Form S-8 - Securities to be offered to employees in employee benefit plans

 

As filed with the Securities and Exchange Commission on September 18, 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

 

Gain Therapeutics, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		85-1726310
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
4800 Montgomery Lane Suite 220 Bethesda, Maryland		20814
(Address of Principal Executive Offices)		(Zip Code)

 

Gain Therapeutics, Inc. 2022 Equity Incentive Plan

(Full title of the plan)

 

Gene Mack

Interim Chief Executive Officer

Gain Therapeutics, Inc.

4800 Montgomery Lane

Suite 220

Bethesda, Maryland 20814

(Name and address of agent for service)

 

Tel: [phone]

(Telephone number, including area code, of agent for service)

 

 

 

Please send copies of all communications to:

Steven M. Skolnick, Esq.

Lowenstein Sandler LLP

1251 Avenue of the Americas

New York, New York 10020

Tel: [phone]

 

 

 

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	x	Smaller reporting company	x
		Emerging growth company	x

 

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 to Form S-8, Gain Therapeutics, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 (the “S-8 Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register 972,401 additional shares of the Registrant’s common stock, par value $0.0001 per share (“Common Stock”), reserved for issuance under the Gain Therapeutics, Inc. 2022 Equity Incentive Plan (the “2022 Plan”), consisting of 3,485,403 shares of Common Stock (“Evergreen Shares”) available for grant and issuance under the 2022 Plan as of January 1, 2024 pursuant to the provisions of the 2022 Plan providing for an automatic annual increase by an amount equal to 6% of the total number of Common Stock shares outstanding on December 31 of the preceding calendar year. In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of the Form S-8 has been omitted from this S-8 Registration Statement.

 

This S-8 Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which Registration Statements of the Registrant on Form S-8 relating to the same benefit plan is effective. The Registrant previously registered Common Stock for issuance under the 2022 Plan under Registration Statements on Form S-8, filed with the Commission on July 15, 2022 (File No. 333-266142) and May 30, 2023 (File No. 333-272255). Pursuant to General Instruction E to Form S-8, this S-8 Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.

 

 

 

 

Part II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents, which have been filed by the Registrant with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

 

	·	The Registrant’s latest annual report on Form 10-K for the fiscal year ended December 31, 2023, as filed with the Commission on March 26, 2024;
	·	The portions of the Registrant’s definitive proxy statement on Schedule 14A incorporated by reference to our Annual Report on Form 10-K for the year ended December 31, 2023, as filed with the SEC on April 26, 2024;
	·	The Registrant’s quarterly reports on Form 10-Q for the quarterly periods ended March 31, 2024 and June 30, 2024, filed on May 14, 2024 and August 8, 2024;
	·	The Registrant’s Current Reports on Form 8-K filed with the Commission on February 22, 2024, April 8, 2024, June 14, 2024, June 25, 2024, June 28, 2024, July 9, 2024, July 12, 2024 and September 6, 2024;
	·	The description of the securities contained in the Registrant’s Registration Statement on Form 8-A (Registration No. 001-40237) filed with the Commission on March 17, 2021, under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description, including Exhibit 4.1 to the Registrant’s annual report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 26, 2024.

 

All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14, or 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 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 documents, except as to specific sections of such documents as set forth therein; provided, however, that documents or information deemed to have been furnished and not filed in accordance with SEC rules shall not be deemed incorporated by reference into this Registration Statement. 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 in any subsequently filed document, which also is deemed to be incorporated by reference herein, modifies or supersedes such statement.

 

Item 8.

Exhibits.

 

 

 

 

Exhibit No.		Exhibit Description
4.1		Amended and Restated Certificate of Incorporation of Gain Therapeutics, Inc. (incorporated by reference to Exhibit 3.1 (File No. 001-40237) on Form 8-K filed with the Commission on March 22, 2021)
4.2		Amended and Restated Bylaws of Gain Therapeutics, Inc. (incorporated by reference to Exhibit 3.2 on Form 8-K (File No. 001-40237) filed with the Commission on March 22, 2021)
4.3		Gain Therapeutics, Inc. 2022 Equity Incentive Plan (incorporated by reference to Exhibit 4.6 to the Company’s Registration Statement on Form S-8 (File No. 333-266142), filed with the Commission on July 15, 2022).
4.4		Form of 2022 Equity Incentive Plan Restricted Stock Unit Agreement (incorporated by reference to Exhibit 4.8 to the Company’s Registration Statement on Form S-8 (File No. 333-266142), filed with the Commission on July 15, 2022).
4.5		Form of 2022 Equity Incentive Plan Stock Option Award Agreement (incorporated by reference to Exhibit 4.7 to the Company’s Registration Statement on Form S-8 (File No. 333-266142), filed with the Commission on July 15, 2022).
5.1		Opinion of Lowenstein Sandler LLP.
23.1		Consent of Ernst & Young AG.
23.2		Consent of Lowenstein Sandler LLP (included in Exhibit 5.1).
24.1		Power of Attorney (included on the signature page of this Registration Statement).
107		Filing Fee Table.

 

 

 

 

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 Bethesda, State of Maryland, on September 18, 2024.

 

GAIN THERAPEUTICS, INC.
By:	/s/ Gene Mack
	Gene Mack
	Interim Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints C. Evan Ballantyne and Matthias Alder, and each of them, as attorney-in-fact with full power of substitution, for him or her in any and all capacities, to do any and all acts and all things and to execute any and all instruments which said attorneys and agents, or either of them, may deem necessary or desirable to enable the registrant to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission thereunder, in connection with the registration of ordinary shares of the registrant under this registration statement, including, without limitation, the power and authority to sign the name of each of the undersigned in the capacities indicated below to this registration statement, to any and all amendments or supplements to this registration statement and to any and all instruments or documents filed as part of or in connection with this registration statement or any and all amendments thereto; and each of the undersigned hereby ratifies and confirms all that such attorneys and agents, or either of them, 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 on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.

 

 

 

 

Signature		Title		Date
/s/ Gene Mack		Interim Chief Executive Officer and Chief Financial Officer		September 18, 2024
Gene Mack		(Principal Executive Officer and Principal Financial Officer)
/s/ Gianluca Fuggetta		Finance Vice President		September 18, 2024
Gianluca Fuggetta		(Principal Accounting Officer)
/s/ Khalid Islam Khalid Islam		Founder and Executive Chairman of the Board of Directors		September 18, 2024
/s/ Dov Goldstein Dov Goldstein		Director		September 18, 2024
/s/ Hans Peter Hasler Hans Peter Hasler		Director		September 18, 2024
/s/ Gwen Melincoff Gwen Melincoff		Director		September 18, 2024
/s/ Claude Nicaise Claude Nicaise		Director		September 18, 2024
/s/ Eric I. Richman		Director		September 18, 2024
Eric I. Richman
/s/ Jeffrey Riley		Director		September 18, 2024
Jeffrey Riley

 

 

 

 

 

Exhibit 5.1

 

 

 

September 18, 2024

 

Gain Therapeutics, Inc.

4800 Montgomery Lane, Suite 220

Bethesda, Maryland 20814

 

Re: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Gain Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the Company’s filing on the date hereof with the Securities and Exchange Commission (the “SEC”) of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the registration of an additional 972,401 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), issuable pursuant to the Gain Therapeutics, Inc. 2022 Equity Incentive Plan (the “2022 Plan”).

 

In connection with rendering this opinion, we have examined the 2022 Plan and such corporate records, certificates and other documents and such questions of law as we have considered necessary and appropriate for the purposes of this opinion. In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity of original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to any facts material to our opinion, we have, when relevant facts were not independently established, relied upon the Registration Statement and the aforesaid records, certificates and documents.

 

We assume that the Company has sufficient unissued and unreserved shares of Common Stock and (or will validly amend its certificate of incorporation, to authorize a sufficient number of shares of Common Stock prior to the issuance thereof) available for issuance as provided in the Registration Statement and any related amendment thereto or prospectus supplement.

 

Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that the Shares, upon issuance and delivery as contemplated by the 2022 Plan, will be validly issued, fully paid and nonassessable outstanding shares of Common Stock.

 

The opinion expressed herein is limited to the corporate laws of the State of Delaware, as in effect on the date hereof, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction. We assume no obligation to advise you of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to this firm in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.

 

Very truly yours,
/s/ Lowenstein Sandler LLP
Lowenstein Sandler LLP

 

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2022 Equity Incentive Plan of Gain Therapeutics, Inc. of our report dated March 26, 2024, with respect to the consolidated financial statements of Gain Therapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young AG

 

Lugano, Switzerland

 

September 18, 2024

 

 

 

Exhibit 107

 

Calculation of Filing Fee Table

 

Form S-8

(Form Type)

 

Gain Therapeutics, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type	Security Class Title	Fee Calculation Rule(1)	Amount Registered(2)	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price(1)	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.0001 par value per share	Other	972,401	$1.465	$1,424,567.46	0.00014760	$210.27
Total Offering Amounts				------	$1,424,567.46	------	$210.27
Total Fee Offsets				------	------	------	------
Net Fees Due				------	------	------	$210.27

 

(1)

Calculated solely for purposes of this offering under Rules 457(c) and 457(h) of the Securities Act on the basis of the average of the high and low prices per share of Registrant’s Common Stock on September 13, 2024 as reported by The Nasdaq Global Market.

(2)

Covers 972,401 shares of the Registrant’s common stock, par value $0.0001 per share (“Common Stock”) issuable under the Registrant’s 2022 Equity Incentive Plan (the “Plan”). Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also be deemed to cover any additional shares of Common Stock that may from time to time be offered or issued under the Plan to prevent dilution resulting from stock splits, stock dividends or similar transactions that increases the number of outstanding shares of Common Stock.

 

 

 

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