CELC Celcuity Inc

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

Under the Securities Act of 1933

 

 

CELCUITY INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

Delaware		82- 2863566
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification Number)

 

16305 36th Avenue North; Suite 100
Minneapolis, Minnesota 55446

(Address of Principal Executive Offices and Zip Code)

 

 

Celcuity Inc. Amended and Restated 2017 Stock Incentive Plan

Celcuity Inc. 2017 Employee Stock Purchase Plan

(Full Titles of the Plans)

 

 

Brian F. Sullivan		Copies to:
Chief Executive Officer		Eric O. Madson
16305 36th Avenue N., Suite 100		Fredrikson & Byron, P.A.
Minneapolis, MN 55446		60 South Sixth Street, Suite 1500
(763) 392-0767		Minneapolis, MN 55402
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)		Fax: (612) 492-7077

 

 

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. ☐

 

 

 

STATEMENT OF INCORPORATION BY REFERENCE

 

The purpose of this Registration Statement is to register (i) 1,755,060 additional shares of the registrant’s common stock, par value $0.001 per share (the “Common Stock”), reserved for issuance under the Registrant’s Amended and Restated 2017 Stock Incentive Plan, and (ii) 127,530 additional shares of Common Stock reserved for issuance under the Registrant’s 2017 Employee Stock Purchase Plan. This Registration Statement is submitted in accordance with General Instruction E to Form S-8 regarding registration of additional securities, and pursuant to such instruction, the contents of the Registration Statement on Form S-8 (File Nos. 333-221117, 333-238787, 333-253940, 333-256500, 333-265328, 333-270238 and 333-271976) are incorporated herein by reference, except for Item 8, Exhibits.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8. Exhibits.

 

Exhibit No.		Description
5.1		Opinion of Fredrikson & Byron, P.A.
23.1		Consent of Boulay PLLP
23.2		Consent of Fredrikson & Bryon, P.A. (included in Exhibit 5.1)
24.1		Power of Attorney (included on signature page hereof)
99.1		Celcuity Inc. 2017 Employee Stock Purchase Plan (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Registration Statement on Form S-1 filed on September 12, 2017 (File No. 333-220128))
99.2		Celcuity Inc. Amended and Restated 2017 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 15, 2020)
99.3		Amendment to the Celcuity Inc. Amended and Restated 2017 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 12, 2023)
99.4		Amendment to the Celcuity Inc. Amended and Restated 2017 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 13, 2024)
107		Filing Fee Table

 

 

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 Minneapolis, State of Minnesota, on May 20, 2024.

 

	CELCUITY INC.
	By:	/s/ Brian F. Sullivan
		Brian F. Sullivan Chief Executive Officer

 

POWER OF ATTORNEY

 

The undersigned directors and officers of Celcuity Inc. hereby severally constitute and appoint Brian F. Sullivan and Vicky Hahne as attorneys-in-fact for the undersigned, each of them singly, with full and several power of substitution for, and in the name, place and stead of the undersigned, to sign and file with the Securities and Exchange Commission under the Securities Act, any and all amendments (including post-effective amendments) and exhibits to this registration statement on Form S-8 (or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act) and any and all applications and other documents to be filed with the Securities and Exchange Commission pertaining to the registration of the securities covered hereby, with full power and authority to do and perform any and all acts and things whatsoever requisite and necessary or desirable, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Brian F. Sullivan		Chief Executive Officer (Principal Executive Officer),		May 20, 2024
Brian F. Sullivan		Director and Chairman
/s/ Vicky Hahne		Chief Financial Officer (Principal Financial and		May 20, 2024
Vicky Hahne		Accounting Officer)
/s/ Lance G. Laing		Chief Science Officer, Vice President and Secretary,		May 20, 2024
Lance G. Laing		and Director
/s/ Richard E. Buller		Director		May 20, 2024
Richard E. Buller
/s/ David F. Dalvey		Director		May 20, 2024
David F. Dalvey
/s/ Leo T. Furcht		Director		May 20, 2024
Leo T. Furcht
/s/ Polly A. Murphy		Director		May 20, 2024
Polly A. Murphy
/s/ Richard J. Nigon		Director		May 20, 2024
Richard J. Nigon

 

 

 

Exhibit 5.1

 

OPINION OF FREDRIKSON & BYRON, P.A.

 

FREDRIKSON & BYRON, P.A.

60 South Sixth Street, Suite 1500

Minneapolis, Minnesota 55402

Telephone: (612) 492-7000

Facsimile: (612) 492-7077

 

May 20, 2024

 

Celcuity Inc.

16305 36th Avenue N., Suite 100

Minneapolis, MN 55446

 

Re: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We are acting as corporate counsel to Celcuity Inc. (the “Company”) in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), to register 1,882,590 shares (plus any additional shares as described in footnote (2) to the Calculation of Registration Fee table) of Common Stock, par value $0.001, of the Company, which we have been advised by the Company may be issued from time to time pursuant to the Company’s Amended and Restated 2017 Stock Incentive Plan and 2017 Employee Stock Purchase Plan (each, a “Plan” and collectively, the “Plans” ). All such shares of Common Stock to be issued pursuant to the Plans are referred to herein as the “Shares.”

 

In acting as such counsel and for the purpose of rendering this opinion, we have reviewed copies of the following, as presented, and represented as being such, to us by the Company: (i) the Company’s Certificate of Incorporation; (ii) the Company’s Bylaws; (iii) certain corporate resolutions adopted by the Board of Directors and stockholders of the Company pertaining to the approval of the Plans; (iv) the Plans; and (v) the Registration Statement. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the original of all documents submitted to us as copies thereof.

 

Based on, and subject to, the foregoing and upon representations and information provided by the Company or its officers or directors or by public officials or their staffs, it is our opinion as of this date that, upon issuance and delivery of the Shares against receipt by the Company of the consideration for the Shares pursuant to the terms of the respective Plan, the Shares will be validly issued, fully paid and nonassessable.

 

This opinion is limited to the Delaware General Corporation Law. 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, or the rules and regulations of the Securities and Exchange Commission.

 

	Very truly yours,   Fredrikson & Byron, P.A.
	By:	/s/ Eric O. Madson
		Eric O. Madson Vice President

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Celcuity Inc. Amended and Restated 2017 Stock Incentive Plan and Celcuity Inc. 2017 Employee Stock Purchase Plan of our report dated March 27, 2024, with respect to the balance sheets of Celcuity Inc as of December 31, 2023 and 2022, and the related statements of operations, changes in stockholders’ equity, and cash flows for each of the years ended December 31, 2023 and 2022 included in the Annual Report on Form 10-K of Celcuity Inc. for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

 

/s/ Boulay PLLP

 

Minneapolis, Minnesota

May 20, 2024

 

 

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

Form S-8

(Form Type)

 

Celcuity Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type		Security Class Title		Fee Calculation Rate (1)		Amount Registered (2)				Proposed Maximum Offering Price Per Share (3)				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration fee
Equity		Common Stock issuable under the Registrant’s Amended and Restated 2017 Stock Incentive Plan		Other			1,755,060			$	17.09			$	29,993,975.40				0.00014760			$	4,427.11
Equity		Common Stock issuable under the Registrant’s 2017 Employee Stock Purchase Plan		Other			127,530			$	17.09			$	2,179,487.70				0.00014760			$	321.69
Total Offering Amounts														$	32,173,463.10							$	4,748.80
Total Fee Offsets																							N/A
Net Fee Due																						$	4,748.80

 

(1)	Fee calculated in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, as amended (the “Securities Act”).
(2)	Pursuant to Rule 416 under the Securities Act, there is also being registered hereunder an indeterminate number of additional securities that may become issuable pursuant to antidilution provisions of the plans covered by this Registration Statement.
(3)	Estimated pursuant to Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee and based upon the average of the high and low prices of the Registrant’s Common Stock on May 14, 2024, as quoted on the Nasdaq Capital Market.

 

 

---