BFRIW Biofrontera Inc

 

As filed with the Securities and Exchange Commission on __________________

 

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

 

BIOFRONTERA INC.

(Exact name of registrant as specified in its charter)

 

Delaware		47-3765675
(State or other jurisdiction of incorporation or organization)		(IRS Employer Identification No.)

 

120 Presidential Way, Suite 330

Woburn, Massachusetts 01801

(Address of principal executive offices) (Zip code)

 

BIOFRONTERA INC. 2021 OMNIBUS INCENTIVE PLAN

(Full title of the plan)

 

Prof. Dr. Hermann Luebbert

Chairman and Chief Executive Officer

Biofrontera Inc.
120 Presidential Way, Suite 330
Woburn, MA 01801
(Name and address of agent for service)
(781) 245-1325
(Telephone number, including area code, of agent for service)

 

Copies to:

 

Robert B. Lamm, Esq. Gunster, Yoakley & Stewart, P.A. 4855 Technology Way, Suite 630 Boca Raton, FL 33431 Telephone: 954- 468-1321

Daniel Hakansson Corporate Counsel Biofrontera Inc. 120 Presidential Way, Suite 330 Woburn, MA 01801 Telephone: 781-486-1510

 

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 of 1934, as amended (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

 

This registration statement on Form S-8 is being filed by Biofrontera Inc. (the “Company”) with the U.S. Securities and Exchange Commission (the “Commission”) for the purpose of registering an additional 3,612,500 shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), available for issuance in connection with equity-based awards granted under the Biofrontera 2021 Omnibus Incentive Plan, as amended (the “Plan”). The Plan was adopted by the Company’s Board of Directors and approved by the Company’s then sole stockholder on July 23, 2021. The Company registered 137,500 shares of Common Stock for issuance under the Plan on a Registration Statement on Form S-8 (File No. 333-265463) (the “Initial Registration Statement”), filed with the Commission on June 7, 2022. On December 12, 2022, the stockholders of the Company approved an amendment to the Plan to increase the number of shares authorized for issuance by 129,490 shares, from 137,500 shares to 266,990 shares. On June 12, 2024, the stockholders of the Company approved a further amendment to the Plan to increase the number of shares authorized for issuance by 3,483,010 shares, from 266,990 shares to 3,750,000 shares. In accordance with Section E of the General Instructions to Form S-8, the contents of the Initial Registration Statement are incorporated by reference herein, except that the information contained in Part II of the Initial Registration Statement has been modified as set forth herein.

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

References in this registration statement to “we,” “us,” “our,” and the “Company,” or similar references, refer to Biofrontera Inc., unless otherwise stated or the context otherwise requires.

 

Item 6.

Indemnification of Directors and Officers.

 

Section 102 of the General Corporation Law of the State of Delaware permits a corporation to eliminate the personal liability of directors and officers of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duties, except where the director or officer breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct, 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. Our amended and restated certificate of incorporation relieves the directors, but not the officers, of the Company from personally liability to the Company and its stockholders in accordance with the foregoing description.

 

Section 145 of the General Corporation Law of the State of Delaware 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.

 

Our amended and restated certificate of incorporation and amended and restated bylaws provide indemnification for our directors and officers to the fullest extent permitted by the General Corporation Law of the State of Delaware. We 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 our 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, our 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. Our amended and restated certificate of incorporation and amended and restated bylaws provide that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of us to procure a judgment in our 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 our 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 all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement 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, our 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, he or she will be indemnified by us against all expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.

 

We maintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions in their capacities as directors or officers.

 

 

Item 8.

Exhibits.

 

The following documents are filed as exhibits to this registration statement:

 

Exhibit Number		Description of Exhibit
4.1		Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 3, 2021).
4.2		Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed with the SEC on November 3, 2021).
4.3		Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Biofrontera Inc. (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 3, 2023).
4.4		Certificate of Second Amendment to the Amended and Restated Certificate of Incorporation of Biofrontera Inc. filed April 25, 2024 (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on April 30, 2024).
4.5		Specimen Stock Certificate evidencing the shares of common stock (incorporated by reference to Exhibit 4.1 to Amendment No. 6 to the Company’s registration statement on Form S-1 filed with the SEC on October 12, 2021).
4.6		Biofrontera Inc. 2021 Omnibus Incentive Plan (as amended and restated on June 12, 2024) (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on June 14, 2024).
5.1*		Opinion of Gunster, Yoakley & Stewart, P.A.
23.1*		Consent of Marcum LLP
23.2*		Consent of Gunster, Yoakley & Stewart, P.A. (included in Exhibit 5.1).
24.1*		Powers of Attorney (included on the signature page of this registration statement).
107*		Filing Fee Table

 

* Filed herewith.

 

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; and

 

(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.

 

 

(2) That, for the purposes 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 therein, and the offering of the 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.

 

(4) That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

(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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, 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 SEC 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, 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 Woburn, Commonwealth of Massachusetts, on November 13, 2024.

 

	BIOFRONTERA INC.
	By:	/s/ E. Fred Leffler, III
	Name:	E. Fred Leffler, III
	Title:	Chief Financial Officer

 

SIGNATURES AND POWER OF ATTORNEY

 

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Daniel Hakansson, his or her true and lawful agent, proxy and attorney-in-fact, 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 act on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto, and to take any and all actions which may be necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming all that such agent, proxy and attorney-in-fact or any of his or her substitutes may lawfully do or cause to be done by virtue thereof.

 

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

 

Signature		Title		Date
/s/ Hermann Luebbert		Chairman and Chief Executive Officer		November 13, 2024
Hermann Luebbert		(Principal Executive Officer )
/s/ E. Fred Leffler, III		Chief Financial Officer		November 13, 2024
E. Fred Leffler, III		(Principal Financial Officer and Principal Accounting Officer)
/s/ Heikki Lanckriet		Director		November 13, 2024
Heikki Lanckriet
/s/ Beth J. Hoffman		Director		November 13, 2024
Beth J. Hoffman

 

 

 

EXHIBIT 5.1

 

 

 

 

 

 

Exhibit 23.1

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of Biofrontera Inc. on Form S-8 of our report dated March 15, 2024, with respect to our audits of the consolidated financial statements of Biofrontera Inc. as of December 31, 2023 and 2022 and for the two years in the period ended December 31, 2023 appearing in the Annual Report on Form 10-K of Biofrontera Inc. for the year ended December 31, 2023.

 

/s/ Marcum llp

 

Marcum llp

Morristown, NJ

November 13, 2024

 

 

 

EXHIBIT 107

 

Calculation of Filing Fee Table

 

Form S-8

(Form Type)

 

BIOFRONTERA INC.

(Exact Name of Registrant as Specified in its Charter)

 

Table I: Newly Issued Securities

 

Security Type		Security Class Title		Fee Calculation Rule		Amount Registered				Proposed Maximum Offering Price Per Share				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee
Equity		Common Stock, $0.001 par value per share		Rules 457(c) and 457(h)			3,612,500	(1)		$	0.84	(2)		$	3,034,500	(2)			$153.10 per $1,000,000			$	464.59
		Total Offering Amounts												$	3,034,500	(2)						$	464.59
		Total Fee Offsets																				$	0.00
		Net Fee Due																				$	464.59

 

(1)	Represents shares of Common Stock to be registered under the registrant’s 2021 Omnibus Incentive Plan (the “Plan”). Pursuant to Section 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares of Common Stock that may become issuable as a result of stock splits, stock dividends, or similar transactions under the anti-dilution provisions of the Plan. The registrant has previously registered 137,500 shares that may be issued under the Plan on a Registration Statement on Form S-8 (File No. 333-265463). The registration fee for the previously registered shares was paid at the time that such registration statement was filed.
(2)	Estimated solely for the purpose of computing the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act. Pursuant to Rules 457(c) and 457(h) under the Securities Act, the proposed maximum aggregate offering price was determined based on the average of the high and low prices reported for Biofrontera Inc.’s Common Stock on The NASDAQ Capital Market LLC on November 11, 2024.

 

 

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