As filed with the Securities and Exchange Commission on June 5, 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
CLENE INC.
(Exact name of registrant as specified in its charter)
|
Delaware |
|
85-2828339 |
|
(State or other jurisdiction |
|
(I.R.S. Employer |
|
of incorporation or organization) |
Identification No.) |
|
|
6550 South Millrock Drive, Suite G50 Salt Lake City, Utah |
84121 |
|
|
(Address of Principal Executive Offices) |
(Zip Code) |
Clene Inc. Amended 2020 Stock Plan
(Full title of the plan)
Robert Etherington
President and Chief Executive Officer
6550 South Millrock Drive, Suite G50
Salt Lake City, Utah 84121
(Name and address of agent for service)
(801) 676-9695
(Telephone number, including area code, of agent for service)
Copies to:
|
Jerry Miraglia, Esq. |
|
Tom McAleavey |
|
General Counsel and Corporate Secretary |
|
Holland & Knight LLP |
|
6550 South Millrock Drive, Suite G50 |
200 South Orange Avenue, Suite 2600 |
|
| Salt Lake City, Utah 84121 | Orlando, Florida 32801 | |
|
Tel: (801) 676-9695 |
Tel: (407) 244-5108 |
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. ☐
This registration statement on Form S-8 (the “Registration Statement”) is filed by Clene Inc. (the “Company”), pursuant to General Instruction E to Form S-8 under the Securities Act of 1933, as amended, to register 30,000,000 additional shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), under the Clene Inc. Amended 2020 Stock Plan (the “2020 Stock Plan”). The amendment to increase the number of shares of Common Stock reserved for issuance under the 2020 Stock Plan from 18,400,000 to 48,400,000 was approved by the Board of Directors of the Company on April 3, 2024, and by the stockholders of the Company on May 29, 2024. This Registration Statement hereby incorporates by reference the contents of the Company’s registration statement on Form S-8 filed with the Securities and Exchange Commission on March 29, 2021 (Registration No. 333-254810) and registration statement on Form S-8 filed with the Securities and Exchange Commission on June 16, 2023 (Registration No. 333-272744), to the extent not modified or superseded hereby or by any subsequently filed document, which is incorporated by reference herein or therein.
Information Required in the Registration Statement
*Filed herewith.
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 Salt Lake City, Utah, on June 5, 2024.
|
|
|
|
|
|
|
CLENE INC. |
|
|
|
|
|
|
|
|
|
By: |
/s/ Robert Etherington |
|
|
|
|
Robert Etherington |
|
|
|
|
President and Chief Executive Officer |
|
Each person whose signature appears below constitutes and appoints Robert Etherington attorney-in-fact, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all further amendments (including post-effective amendments) to this Registration Statement (and any additional registration statement related hereto permitted by Rule 462(b) promulgated under the Securities Act, (and all further amendments, including post-effective amendments, thereto)), 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 agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, 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, or his 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 by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Robert Etherington | President, Chief Executive Officer, and Director | June 5, 2024 | ||
| Robert Etherington | (Principal Executive Officer) | |||
| /s/ Morgan R. Brown | Chief Financial Officer | June 5, 2024 | ||
| Morgan R. Brown | (Principal Financial and Accounting Officer) | |||
| /s/ David J. Matlin | Chairman of the Board | June 5, 2024 | ||
| David J. Matlin | ||||
| /s/ Arjun Desai | Director | June 5, 2024 | ||
| Arjun Desai | ||||
| /s/ Jonathon T. Gay | Director | June 5, 2024 | ||
| Jonathon T. Gay | ||||
| /s/ Matthew Kiernan | Director | June 5, 2024 | ||
| Matthew Kiernan | ||||
| /s/ Shalom Jacobovitz | Director | June 5, 2024 | ||
| Shalom Jacobovitz | ||||
| /s/ Vallerie V. McLaughlin | Director | June 5, 2024 | ||
| Vallerie V. McLaughlin | ||||
| /s/ Alison H. Mosca | Director | June 5, 2024 | ||
| Alison H. Mosca | ||||
| /s/ Reed Neil Wilcox | Director | June 5, 2024 | ||
| Reed Neil Wilcox |
Exhibit 5.1
200 South Orange Avenue, Suite 2600 | Orlando, FL 32801 | T 407.425.8500 | F 407.244.5288
Holland & Knight LLP | www.hklaw.com
June 5, 2024
Clene Inc.
6550 South Millrock Drive, Suite G50
Salt Lake City, Utah 84121
Re: Clene Inc. – Registration Statement on Form S-8
Ladies and Gentlemen:
We refer to the Registration Statement (the “Registration Statement”) on Form S-8 filed today by Clene Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission, for the purpose of registering under the Securities Act of 1933, as amended (the “Act”), 30,000,000 shares (the “Shares”) of the authorized common stock, par value $0.0001 per share, of the Company being offered to certain employees, executive officers and directors of the Company and certain non-employee agents, consultants, advisors and independent contractors of the Company pursuant to the Clene Inc. Amended 2020 Stock Plan (as amended, the “Plan”).
In rendering the opinion set forth below, we have acted as counsel for the Company and have examined originals, or copies certified to our satisfaction, of: (i) the Registration Statement; (ii) the Fourth Amended and Restated Certificate of Incorporation of the Company, as amended and currently in effect; (iii) the Bylaws of the Company, as currently in effect; (iv) the Plan; (v) certain resolutions of the Board of Directors of the Company in connection with the Registration Statement and the Plan; and (vi) certain minutes of the 2024 Annual Meeting of Stockholders of the Company. We also examined originals, or copies certified to our satisfaction, of such corporate records of the Company, certificates of public officials and representatives of the Company, and other documents as we deemed necessary to deliver the opinion expressed below.
In such examination, we have assumed: (i) the authenticity and completeness of all documents submitted to us as originals and the genuineness of all signatures (whether manual, electronic or otherwise) and to the extent that a signature on a document is manifested by electronic or similar means, such signature has been executed or adopted by a signatory with an intent to authenticate and sign the documents; (ii) the conformity to the authentic originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed; (iv) that there has been no undisclosed waiver of any right, remedy or provision contained in any such documents; and (v) that each certificate or copy of a public record furnished by public officials is authentic, accurate and complete.
Clene Inc.
June 5, 2024
Page 2
Based upon the foregoing, and subject to the qualifications and limitations set forth herein, we are of the opinion that subsequent to the Registration Statement becoming effective under the Act, the Shares, when issued and paid for in accordance with the terms of the Plan, will be duly authorized, validly issued and fully paid and non-assessable.
The opinions set forth above are subject to the following qualifications and exceptions:
(a) Our opinions are limited to matters governed by the federal securities laws of the United States and the General Corporation Law of the State of Delaware (but not including any statutes, ordinances, administrative decisions, rules or regulations of any political subdivision of the State of Delaware), and we do not express any opinion herein concerning any other laws.
(b) Our opinions are subject to bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium or similar laws affecting the rights and remedies of creditors, stakeholders, or classes or groups of creditors or stakeholders generally .
(c) Our opinions are subject to general principles of equity exercisable in the discretion of a court (including without limitation obligations and standards of good faith, fair dealing, materiality and reasonableness and defenses relating to unconscionability or to impracticability or impossibility of performance).
This opinion letter is rendered to you in connection with the transactions contemplated by the Registration Statement. This opinion letter has been prepared, and is to be understood, in accordance with customary practice of lawyers who regularly give and lawyers who regularly advise recipients regarding opinions of this kind, is limited to the matters expressly stated herein and is provided solely for purposes of complying with the requirements of the Securities Act of 1933, as amended, and no opinions may be inferred or implied beyond the matters expressly stated herein. The opinions expressed herein are rendered and speak only as of the date hereof and we specifically disclaim any responsibility to update such opinions subsequent to the date hereof or to advise you of subsequent developments affecting such opinions.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
HOLLAND & KNIGHT LLP
/s/ Holland & Knight LLP
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 13, 2024 relating to the financial statements of Clene Inc. appearing in the Annual Report on Form 10-K of Clene Inc. for the year ended December 31, 2023.
/s/ Deloitte & Touche LLP
Salt Lake City, UT
June 5, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Clene Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
|
Security Type |
Security Class Title |
Fee Calculation or Carry Forward Rule |
Amount Registered(1) |
Proposed Maximum Offering Price Per Unit(2) |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
|
|
Fees to Be Paid |
Equity |
Common Stock, par value $0.0001 per share |
Other(2) |
30,000,000 |
$0.3125 |
$9,375,000 |
$147.60 per $1,000,000 |
$1,383.75 |
|
Total Offering Amounts |
$9,375,000 |
$1,383.75 |
||||||
|
Total Fees Previously Paid |
— |
|||||||
|
Total Fee Offsets |
— |
|||||||
|
Net Fee Due |
$1,383.75 |
|||||||
|
(1) |
Represents 30,000,000 additional shares of Clene Inc. (the “Company”) common stock, par value $0.0001 per share (“Common Stock”), available for awards under the Clene Inc. Amended 2020 Stock Plan (the “2020 Stock Plan”). The amendment to increase the number of shares of Common Stock reserved for issuance under the 2020 Stock Plan from 18,400,000 to 48,400,000 was approved by the Board of Directors of the Company on April 3, 2024, and by the stockholders of the Company on May 29, 2024. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend, or similar transaction. |
|
| (2) | Pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended, and solely for the purpose of calculating the registration fee, the proposed maximum aggregate offering price per unit is equal to the average of the high and low prices for the Company’s Common Stock as reported by The Nasdaq Capital Market on June 4, 2024. |