As
filed with the Securities and Exchange Commission on May 9,
2017.
Registration No. 333-__________
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
NAVIDEA BIOPHARMACEUTICALS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware
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31-1080091
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(State or other jurisdiction
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(I.R.S. Employer
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of incorporation or organization)
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Identification No.)
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5600
Blazer Parkway, Suite 200
Dublin,
Ohio 43017
(Address of Registrant's principal executive offices)
NAVIDEA BIOPHARMACEUTICALS, INC. 401(k) PLAN AND TRUST
(Full Title of the Plan)
Jed A.
Latkin
Chief
Operating Officer & Chief Financial Officer
Navidea
Biopharmaceuticals, Inc.
5600
Blazer Parkway, Suite 200
Dublin,
Ohio 43017
(614)
793-7500
(Name, address and telephone number of agent for
service)
Copies of Correspondence to:
Brett P. Thornton, Esq.
Porter, Wright, Morris & Arthur LLP
41 South High Street
Columbus, Ohio 43215
(614) 227-2194
bthornton@porterwright.com
Indicate
by check mark whether the registrant is a large accelerated filer,
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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Smaller
reporting company ☐
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Calculation of Registration Fee
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Title of Securities
to be Registered(1)
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Amount to be
Registered(2)
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Proposed Maximum
Offering Price Per
Share(3)
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Proposed Maximum
Aggregate
Offering Price
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Amount of
Registration Fee(4)
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Common Stock, $.001 par value
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500,000
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$0.51
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$255,000
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$29
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(1)
This
Registration Statement covers only shares of common stock, $.001
par value, of Navidea Biopharmaceuticals, Inc. (“Navidea
Common Stock”) that may be issued to the Navidea
Biopharmaceuticals, Inc. 401(k) Plan and Trust, as amended (the
“Plan”), or its beneficiaries as employer matching
contributions. The interests of employees in the Plan are not being
registered hereby.
(2)
This Registration Statement registers 500,000
additional shares of Navidea Common Stock for issuance to the Plan
or its beneficiaries. Registration Statements on Form S-8 were
previously filed on March 31, 2009 (Registration No. 333-158323)
and December 22, 2005 (Registration No. 333-130636) for the
existing securities available under the Plan. In
accordance with Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement shall be deemed to cover an
indeterminate number of additional shares of Navidea Common Stock,
as may be issuable pursuant to future stock dividends, stock splits
or similar transactions.
(3)
Estimated
solely for the purpose of calculating the proposed maximum
aggregate offering price and the registration fee pursuant to Rule
457(h) and Rule 457(c) under the Securities Act of 1933, as
amended, based upon the average of the high and low prices of
Navidea Common Stock as reported on the NYSE MKT stock exchange on
May 2, 2017.
(4)
Pursuant
to General Instruction E to Form S-8, a filing fee is only being
paid with respect to the registration of additional securities for
the Plan.
EXPLANATORY NOTE
This
Registration Statement on Form S-8 (this “Registration
Statement”) is being filed for the purpose of registering an
additional 500,000 shares of the common stock of Navidea
Biopharmaceuticals, Inc. (the “Corporation”) to be
issued to the Navidea Biopharmaceuticals, Inc. 401(k) Plan and
Trust, as amended (the “Plan”), or its beneficiaries as
employer matching contributions. Pursuant to General Instruction E
to Form S-8, we incorporate by reference into this Registration
Statement the contents of the Corporation’s Registration
Statements on Form S-8 previously filed with the Securities and
Exchange Commission (the “Commission”) on March 31,
2009 (Registration No. 333-158323) and December 22, 2005
(Registration No. 333-130636).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information called for in Part I of Form S-8 is not being filed
with or included in this Registration Statement (by incorporation
by reference or otherwise) in accordance with the Note to Part I of
Form S-8. The documents containing the information required by Part
I, which also relate to the shares registered under the
Registration Statements on Form S-8 filed on March 31, 2009
(Registration No. 333-158323) and December 22, 2005 (Registration
No. 333-130636), will be sent or given to participants as specified
by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
The
Corporation incorporates by reference the following documents that
the Corporation has previously filed with the
Commission:
1.
Annual Report on
Form 10-K for the fiscal year ended December 31, 2016 (filed March
31, 2017).
2.
Current Reports on
Form 8-K dated February 6, 2017 (filed February 10, 2017); dated
February 9, 2017 (filed February 16, 2017); dated February 22, 2017
(filed February 23, 2017); dated March 2, 2017 (filed March 2,
2017); dated March 3, 2017 (filed March 9, 2017); dated March 8,
2017 (filed March 13, 2017); and dated April 25, 2017 (filed May 1,
2017); and excepting all such current reports furnished under Item
2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that
are related to such items unless such Form 8-K expressly provides
to the contrary.
3.
The description of
the Corporation’s common stock which is contained in the
Corporation’s Form 8-A filed with the Commission on February
8, 2011 (Registration No. 001-35076) pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended, as updated in any
amendment or report filed for the purpose of updating such
description.
All
documents subsequently filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents. Any statement incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
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Exhibit Number
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Description
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5.1
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*
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Opinion
of Porter, Wright, Morris & Arthur LLP regarding
legality.
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23.1
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*
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Consent
of Porter, Wright, Morris & Arthur LLP (included in Exhibit 5.1 filed
herewith).
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23.2
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*
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Consent
of Independent Registered Public Accounting Firm: Marcum
LLP.
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23.3
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*
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Consent
of Independent Registered Public Accounting Firm: BDO USA,
LLP.
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24.1
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*
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Powers
of Attorney.
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99.1
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*
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Navidea
Biopharmaceuticals, Inc. 401(k) Plan and Trust.
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________________
* Filed
herewith.
The
Corporation submitted the Navidea Biopharmaceuticals, Inc. 401(k)
Plan and Trust (the “Plan”) to the Internal Revenue
Service (the “IRS”) and received a determination letter
from the IRS confirming that the Plan was qualified under Section
401 of the Internal Revenue Code of 1986, as amended (the
“Code”). The Plan’s most recent determination
letter from the IRS was dated March 7, 2017. The Corporation will
make any changes required by the IRS in order to qualify the Plan
under Section 401 of the Code.
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 of 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 Dublin,
State of Ohio, on May 9, 2017.
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NAVIDEA BIOPHARMACEUTICALS, INC.
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/s/ Jed A. Latkin
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Chief
Operating Officer & Chief Financial Officer
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Pursuant to the
requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
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Signature
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Title
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Date
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Michael M. Goldberg
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President, Chief
Executive Officer
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May 9,
2017
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Michael
M. Goldberg, M.D.
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and
Director (principal executive officer)
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/s/ Jed A. Latkin
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Chief
Operating Officer
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May 9,
2017
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Jed A.
Latkin
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&
Chief Financial Officer
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(principal
financial officer and
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principal
accounting officer)
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Eric K. Rowinsky
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Chairman of the
Board of Directors
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May 9,
2017
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Eric K.
Rowinsky, M.D.
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Anthony S. Fiorino
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Director
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May 9,
2017
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Anthony
S. Fiorino, M.D., Ph.D.
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Mark I. Greene
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Director
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May 9,
2017
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Mark I.
Greene, M.D., Ph.D. FRCP
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Y. Michael Rice
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Director
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May 9,
2017
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Y.
Michael Rice
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*By:
/s/ Jed A.
Latkin
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Jed A.
Latkin, attorney-in-fact for each
of the
persons indicated
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