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

As filed with the Securities and Exchange Commission on July 13, 2023

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

ImmuCell Corporation

(Exact name of registrant as specified in its charter)

Delaware		01-0382980
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification No.)

56 Evergreen Drive

Portland, ME 04103

(Address of Principal Executive Offices, Zip Code)

2017 Stock Option and Incentive Plan

(Full title of the plan)

Michael F. Brigham

President, Chief Executive Officer and Treasurer

ImmuCell Corporation

56 Evergreen Drive

Portland, ME 04103

(Name, address, including zip code, and telephone number, including area code, of agent for service)

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. ☐

Explanatory Note

Pursuant to General Instruction E of Form S-8, this Registration Statement on Form S-8 is being filed by ImmuCell Corporation, a Delaware corporation (the “Registrant”) for the purpose of registering an additional 350,000 shares of the Registrant’s common stock, par value $0.10 per share (the “Common Stock”) to be issued pursuant to the Registrant’s 2017 Stock Option and Incentive Plan (the “Plan”), which shares of Common Stock are securities of the same class and relate to the same employee benefit plan as other securities for which Registration Statements on Form S-8 have previously been filed and are effective. Accordingly, this Registration Statement incorporates by reference the contents of the Registration Statement on Form S-8 previously filed with the Securities and Exchange Commission (the “SEC”) on March 27, 2020 (File No. 333-237428) relating to the Plan.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8.

Exhibits

Exhibit Number		Description
4.1		Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the Registrant’s 1987 Registration Statement No. 33-12722 on Form S-1).
4.2		Certificate of Amendment to the Registrant’s Certificate of Incorporation effective July 23, 1990 (incorporated by reference to Exhibit 3.2 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2008 as filed with the SEC on March 27, 2009).
4.3		Certificate of Amendment to the Registrant’s Certificate of Incorporation effective August 24, 1992 (incorporated by reference to Exhibit 3.3 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2008 as filed with the SEC on March 27, 2009).
4.4		Certificate of Amendment to the Registrant’s Certificate of Incorporation effective June 16, 2016 (incorporated by reference to Exhibit 3.1 of the Registrant’s Amended Current Report on Form 8-K/A filed on June 16, 2016).
4.5		Certificate of Amendment to the Registrant’s Certificate of Incorporation effective June 18, 2018 (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K as filed with the SEC on June 18, 2018).
4.6		Certificate of Amendment to the Registrant’s Certificate of Incorporation effective June 11, 2020 (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on June 11, 2020).
4.7		Bylaws of the Registrant as amended (incorporated by reference to Exhibit 3.4 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2008 as filed with the SEC on March 27, 2009).
4.8		Rights Agreement dated as of September 5, 1995, between the Registrant and American Stock Transfer and Trust Co., as Rights Agent, which includes as Exhibit A thereto the form of Right Certificate and as Exhibit B thereto the Summary of Rights to Purchase Common Stock (incorporated by reference to Exhibit 4.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2009 as filed with the SEC on May 5, 2009).
4.9		First Amendment to Rights Agreement, dated as of June 30, 2005 (incorporated by reference to Exhibit 4.1A to the Registrant’s Current Report on Form 8-K as filed with the SEC on July 5, 2005).
4.10		Second Amendment to Rights Agreement, dated as of June 30, 2008 (incorporated by reference to Exhibit 4.1A of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2008 as filed with the SEC on March 27, 2009).
4.11		Third Amendment to Rights Agreement, dated as of August 9, 2011 (incorporated by reference to Exhibit 4.1 of the Registrant’s Quarterly Report on Form 10-Q for the three-month period ended June 30, 2011 as filed with the SEC on August 15, 2011).
4.12		Fourth Amendment to Rights Agreement, dated as of June 16, 2014 (incorporated by reference to Exhibit 4.1D of the Registrant’s Current Report on Form 8-K filed on June 17, 2014).
4.13		Fifth Amendment to Rights Agreement, dated as of April 15, 2015 (incorporated by reference to Exhibit 4.1 of the Registrant’s Quarterly Report on Form 10-Q for the three-month period ended March 31, 2015 as filed with the SEC on May 12, 2015).
4.14		Sixth Amendment to Rights Agreement, dated as of August 10, 2017 (incorporated by reference to Exhibit 4.1 of the Registrant’s Quarterly Report on Form 10-Q for the three-month period ended June 30, 2017 as filed with the SEC on August 14, 2017).
4.15		Seventh Amendment to Rights Agreement, dated as of August 10, 2022 (incorporated by reference to Exhibit 4.1 of the Registrant’s Quarterly Report on form 10-Q for the three-month period ended June 30, 2022 as filed with the SEC on August 11, 2022).
4.16		Description of Securities Registered Under Section 12 of the Securities Exchange Act of 1934, as amended (incorporated by reference to Exhibit 4.2 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2020 as filed with the SEC on March 30, 2021).
5*		Opinion of Pierce Atwood LLP
23.1*		Consent of Pierce Atwood LLP (included in Exhibit 5)
23.2*		Consent of Independent Registered Accounting Firm, Wipfli LLP
24.1*		Power of Attorney (included on the signature page to this Registration Statement)
99.1		2017 Stock Option and Incentive Plan of the Registrant (incorporated by reference to Exhibit 10.1 of the Registrant’s Quarterly Report on Form 10-Q for the three-month period ended June 30, 2017 as filed with the SEC on August 14, 2017)
99.2		Amendment to the 2017 Stock Option and Incentive Plan of the Registrant (incorporated by reference to Exhibit 10.7 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022 as filed with the SEC on March 29, 2023)
107.1*		Filing Fee Table

*	Filed herewith

II-1

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 Portland, State of Maine, on this 13th day of July, 2023.

ImmuCell Corporation

By:	/s/ Michael F. Brigham
	Michael F. Brigham
	President, Chief Executive Officer and Principal Financial Officer

POWER OF ATTORNEY AND SIGNATURES

Each person whose signature appears below hereby makes, constitutes and appoints Michael F. Brigham his or her true and lawful attorney, with full power to sign for such person and in such person’s name and capacity indicated below, and with full power of substitution any and all amendments, including post-effective amendments, to this Registration Statement on Form S-8, and generally to do all such things in the names and on the behalf of the undersigned in their capacities as officers and directors to enable the Registrant to comply with the provisions of the Securities Act of 1933, as amended, hereby ratifying and confirming such person’s signature as it may be signed by said attorney to any and all amendments.

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 dates indicated.

Signature	Title	Date

/s/ Gloria J. Basse	Director	July 13, 2023
Gloria J. Basse

/s/ Michael F. Brigham	President, Chief Executive Officer,	July 13, 2023
Michael F. Brigham	Principal Financial Officer and Director

/s/ Bobbi Jo Brockmann	Vice President of Sales and Marketing and Director	July 13, 2023
Bobbi Jo Brockmann

/s/ Bryan K. Gathagan	Director	July 13, 2023
Bryan K. Gathagan

/s/ Steven T. Rosgen	Director	July 13, 2023
Steven T. Rosgen

/s/ David S. Tomsche, DVM	Director	July 13, 2023
David S. Tomsche, DVM

/s/ Elizabeth S. Toothaker	Controller	July 13, 2023
Elizabeth S. Toothaker

/s/ Paul R. Wainman	Director	July 13, 2023
Paul R. Wainman

II-2

Exhibit 5

254 Commercial Street
Portland, ME 04101

207-791-1100 voice
207-791-1350 fax
info@pierceatwood.com

pierceatwood.com

July 13, 2023

ImmuCell Corporation

56 Evergreen Drive

Portland, ME 04103

Re:	2017 Stock Option and Incentive Plan

Ladies and Gentlemen:

We have assisted in the preparation a Registration Statement on Form S-8 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of an aggregate of 350,000 shares of common stock, $0.10 par value per share (the “Shares”), of ImmuCell Corporation, a Delaware corporation (the “Company”), issuable under the Company’s 2017 Stock Option and Incentive Plan, as amended (the “Plan”).

We have examined the Certificate of Incorporation and By-Laws of the Company, each as amended to date, the Plan, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the board of directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on statements, representations, and certificates of officers and other representatives of the Company.

In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.

For purposes of the opinion expressed below, we have assumed that a sufficient number of authorized but unissued shares of the Company’s common stock will be available for issuance when the Shares are issued. We have also assumed that the appropriate action has been or will be taken, prior to the offer and sale of the Shares in accordance with the Plan, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws to the extent required.

We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of the State of Delaware and the federal laws of the United States of America.

It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.

Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and non-assessable.

We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. 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 or the rules and regulations of the Commission.

	Very truly yours,

	/s/ Pierce Atwood LLP
	PIERCE ATWOOD LLP

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 ImmuCell Corporation of our report dated March 29, 2023, relating to the financial statements of ImmuCell Corporation appearing in the Annual Report on Form 10-K of ImmuCell Corporation for the year ended December 31, 2022.

/s/ Wipfli, LLP
Wipfli, LLP

Radnor, Pennsylvania
July 13, 2023

Exhibit 107.1

Calculation of Filing Fee Tables

FORM S-8

(Form Type)

ImmuCell Corporation

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

Security Type	Security Class Title (1)	Fee Calculation Rule	Amount Registered		Proposed Maximum Offering Price Per Unit (2)		Maximum Aggregate Offering Price		Fee Rate	Amount of Registration Fee
Equity	Common stock, par value $0.10 per share	Rule 457(h)	350,000	(3)	$	5.01	$	1,753,500	$110.20 per $1,000,000	$	193.24
Total Offering Amounts							$	1,753,500		$	193.24
Total Fee Offsets											—
Net Fee Due										$	193.24

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 shall be deemed to cover any additional shares of common stock, par value $0.10 per share (the “Common Stock”) of the Registrant that may be issued pursuant to the 2017 Stock Option and Incentive Plan (the “Plan”) to prevent dilution from stock splits, stock dividends or similar transactions.

(2)	Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) of the Securities Act, and based on the average of the high and low sale prices of the Common Stock, as quoted on the NASDAQ Capital Market tier of the NASDAQ Stock Market on July 7, 2023.