As filed with the Securities and Exchange Commission on May 15, 2020.

 

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)

 

Delaware

31-1080091

(State or other jurisdiction

(I.R.S. Employer

of incorporation or organization)

Identification No.)

 

4995 Bradenton Avenue, Suite 240

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 Executive Officer, Chief Operating Officer & Chief Financial Officer

Navidea Biopharmaceuticals, Inc.

4995 Bradenton Avenue, Suite 240

Dublin, Ohio 43017

(614) 793-7500

(Name, address and telephone number of agent for service)

 

Copies of Correspondence to:

Faith L. Charles, Esq.

Thompson Hine LLP

335 Madison Avenue, 12th Floor

New York, New York 10017-4611

(212) 344-5680

Faith.Charles@thompsonhine.com

 

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. ☐

 

Calculation of Registration Fee

 

Title of Securities

to be Registered(1)

Amount to be

Registered(2)

Proposed Maximum

Offering Price Per

Share(3)

Proposed Maximum

Aggregate

Offering Price

Amount of

Registration Fee(4)

Common Stock, $.001 par value

500,000

$0.93

$465,000

$60.36

 

(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 December 22, 2005 (Registration No. 333-130636), March 31, 2009 (Registration No. 333-158323) and May 9, 2017 (Registration No. 333-217814) 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 American stock exchange on May 12, 2020.

 

(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 December 22, 2005 (Registration No. 333-130636), March 31, 2009 (Registration No. 333-158323) and May 9, 2017 (Registration No. 333-217814).

 

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 December 22, 2005 (Registration No. 333-130636), March 31, 2009 (Registration No. 333-158323) and May 9, 2017 (Registration No. 333-217814), 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, 2019 (filed March 18, 2020).

 

 

2.

Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 (filed May 15, 2020).

 

 

3.

Current Reports on Form 8-K dated February 14, 2020 (filed February 14, 2020); dated February 14, 2020 (filed February 18, 2020); and dated May 6, 2020 (filed May 12, 2020); 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.

 

 

4.

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.

  

Item 8.    Exhibits

 

Exhibit Number

 

Description

 

 

 

5.1

*

Opinion of Thompson Hine LLP regarding legality.

 

 

 

23.1

*

Consent of Thompson Hine LLP (included in Exhibit 5.1 filed herewith).

 

 

 

23.2

*

Consent of Independent Registered Public Accounting Firm: Marcum LLP.

 

 

 

24.1

*

Powers of Attorney.

 

 

 

99.1

*

Navidea Biopharmaceuticals, Inc. 401(k) Plan Document.

________________

* 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 15, 2020.

 

 

NAVIDEA BIOPHARMACEUTICALS, INC.

 

 

 

 

 

/s/ Jed A. Latkin

 

 

Chief Executive Officer, Chief Operating Officer and

Chief Financial Officer

 

 

 

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:

 

Signature

Title

Date

 

 

 

* /s/ Jed A. Latkin

Chief Executive Officer, Chief Operating Officer

May 15, 2020

Jed A. Latkin and Chief Financial Officer, Director  
  (principal executive officer, principal financial officer  
  and principal accounting officer)  

 

 

 

* /s/ Y. Michael Rice

Chair, Director

May 15, 2020

Y. Michael Rice

 

 

 

 

 

* /s/ Claudine Bruck, Ph.D.

Director

May 15, 2020

Eric K. Rowinsky, M.D.

 

 

 

 

 

* /s/ Adam D. Cutler

Director

May 15, 2020

Adam D. Cutler

 

 

 

 

 

* /s/ S. Kathryn Rouan, Ph.D.

Director

May 15, 2020

S. Kathryn Rouan, Ph.D.

 

 

 

*By: /s/ Jed A. Latkin

 

Jed A. Latkin, attorney-in-fact for each of the persons indicated