S-8

As filed with the Securities and Exchange Commission on March 17, 2022

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

AVROBIO, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   81-0710585

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification Number)

One Kendall Square

Building 300, Suite 201

Cambridge, Massachusetts

  02139
(Address of Principal Executive Offices)   (Zip Code)

2018 Stock Option and Incentive Plan

2018 Employee Stock Purchase Plan

(Full title of the plan)

Geoff MacKay

President and Chief Executive Officer

One Kendall Square

Building 300, Suite 201

Cambridge, MA 02139

(Name and address of agent for service)

(617) 914-8420

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

Copies to:

Arthur R. McGivern, Esq.

James Xu, Esq.

Goodwin Procter LLP

100 Northern Avenue

Boston, Massachusetts 02210

(617) 570-1000

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth 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 (the “Registration Statement”) is being filed for the purpose of registering additional shares of common stock under the registrant’s Plan and ESPP.

The number of shares of common stock reserved and available for issuance under the Plan is subject to an automatic annual increase on each January 1, by an amount equal to the lesser of (i) 4.0% of the number of shares of common stock issued and outstanding on the immediately preceding December 31 or (ii) such amount as determined by the Administrator (as defined in the Plan), currently the Compensation Committee of the registrant’s Board of Directors. Accordingly, on January 1, 2022, the number of shares of common stock reserved and available for issuance under the Plan increased by 1,747,853 shares.

The number of shares of common stock reserved and available for issuance under the ESPP is subject to an automatic annual increase on each January 1, by an amount equal to the lesser of (i) 1.0% of the number of shares of common stock issued and outstanding on the immediately preceding December 31, (ii) 1,115,700 shares or (iii) such amount as determined by the Administrator (as defined in the ESPP), currently the Compensation Committee of the registrant’s Board of Directors. Accordingly, on January 1, 2022, the number of shares of common stock reserved and available for issuance under the ESPP increased by 436,963 shares.

The additional shares described above are of the same class as other securities relating to the Plan and the ESPP for which the registrant’s registration statements filed on Form S-8 (Registration No. 333-225788) on June 21, 2018, on Form S-8 (Registration No. 333-230494) on March 25, 2019, on Form S-8 (Registration No. 333-237203) on March 16, 2020, on Form S-8 (Registration No. 333-241400) on August 6, 2020 and on Form S-8 (Registration No. 333-254466) on March  18, 2021 are effective. The information contained in the registrant’s registration statement on Form S-8 (Registration No. 333-225788) is hereby incorporated by reference pursuant to General Instruction E.


Part II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8.

Exhibits.

EXHIBIT INDEX

 

Exhibit
No.

  

Description

  4.1    Fourth Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on June 25, 2018 (File No. 001-38537) and incorporated herein by reference)
  4.2    Certificate of Change of Registered Agent and/or Registered Office of the Registrant (filed as Exhibit 3.2 to the Registrant’s Quarterly Report on Form 10-Q filed on November 5, 2020 (File No. 001-38537) and incorporated herein by reference).
  4.3    Amended and Restated By-laws (filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on June 25, 2018 (File No. 001-38537) and incorporated herein by reference)
  4.4    Second Amended and Restated Investors’ Rights Agreement among the Registrant and certain of its stockholders, dated January  9, 2018 (filed as Exhibit 4.2 to the Registrant’s Registration Statement on Form S-1 filed on May  25, 2018 (File No. 333-225213) and incorporated herein by reference)
  5.1*    Opinion of Goodwin Procter LLP
23.1*    Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
23.2*    Consent of Goodwin Procter LLP (included in Exhibit 5.1)
24.1*    Power of Attorney (included on signature page)
99.1    2018 Stock Option and Incentive Plan and forms of award agreements thereunder (Incorporated by reference to Exhibit 10.2 to the registrant’s Registration Statement on Form S-1, as amended (File No. 333-225213))
99.2    2018 Employee Stock Purchase Plan (Incorporated by reference to Exhibit 10.14 to the registrant’s Registration Statement on Form S-1, as amended (File No. 333-225213))
107*    Filing Fee Table

 

*

Filed herewith.


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 Cambridge, Commonwealth of Massachusetts, on the 17th day of March, 2022.

 

AVROBIO, INC.
By:  

/s/ Geoff MacKay

  Geoff MacKay
 

President, Chief Executive Officer and

Principal Executive Officer

POWER OF ATTORNEY AND SIGNATURES

KNOW ALL BY THESE PRESENT, that each individual whose signature appears below hereby constitutes and appoints each of Geoff MacKay and Erik Ostrowski as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Commission granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

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

 

Name    Title   Date

/s/ Geoff MacKay

   Director, President, Chief Executive Officer and Principal Executive Officer   March 17, 2022
Geoff MacKay  

/s/ Erik Ostrowski

   Chief Financial Officer and Principal Financial and Accounting Officer   March 17, 2022
Erik Ostrowski  

/s/ Bruce Booth

   Chairman of the Board of Directors   March 17, 2022
Bruce Booth, D.Phil.  

/s/ Ian T. Clark

   Director   March 17, 2022
Ian T. Clark  

/s/ Phillip B. Donenberg

   Director   March 17, 2022
Phillip B. Donenberg     

/s/ Gail M. Farfel

   Director   March 17, 2022
Gail M. Farfel, Ph.D.     

/s/ Annalisa Jenkins

   Director   March 17, 2022
Annalisa Jenkins, M.B.B.S., F.R.C.P.     

/s/ Christopher Paige

   Director   March 17, 2022
Christopher Paige, Ph.D.     

/s/ Philip Vickers

   Director   March 17, 2022
Philip Vickers, Ph.D.     
EX-5.1

Exhibit 5.1

March 17, 2022

AVROBIO, Inc.

One Kendall Square

Building 300, Suite 201

Cambridge, MA 02139

 

  Re:

Securities Being Registered under Registration Statement on Form S-8

We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to an aggregate of 2,184,816 shares (the “Shares”) of Common Stock, $0.0001 par value per share (“Common Stock”), of AVROBIO, Inc., a Delaware corporation (the “Company”), that may be issued pursuant to the Company’s 2018 Stock Option and Incentive Plan, as amended, and the Company’s 2018 Employee Stock Purchase Plan (collectively, the “Plans”).

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.

The opinion set forth below is limited to the Delaware General Corporation Law.

For purposes of the opinion set forth below, we have assumed that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares.

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Plans, will be validly issued, fully paid and nonassessable.

We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not 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.

 

Very truly yours,
/s/ GOODWIN PROCTER LLP
GOODWIN PROCTER LLP
EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2018 Stock Option and Incentive Plan of AVROBIO, Inc. and the 2018 Employee Stock Purchase Plan of AVROBIO, Inc. of our report dated March 17, 2022, with respect to the consolidated financial statements of AVROBIO, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

Boston, Massachusetts

March 17, 2022

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

S-8

(Form Type)

AVROBIO, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

 

               
Security Type   Security Class Title   Fee
Calculation
Rule
  Amount
Registered(1)
  Proposed
Maximum
Offering
Price Per
Unit
  Maximum
Aggregate
Offering
Price
  Fee
Rate
  Amount of
Registration
Fee
               
Equity   Common stock, par value $0.0001 per share   Rule 457(h)   1,747,853 (2)   $1.42 (3)   $2,481,951.26   .0000927   $230.08
               
Equity   Common stock, par value $0.0001 per share   Rule 457(c) and Rule 457(h)   436,963 (4)   $1.21 (5)   $528,725.23   .0000927   $49.02
         
Total Offering Amounts     $3,010,676.49     $279.10
         
Total Fee Offsets         —  
         
Net Fee Due               $279.10

 

(1)

Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock which become issuable by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant’s outstanding shares of common stock.

(2)

Represents an automatic increase of 1,747,853 shares of common stock to the number of shares available for issuance under the Registrant’s 2018 Stock Option and Incentive Plan (the “Plan”), effective January 1, 2022. Shares available for issuance under the Plan were previously registered on a registration statement on Form S-8 filed with the Securities and Exchange Commission on June 21, 2018 (Registration No. 333-225788), March 25, 2019 (Registration No. 333-230494), March 16, 2020 (Registration No. 333-237203), August 6, 2020 (Registration No. 333-241400) and March 18, 2021 (Registration No. 333-254466).

(3)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act, and based on the average of the high and low sales prices of the registrant’s common stock, as quoted on the Nasdaq Global Select Market, on March 11, 2022.

(4)

Represents an automatic increase of 436,963 shares of common stock to the number of shares available for issuance under the registrant’s 2018 Employee Stock Purchase Plan (the “ESPP”), effective January 1, 2022. Shares available for issuance under the ESPP were previously registered on a registration statement on Form S-8 filed with the Securities and Exchange Commission on June 21, 2018 (Registration No. 333-225788), March 25, 2019 (Registration No. 333-230494), March 16, 2020 (Registration No. 333-237203) and March 18, 2021 (Registration No. 333-254466).

(5)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 of the Securities Act, and based on 85% of $1.42 per share, which represents the average of the high and low prices of the registrant’s common stock reported on the Nasdaq Global Select Market on March 11, 2022. Pursuant to the ESPP, the purchase price of the shares of common stock reserved for issuance thereunder will be 85% of the fair market value of a share of common stock on the first trading day of the offering period or on the exercise date, whichever is less.