As filed with the Securities and Exchange Commission
on July 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
HEPION PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization) |
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46-2783806
(I.R.S. Employer
Identification No.) |
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399 Thornall Street, First Floor
Edison, NJ
(Address of principal executive offices) |
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08837
(Zip Code) |
Hepion Pharmaceuticals, Inc. 2023 Omnibus
Equity Incentive Plan
(Full title of the plan)
Robert Foster
Chief Executive Officer
399 Thornall Street, First Floor
Edison, NJ 08837
(Name and address of agent for service)
(732) 902-4000
(Telephone number, including area code, of agent
for service)
With a copy to:
Jeffrey Fessler, Esq.
Sheppard, Mullin, Richter & Hampton
LLP
30 Rockefeller Plaza
New York, NY 10112-0015
Phone: (212) 653-8700
Fax: (212) 653-8701
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 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 ¨ |
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Accelerated filer
¨ |
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Non-accelerated filer x |
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Smaller reporting company x |
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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. ¨
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Hepion Pharmaceuticals, Inc. (the “Company”)
will provide each recipient (the “Recipients”) of a grant under the Hepion Pharmaceuticals, Inc. 2023 Omnibus Equity
Incentive Plan (the “Plan”) with documents that contain information related to the Plan, and other information including,
but not limited to, the disclosure required by Item 1 of Form S-8, which information is not required to be and is not being filed
as a part of this Registration Statement on Form S-8 (the “Registration Statement”) or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act of 1933, as amended (the “Securities Act”). The foregoing information
and the documents incorporated by reference in response to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act. A Section 10(a) prospectus will be
given to each Recipient who receives common stock covered by this Registration Statement, in accordance with Rule 428(b)(1) under
the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
We will provide to each Recipient a written statement
advising of the availability of documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) prospectus) and of documents required to be delivered pursuant to Rule 428(b) under
the Securities Act without charge and upon written or oral request by contacting:
Robert Foster
Chief Executive Officer
Hepion Pharmaceuticals, Inc.
399 Thornall Street, First Floor
Edison, NJ 08837
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with
the Securities and Exchange Commission (“SEC”) pursuant to the Securities Act and the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), are incorporated herein by reference:
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The Company’s Quarterly Report on Form 10-Q for the three months ended March 31, 2023, filed with the SEC on May 12, 2023. |
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The Company’s Current Reports on Form 8-K filed with the SEC on May 10, 2023, May 22, 2023 and June 22, 2023. |
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The description of the Company’s common stock contained in its Registration Statement on Form 8-A filed with the SEC on February 24, 2015, under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description. |
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All other reports and documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters 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 reports and documents. 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 herein or in any 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 constitute a part of this Registration Statement, except as so modified or superseded. |
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation
Law (the “DGCL”) permits a corporation to eliminate the personal liability of directors of a corporation 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.
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.
The Company’s Certificate of Incorporation,
as amended, and Bylaws, as amended, provide indemnification for the Company’s directors and officers to the fullest extent permitted
by the DGCL. The Company 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 the Company’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 Company’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 Company’s
Certificate of Incorporation, as amended, and Bylaws, as amended, provide that the Company will indemnify any Indemnitee who was or is
a party to an action or suit by or in the right of the Company to procure a judgment in the Company’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 Company’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 expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement (if such settlement is approved in advance by the corporation,
which approval shall not be unreasonably withheld) 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 Company’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 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 in defense of any action, suit or proceeding, or in defense of any claim,
issue or matter therein, he or she will be indemnified by us against all expenses (including attorneys’ fees) actually and reasonably
incurred in connection therewith. Expenses incurred in defending a civil or criminal action, suit or proceeding by an Indemnitee, may,
subject to the board of directors, be paid in advance of the final disposition of such action, suit or proceeding.
In addition, the Company has obtained a general
liability insurance policy that covers certain liabilities of directors and officers of the Company 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.
See the attached Exhibit Index on the page immediately
following the signature pages hereto, which is incorporated herein by reference.
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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective Registration Statement.
(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) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in 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 herein, 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.
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 herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. 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.
SIGNATURES
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 Edison, State of New Jersey, on the 14th day of July 2023.
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HEPION PHARMACEUTICALS, INC. |
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By: |
/s/ Robert Foster |
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Robert Foster |
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Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints Robert Foster as his or
her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in their name,
place and stead, in any and all capacities, to sign any and all amendments (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, granting unto said
attorney-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 connection therewith, 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, this Registration Statement has been signed by the following persons in the capacities and on the date
indicated.
| Signature |
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Title |
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Date |
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| /s/ Robert Foster |
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Chief Executive Officer |
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July 14, 2023 |
| Robert Foster |
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(Principal Executive Officer) |
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| /s/ John Cavan |
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Chief Financial Officer |
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July 14, 2023 |
| John Cavan |
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(Principal Financial and Accounting Officer) |
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| /s/ Gary Jacob |
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Chairman |
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July 14, 2023 |
| Gary Jacob |
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| /s/ John Brancaccio |
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Director |
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July 14, 2023 |
| John Brancaccio |
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| /s/ Tim Block |
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Director |
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July 14, 2023 |
| Tim Block |
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Director |
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July 14, 2023 |
| Petrus Wijngaard |
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| /s/ Anand Reddi |
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Director |
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July 14, 2023 |
| Anand Reddi |
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Director |
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July 14, 2023 |
| Kaouthar Lbiati |
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EXHIBIT INDEX
Exhibit 5.1
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Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller Plaza
New York, New York 10112-0015
212.653.8700 main
212.653.8701 fax
www.sheppardmullin.com |
July 14, 2023
VIA ELECTRONIC MAIL
Hepion Pharmaceuticals, Inc.
399 Thornall Street, First Floor
Edison, NJ 08837
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion
with respect to certain matters in connection with the filing by Hepion Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the
“Securities Act”), with the Securities and Exchange Commission, covering 500,000 shares (the “Shares”) of common
stock, par value $0.0001 per share (the “Common Stock”), reserved for future issuance under the Hepion Pharmaceuticals, Inc.
2023 Omnibus Equity Incentive Plan.
This Opinion is being furnished
in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
In connection with this opinion,
we have reviewed and relied upon the Registration Statement, the Company’s Certificate of Incorporation, as amended, as in effect
on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws, as amended, effective as in effect on
the date hereof (the “Bylaws” and together with the Certificate of Incorporation, the “Charter Documents”), the
proceedings taken by the Company with respect to the authorization and adoption of the Plan, resolutions adopted by the board of directors
of the Company, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this
opinion. With respect to the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to original of all documents submitted to us as certified or reproduced copies. We have
also assumed that the Shares will be uncertificated in accordance with Section 158 of the Delaware General Corporation Law, and the
transfer agent therefor will register the purchaser thereof as the registered owner of any uncertificated Shares on its stock transfer
books and records. We have further assumed that (a) shares of the Common Stock currently reserved for issuance under the Plan will
remain available for the issuance of the Shares, and (b) neither the Company’s Charter Documents nor any of the proceedings
relating to either the Plan or any of the award agreements relating to the Shares will be rescinded, amended or otherwise modified prior
to the issuance of the Shares. We have also obtained from public officials and officers of the Company certificates or comparable documents
as to certain factual matters and, insofar as this opinion is based on matters of fact, we have relied on such certificates and comparable
documents without independent investigation. We have made such other investigations as we have deemed relevant and necessary in connection
with the opinions hereinafter set forth.
On the basis of the foregoing,
and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plan and against
proper payment and consideration thereof and pursuant to the agreements that accompany the Plan, will be legally and validly issued, fully
paid and nonassessable.
We consent to the filing
of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby admit that we are
included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
of the Securities and Exchange Commission promulgated thereunder.
We express no opinion as
to matters governed by any laws other than the Delaware General Corporation Law and reported decisions of the Delaware courts interpreting
such law.
This opinion letter is rendered
as of the date first written above, and we disclaim any obligation to advise you of facts, circumstances, events or developments which
hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating
to the Company, the Shares, the Plan, the award agreements related to the Shares or the Registration Statement.
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Respectfully Submitted, |
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/s/ Sheppard, Mullin, Richter & Hampton LLP |
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
Hepion Pharmaceuticals, Inc.
Edison, New Jersey
We hereby consent to the incorporation by reference
in the Prospectus constituting a part of this Registration Statement on Form S-8 of our report dated April 10, 2023, relating
to the consolidated financial statements of Hepion Pharmaceuticals, Inc. appearing in the Company’s Annual Report on Form 10-K
for the year ended December 31, 2022. Our report contains an explanatory paragraph regarding the Company’s ability to continue
as a going concern.
/s/ BDO USA, P.A.
Woodbridge, New Jersey
July 14, 2023
Exhibit 107
Calculation of Filing Fee Tables
FORM S-8
(Form Type)
HEPION PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
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Security
Type |
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Security
Class Title |
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Fee
Calculation
Rule |
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Amount
Registered (1) |
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Proposed
Maximum
Offering
Price Per
Share |
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Maximum
Aggregate
Offering
Price |
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Fee Rate |
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Amount of
Registration
Fee |
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| Fees to Be Paid |
|
Equity |
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Common Stock, par value $0.0001 per share |
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457 |
(h) |
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500,000 |
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$ |
10.42 |
(2) |
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$ |
5,210,000 |
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$ |
0.00011020 |
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$ |
574 |
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| Fees Previously Paid |
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Total Offering Amounts |
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$ |
574 |
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Total Fees Previously Paid |
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- |
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Total Fee Offsets (3) |
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- |
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Net Fee Due |
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$ |
574 |
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(1) Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also
cover any additional shares of common stock, par value $0.0001 per share (“Common Stock”), of Hepion Pharmaceuticals, Inc.
(the “Registrant”) that become issuable under the Registrant’s 2023 Omnibus Equity Incentive Plan (the “Plan”),
by reason of any stock dividend, stock split, recapitalization or other similar transaction that increases the number of the outstanding
shares of the Registrant’s Common Stock. In addition, pursuant to Rule 416(c) under the Securities Act, this Registration
Statement shall also cover an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described
herein.
(2) Estimated solely for purposes of calculating
the registration fee in accordance with Rule 457(h) of the Securities Act by averaging the high and low sales prices of the
Registrant’s Common Stock reported on The Nasdaq Capital Market on July 12, 2023.
(3) The Registrant does not have any fee
offsets.
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