VCEL Vericel Corporation

Registration No. 333-        

As filed with the Securities and Exchange Commission on June 29, 2015.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

Vericel Corporation

(Exact name of registrant as specified in its charter)

64 Sidney St.

Cambridge, Massachusetts 02139
(Address of principal executive offices) (Zip code)

Aastrom Biosciences, Inc. Second Amended and Restated 2009 Omnibus Incentive Plan

Vericel Corporation 2015 Employee Stock Purchase Plan
(Full title of the plans)

Dominick C. Colangelo
President and Chief Executive Officer
Vericel Corporation
64 Sidney St.

Cambridge, Massachusetts 02139
(Name and address of agent for service)

(617) 588-5554

(Telephone Number, Including area code, of Agent for Service)

Copy to:

Mitchell S. Bloom, Esq.

Ryan S. Sansom, Esq.

Goodwin Procter LLP

Exchange Place

53 State Street

Boston, Massachusetts 02109

Tel: (617) 570-1000

Fax: (617) 523-1231

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):

CALCULATION OF REGISTRATION FEE

(1)         Pursuant to Rule 416(a) promulgated under the Securities Act, this registration statement also covers any additional securities that may become issuable under the Aastrom Biosciences, Inc. Second Amended and Restated 2009 Omnibus Incentive Plan or the Vericel Corporation 2015 Employee Stock Purchase Plan, each as amended from time to time, by reason of any stock split, stock dividend or similar transaction.

(2)         Estimated pursuant to Rule 457 promulgated under the Securities Act solely for purposes of calculating the registration fee and based upon the average of the high and low prices of the Common Stock on June 26, 2015, as reported on the NASDAQ Stock Market.

EXPLANATORY NOTE

This Registration Statement on Form S-8 is being filed by Vericel Corporation, formerly known as Aastrom Biosciences, Inc., (the “Company” or the “Registrant”) for the purpose of registering (i) 3,881,634 shares of Common Stock, no par value per share (“Common Stock”) of the Registrant reserved for issuance under the Aastrom Biosciences, Inc. Second Amended and Restated 2009 Omnibus Incentive Plan (the “2009 Plan”) and (ii) 1,000,000 shares of Common Stock reserved for issuance under the Vericel Corporation 2015 Employee Stock Purchase Plan (the “2015 Plan”). The reservation of such shares was approved by the Company’s shareholders on each of: (i) November 21, 2014 at a special meeting of shareholders for the 2009 Plan and (ii) May 12, 2015 at the annual meeting of shareholders for the 2015 Plan.  Following the registration of the shares of Common Stock under this Registration Statement, a total of (i) 4,489,134 shares of Common Stock will be registered under the 2009 Plan and (ii) 1,000,000 shares of Common Stock will be registered under the 2015 Plan. The Company had previously registered a total of 607,500 shares of Common Stock under the 2009 Plan (after giving effect to the 1-for-20 reverse stock split that was effected on October 16, 2013) pursuant to its Registration Statement on Form S-8, File No 333-187346.

The securities subject to this Registration Statement are of the same class of the Registrant for which the Registrant previously filed a Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”). Accordingly, the contents of the Registrant’s Registration Statement on Form S-8, File No. 333-163832, as filed with the Securities and Exchange Commission (the “Commission”) on December 18, 2009, Registration Statement on Form S-8, File No. 333-174758, as filed with the Commission on June 7, 2011,  and Registration Statement on Form S-8, File No. 333-187346, as filed with the Commission on March 18, 2013, are hereby incorporated by reference pursuant to General Instruction E to Form S-8.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Item 1.   Plan Information.

The documents containing the information specified in this Item 1 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

Item 2.   Registrant Information and Employee Plan Annual Information.

The documents containing the information specified in this Item 2 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The Company hereby incorporates by reference in this Registration Statement the following documents previously filed by the Company with the Commission:

(a)         The Company’s Annual Report on Form 10-K for the year ended December 31, 2014, as filed with the Commission on March 25, 2015;

(b)         The Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2015, as filed with the Commission on May 14, 2015;

(c)          The Company’s Current Report on Form 8-K filed  with the Commission on January 7, 2015, March 23, 2015, March 25, 2015, May 14, 2015, May 15, 2015 and June 11, 2015, respectively;

(d)         All other reports filed by the Registrant pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December 31, 2014;

(e)          Audited special purpose combined financial statements of the Cell Therapy and Regenerative Medicine Business included as Exhibit 99. 1 in our report on Form 8-K, filed with the SEC on June 2, 2014, as amended on June 16, 2014, August 29, 2014 and June 29, 2015;

(f)           The description of the rights to purchase shares of our Series A Junior Participating Cumulative Preferred Stock contained in the Registration Statement on Form 8-A, filed with the SEC on August 12, 2011, including any amendment or report for the purpose of updating such description; and

(g)             The description of the Company’s Common Stock contained in the Registrant’s registration statement on S-1 dated November 1, 1996, filed with the Commission pursuant to Section 12 of Exchange Act, including any amendment thereto or report filed for the purpose of updating such description. 

All documents subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered herein 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 contained herein, or in a document all or a portion of which is 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 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 4.   Description of Securities.

Not applicable.

Item 5.   Interests of Named Experts and Counsel.

Not applicable.

Item 6.   Indemnification of Directors and Officers.

Sections 561 through 571 of the Michigan Business Corporation Act (the “MBCA”) authorize a corporation to grant or a court to award, indemnity to directors, officers, employees and agents in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act.

The Amended and Restated Bylaws of the Company (the “Bylaws”) provide that the Company shall, to the fullest extent authorized or permitted by the MBCA, or other applicable law, indemnify a director or officer who was or is a party or is threatened to be made a party to any proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the Company, against expenses, including actual and reasonable attorneys’ fees, and amounts paid in settlement incurred in connection with the action or suit, if the indemnitee acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the Company or its shareholders. The Bylaws also authorize the Company to advance expenses incurred by any officer or director of the Company in defending any proceeding prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall be determined ultimately that the agent is entitled to be indemnified.

The Bylaws also authorize the Company to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Company against any liability asserted against or incurred by such person in such capacity or arising out of such person’s status as such, regardless of whether the Company would have the power to indemnify such person against such liability under the provisions of the MBCA.

The Company has entered into an indemnification agreement with each of its directors (the “Agreement”).  The Agreement provides that the Company will indemnify each director to the fullest extent permitted by law for claims arising in his capacity as a director of the Company, provided that such director acted in good faith and in a manner that he reasonably believed to be in, or not opposed to, the Company’s best interests and, with respect to any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful. In the event that the Company does not assume the defense of a claim against a director, the Company is required to advance such director’s expenses in connection with his defense, provided that the director undertakes to repay all amounts advanced if it is ultimately determined that he is not entitled to be indemnified by the Company.  A copy of the form of Agreement is filed as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on August 31, 2010 and is incorporated herein by reference.

Section 209 of the MBCA permits a Michigan corporation to include in its Articles of Incorporation a provision eliminating or limiting a director’s liability to a corporation or its shareholders for monetary damages for breaches of

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fiduciary duty. Section 209 of the MBCA provides, however, that liability for any of the following may not be eliminated: the amount of a financial benefit received by a director to which he or she is not entitled, intentional infliction of harm on the corporation or the shareholders, a violation of Section 551 of the MBCA, or an intentional criminal act. The Company’s Restated Articles of Incorporation, as amended, include a provision which eliminates, to the fullest extent permitted by the MBCA, director liability for monetary damages for breaches of fiduciary duty, except under the circumstances required to be excepted under the MBCA as described above.

The Company has obtained director and officer liability insurance for the benefit of its directors and officers.

Item 7.   Exemption From Registration Claimed.

Not applicable.

Item 8.   Exhibits.

See the Exhibit Index which is incorporated into this Item 8 by reference.

Item 9.   Undertakings.

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 (1)(i) and (1)(ii) do not apply if 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 Securities and Exchange 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.

(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.

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.

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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 Securities and Exchange 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.

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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 Cambridge, Commonwealth of Massachusetts, on  June 29, 2015.

POWER OF ATTORNEY

We, the undersigned officers and directors of Vericel Corporation, hereby severally constitute and appoint Dominick C. Colangelo and Gerard Michel, and each of them singly, our true and lawful attorneys, with full power to sign for us in our names in the capacities indicated below, any amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all things in our names and on our behalf in our capacities as officers and directors to enable Vericel Corporation, to comply with the provisions of the Securities Act of 1933, as amended, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and all amendments thereto.

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 indicated on  June 29, 2015.

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EXHIBIT INDEX

* Filed herewith.

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Exhibit 5.1

June 29, 2015

Vericel Corporation
64 Sidney Street
Cambridge, Massachusetts 02139

Re:                             Vericel Corporation Registration Statement on Form S-8 (the “Registration Statement”) Registering Shares Issuable under the Second Amended and Restated 2009 Omnibus Incentive Plan and the 2015 Employee Stock Purchase Plan

Dear Ladies and Gentlemen:

As special counsel for Vericel Corporation, a Michigan corporation (the “Company”), we are rendering this opinion in connection with the Company’s registration under the Securities Act of 1933, as amended (the “Securities Act”), of (i) 3,881,634 authorized but unissued shares of the Common Stock, no par value, of the Company (the “2009 Plan Shares”) which may be issued pursuant to options and other rights to acquire Common Stock granted under the Aastrom Biosciences, Inc. Second Amended and Restated 2009 Omnibus Incentive Plan, as amended (the “2009 Plan”), and (ii) 1,000,000 authorized but unissued shares of the Common Stock, no par value, of the Company (the “2015 Plan Shares”) which may be issued pursuant to options and other rights to acquire Common Stock granted under the Vericel Corporation 2015 Employee Stock Purchase Plan (the “2015 Plan”). The 2009 Plan Shares and the 2015 Plan Shares are, collectively, the “Shares,” and the 2009 Plan and the 2015 Plan are, collectively, the “Plans.”

We have examined all instruments, documents, and records that we deemed relevant and necessary for the basis of our opinion hereinafter expressed.  In such examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of original documents and the conformity to original documents of all photostatic and facsimile copies submitted to us, and the due execution and delivery of all documents by any party where due execution and delivery are a prerequisite to the effectiveness thereof.  We have assumed that all information contained in all documents reviewed by us is true and correct.

Based on such examination, we are of the opinion that the Shares that may be issued under the Plans have been duly authorized and, when issued against payment of the purchase price therefore and in accordance with the provisions of the Plans, will be validly issued, fully paid, and non-assessable.

California | Illinois | Michigan | Minnesota | Texas | Washington, D.C.

The opinion expressed herein is limited to the laws of the State of Michigan and the federal laws of the United States.  We express no opinion and make no representation with respect to the law of any other jurisdiction.

We consent to the inclusion of this opinion as an exhibit to the Registration Statement and to the reference to our firm in the Registration Statement.  Such consent does not constitute a consent under Section 7 of the Act, because we have not certified any part of such Registration Statement and do not otherwise come within the categories of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

Sincerely,

/s/ DYKEMA GOSSETT PLLC

DYKEMA GOSSETT PLLC

/jmw

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EXHIBIT 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 25, 2015 relating to the consolidated financial statements, which appears in Vericel Corporation’s Annual Report on Form 10-K for the year ended December 31, 2014.

/s/ PricewaterhouseCoopers LLP

Detroit, Michigan
June 29, 2015

EXHIBIT 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Vericel Corporation of our report dated May 29, 2014 relating to the Special Purpose Combined Financial Statements of the Cell Therapy and Regenerative Medicine Business (the “CTRM business”), a product portfolio of Sanofi, which appears in Vericel Corporation’s Current Report on Form 8-K, as amended, dated June 29, 2015.

/s/PricewaterhouseCoopers LLP

Florham Park, New Jersey
June 29, 2015