AXGN Axogen Inc

As filed with the Securities and Exchange Commission on August 9, 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

AXOGEN, INC.

(Exact name of registrant as specified in its charter)

AXOGEN, INC. THIRD AMENDED AND RESTATED

2019 LONG-TERM INCENTIVE PLAN

PERFORMANCE BASED RESTRICTED STOCK UNIT INDUCEMENT AWARDS

(Full title of the plan)

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.

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. ☐

REGISTRATION OF ADDITIONAL SECURITIES

EXPLANATORY NOTE

Axogen, Inc. (the “Registrant”) has prepared this registration statement (this “Registration Statement”) in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended, to register: (1) 2,500,000 additional shares of common stock of the Registrant (the “Common Stock”) that became available for issuance pursuant to the Axogen, Inc. Third Amended and Restated 2019 Long-Term Incentive Plan (the “Equity Plan”) and (2) a total of up to 1,050,000 shares of Common Stock that may be issued upon the settlement of 1,050,000 performance stock units (the “Inducement PSUs”) that were granted to Michael Dale on August 9, 2024 to induce them to accept employment by the Company. The Equity Plan, including the shares of Common Stock available for issuance pursuant thereto, has been previously approved by the Registrant’s shareholders and Registration Statements of the Registrant on Form S-8 relating to the Equity Plans are effective. The Inducement PSUs were awarded outside of the Company’s stock incentive plans. The Inducement PSUs were approved by the Company’s Compensation Committee in compliance with, and in reliance on, Nasdaq Listing Rule 5635(c)(4), which exempts employee inducement grants from the general requirements of the Nasdaq Listing Rules that equity-based compensation plans and arrangements be approved by the stockholders.

INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENTS ON FORM S-8

Pursuant to General Instruction E of Form S-8, this Registration Statement hereby incorporates by reference the contents of (i) the registration statement on Form S-8 filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on August 22, 2019 (Registration No. 333-233416), (ii) the registration statement on Form S-8 filed by the Registrant with the Commission on May 11, 2021 (Registration No. 333-255992), and (iii)  the registration statement on Form S-8 filed by the Registrant with the Commission on May 31, 2022 (Registration No. 333-265321) (collectively, the “Prior Registration Statements”). Pursuant to the Prior Registration Statements, the Registrant previously registered an aggregate of 8,000,000 shares of Common Stock under the Equity Plan.

PART II

INFORMATION REQUIRED IN THE

REGISTRATION STATEMENT

Item 3. Incorporation of Certain Documents by Reference

The following documents of the Company filed with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:

a) The Company’s Annual Report on Form 10-K for its fiscal year ended December  31, 2023, filed with the Commission on March 5, 2024 (Commission File No. 001-36046);

b) The Company’s Quarterly Reports on Form 10-Q for the quarterly periods ended March  31, 2024 and June 30, 2024;

c) The Company’s Current Reports on Form 8-K, filed with the Commission on  January 4, 2024  (Item 5.02 only), March  8, 2024, May  2, 2024 (Item 2.02 only), June  7, 2024, and August 9, 2024 and the Company’s Current Reports on Form 8-K/A, filed with the Commission on January 5, 2024 and June 10, 2024; and

d) The description of the Company’s Common Stock set forth in the Registration Statement on Form 8A12B filed with the Commission on August  6, 2013 pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of Exchange Act, 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 of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. Any statement contained herein or in a document, all or a portion of which is 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 herein or in any other subsequently filed document which 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 be deemed, except as so modified or amended, to constitute a part of this Registration Statement.

Item 8. Exhibits

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 Alachua, State of Florida, on August 9, 2024.

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Michael Dale, Nir Naor, and Marc Began, his or her true and lawful 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 sign any and all amendments including post-effective amendments to this Registration Statement on Form S-8 (including, without limitation, any additional registration statement filed pursuant to Rule 462 under the Securities Act of 1933), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact or his substitute, each acting alone, may lawfully do or cause to be done by virtue thereof.

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.

Exhibit 5.1

August 09, 2024

Axogen, Inc.

13631 Progress Boulevard, Suite 400

Alachua, Florida 32615

RE: Axogen, Inc. - Registration Statement on Form S-8

To Whom It May Concern:

This law firm serves as counsel to Axogen, Inc., a Minnesota corporation (the “Company’’), in connection with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act’’). The Registration Statement relates to the registration of (i) 1,050,000 shares (the “Shares’’) of the Company’s common stock, par value $0.01 per share (the “Common Stock’’), that may be issued upon the settlement of 1,050,000 performance stock units (the “Inducement PSUs”) and (ii) a total of 2,500,000 shares of the Company’s Common Stock reserved for issuance to eligible persons under the Axogen, Inc. Third Amended and Restated 2019 Long-Term Incentive Plan (the “Plan’’).

As counsel for the Company, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion and we are familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization, issuance and sale of the Shares and the shares of Common Stock reserved under the Plan. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies.

For the purpose of the opinion rendered below, we have assumed that in connection with the issuance of the Shares and shares of Common Stock reserved under the Plan, the Company will receive consideration in an amount not less than the aggregate par value of the Shares or shares of Common Stock covered by each such issuance.

Based upon the foregoing, we are of the opinion that the Shares and the shares of Common Stock reserved under the Plan, when issued and sold in accordance with the terms set forth in the agreements that accompany the Inducement PSUs, or when issued and sold in accordance with the terms set forth in the Plan will be validly issued, fully paid and nonassessable.

This opinion letter is based as to matters of law solely on the Minnesota Business Corporation Act, as amended. We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations.

We consent to the use of this opinion as an exhibit to the Registration Statement, and we consent to the reference of our name wherever appearing in the Registration Statement and any amendments thereto. 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.

301 W. PLATT STREET - SUITE A-339

TAMPA, FL 33606

PHONE: 813.588.5100 - FAX: 813.607.4120

WEBSITE: WWW.BLUECHIP.LAW

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 5, 2024, relating to the financial statements of Axogen, Inc. and the effectiveness of Axogen, Inc.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Axogen, Inc. for the year ended December 31, 2023.

/s/ DELOITTE & TOUCHE LLP

Tampa, Florida

August 9, 2024

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

Axogen, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities