will take
a substantial period of time to complete. Furthermore, failure can occur at any
stage of the trials, and we could encounter problems that cause us to abandon or
repeat clinical trials. The commencement and completion of clinical trials may
be delayed by several factors, including: unforeseen safety issues; lack of
effectiveness during clinical trials; slower than expected rates of patient
recruitment; and inability to monitor patients adequately during or after
treatment. In addition, we or regulatory officials may suspend our clinical
trials at any time if it appears that we are exposing participants to
unacceptable health risks. If our clinical trials fail to produce successful
results, or are suspended due to unacceptable safety risks, our business may
fail.
Our success depends on the acceptance of our hair cell
replication technology by the medical community and consumers as a safe and
effective solution.
The success of our hair cell replication technology will depend
on its acceptance by potential consumers and the medical community. Because our
technology is new in the treatment of pattern baldness, the long term effects of
using our new hair cell replication technology are unknown. The results of
short-term clinical trials do not necessarily predict long-term clinical benefit
or reveal adverse effects. If results obtained from future commercial experience
indicate that our hair cell replication technology is not as safe or effective
as other hair restoration treatments, adoption of this technology by consumers
and the medical community may suffer and our business will be harmed.
If we are not able to effectively protect our existing
intellectual property, our business may suffer a material negative impact and
may fail.
The success of our company will be dependent on our ability to
protect and develop our technology. We currently have registered patents for our
hair cell replication technology in Australia and the European Union. If we are
unable to protect our intellectual property, our business may be materially
adversely affected. Further, we cannot be sure that our activities do not and
will not infringe on the intellectual property rights of others. If we are
compelled to prosecute infringing parties, defend our intellectual property or
defend ourselves from intellectual property claims made by others, we may face
significant expense and liability, as well as the diversion of management’s
attention from our business, any of which could negatively impact our business
or financial condition.
The successful acquisition and maintenance of patent
rights is critical to our business and any failure in this regard could hinder
the development and marketing of our technology.
We currently have patent applications pending in the United
States and several other countries around the world. Our pending patent
applications may not result in the issuance of any patents. The applications may
not be sufficient to meet the statutory requirements for patentability in all
cases or may be the subject of interference proceedings by patent offices. These
proceedings determine the priority of inventions and, thus, the right to a
patent for technology. In the past, our patent applications have experienced
delays and our patent applications may be delayed in the future. If others file
patent applications or obtain patents similar to those we have licensed, such
patents may restrict the use of our discoveries. The risk of third parties
obtaining patents and filing patent applications will continue to increase as
the hair restoration market expands. We cannot predict the ultimate scope and
validity of existing patents and patents that may be granted to third parties,
nor can we predict the extent to which we may wish or be required to obtain
licenses to use such patents, or the availability and cost of acquiring such
licenses. To the extent that licenses are required, the owners of the patents
could bring legal actions against us to claim damages or to stop our
manufacturing and marketing of the affected technology. If we become involved in
patent litigation, it could consume a substantial portion of our resources.
9
Competitors in the hair restoration and related fields
may currently offer, or may develop, superior hair loss solutions which could
limit the market for our technology.
The market for hair restoration products and technology is
competitive. We expect that some of our most significant competitors will be
more established companies. These companies may have greater capital resources
or experience in research and development, manufacturing, testing, obtaining
regulatory approvals or marketing capabilities. As a result, our competitors may
develop more competitive or affordable products, or achieve earlier patent
protection or product commercialization than we are able to achieve. We face
competition from companies offering traditional more established products and
technologies.
Our company may be subject to changes and uncertainties
in laws and government regulations.
Our company is subject to regulation by domestic and foreign
governmental agencies with respect to many aspects of developing hair cell
replication technology. In addition, relevant new legislation or regulation
could occur. Any such new legislation or regulation, the application of laws and
regulations from jurisdictions whose laws do not currently apply to our
company’s business, or the application of existing laws and regulations to hair
cell replication technology, could have a material adverse effect on our
company’s business, prospects, financial condition and results of operations.
Risks Relating to Our Management
We are dependent on the services of certain key
consultants and the loss of any of these key consultants may have a materially
adverse effect on our company.
While engaged in the business of developing a new hair cell
replication technology, our company’s ability to continue to develop a
competitive edge in the marketplace will depend, in large part, on our ability
to attract and maintain qualified key management personnel. Competition for such
personnel is intense, and we may not be able to attract and retain such
personnel. Our company’s growth has depended, and in the future will continue to
depend, on the efforts of our key management consultants. Loss of any of these
people would have a material adverse effect on our company. Currently, our
company does not have key-man life insurance.
Conflicts of interest may arise as a result of our
company’s directors and officers being directors or officers of other life
sciences companies.
Certain of our company’s directors and officers are, or may
become, directors or officers of other life sciences companies. While we are
engaged in the business of developing a new hair cell replication technology,
such associations may give rise to conflicts of interest from time to time. Our
company’s directors are required by law to act honestly and in good faith with a
view to our company’s best interests and to disclose any interest that they may
have in any project or opportunity of our company. If a conflict of interest
arises at a meeting of our company’s board of directors, any director in a
conflict must disclose his interest and abstain from voting on such matter. In
determining whether or not our company will participate in any project or
opportunity, our company’s directors will primarily consider the degree of risk
to which our company may be exposed and our financial position at the time.
Our articles contain provisions indemnifying our officers
and directors against all costs, charges and expenses incurred by
them.
Our articles contain provisions limiting the liability of our
officers and directors for all acts, receipts, neglects or defaults of
themselves and all of our other officers or directors or for any loss, damage or
expense incurred by our company which may happen in the execution of the duties
of such officers or directors. Such limitations on liability may reduce the
likelihood of derivative litigation against our company’s officers and directors
and may discourage or deter our shareholders from suing our company’s officers
and directors based upon breaches of their duties to our company, though such an
action, if successful, might otherwise benefit our company and our
shareholders.
As a majority of our directors and officers are residents
of countries other than the United States, investors may find it difficult to
enforce, within the United States, any judgments obtained against our company,
directors and officers.
10
We are governed by the laws of British Columbia, Canada. A
majority of our directors and officers are nationals and/or residents of
countries other than the United States, and all or a substantial portion of such
persons' assets are located outside the United States. Consequently, it may be
difficult for United States investors to effect service of process in the United
States upon those directors or officers who are not residents of the United
States, or to realize in the United States upon judgments of United States
courts predicated upon civil liabilities under United States legislation. There
is substantial doubt whether an original action based solely upon such civil
liabilities could be brought successfully in Canada against any of such persons
or our company.
Risks Relating to Our Common Shares
If our business is unsuccessful, our shareholders may
lose their entire investment.
Although shareholders will not be bound by or be personally
liable for our expenses, liabilities or obligations beyond their total original
capital contributions, should we suffer a deficiency in funds with which to meet
our obligations, the shareholders as a whole may lose their entire investment in
our company.
Trading of our company’s common shares on the OTC
Bulletin Board and the Canadian National Stock Exchange is limited and sporadic,
making it difficult for our company’s shareholders to sell their shares or
liquidate their investments.
The trading price of our company’s common shares has been and
may continue to be subject to wide fluctuations. The stock market has generally
experienced extreme price and volume fluctuations that have often been unrelated
or disproportionate to the operating performance of companies with little or no
current business operations. There can be no assurance that trading prices and
price earnings ratios previously experienced by our company’s common shares will
be matched or maintained. These broad market and industry factors may adversely
affect the market price of the common shares, regardless of our company’s
operating performance. In the past, following periods of volatility in the
market price of a company’s securities, securities class-action litigation has
often been instituted. Such litigation, if instituted, could result in
substantial costs for our company and a diversion of management’s attention and
resources.
Investors’ interests in our company will be diluted and
investors may suffer dilution in their net book value per share if we issue
additional options to any of our officers, directors, employees or consultants.
Because our company’s success is highly dependent upon our
directors, officers and consultants, we have granted, and may again in the
future grant, options to some or all of our key officers, directors, employees
and consultants to purchase our common shares as non-cash incentives. Options
may be granted at exercise prices below that of our common shares prevailing in
the public trading market at the time or may be granted at exercise prices equal
to market prices at times when the public market is depressed. To the extent
that significant numbers of such options may be granted and exercised, the
interests of our company’s other shareholders may be diluted.
Investors’ interests in our company will be diluted and
investors may suffer dilution in their net book value per share if our company
issues additional shares or raises funds through the sale of equity
securities.
In the event that our company is required to issue additional
shares in order to raise financing, investors’ interests in our company will be
diluted and investors may suffer dilution in their net book value per share
depending on the price at which such securities are sold. The dilution may
result in a decline in the market price of our company’s shares.
Penny stock rules limit the ability of our shareholders
to sell our common shares.
The SEC has adopted regulations which generally define “penny
stock” to be any equity security that has a market price (as defined) less than
$5.00 per share or an exercise price of less than $5.00 per share, subject to
certain exceptions. Our securities are covered by the penny stock rules, which
impose additional sales practice requirements on broker-dealers who sell to
persons other than established customers and Accredited Investors. The penny
stock rules require a broker-dealer, prior to a transaction in a penny stock not
otherwise exempt from the rules, to deliver a standardized risk disclosure
document in a form prepared by the SEC, which provides information about penny
stocks and the nature and level of risks in the penny stock market. The
broker-dealer also must provide the customer with current bid and offer
quotations for the penny stock, the compensation of the broker-dealer and its
salesperson in the transaction and monthly account statements showing the market
value of each penny stock held in the customer’s account. The bid and offer
quotations, and the broker-dealer and salesperson compensation information, must be given
to the customer orally or in writing prior to effecting the transaction and must
be given to the customer in writing before or with the customer’s confirmation.
In addition, the penny stock rules require that prior to a transaction in a
penny stock not otherwise exempt from these rules, the broker-dealer must make a
special written determination that the penny stock is a suitable investment for
the purchaser and receive the purchaser’s written agreement to the transaction.
These disclosure requirements may have the effect of reducing the level of
trading activity in the secondary market for the common shares that are subject
to these penny stock rules. Consequently, these penny stock rules may affect the
ability of broker-dealers to trade our common shares.
11
The Financial Industry Regulatory Authority, or FINRA,
has adopted sales practice requirements which may also limit a shareholder's
ability to buy and sell our stock.
In addition to the “penny stock” rules described above, FINRA
has adopted rules that require that in recommending an investment to a customer,
a broker-dealer must have reasonable grounds for believing that the investment
is suitable for that customer. Prior to recommending speculative low priced
securities to their non-institutional customers, broker-dealers must make
reasonable efforts to obtain information about the customer’s financial status,
tax status, investment objectives and other information. Under interpretations
of these rules, FINRA believes that there is a high probability that speculative
low priced securities will not be suitable for at least some customers. FINRA
requirements make it more difficult for broker-dealers to recommend that their
customers buy our common shares, which may limit your ability to buy and sell
our common shares and have an adverse effect on the market for our shares.
We do not intend to pay dividends on any investment in
the shares of stock of our company.
We have never paid any cash dividends and currently do not
intend to pay any dividends for the foreseeable future. To the extent that we
require additional funding currently not provided for in our financing plan, our
funding sources may prohibit the payment of a dividend. Because we do not intend
to declare dividends, any gain on an investment in our company will need to come
through an increase in the stock’s price. This may never happen and investors
may lose all of their investment in our company.
Forward-Looking Statements
This reoffer prospectus and the information and documents
incorporated by reference into this reoffer prospectus contain or will contain
forward-looking statements. Forward-looking statements are projections in
respect of future events or our future financial performance. In some cases, you
can identify forward-looking statements by terminology such as “may”, “should”,
“intend”, “expect”, “plan”, “anticipate”, “believe”, “estimate”, “predict”,
“potential”, or “continue”, or the negative of these terms or other comparable
terminology. Forward-looking information presented in such statements or
disclosures may, among other things, include: the potential of our products,
including its potential for success with women; forecasts of expenditures; the
sources of financing; expectations regarding our ability to raise capital; our
business outlook; plans and objectives of management for future operations; and
anticipated financial performance.
Various assumptions or factors are typically applied in drawing
conclusions or making the forecasts or projections set out in forward-looking
information. Those assumptions and factors are based on information currently
available to our company, including information obtained from third-party
industry analysts and other third party sources. In some instances, material
assumptions and factors are presented or discussed elsewhere in this Annual
Report in connection with the statements or disclosure containing the
forward-looking information. You are cautioned that the following list of
material factors and assumptions is not exhaustive. The factors and assumptions
include, but are not limited to:
-
no unforeseen changes in the legislative and operating framework for the
business of our company;
-
a stable competitive environment; and
-
no significant event occurring outside the ordinary course of business such
as a natural disaster or other calamity.
These statements are only predictions and involve known and
unknown risks, uncertainties and other factors, including the risks in the
section entitled “Risk Factors” commencing on page 8, which may cause our or our
industry’s actual results, levels of activity or performance to be materially
different from any future results, levels of activity or performance expressed
or implied by these forward-looking statements. These risks and uncertainties
include:
12
-
negative results from our clinical trials, including that our hair cell
replication technology may not work as planned or may not be effective at
causing the re-growth of hair follicles or the rejuvenation of damaged,
miniaturized follicles;
-
the effects of government regulation on our business;
-
the viability and marketability of our hair cell replication technology;
-
our failure to successfully implement our marketing plan;
-
the development of superior technology by our competitors;
-
the failure of consumers and the medical community to accept our technology
as safe and effective;
-
risks associated with our ability to obtain and protect rights to our
intellectual property;
-
risks and uncertainties associated with our ability to raise additional
capital; and
-
other factors beyond our control.
Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee future results,
levels of activity or performance. Further, any forward-looking statement speaks
only as of the date on which such statement is made, and, except as required by
applicable law, we undertake no obligation to update any forward-looking
statement to reflect events or circumstances after the date on which such
statement is made or to reflect the occurrence of unanticipated events. New
factors emerge from time to time, and it is not possible for management to
predict all of such factors and to assess in advance the impact of such factors
on our business or the extent to which any factor, or combination of factors,
may cause actual results to differ materially from those contained in any
forward-looking statement.
The Offering
The selling shareholders identified in this reoffer prospectus
may offer and sell up to 1,815,000 common shares of our company issued or
issuable upon exercise of stock options. We granted the stock options to such
selling shareholders pursuant to our 2010 stock option plan.
Use of Proceeds
We will not receive any proceeds from the sale of our common
shares by the selling shareholders. We may, however, receive proceeds upon
exercise of the stock options granted to the selling shareholders. If we receive
proceeds upon exercise of stock options, we intend to use these proceeds for
working capital and general corporate purposes.
Determination of Offering Price
The selling shareholders may sell all or a portion of the
shares being offered pursuant to this reoffer prospectus at fixed prices, at
prevailing market prices at the time of sale, at varying prices or at negotiated
prices.
Selling Shareholders
The selling shareholders may offer and sell, from time to time,
any or all of our common shares issued or issuable upon exercise of the stock
options granted pursuant to our 2010 stock option plan.
The following table sets forth certain information regarding
the beneficial ownership of our common shares by the selling shareholders as of
April 30, 2013 and the number of our common shares being offered pursuant to
this reoffer prospectus. We believe that the selling shareholders have sole
voting and investment powers over their shares.
Because the selling shareholders may offer and sell all or only
some portion of the 1,815,000 common shares of our company being offered
pursuant to this reoffer prospectus, the numbers in the table below representing
the amount and percentage of these common shares of our company that will be
held by the selling shareholders upon termination of the offering are only
estimates based on the assumption that each selling shareholder will sell all of
his or her common shares of our company being offered in the offering.
13
None of the selling shareholders is a broker-dealer or an
affiliate of a broker-dealer. We may require the selling shareholders to suspend
the sales of our common shares being offered pursuant to this reoffer prospectus
upon the occurrence of any event that makes any statement in this reoffer
prospectus or the related registration statement untrue in any material respect
or that requires the changing of statements in those documents in order to make
statements in those documents not misleading.
Name of
Selling
Shareholder
|
Common Shares Owned
by the
Selling Shareholder
before the
Offering
(1)
|
Total Common
Shares
Offered
in the Offering
|
Number of Common
Shares to Be Owned
by Selling Shareholder
and Percent of Total
Issued and Outstanding
Shares After the Offering
(1)
|
# of
Common
Shares
|
% of
Class
(2)
|
# of
Common
Shares
|
% of
Class
(2)
|
# of
Common
Shares
(3)
|
% of
Class
(2),(3)
|
|
David Hall
(4)
|
2,400,000
(5)
|
5.1%
|
*
|
*
|
2,400,000
|
5.1%
|
|
Tom Kordyback
(6)
|
200,993
(7)
|
*
|
100,000
(8)
|
*
|
100,993
|
*
|
|
Dr. Rolf Hoffmann
(9)
|
5,568,269
(10)
|
11.3%
|
350,000
(11)
|
*
|
5,218,269
|
11.2%
|
|
Dr. Kevin McElwee
(12)
|
4,591,716
(13)
|
9.8%
|
350,000
(14)
|
*
|
4,241,716
|
9.1%
|
|
Peter Jensen
(15)
|
565,000
(16)
|
1.2%
|
65,000
(17)
|
*
|
500,000
|
1.1%
|
|
John Challis
(18)
|
100,000
(19)
|
*
|
100,000
(20)
|
*
|
Nil
|
*
|
|
Peter Lewis
(21)
|
150,000
(22)
|
*
|
100,000
(23)
|
*
|
50,000
|
*
|
|
Darrell Panich
(24)
|
200,000
(25)
|
*
|
200,000
(26)
|
*
|
Nil
|
*
|
|
Gemma Fetterley
(27)
|
200,000
(28)
|
*
|
200,000
(29)
|
*
|
Nil
|
*
|
|
Matthew Wayrynen
(30)
|
5,452,675
(31)
|
11.6%
|
350,000
(32)
|
*
|
5,102,675
|
10.9%
|
|
Totals
|
19,428,653
|
39.0%
|
1,815,000
|
3.9%
|
17,613,363
|
37.0%
|
Notes
|
*
|
Less than 1%.
|
|
|
|
|
(1)
|
Beneficial ownership is determined in accordance with
Securities and Exchange Commission rules and generally includes voting or
investment power with respect to common shares of our company. Common
shares of our company subject to options, warrants and convertible
preferred stock currently exercisable or convertible, or exercisable or
convertible within 60 days, are counted as outstanding for computing the
percentage of the person holding such options, warrants or convertible
preferred shares but are not counted as outstanding for computing the
percentage of any other person.
|
|
|
|
|
(2)
|
Based on 46,668,609 common shares of our company issued
and outstanding as of April 30, 2013. Common shares of our company being
offered pursuant to this reoffer prospectus by a selling shareholder are
counted as outstanding for computing the percentage of that particular
selling shareholder but are not counted as outstanding for computing the
percentage of any other person.
|
|
|
|
|
(3)
|
We have assumed that the selling shareholders will sell
all of the shares being offered in this offering.
|
|
|
|
|
(4)
|
Mr. Hall has been our President, Chief Executive Officer
and director since December 22, 2010.
|
|
|
|
|
(5)
|
Consists of 2,400,000 common shares of our company. Does
not include 1,000,000 common shares held by Mr. Hall’s wife over which Mr.
Hall does not exercise control or direction.
|
14
|
(6)
|
Mr. Kordyback has been our Chief Financial Officer since
August 22, 2011.
|
|
|
|
|
(7)
|
Consists of 100,993 common shares of our company and
stock options to purchase 100,000 common shares of our company.
|
|
|
|
|
(8)
|
Consists of 100,000 common shares issuable at an exercise
price of $1.50 per share until April 18, 2019 upon exercise of the stock
options granted on April 18, 2012. We granted these stock options pursuant
to our 2010 stock option plan.
|
|
|
|
|
(9)
|
Dr. Hoffmann has been our Chief Medical Officer and
director since December 22, 2010.
|
|
|
|
|
(10)
|
Consists of 4,895,689 common shares of our company, stock
options to purchase 350,000 common shares of our company and share
purchase warrants to purchase 161,290 common shares of our
company.
|
|
|
|
|
(11)
|
Consists of 350,000 common shares issuable at an exercise
price of $0.50 per share until July 13, 2017 upon exercise of the stock
options granted on December 22, 2010. We granted these stock options
pursuant to our 2010 stock option plan.
|
|
|
|
|
(12)
|
Dr. McElwee has been our Chief Scientific Officer since
December 22, 2010.
|
|
|
|
|
(13)
|
Consists of 4,241,716 common shares of our company and
stock options to purchase 350,000 common shares of our company.
|
|
|
|
|
(14)
|
Consists of 350,000 common shares issuable at an exercise
price of $0.50 per share until July 13, 2017 upon exercise of the stock
options granted on December 22, 2010. We granted these stock options
pursuant to our 2010 stock option plan.
|
|
|
|
|
(15)
|
Mr. Jensen has been our Chairman and director since
December 22, 2010.
|
|
|
|
|
(16)
|
Consists of 500,000 common shares of our company and
stock options to purchase 65,000 common shares of our company.
|
|
|
|
|
(17)
|
Consists 65,000 common shares issuable at an exercise
price of $0.50 per share until July 13, 2017 upon exercise of the stock
options granted on December 22, 2010. We granted these stock options
pursuant to our 2010 stock option plan.
|
|
|
|
|
(18)
|
Mr. Challis has been our director since March 11,
2011.
|
|
|
|
|
(19)
|
Consists of stock options to purchase 100,000 common
shares of our company.
|
|
|
|
|
(20)
|
Consists of 100,000 common shares issuable at an exercise
price of $1.00 per share until March 11, 2018 upon exercise of the stock
options granted on March 11, 2011. We granted these stock options pursuant
to our 2010 stock option plan.
|
|
|
|
|
(21)
|
Mr. Lewis has been our director since May 27,
2011.
|
|
|
|
|
(22)
|
Consists of 40,000 common shares of our company, stock
options to purchase 100,000 common shares of our company and share
purchase warrants to purchase 10,000 common shares of our
company.
|
|
|
|
|
(23)
|
Consists of 100,000 common shares issuable at an exercise
price of $1.00 per share until March 11, 2018 upon exercise of the stock
options granted on March 11, 2011. We granted these stock options pursuant
to our 2010 stock option plan.
|
|
|
|
|
(24)
|
Mr. Panich has been our Vice President, Clinical Affairs
since March 15, 2010.
|
15
|
(25)
|
Consists of stock options to purchase 200,000 common
shares of our company.
|
|
|
|
|
(26)
|
Consists of 100,000 common shares issuable at an exercise
price of $1.00 per share until March 11, 2018 upon exercise of the stock
options granted on March 11, 2011 and 100,000 common shares issuable at an
exercise price of $1.50 per share until April 18, 2019 upon exercise of
the stock options granted on April 18, 2012. We granted these stock
options pursuant to our 2010 stock option plan.
|
|
|
|
|
(27)
|
Ms. Fetterley has been our Vice President, Finance and
Secretary since March 11, 2011.
|
|
|
|
|
(28)
|
Consists of stock options to purchase 200,000 common
shares of our company.
|
|
|
|
|
(29)
|
Consists of 100,000 common shares issuable at an exercise
price of $1.00 per share until March 11, 2018 upon exercise of the stock
options granted on March 11, 2011 and 100,000 common shares issuable at an
exercise price of $1.50 per share until April 18, 2019 upon exercise of
the stock options granted on April 18, 2012. We granted these stock
options pursuant to our 2010 stock option plan.
|
|
|
|
|
(30)
|
Mr. Wayrynen served as a former director. And resigned
from the Company on May 27, 2011.
|
|
|
|
|
(31)
|
Consists of 4,092,743 common shares of our company held
personally and 1,009,932 common shares of our company held by a company of
which Mr. Wayrynen serves as a director. Includes stock options to
purchase 350,000 common shares of our company.
|
|
|
|
|
(32)
|
Consists of 350,000 common shares issuable at an exercise
price of $0.50 per share until July 13, 2017 upon exercise of the stock
options granted on December 22, 2010. We granted these stock options
pursuant to our 2010 stock option plan.
|
Plan of Distribution
The selling shareholders may, from time to time, sell all or a
portion of our common shares on any market upon which our common shares may be
listed or quoted (currently Financial Industry Regulatory Authority’s OTC
Bulletin Board and the Canadian National Stock Exchange), in privately
negotiated transactions or otherwise. Such sales may be at fixed prices
prevailing at the time of sale, at prices related to the market prices or at
negotiated prices. The common shares of our company being offered for resale
pursuant to this reoffer prospectus may be sold by the selling shareholders by
one or more of the following methods, without limitation:
|
|
1.
|
block trades in which the broker or dealer so engaged
will attempt to sell our common shares as agent but may position and
resell a portion of the block as principal to facilitate the
transaction;
|
|
|
|
|
|
|
2.
|
purchases by broker or dealer as principal and resale by
the broker or dealer for its account pursuant to this reoffer
prospectus;
|
|
|
|
|
|
|
3.
|
an exchange distribution in accordance with the rules of
the exchange or quotation system;
|
|
|
|
|
|
|
4.
|
ordinary brokerage transactions and transactions in which
the broker solicits purchasers;
|
|
|
|
|
|
|
5.
|
privately negotiated transactions;
|
|
|
|
|
|
|
6.
|
market sales (both long and short to the extent permitted
under the federal securities laws);
|
|
|
|
|
|
|
7.
|
at the market to or through market makers or into an
existing market for the shares;
|
|
|
|
|
|
|
8.
|
through transactions in options, swaps or other
derivatives (whether exchange listed or otherwise);
|
|
|
|
|
|
|
9.
|
a combination of any aforementioned methods of sale;
and
|
|
|
|
|
|
|
10.
|
any other method permitted pursuant to applicable
law.
|
16
In effecting sales, brokers and dealers engaged by the selling
shareholders may arrange for other brokers or dealers to participate. Brokers or
dealers may receive commissions or discounts from a selling shareholder or, if
any of the broker-dealers act as an agent for the purchaser of such shares, from
a purchaser in amounts to be negotiated which are not expected to exceed those
customary in the types of transactions involved. Broker-dealers may agree with a
selling shareholder to sell a specified number of our common shares at a
stipulated price per share. Such an agreement may also require the broker-dealer
to purchase as principal any unsold common shares of our company at the price
required to fulfill the broker-dealer commitment to the selling shareholder if
such broker-dealer is unable to sell the shares on behalf of the selling
shareholder. Broker-dealers who acquire shares of our common shares as principal
may thereafter resell our common shares from time to time in transactions which
may involve block transactions and sales to and through other broker-dealers,
including transactions of the nature described above. Such sales by a
broker-dealer could be at prices and on terms then prevailing at the time of
sale, at prices related to the then-current market price or in negotiated
transactions. In connection with such resale, the broker-dealer may pay to or
receive from the purchasers of the shares commissions as described above.
The selling shareholders and any broker-dealers or agents that
participate with the selling shareholders in the sale of our common shares may
be deemed to be “underwriters” within the meaning of the Securities Act of 1933
in connection with these sales. In that event, any commissions received by the
broker-dealers or agents and any profit on the resale of our common shares
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act of 1933.
From time to time, any of the selling shareholders may pledge
our common shares pursuant to the margin provisions of customer agreements with
brokers. Upon a default by a selling shareholder, his or her broker may offer
and sell the pledged common shares of our company from time to time. Upon a sale
of our common shares, we believe that the selling shareholders will satisfy the
prospectus delivery requirements under the Securities Act of 1933. We intend to
file any amendments or other necessary documents in compliance with the
Securities Act of 1933 which may be required in the event any of the selling
shareholders defaults under any customer agreement with brokers.
To the extent required under the Securities Act of 1933, a
post-effective amendment to the registration statement of which this reoffer
prospectus forms a part will be filed disclosing the name of any broker-dealers,
the number of our common shares involved, the price at which our common shares
are to be sold, the commissions paid or discounts or concessions allowed to such
broker-dealers, where applicable, that such broker-dealers did not conduct any
investigation to verify the information set out or incorporated by reference in
this reoffer prospectus and other facts material to the transaction.
We and the selling shareholders will be subject to applicable
provisions of the Securities Exchange Act of 1934 and the rules and regulations
under it, including, without limitation, Rule 10b-5 and, insofar as a selling
shareholder is a distribution participant and we, under certain circumstances,
may be a distribution participant, under Regulation M. All of the foregoing may
affect the marketability of our common shares.
All expenses for this reoffer prospectus and related
registration statement including legal, accounting, printing and mailing fees
are and will be borne by us. Any commissions, discounts or other fees payable to
brokers or dealers in connection with any sale of our common shares will be
borne by the selling shareholders, the purchasers participating in such
transaction, or both.
Any common shares of our company being offered pursuant to this
reoffer prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act of 1933, may be sold under Rule 144 rather than pursuant to this
reoffer prospectus.
Expenses
The following table sets forth the costs and expenses payable
by us in connection with the issuance and distribution of our common shares
being offered. No expenses will be borne by the selling shareholders, except for
any broker discounts or commissions or equivalent expenses and expenses of their
respective legal counsel applicable to the sale of their common shares. All of
the amounts shown are estimates, except for the Securities and Exchange
Commission registration fees.
17
|
Securities and Exchange Commission
registration fees
|
$
|
286.45
|
|
|
|
|
|
|
|
Accounting fees and expenses
|
|
5,000.00
|
|
|
|
|
|
|
|
Legal fees and expenses
|
|
15,000.00
|
|
|
|
|
|
|
|
Printing and engraving expenses
|
|
2,000.00
|
|
|
|
|
|
|
|
Transfer agent and registrar fees
|
|
2,000.00
|
|
|
|
|
|
|
|
Miscellaneous
|
|
5,000.00
|
|
|
|
|
|
|
|
Total
|
$
|
29,286.45
|
|
Capitalization and Indebtedness
The table below sets forth our total indebtedness and shows the
capitalization of our company as of March 31, 2013.
As at March 31, 2013
|
Liabilities
|
|
|
|
|
Accounts Payable and Accrued Liabilities
|
$
|
685,113
|
|
|
Warrants in foreign currency
|
|
130,201
|
|
|
|
$
|
815,314
|
|
|
Shareholders’ Equity
|
|
|
|
|
Common Shares
|
$
|
8,319,082
|
|
|
Share Subscriptions
|
|
458,935
|
|
|
Contributed Surplus
|
|
2,078,221
|
|
|
Deficit
|
|
(10,990,575
|
)
|
|
|
$
|
(134,337
|
)
|
|
Total liabilities and shareholders’
equity
|
$
|
680,977
|
|
Experts and Counsel
Our financial statements for the years ended December 31, 2012
and 2011 incorporated in this reoffer prospectus by reference from our annual
report on Form 20-F for the year ended December 31, 2012 filed with the
Securities and Exchange Commission on April 19, 2013 have been audited by BDO
Canada LLP, to the extent and for the period set forth in its report (which
contains an explanatory paragraph regarding our ability to continue as a going
concern), which is incorporated herein by reference, and have been so
incorporated in reliance upon such report given upon the authority of said firm
as an expert in auditing and accounting.
Clark Wilson LLP, of Suite 900 – 885 West Georgia Street,
Vancouver, British Columbia, Canada has provided an opinion on the validity of
our common shares being offered pursuant to this reoffer prospectus.
Interest of Named Experts and Counsel
No expert or counselor named in this reoffer prospectus was
employed on a contingent basis, owns an amount of shares in our company or our
subsidiaries which is material to that person, or has a material, direct or
indirect economic interest in our company or that depends on the success of the
offering.
18
Material Changes
There have been no material changes to the affairs of our
company since December 31, 2012 which have not previously been described in a
report on Form 20-F or Form 6-K filed with the Securities and Exchange
Commission.
Incorporation of Certain Information by Reference
The following documents filed by our company with the
Securities and Exchange Commission are incorporated into this reoffer prospectus
by reference:
|
1.
|
Our annual report on Form 20-F filed on April 19, 2013;
and
|
|
|
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2.
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The description of our common shares contained in our
registration statement on Form 20-F filed on July 2, 2003, as amended by
our annual report on Form 20-F filed on April 19, 2013, including any
amendments or reports filed for the purpose of updating such
description.
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In addition, all subsequent annual reports on Form 20-F, Form
40-F or Form 10-K, and all subsequent filings on Form 10-Q or Form 8-K, that we
file pursuant to the Securities Exchange Act of 1934 prior to the termination of
this offering, are hereby incorporated by reference into this reoffer
prospectus. Also, we may incorporate by reference future reports on Form 6-K
that we furnish subsequent to the date of this reoffer prospectus by stating in
those Form 6-Ks that they are being incorporated by reference into this reoffer
prospectus.
Any statement contained in a document incorporated by reference
in this reoffer prospectus will be deemed to be modified or superseded for
purposes of this reoffer prospectus to the extent that a statement contained in
this reoffer prospectus or in any subsequently filed document that is also
incorporated by reference in this reoffer prospectus modifies or supersedes such
statement. Any statement so modified or superseded will not be deemed, except as
so modified or superseded, to constitute a part of this reoffer prospectus.
Where You Can Find More Information
We will provide to each person, including any beneficial owner,
to whom this reoffer prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference into this reoffer prospectus
but not delivered with this reoffer prospectus, upon written or oral request of
such person at no cost to such person. Please send us such request by writing or
calling RepliCel Life Sciences Inc. at Suite 2020 – 401 West Georgia Street,
Vancouver, British Columbia, V6B 5A1, Canada, Attention: President. Our
telephone number is (604) 248-8730.
We file annual, quarterly and current reports, proxy statements
and other information with the Securities and Exchange Commission. Such filings
are available to the public over the internet at the Securities and Exchange
Commission’s website at http://www.sec.gov. The public may also read and copy
any materials we file with the Securities and Exchange Commission at its public
reference room at 100 F Street, N.E. Washington, D.C. 20549. The public may
obtain information on the operation of the public reference room by calling the
Securities and Exchange Commission at 1-800-SEC-0330.
We have filed with the Securities and Exchange Commission a
registration statement on Form S-8 under the Securities Act of 1933 with respect
to the securities offered under this reoffer prospectus. This reoffer
prospectus, which forms a part of that registration statement, does not contain
all information included in the registration statement. Certain information is
omitted and you should refer to the registration statement and its exhibits.
You should only rely on the information incorporated by
reference or provided in this reoffer prospectus or any supplement. We have not
authorized anyone else to provide you with different information. This reoffer
prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any of the securities offered hereby by anyone in any jurisdiction in which
such offer or solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to any person to whom it is
unlawful to make such offer or solicitation. You should not assume that the
information in this reoffer prospectus or any supplement is accurate as of any
date other than the date of this reoffer prospectus.
19
1,815,000 Shares
RepliCel Life Sciences Inc.
Common Shares
_________________________________
Reoffer Prospectus
_________________________________
May 21, 2013
20
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by our company with the
Securities and Exchange Commission are incorporated into this registration
statement by reference:
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1.
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Our annual report on Form 20-F filed on April 19, 2013;
and
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2.
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The description of our common shares contained in our
registration statement on Form 20-F filed on July 2, 2003, as amended by
our annual report on Form 20-F filed on April 19, 2013, including any
amendments or reports filed for the purpose of updating such
description.
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In addition to the foregoing, all documents that we
subsequently file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment indicating that all of the securities offered pursuant to this
registration statement have been sold or deregistering all securities then
remaining unsold, will be deemed to be incorporated by reference into this
registration statement and to be part hereof from the date of filing of such
documents. Also, we may incorporate by reference future reports on Form 6-K that
we furnish subsequent to the date of this registration statement by stating in
those Form 6-Ks that they are being incorporated by reference into this
registration statement. Any statement contained in a document incorporated by
reference in this registration statement will be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained in this registration statement or in any subsequently filed
document that is also incorporated by reference in this registration statement
modifies or supersedes such statement. Any statement so modified or superseded
will 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.
No expert named in this registration statement as having
prepared or certified any part thereof (or is named as having prepared or
certified a report or valuation for use in connection with this registration
statement) or counsel named in this registration statement as having given an
opinion upon the validity of the securities being offered pursuant to this
registration statement or upon other legal matters in connection with the
registration or offering such securities was employed for such purpose on a
contingency basis. Also at the time of such preparation, certification or
opinion or at any time thereafter, through the date of effectiveness of such
registration statement or that part of such registration statement to which such
preparation, certification or opinion relates, no such person had, or is to
receive, in connection with the offering, a substantial interest, direct or
indirect, in our company or any of its parents or subsidiaries. Nor was any such
person connected with our company or any of its parents or subsidiaries as a
promoter, managing or principal underwriter, voting trustee, director, officer
or employee.
Item 6. Indemnification of Directors and Officers.
Business
Corporations Act (British Columbia)
Division 5 of Part 5 of the Business Corporations Act (British
Columbia) provides that a corporation may (a) indemnify an eligible party
against all eligible penalties to which the eligible party is or may be liable
and (b) after the final disposition of an eligible proceeding, pay the expenses
(not including judgments, penalties, fines or amounts paid in settlement of a
proceeding) actually and reasonably incurred by an eligible party in respect of
that proceeding.
An “eligible party” means an individual who (a) is or was a
director or officer of the corporation, (b) is or was a director or officer of
another corporation (i) at a time when the corporation is or was an affiliate of
the corporation, or (ii) at the request of the corporation, or (c) at the
request of the corporation, is or was, or holds or held a position equivalent to
that of, a director or officer of a partnership, trust, joint venture or other
unincorporated entity. An “eligible proceeding” means a proceeding in which an
eligible party or any of the heirs and personal or other legal representatives
of the eligible party, by reason of the eligible party being or having been a director or
officer of, or holding or having held a position equivalent to that of a
director or officer of, the corporation or an associated corporation (a) is or
may be joined as a party, or (b) is or may be liable for or in respect of a
judgment, penalty or fine in, or expenses related to, the proceeding.
21
A corporation must, after the final disposition of an eligible
proceeding, pay the expenses actually and reasonably incurred by the eligible
party in respect of that proceeding if the eligible party (a) has not been
reimbursed for those expenses, and (b) is wholly successful, on the merits or
otherwise, in the outcome of the proceeding or is substantially successful on
the merits in the outcome of the proceeding.
A corporation may pay, as they are incurred in advance of the
final disposition of an eligible proceeding, the expenses actually and
reasonably incurred by an eligible party in respect of that proceeding, provided
the corporation first receives from the eligible party a written undertaking
that, if it is ultimately determined that the payment of expenses is prohibited,
the eligible party will repay the amounts advanced.
A corporation must not indemnify an eligible party or pay the
expenses of an eligible party if any of the following circumstances apply:
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if the indemnity or payment is made under an earlier agreement to indemnify
or pay expenses and, at the time that the agreement to indemnify or pay
expenses was made, the corporation was prohibited from giving the indemnity or
paying the expenses by its memorandum or articles;
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if the indemnity or payment is made otherwise than under an earlier
agreement to indemnify or pay expenses and, at the time that the indemnity or
payment is made, the corporation is prohibited from giving the indemnity or
paying the expenses by its memorandum or articles;
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if, in relation to the subject matter of the eligible proceeding, the
eligible party did not act honestly and in good faith with a view to the best
interests of the corporation or the associated corporation, as the case may
be;
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in the case of an eligible proceeding other than a civil proceeding, if the
eligible party did not have reasonable grounds for believing that the eligible
party's conduct in respect of which the proceeding was brought was lawful.
If an eligible proceeding is brought against an eligible party
by or on behalf of the corporation or by or on behalf of an associated
corporation, the corporation must not (a) indemnify the eligible party in
respect of the proceeding or (b) pay the expenses of the eligible party in
respect of the proceeding.
A corporation may purchase and maintain insurance for the
benefit of an eligible party or the heirs and personal or other legal
representatives of the eligible party against any liability that may be incurred
by reason of the eligible party being or having been a director or officer of,
or holding or having held a position equivalent to that of a director or officer
of, the corporation or an associated corporation.
Articles
Our articles provide that our directors must cause our company
to indemnify our directors and former directors, and their respective heirs and
personal or other legal representatives to the greatest extent permitted by
Division 5 of Part 5 of the Business Corporations Act (British Columbia) and
each director is deemed to have contracted with our company on this term.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit
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Number
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Description
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(4)
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Instruments
Defining the Rights of Security Holders, including Indentures
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*Filed herewith.
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Item 9. Undertakings.
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 of
1933;
ii. 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
Securities and Exchange 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 the registration statement or any material change to such
information in the registration statement;
provided however
, that
paragraphs (1)(i) and (1)(ii) 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 Securities and Exchange 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
2. 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 initial bona fide offering
thereof; and
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.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 public policy as expressed
in the Securities Act of 1933 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 of 1933 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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Vancouver, Province of British Columbia, Canada on
May 21, 2013.
RepliCel Life Sciences Inc.
By:
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/s/ David
Hall
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David Hall
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President, Chief Executive Officer, and Director
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(Principal Executive Officer)
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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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/s/ David
Hall
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David Hall
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President, Chief Executive Officer, and Director
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(Principal Executive Officer)
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Date: May 21, 2013
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/s/ Tom
Kordyback
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Tom Kordyback
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Chief Financial Officer
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(Principal Financial Officer and Principal Accounting
Officer)
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Date: May 21, 2013
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/s/ Peter
Jensen
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Peter Jensen
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Chairman of the Board and Director
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Date: May 21, 2013
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/s/ Rolf
Hoffman
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Rolf Hoffman
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Chief Medical Officer and Director
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Date: May 21, 2013
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/s/ John
Challis
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John Challis
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Director
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Date: May 21, 2013
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/s/ Peter
Lewis
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Peter Lewis
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Director
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Date: May 21, 2013
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25
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