As
filed with the Securities and Exchange Commission on July 10, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
LONGEVERON
INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
47-2174146 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
employer
identification
number) |
1951
NW 7th Avenue, Suite 520
Miami,
Florida |
|
33136 |
| (Address
of Principal Executive Offices) |
|
(Zip
Code) |
Second
Amended and Restated Longeveron Inc. 2021 Incentive Award Plan
(Full
title of the Plan)
Wa’el
Hashad
Chief
Executive Officer
Longeveron
Inc.
1951
NW 7th Ave., Suite 520
Miami,
FL 33136
(Name
and address of agent for service)
(305)
909-0840
(Telephone
number, including area code, of agent for service)
Copies
to:
Jennifer
Minter, Esq.
Adam G. Wicks, Esq.
Buchanan
Ingersoll & Rooney PC
Union
Trust Building
501
Grant Street, Suite 200
Pittsburgh,
PA 15219
(412)
562-8800
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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. ☐
EXPLANATORY
NOTE
Longeveron
Inc. (referred to as the “Registrant,” “the Company,” “we,” “us” or “our”
unless specified otherwise) is filing this registration statement on Form S-8 (the “Registration Statement”) for the purpose
of registering an additional 1,300,000 shares of our Class A Common Stock, par value $0.001 per share (“Class A Common Stock”),
for issuance under the Second Amended and Restated Longeveron Inc. 2021 Incentive Award Plan (the “Plan”). The increase in
the number of shares authorized for issuance under the Plan was approved by our stockholders at our annual meeting held on July 2, 2024.
The 1,300,000 shares of Class A Common Stock being registered pursuant to this Registration Statement are in addition to the following
(as to each, after adjusting for the reverse stock split effective as of March 26, 2024): 207,441 shares of Class A Common Stock under
the Plan currently registered on our Registration Statement on Form S-8 filed on February 16, 2021, file number 333-253141 (the “2021
Registration Statement”) and the 150,000 shares of Class A Common Stock under the Plan currently registered on our Registration
Statement on Form S-8 filed on June 26, 2023, file number 333-272938 (the “2023 Registration Statement,” and collectively
with the 2021 Registration Statement, the “Prior Registration Statements”). This Registration Statement relates to the same
class of securities to which the Prior Registration Statements relate and is submitted pursuant to General Instruction E to Form S-8.
Pursuant to General Instruction E, this Registration Statement incorporates by reference the contents of the Prior Registration Statements.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
In
addition to the Prior Registration Statements, this Registration Statement incorporates by reference the documents listed below, which
were previously filed by us with the Securities and Exchange Commission (the “SEC”) (other than portions of these documents
that are deemed furnished, rather than filed under applicable SEC rules and exhibits furnished in connection with such items):
| |
(a) |
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on February 27, 2024 as amended on Form 10-K/A and filed with
the SEC on March 11, 2024; |
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|
|
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(b) |
All other reports filed
by us pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since
December 31, 2023 (in each case, except for the information furnished under Items 2.02 or 7.01 in any Current Report on Form 8-K);
and |
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|
|
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(c) |
The description of our
Class A Common Stock set forth in the Registration Statement on Form 8-A (File No. 001-40060), filed by the Registrant
with the SEC under Section 12(b) of the Exchange Act on February 11, 2021, including Exhibit 4.2 to the Annual Report on Form 10-K for
the fiscal year ended December 31, 2023 filed with the SEC on February 27, 2024 and any other amendments or reports filed for the
purpose of updating such description. |
In
addition, all documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to
the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such statements
as set forth therein. Any statement contained 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 other
subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement.
Any statement contained herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in any subsequently filed document which also is incorporated or deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Under
no circumstances shall any information furnished under Item 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference
unless such Form 8-K expressly provides to the contrary.
Item
5. Interests of Named Experts and Counsel.
The
validity of the securities registered hereby has been passed upon for the Company by Buchanan Ingersoll & Rooney PC (“Buchanan”),
Pittsburgh, Pennsylvania. Certain attorneys affiliated with Buchanan beneficially own an aggregate of 2,000 shares of our Class A
Common Stock.
Item
6. Indemnification of Directors and Officers.
Section
102 of the Delaware General Corporation Law (“DGCL”) permits a corporation to eliminate the personal liability of directors
and officers of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director
or officer, except where the director or officer breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, or obtained an improper personal benefit, or in the case of directors authorized the payment of a dividend
or approved a stock repurchase in violation of Delaware corporate law. Our certificate of incorporation, as amended (the “Certificate
of Incorporation”) provides that no director shall be personally liable to us or our 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 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 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 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.
Our
Certificate of Incorporation provides that we 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 us) 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 our 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, our 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. Our Certificate of
Incorporation provides that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of us to procure
a judgment in our 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 our 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, our 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 us, 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 us against all expenses (including attorneys’ fees) actually and reasonably incurred in connection
therewith. Expenses must be advanced to an Indemnitee under certain circumstances.
We
have entered into indemnification agreements with each of our directors and officers. These indemnification agreements may require us,
among other things, to indemnify our directors and officers for some expenses, including attorneys’ fees, judgments, fines and
settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service as one of our directors
or officers, or any of our subsidiaries or any other company or enterprise to which the person provides services at our request.
We
maintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out
of claims based on acts or omissions in their capacities as directors or officers.
Item
8. Exhibits.
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 Miami, Florida, on July 10, 2024.
| |
LONGEVERON
INC. |
| |
|
| |
By: |
/s/ Wa’el Hashad |
| |
|
Wa’el Hashad |
| |
|
Chief Executive Officer |
SIGNATURES
AND POWER OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Wa’el Hashad, Lisa Locklear and Paul Lehr and each of them singly,
his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities, to sign this Registration Statement on Form S-8 and any and all amendments (including
post-effective amendments) thereto of Longeveron Inc. and to file the same, with all exhibits thereto and all other documents in connection
therewith, with the SEC, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every
act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their, 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 of 1933, this Registration Statement has been signed by the following persons in the capacities
held on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Wa’el
Hashad |
|
Chief
Executive Officer and Director |
|
July
10, 2024 |
| Wa’el
Hashad |
|
(principal
executive officer) |
|
|
| |
|
|
|
|
| /s/
Lisa Locklear |
|
Chief
Financial Officer |
|
July 10, 2024 |
| Lisa Locklear |
|
(principal
financial officer and principal accounting officer) |
|
|
| |
|
|
|
|
| /s/
Joshua M. Hare |
|
|
|
|
| Joshua
M. Hare |
|
Director |
|
July
10, 2024 |
| |
|
|
|
|
| /s/
Neil E. Hare |
|
|
|
|
| Neil
E. Hare |
|
Director |
|
July 10, 2024 |
| |
|
|
|
|
| /s/
Rock Soffer |
|
|
|
|
| Rock
Soffer |
|
Director |
|
July 10, 2024 |
| |
|
|
|
|
| /s/
Roger Hajjar |
|
|
|
|
| Roger
Hajjar |
|
Director |
|
July 10, 2024 |
| |
|
|
|
|
|
|
|
|
|
| Khoso
Baluch |
|
Director |
|
July
___, 2024 |
| |
|
|
|
|
| /s/
Neha Motwani |
|
|
|
|
| Neha
Motwani |
|
Director |
|
July 10, 2024 |
| |
|
|
|
|
| /s/
Ursula Ungaro |
|
|
|
|
| Ursula
Ungaro |
|
Director |
|
July 10, 2024 |
| |
|
|
|
|
| /s/ Richard
Kender |
|
|
|
|
| Richard
Kender |
|
Director |
|
July 10, 2024 |
II-4
Exhibit 5.1
| |
Union Trust Building
501 Grant Street, Suite 200
Pittsburgh, PA 15219-4413
Phone: 412-562-8800
Fax: 412-562-1041
www.bipc.com |
July 10, 2024
Longeveron Inc.
1951 NW 7th Avenue, Suite 520
Miami, FL 33136
Re: Registration Statement
on Form S-8 Filed by Longeveron Inc.
Ladies and Gentlemen:
We have acted as counsel to
Longeveron Inc., a Delaware corporation (the “Company”), in connection with the proposed issuance by the Company of
up to 1,300,000 additional shares of the Company’s Class A Common Stock, par value $0.001 per share (the “Shares”),
pursuant to the terms of the Second Amended and Restated Longeveron Inc. 2021 Incentive Award Plan (the “Plan”).
In connection with such proposed
issuance, we have examined (i) the Plan; (ii) the Certificate of Incorporation of the Company, as amended and as currently in effect;
(iii) the Bylaws of the Company, as currently in effect; (iv) the relevant corporate proceedings of the Company; (v) the Registration
Statement on Form S-8 (the “Registration Statement”) covering the registration for issuance of the Shares under the
Plan; and (vi) such other documents, records, certificates of public officials, statutes, and decisions as we consider necessary to express
the opinions contained herein.
In our examination, we have
assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity
of the originals of such copies. As to any facts material to this opinion that we did not independently establish or verify, we have relied
upon oral or written statements and representations of officers and other representatives of the Company.
Based on the foregoing, and
subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that the Shares that may be
issued or delivered and sold pursuant to the Plan and the authorized forms of applicable award agreements thereunder (collectively, the
“Award Agreements”), have been duly authorized and, upon issuance or delivery and sale in accordance with the Plan
and the Award Agreements, the Shares will be validly issued, fully paid, and non-assessable.
We express no opinion as to
the applicability or compliance with or effect of federal law or the law of any other jurisdiction other than the Delaware General Corporation
Law, as amended. In addition, we have assumed that the resolutions authorizing the Company to issue or deliver and sell the Shares in
accordance with the Plan and the Award Agreements will be in full force and effect at all times at which the Shares are issued or delivered
and sold by the Company, and that the Company will take no action inconsistent with such resolutions. In rendering the opinion above,
we have assumed that each award under the Plan will be approved by the Board of Directors of the Company or an authorized committee thereof.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not hereby admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended (the “Securities Act”),
or the rules and regulations of the Securities and Exchange Commission. This opinion is being delivered in accordance with the requirements
of Item 601(b)(5) of Regulation S K, promulgated under the Securities Act.
This opinion has been prepared
for your use in connection with the issuance of the Shares under the Plan and speaks as of the date hereof. We assume no obligation to
advise you of any fact, circumstance, event, or change in the law or the facts that may hereafter be brought to our attention, whether
or not such occurrence would affect or modify the opinions expressed herein.
It is understood that this
opinion is to be used only in connection with the issuance of the Shares while the Registration Statement is in effect.
| |
Very truly
yours, |
| |
|
| |
Buchanan Ingersoll
& Rooney PC |
| |
|
| |
By: |
/s/
Jennifer R. Minter |
| |
|
Jennifer R. Minter, Vice President – Opinions
|
Exhibit 23.1
Independent
Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference in
this Registration Statement of Longeveron Inc. on Form S-8 of our report dated February 27, 2024, which includes an explanatory paragraph
as to the Company’s ability to continue as a going concern, with respect to our audits of the financial statements of Longeveron
Inc. as of December 31, 2023 and 2022 and for the years ended December 31, 2023 and 2022 appearing in the Annual Report on Form 10-K of
Longeveron Inc. for the year ended December 31, 2023.
/s/ Marcum LLP
Marcum llp
Hartford, CT
July 10, 2024
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Longeveron Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type | |
Security
Class
Title | |
Fee
Calculation
Rule | |
Amount
Registered (1)(2) | | |
Proposed
Maximum
Offering
Price Per
Share (3) | | |
Maximum
Aggregate
Offering
Price (3) | | |
Fee Rate | | |
Amount of
Registration
Fee | |
| Equity | |
Class A Common Stock, par value $0.001 per share | |
Other | |
| 1,300,000 | | |
$ | 1.63 | | |
$ | 2,119,000 | | |
| 0.00014760 | | |
$ | 312.76 | |
| Total Offering Amounts | | |
| | | |
$ | 2,119,000 | | |
| | | |
$ | 312.76 | |
| Total Fee Offsets | | |
| | | |
| | | |
| | | |
| — | |
| Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 312.76 | |
| (1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also registers an indeterminate number of additional shares of the Company’s Class A Common Stock, par value $0.001 per share (“Common Stock”) that may be issued pursuant to the Second Amended and Restated Longeveron Inc. 2021 Incentive Award Plan (the “Plan”) as the result of any future stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of Common Stock. |
| |
|
| (2) |
Represents shares of Common Stock issuable pursuant to the Plan being registered pursuant to this Registration Statement. |
| |
|
| (3) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act at $1.63 per share of Class A Common Stock, based on the average of the high ($1.6834) and low ($1.5798) prices for the registrant’s Class A Common Stock as reported on the Nasdaq Capital Market on July 3, 2024 (rounded to the nearest cent), which date is within five business days prior to filing this Registration Statement . |
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