As filed
with the Securities and Exchange Commission on October 19,
2010
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE
SECURITIES
ACT OF 1933
WAFERGEN
BIO-SYSTEMS, INC.
(Exact
name of registrant as specified in its charter)
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Nevada
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90-0416683
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(State
or other jurisdiction of
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(I.R.S.
Employer
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Incorporation
or organization)
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Identification
No.)
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7400
Paseo Padre Parkway
Fremont,
CA 94555
(Address
of principal executive offices)
WaferGen
Bio-systems, Inc. 2008 Stock Incentive Plan
(Full
title of the Plan)
Alnoor
Shivji, President
7400
Paseo Padre Parkway
Fremont,
CA 94555
(510)
651-4450
(Name,
address, including zip code, and telephone number, including area
code,
of agent for service)
With
Copies to:
John.
W. Campbell III, Esq.
John
M. Rafferty, Esq.
Morrison &
Foerster LLP
425
Market Street
San
Francisco, California 94105
(415)
268-7000
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. (Check
one):
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Large
accelerated filer
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¨
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Accelerated
filer
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¨
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Non-accelerated
filer
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¨
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Smaller
reporting company
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x
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(Do
not check if a smaller reporting
company)
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_______________________________
CALCULATION
OF REGISTRATION FEE
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Title
of Securities to be Registered
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Amount
to
be
registered (1)
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Proposed
maximum
offering
price
per
share
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Proposed
maximum
aggregate
offering
price
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Amount
of
registration
fee
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Common
Stock, $0.001 par value per share
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3,000,000
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$1.43
(2)
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$4,290,000
(2)
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$305.88
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement includes an indeterminate
number of additional shares which may be offered and issued to prevent
dilution from stock splits, stock dividends or similar transactions as
provided in the above-referenced plan.
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(2)
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Estimated
solely for the purpose of calculating the registration
fee. Pursuant to Rule 457(c) and Rule 457(h) under the
Securities Act, the proposed maximum offering price per share and the
proposed maximum aggregate offering price have been determined on the
basis of the average of the high and low prices reported on the OTC
Bulletin Board on October 19,
2010.
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PART
I
INFORMATION
REQUIRED IN THE
SECTION
10(A) PROSPECTUS
This
registration statement is being filed pursuant to General Instruction E to Form
S-8 in order to register an additional 3,000,000 shares of common stock, par
value $0.001 per share, of WaferGen Bio-systems, Inc. (the “Registrant”), which
may be offered or sold to participants under the WaferGen Bio-Systems, Inc. 2008
Stock Incentive Plan (the “Plan”). The increase in the number of shares of
common stock authorized for issuance under the Plan was approved by the
Registrant’s stockholders at the Registrant’s 2010 annual meeting of
stockholders held on September 16, 2010. Pursuant to General
Instruction E to Form S-8, the contents of registration statement
No. 333-152597 are incorporated herein by reference except to the extent
supplemented, amended or superseded by the information set forth
herein. Only those Items of Form S-8 containing new information not
contained in registration statement No. 333-152597 are presented
herein.
PART
II
INFORMATION
REQUIRED IN THE
REGISTRATION
STATEMENT
Item
3. Incorporation
of Documents by Reference.
The
following documents filed by the Registrant with the Commission are incorporated
by reference herein:
a. The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December
31, 2009, which includes audited consolidated financial statements for the
fiscal year ended December 31, 2009.
b. The
description of the Registrant’s Common Stock contained in the Registrant’s
Statement on Form 8-A, filed under the Exchange Act on May 21, 2008,
including any amendment or report filed for the purpose of updating such
description.
c. All
other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), since
the end of the fiscal year covered by the audited financial statements described
in (a) above.
All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby 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
part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for the 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.
To the
extent that any proxy statement or Form 8-K is incorporated herein by reference,
such incorporation shall not include any information contained in such proxy
statement or Form 8-K which is not, pursuant to the SEC’s rules, deemed to
be “filed” with the SEC or subject to the liabilities of Section 18 of the
Securities Exchange Act.
Item
8. Exhibits.
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Exhibit No.
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Description
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5.1
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Opinion
of McDonald Carano Wilson LLP.
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23.1
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Consent
of Rowbotham & Company LLP.
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23.2
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Consent
of McDonald Carano Wilson LLP (contained in Exhibit
5.1).
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24.1
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Power
of Attorney (contained on signature
page).
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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 Fremont,
State of California, on October 19, 2010.
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WAFERGEN
BIO-SYSTEMS, INC.
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By:
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/s/
Alnoor Shivji
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Alnoor
Shivji
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Chairman,
President and Chief Executive
Officer
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POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Alnoor Shivji and Don Huffman his true and lawful
attorney-in-fact and agents, with full power of substitution and
re-substitution, for him and in his name, place and stead, in any and all
capacities to sign any and all amendments to this registration statement on
Form S-8, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, and full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed 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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/s/
Alnoor Shivji
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Chairman,
President and Chief
Executive
Officer
(Principal
Executive Officer)
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Alnoor
Shivji
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Chief
Financial Officer
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/s/
Don Huffman
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(Principal
Financial Officer)
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Don
Huffman
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/s/
Robert Coradini
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Director
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Robert
Coradini
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/s/
Robert Hariri
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Director
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Robert
Hariri
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/s/
R. Dean Hautamaki
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Director
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Dr. R.
Dean Hautamaki
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/s/
Joel Kanter
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Director
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Joel
Kanter
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/s/
Makoto Kaneshiro
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Director
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Makoto
Kaneshiro
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Director
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Nadine
Smith
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INDEX
TO EXHIBITS
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Exhibit No.
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Description
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5.1
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Opinion
of McDonald Carano Wilson LLP.
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23.1
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Consent
of Rowbotham & Company LLP.
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23.2
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Consent
of McDonald Carano Wilson LLP (contained in Exhibit
5.1).
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24.1
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Power
of Attorney (contained on signature
page).
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