As filed with the Securities and Exchange Commission on August 31, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Abeona Therapeutics Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 83-0221517 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
| 1330 Avenue of the Americas, Suite 33B, New York, NY 10019 |
(Address of Principal Executive Offices) (Zip Code) |
Abeona Therapeutics Inc.
2015 Equity Incentive Plan,
as amended
(Full title of the plan)
Joseph Vazzano
Chief Financial Officer
Abeona Therapeutics Inc.
1330 Avenue of the Americas, Suite 33B
New York, NY 10019
(646) 813-4701
(Name, address, and telephone number, including area code, of agent for service)
Copies of Correspondence to:
John J. Concannon III
Brian V. Soares
Morgan, Lewis & Bockius LLP
One Federal Street
Boston, Massachusetts 02110
(617) 951-8000
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. ☐
EXPLANATORY NOTE
Pursuant to General Instruction E of Form S-8, Abeona Therapeutics Inc. (the “Company”) is filing this Registration Statement on Form S-8 (this “Registration Statement”) to register the offer and sale of an additional 720,000 shares of common stock, $0.01 par value per share (the “Common Stock”), under the Abeona Therapeutics Inc. 2015 Equity Incentive Plan, as amended (the “Plan”). This Registration Statement hereby incorporates by reference the contents of the Company’s Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on May 11, 2015 (File No. 333-204055), November 30, 2016 (File No. 333-214846), November 14, 2017 (File No. 333-221552) and May 21, 2020.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Company with the Commission are hereby incorporated by reference into this Registration Statement:
| (i) | The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (filed with the Commission on March 31, 2022); | |
| (ii) | The Company’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2022 and June 30, 2022 (filed with the Commission on May 13, 2022 and August 11, 2022, respectively); | |
| (iii) | The Company’s Current Reports on Form 8-K filed with the Commission on March 9, 2022, April 29, 2022, May 2, 2022, May 17, 2022, May 19, 2022, June 14, 2022, June 30, 2022, July 20, 2022 and August 17, 2022; and | |
| (iv) | The description of our common stock, $0.01 par value per share contained in our Registration Statement on Form 8-A, dated and filed with the SEC on November 4, 2014, as updated by Exhibit 4.4 to our Form 10-K for the fiscal year ended December 31, 2019, and including any amendments or reports filed with the SEC for the purpose of updating such description. |
To the extent that any information contained in any Current Report on Form 8-K, or any exhibit thereto, was furnished to, rather than filed with, the Commission, such information or exhibit is specifically not incorporated by reference.
All reports and other documents that the Company subsequently files with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that the Company has sold all of the securities offered under this Registration Statement or deregisters the distribution of all such 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 that the Company files such report or document.
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 that also is, or is 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.
Item 6. Indemnification of Directors and Officers.
General Corporation Law of the State of Delaware
Under Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”), the Company is empowered to indemnify its directors and officers in the circumstances therein provided. Certain portions of Section 145 are summarized below:
Section 145(a) of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and in criminal actions where such person had no reasonable cause to believe such person’s conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation 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 corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue, or matter in which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
Under Section 145(c) of the DGCL, indemnification against expenses (including attorneys’ fees) actually and reasonably incurred by directors, officers, employees, and agents is required in those cases where the person to be indemnified has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Section 145(a) and (b), or in defense of any claim, issue, or matter therein.
Section 145(d) of the DGCL provides that any indemnification under Section 145(a) and (b) (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee, or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 145(a) and (b). Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who were not parties to such action, suit, or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit, or proceeding may be paid by the corporation in advance of the final disposition of such action, suit, or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in Section 145. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
Section 145(f) of the DGCL provides that the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
Under Section 145(g) of the DGCL, a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the corporation, or who, while serving in such capacity, is or was at the request of the corporation, a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against liability asserted against or incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the corporation would have the power to provide indemnity under Section 145.
Amended and Restated Certificate of Incorporation
Article X of the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) provides that the Company shall indemnify all persons to the extent and in the manner permitted by the provisions of the DGCL. Article X also provides that a director of the Company shall not be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL.
Abeona Therapeutics Inc. 2015 Equity Incentive Plan, as amended
Section 1.3(d) of the Plan provides that no member of the Compensation Committee of the Board shall be liable for any act or omission made in good faith with respect to the Plan or any award thereunder.
Indemnification and Executive Agreements
The Company has entered into indemnification agreements (the “Indemnification Agreements”) with each of its directors and executive officers. The terms of the Indemnification Agreements, subject to certain exceptions, generally provide that the Company will hold harmless and indemnify the indemnitee to the fullest extent permitted by the DGCL against any and all judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred in connection with any claims, suits, or proceedings arising in connection with his or her service as a director or executive officer of the Company. Additionally, the Indemnification Agreements provide that the indemnitee is entitled to the advancement of expenses, subject to certain exceptions and repayment conditions, incurred in connection with such claims, suits, or proceedings.
Directors’ and Officers’ Insurance Policies
The Company maintains insurance policies that, subject to conditions, limitations, and exclusions, provide for indemnification of the Company’s directors and officers and for reimbursement to the Company of amounts paid as indemnity to any of its directors or officers.
The above discussion of the Certificate of Incorporation, the Plan, the Indemnification Agreements, and Section 145 of the DGCL is not intended to be exhaustive and is respectively qualified in its entirety by such Certificate of Incorporation, Plan, Indemnification Agreements, and applicable statutes.
Item 8. Exhibits.
A list of exhibits filed herewith is contained in the Exhibit Index below, which is incorporated herein by reference.
EXHIBIT INDEX
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 New York, in the state of New York, on the 30th day of August, 2022.
| ABEONA THERAPEUTICS INC. | ||
| By: | /s/ Joseph Vazzano | |
| Joseph Vazzano | ||
| Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | ||
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Vishwas Seshadri and Joseph Vazzano and each of them, severally, as his or her true and lawful attorney or attorneys-in-fact and agent, 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 any and all amendments to this Registration Statement (including all pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended), 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 full power and authority to do and perform each act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, 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 of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and dates indicated:
| Signature | Title | Date | ||
| /s/ Vishwas Seshadri | Chief Executive Officer and Director | August 30, 2022 | ||
| Vishwas Seshadri | (Principal Executive Officer) | |||
| /s/ Joseph Vazzano | Chief Financial Officer (Principal Financial Officer | August 30, 2022 | ||
| Joseph Vazzano | and Principal Accounting Officer) | |||
| /s/ Leila Alland | Director | August 30, 2022 | ||
| Leila Alland | ||||
| /s/ Mark Alvino | Director | August 30, 2022 | ||
| Mark Alvino | ||||
| /s/ Michael Amoroso | Director | August 30, 2022 | ||
| Michael Amoroso | ||||
| /s/ Faith Charles | Director | August 30, 2022 | ||
| Faith Charles | ||||
| /s/ Paul Mann | Director | August 30, 2022 | ||
| Paul Mann | ||||
| /s/ Christine Berni Silverstein | Director | August 30, 2022 | ||
| Christine Berni Silverstein | ||||
| /s/ Todd M. Wider | Director | August 30, 2022 | ||
| Todd M. Wider | ||||
| /s/ Donald Wuchterl | Director | August 30, 2022 | ||
| Donald Wuchterl |