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As filed with the Securities and Exchange Commission on March 14, 2023
Registration No. 333-
 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
 
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
 
 
 
Rapid Micro Biosystems, Inc.
(Exact name of registrant as specified in its charter)
 
 
 
Delaware 20-8121647
(State or other jurisdiction of
incorporation or organization)
 
 
(IRS Employer
Identification No.)
 
1001 Pawtucket Boulevard West, Suite 280
Lowell, MA 01854
(Address of principal executive offices) (Zip code)

 

Rapid Micro Biosystems, Inc. 2021 Incentive Award Plan
Rapid Micro Biosystems, Inc. 2021 Employee Stock Purchase Plan
(Full title of the plans)

 

Robert Spignesi
President and Chief Executive Officer
Rapid Micro Biosystems, Inc.
1001 Pawtucket Boulevard West, Suite 280
Lowell, MA 01854
(Name and address of agent for service)

(978) 349-3200
(Telephone number, including area code, of agent for service)

 
Copy to:
Edwin O'Connor, Esq.
Goodwin Procter LLP
620 Eighth Avenue
New York, NY 10018
(212) 813-8800
 
 

 
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” and “smaller reporting company,” and "emerging growth company” in Rule 12b-2 of the Exchange Act.
       
Large accelerated filer ¨ Accelerated filer ¨
    
Non-accelerated filer x Smaller reporting company x
    
    Emerging growth company x
 
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 for Rapid Micro Biosystems, Inc. (the “Registrant”) registers (i) 555,142 additional shares of the Class A common stock, $0.01 par value per share, of the Registrant (the “Common Stock”) under the Registrant’s 2021 Incentive Award Plan (the “2021 Plan”) which were added on January 1, 2023 as a result of an automatic annual increase provision therein, and (ii) 111,028 additional shares of Common Stock under the Registrant’s 2021 Employee Stock Purchase Plan (the “ESPP”) which were added on January 1, 2023 as a result of an automatic annual increase provision therein. The additional shares are of the same class as other securities relating to the 2021 Plan and the ESPP, respectively, for which the Registrant’s registration statement filed on Form S-8 on July 16, 2021 (File No. 333-257981) is effective. The information contained in the Registrant’s Registration Statement filed on Form S-8 on July 16, 2021 (File No. 333-257981) is hereby incorporated by reference pursuant to General Instruction E.

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 rules and regulations of the Securities and Exchange Commission (the “Commission”).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.Incorporation of Documents by Reference.
 
The following documents, which have been filed with the Commission by the Registrant, pursuant to the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, are hereby incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:
 
(a)    The Registrant’s Annual Report on Form 10-K for its fiscal year ended December 31, 2022, filed with the Commission on March 10, 2023 (Commission File No. 001-40592).
 
(b)    The description of the Registrant’s Common Stock contained in the prospectus included in the Registrant’s registration statement on Form S-1, as amended (Reg. No. 333-257431), which description is incorporated by reference into the Form 8-A (File No. 001-40592) filed with the Commission on July 12, 2021, pursuant to the Exchange Act, and any amendment or report filed for the purpose of updating such description.
 
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
 
Any statement contained in this Registration Statement, in an amendment hereto or in a document incorporated or deemed to be 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 subsequently filed amendment to this Registration Statement or in any document that 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, except as to such specific section of such statements as set forth therein.

Item 4.Description of Securities.
Not applicable.

Item 5.Interests of Named Experts and Counsel.
Not applicable.


Item 6.Indemnification of Directors and Officers.
The following summary is qualified in its entirety by reference to the complete copy of the Delaware General Corporation Law (the “DGCL”) and the Registrant’s restated certificate of incorporation and amended and restated bylaws.
Section 102 of the DGCL permits a corporation to eliminate or limit the personal liability of directors to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant’s restated certificate of incorporation provides that no director of the Registrant shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.

Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she was or is a party or is threatened to be made a party to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

The Registrant’s amended and restated bylaws provides that the Registrant will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of it) by reason of the fact that he or she is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. The Registrant’s amended and restated bylaws provides that the Registrant will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of the Registrant to procure a judgment in the Registrant’s favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the Registrant against all expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.

The Registrant has entered into indemnification agreements with each of the Registrant’s directors and executive officers. These indemnification agreements may require the Registrant, among other things, to indemnify its directors and executive officers for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or executive officer in any action or proceeding arising out of his or her service as

one of the Registrant’s directors or executive officers, or any other company or enterprise to which the person provides services at the Registrant’s request.

The Registrant maintains a general liability insurance policy that covers certain liabilities of directors and officers of the Registrant’s corporation arising out of claims based on acts or omissions in their capacities as directors or officers.

Item 7.Exemption from Registration Claimed.

Not applicable.


Item 8.Exhibits.

Exhibit Number
 Description of Exhibit
  
 
   
 
  
 
  
 
 
  
 
  
 
  
 
   
 
 
+ Filed herewith



Item 9.Undertakings.
 
(a) 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;
 
(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 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 (a)(1)(i) and (a)(1)(ii) of this section 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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
 
(2) That, for the purpose of determining any liability under the Securities Act, 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.
 
(b)    The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
 
(h)    Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities Act 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 and will be governed by the final adjudication of such issue.


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 Lowell, Commonwealth of Massachusetts, on the 14th day of March, 2023.
 RAPID MICRO BIOSYSTEMS, INC.
 
 By:/s/ Robert Spignesi  
  Robert Spignesi
  President and Chief Executive Officer
POWER OF ATTORNEY

We, the undersigned officers and directors of Rapid Micro Biosystems, Inc., hereby severally constitute and appoint Robert Spignesi and Sean Wirtjes, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement (or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, 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 held on the dates indicated.

Signature Title Date
/s/ Robert Spignesi   President, Chief Executive Officer and Director (principal executive officer) March 14, 2023
Robert Spignesi
/s/ Sean Wirtjes Chief Financial Officer (principal financial officer and principal accounting officer) March 14, 2023
Sean Wirtjes
/s/ Jeffrey Schwartz   Chairperson of the Board of Directors March 14, 2023
Jeffrey Schwartz
/s/ David Hirsch   Director March 14, 2023
David Hirsch, M.D., Ph.D.
/s/ Richard Kollender   Director March 14, 2023
Richard Kollender
/s/ Melinda Litherland Director March 14, 2023
Melinda Litherland   
    
/s/ Inese Lowenstein Director March 14, 2023
Inese Lowenstein   

    
/s/ Natale Ricciardi Director March 14, 2023
Natale Ricciardi   
Document
Exhibit 107
Calculation of Filing Fee Table

Form S-8
(Form Type)

Rapid Micro Biosystems, Inc.
(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

Security TypeSecurity
Class Title		Fee
Calculation
Rule
Amount
Registered(1)
Proposed
Maximum
Offering
Price Per
Unit(2)
Maximum
Aggregate
Offering
Price(2)
Fee
Rate
Amount of
Registration
Fee
EquityClass A common Stock, par value $0.01 per share,
issuable
pursuant to the
Registrant’s
2021 Incentive Award Plan		Rule 457(c)
and Rule
457(h)
555,142 shares(3)
$1.11$616,207.62 0.00011020$67.91
EquityClass A common Stock, par value $0.01 per share,
issuable
pursuant to the
Registrant’s
2021 Employee Stock Purchase Plan		Rule 457(c)
and Rule
457(h)
111,028 shares(4)
$1.11$123,241.080.00011020$13.58
Total Offering Amounts$739,448.70$81.49
Total Fee Offsets—
Net Fee Due$81.49


(1)    Pursuant to Rule 416(a) and Rule 416(b) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover additional shares of the Registrant’s Class A common stock, par value $0.01 per share (“Common Stock”), which become issuable under the Registrant’s 2021 Incentive Award Plan (the “2021 Plan”) and the Registrant’s 2021 Employee Stock Purchase Plan (the “ESPP”) by reason of any stock split, stock dividend, recapitalization, or other similar transaction.

(2)    Estimated solely for the purpose of computing the registration fee and based on the average high and low sale prices of the Common Stock as reported on the Nasdaq Global Select Market on March 13, 2023 in accordance with Rule 457(c) and (h) under the Securities Act.

(3)    Represents an automatic increase to the number of shares of Common Stock available for issuance under the 2021 Plan, in accordance with the automatic annual increase provisions of the 2021 Plan, effective as of January 1, 2023.

(4)    Represents an automatic increase to the number of shares of Common Stock available for issuance under the ESPP, in accordance with the automatic annual increase provisions of the ESPP, effective as of January 1, 2023.






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Goodwin Procter LLP
620 Eighth Avenue
New York, NY 10018
goodwinlaw.com
+1 212 813 8800



March 14, 2023


Rapid Micro Biosystems, Inc.
1001 Pawtucket Boulevard West
Suite 280
Lowell, MA 01854

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 666,170 shares (the “Shares”) of Class A common stock, $0.01 par value per share (the “Common Stock”), of Rapid Micro Biosystems, Inc., a Delaware corporation (the “Company”), that may be issued pursuant to the Company’s 2021 Stock Option Plan and the Company’s 2021 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.

This opinion letter and the opinion it contains shall be interpreted in accordance with the Core Opinion Principles as published in 74 Business Lawyer 815 (Summer 2019).

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

Document


CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Rapid Micro Biosystems, Inc. of our report dated March 10, 2023 relating to the financial statements, which appears in Rapid Micro Biosystems, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2022.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
March 14, 2023