As filed with the Securities and Exchange Commission on June 4, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Pulmatrix, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 46-1821392 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
99 Hayden Avenue, Suite 390
Lexington, MA 02421
(Address of principal executive offices) (Zip Code)
Pulmatrix, Inc. Amended and Restated 2013 Employee, Director and Consultant Equity Incentive Plan
(Full title of the Plan)
Teofilo David Raad
Chief Executive Officer
Pulmatrix, Inc.
99 Hayden Avenue, Suite 390
Lexington, MA 02421
(Name and address of agent for service)
(781) 357-2333
(Telephone number, including area code, of agent for service)
Copy to:
Rick A. Werner, Esq.
Jayun Koo, Esq.
Haynes and Boone, LLP
30 Rockefeller Plaza, 26th Floor
New York, New York 10112
Telephone: (212) 659-7300
Facsimile: (212) 884-8234
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. ☐
CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered |
Amount to be registered (1) |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price |
Amount of registration fee (2) |
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Common Stock, par value $0.0001: |
324,999 (3) | $1.06(4) | $344,498.94(4) | $41.75 | ||||
| 11,996 (5) | $1.01(5) | $12,115.96(6) | $1.47 | |||||
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Total: |
336,995 | N/A | $356,614.90 | $43.22 | ||||
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| (1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the number of shares registered hereunder includes such additional number of shares of Pulmatrix, Inc. (the “Company”) common stock, par value $0.0001 per share (the “Common Stock”), as are required to prevent dilution resulting from a stock split, stock dividend or similar transaction. |
| (2) |
Amount of the registration fee was calculated in accordance with Section 6(b) and Rule 457 under the Securities Act and was determined by multiplying the aggregate offering price by 0.0001212. |
| (3) |
Represents shares of Common Stock added to the Pulmatrix, Inc. Amended and Restated 2013 Employee, Director and Consultant Equity Incentive Plan (the “Plan”) on January 1, 2018, and January 1, 2019, pursuant to an “evergreen” provision, which allows for an annual increase in the number of shares of Common Stock available for issuance under the Plan, and that are issuable upon the exercise of stock options awarded under the Plan. |
| (4) |
Estimated solely for the purpose of calculating the registration fee, based, in accordance with Rule 457(h) promulgated under the Securities Act, upon the price at which such stock options may be exercised. |
| (5) |
Represents shares of Common Stock added to the Plan on January 1, 2019, pursuant to an “evergreen” provision, which allows for an annual increase in the number of shares of Common Stock available for issuance thereunder, and that are reserved for issuance pursuant to future awards under the Plan. |
| (6) |
Estimated solely for the purpose of calculating the registration fee, based, in accordance with Rule 457(h) promulgated under the Securities Act, upon the high and low selling prices of the Common Stock on May 30, 2019 as reported on the NASDAQ Capital Market. |
EXPLANATORY NOTE
At the time the Amended and Restated 2013 Employee, Director and Consultant Equity Incentive Plan was initially amended and restated (the “ Original Plan ”), it reserved a total of 345,055 shares of common stock, par value $.0001 per share (the “ Common Stock ”), of Pulmatrix, Inc. (the “ Company ”) for issuance thereunder. The Original Plan included an “evergreen” provision that provides for an annual increase in the total number of shares of Common Stock reserved for issuance thereunder on the first day of each fiscal year beginning in calendar year 2016 (the “ Original Evergreen Provision ”). Pursuant to the Original Evergreen Provision, the annual increase in the number of shares of Common Stock was equal to the lowest of: (i) 90,360 shares of Common Stock; (ii) five percent (5%) of the number of shares of Common Stock outstanding as of the date of the increase; and (iii) an amount determined by the Company’s board of directors.
As a result of the Original Evergreen Provision, effective January 1, 2017, 74,252 shares of Common Stock were added to the total number of shares of Common Stock reserved for issuance under the Plan, and effective January 1, 2018, 90,360 shares of Common Stock (the “2018 Evergreen Shares”) were added to the total number of shares of Common Stock reserved for issuance under the Original Plan.
At the 2018 annual meeting of stockholders held on June 5, 2018 (the “ Annual Meeting ”), the Company’s stockholders approved amendments to the Original Plan (i) to increase the number of shares of Common Stock authorized to be issued under the Original Plan by 740,333 to a total of 1,250,000 shares and (ii) to modify the Original Evergreen Provision by removing the cap on the number of shares that may be reserved for issuance (as amended, the “ Plan ”), so that on January 1st of each year, commencing on January 1, 2019, the number of shares reserved for issuance under the Plan will automatically increase by 5% of the number of outstanding shares of common stock on such date (as amended, the “ Evergreen Provision ”). These amendments are described in the Company’s definitive proxy materials for the Annual Meeting, which were filed with the Securities and Exchange Commission on April 26, 2018.
As a result of the Evergreen Provision, on January 1, 2019, 246,637 shares of Common Stock (the “2019 Evergreen Shares”) were added to the total number of shares of Common Stock reserved for issuance under the Plan.
This Registration Statement on Form S-8 (this “ Registration Statement ”) is being filed to register:
| • |
324,999 shares of our Common Stock underlying options previously granted and outstanding as of the date of this Registration Statement with underlying shares from the 2018 Evergreen Shares and the 2019 Evergreen Shares; and |
| • |
11,996 shares of Common Stock to be offered to participants under the Plan, consisting of 11,996 shares of Common Stock reserved for issuance pursuant to future awards under the Plan from the 2019 Evergreen Shares. |
All share numbers in this Registration Statement have been adjusted to give effect to the Company’s 1-for-2.5 reverse stock split of its issued and outstanding Common Stock that occurred on June 15, 2015, and a 1-for-10 reverse stock split of its issued and outstanding Common Stock that occurred on February 5, 2019. Except as otherwise set forth below, the contents of the Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “SEC”) on May 6, 2014 (File No. 333-195737), July 20, 2015 (File No. 333-205752), September 18, 2015 (File No. 333-207002), July 15, 2016 (File No. 333-212547), March 13, 2017 (File No. 333-216628), and June 14, 2018 (File No. 333-225627) are incorporated herein by reference as permitted by General Instruction E of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| ITEM 3. |
INCORPORATION OF DOCUMENTS BY REFERENCE. |
The following documents filed by us with the SEC are hereby incorporated into this Registration Statement by reference:
| 1. |
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed with the SEC on February 19, 2019 ; |
| 2. |
Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, filed with the SEC on May 15, 2019 ; |
| 3. |
Our Current Report on Form 8-K filed with the SEC on January 30, 2019 ; |
| 4. |
Our Current Report on Form 8-K filed with the SEC on February 1, 2019 ; |
| 5. |
Our Current Report on Form 8-K filed with the SEC on February 6, 2019 ; |
| 6. |
Our Current Report on Form 8-K filed with the SEC on February 11, 2019 ; |
| 7. |
Our Current Report on Form 8-K filed with the SEC on February 22, 2019 ; |
| 8. |
Our Current Report on Form 8-K filed with the SEC on April 1, 2019 ; |
| 9. |
Our Current Report on Form 8-K filed with the SEC on April 4, 2019 ; |
| 10. |
Our Current Report on Form 8-K filed with the SEC on April 9, 2019 ; |
| 11. |
Our Current Report on Form 8-K filed with the SEC on April 15, 2019 ; |
| 12 |
Our Current Report on Form 8-K filed with the SEC on May 16, 2019 ; |
| 13. |
The description of our Common Stock contained in our Registration Statement on Form S-4 (File No. 333-203417) filed with the SEC on April 15, 2015 , as amended by Pre-Effective Amendment No. 1 to Registration Statement on Form S-4 filed on May 1, 2015 and Post-Effective Amendment No. 1 on Form S-3 to Registration Statement on Form S-4 filed on September 18, 2015 , including any amendments or reports filed for the purpose of updating such description. |
In addition, all documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Registration Statement (other than any such documents or portions thereof that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, unless otherwise indicated therein, including any exhibits included with such Items), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement or 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 or incorporated by reference herein or in any subsequently filed document which 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 superseded, to constitute a part of this Registration Statement.
| ITEM 8. |
EXHIBITS. |
The list of exhibits is set forth under “Exhibit Index” at the end of this Registration Statement and is incorporated herein by reference.
EXHIBIT INDEX
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 Lexington, State of Massachusetts, on June 4, 2019.
| PULMATRIX, INC. | ||||
| By: |
/s/ Teofilo David Raad |
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| Name: | Teofilo David Raad | |||
| Title: | Chief Executive Officer | |||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Teofilo David Raad and William Duke, Jr., severally, each with full power to act alone and without the others, his true and lawful attorney-in-fact, with full power of substitution, and with the authority to execute in the name of each such person, any and all amendments (including without limitation, post-effective amendments) to this registration statement, to sign any and all additional registration statements relating to the same offering of securities as this registration statement that are filed pursuant to Rule 462(b) of the Securities Act, and to file such registration statements with the SEC, together with any exhibits thereto and other documents therewith, necessary or advisable to enable the registrant to comply with the Securities Act, and any rules, regulations and requirements of the SEC in respect thereof, which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same deems appropriate.
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.
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Title |
Title |
Date |
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/s/ Teofilo David Raad Teofilo David Raad |
Chief Executive Officer and Director (Principal Executive Officer) |
June 4, 2019 | ||
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/s/ William Duke, Jr. William Duke, Jr. |
Chief Financial Officer, Treasurer and Secretary (Principal Financial Officer and Principal Accounting Officer) |
June 4, 2019 | ||
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/s/ Mark Iwicki Mark Iwicki |
Chairman of the Board of Directors |
June 4, 2019 | ||
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/s/ Steven Gillis, Ph.D. Steven Gillis, Ph.D. |
Director |
June 4, 2019 | ||
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/s/ Michael J. Higgins Michael J. Higgins |
Director |
June 4, 2019 | ||
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/s/ Terrance G. McGuire Terrance G. McGuire |
Director |
June 4, 2019 | ||
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/s/ Amit D. Munshi Amit D. Munshi |
Director |
June 4, 2019 | ||
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/s/ Matthew Sherman, M.D. Matthew Sherman, M.D. |
Director |
June 4, 2019 | ||
Exhibit 5.1
June 4, 2019
Pulmatrix, Inc.
99 Hayden Avenue, Suite 390
Lexington, MA 02421
| Re: |
Registration Statement on Form S-8 of 336,995 Shares of Common Stock of Pulmatrix, Inc. |
Ladies and Gentlemen:
We have acted as counsel to Pulmatrix, Inc., a Delaware corporation (the “ Company ”), in connection with the filing with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Act ”) of a registration statement on Form S-8 (the “ Registration Statement ”) by the Company relating to the registration of 336,995 shares (the “ Shares ”) of the Company’s common stock, $0.0001 par value per share (the “ Common Stock ”), comprised of (i) 324,999 shares for issuance upon the exercise of stock options and (ii) 11,996 shares reserved for issuance pursuant to future awards under the Pulmatrix, Inc. Amended and Restated 2013 Employee, Director and Consultant Equity Incentive Plan, as amended on June 5, 2018, and March 11, 2019 (as amended, the “ Plan ”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
For purposes of the opinions we express below, we have examined originals, or copies certified or otherwise identified, of (i) the Amended and Restated Certificate of Incorporation (the “ Certificate of Incorporation ”) and the Restated Bylaws (the “ Bylaws ”) of the Company, each as amended and/or restated as of the date hereof; (ii) certain resolutions of the Board of Directors of the Company and the compensation committee of the Board of Directors of the Company related to the filing of the Registration Statement, the authorization and issuance of the Shares and related matters; (iii) the Registration Statement and all exhibits thereto; (iv) the Plan; (v) the specimen Common Stock certificate; (vi) a certificate executed by an officer of the Company, dated as of the date hereof; and (vii) such other records, documents and instruments as we deemed relevant and necessary for purposes of the opinion stated herein.
As to questions of fact material to the opinions expressed below, we have, without independent verification of their accuracy, relied to the extent we deem reasonably appropriate upon the representations and warranties of the Company contained in such documents, records, certificates, instruments or representations furnished or made available to us by the Company.
In making the foregoing examination, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv) that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v) that all factual information on which we have relied was accurate and complete.
We have not considered, and express no opinion herein as to, the laws of any state or jurisdiction other than the Delaware General Corporation Law, as currently in effect (the “ DGCL ”).
Pulmatrix, Inc.
June 4, 2019
Page 2
We have also assumed that, at the time of the issuance of the Shares: (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and will remain effective, (ii) no stop order of the Commission preventing or suspending the use of the prospectus described in the Registration Statement will have been issued, (iii) the prospectus described in the Registration Statement and any required prospectus supplement will have been delivered to the recipient of the Shares as required in accordance with applicable law, (iv) the resolutions of the Board of Directors of the Company referred to above will not have been modified or rescinded, (v) the Company will receive consideration for the issuance of the Shares required by the Plan and that is at least equal to the par value of the Common Stock, (vi) all requirements of the DGCL, the Certificate of Incorporation and the Bylaws will be complied with when the Shares are issued, (vii) sufficient shares of Common Stock will be authorized for issuance under the Certificate of Incorporation of the Company that have not otherwise been issued or reserved for issuance and (viii) neither the issuance nor sale of the Shares will result in a violation of any agreement or instrument then binding upon the Company or any order of any court or governmental body having jurisdiction over the Company.
Based on the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that upon the issuance of the Shares in accordance with the terms of the Plan and the instruments executed pursuant to such Plan, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to all references to us in the Registration Statement. In giving this consent, we are not admitting that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Haynes and Boone, LLP |
| Haynes and Boone, LLP |
Exhibit 23.2
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We consent to the incorporation by reference in this Registration Statement of Pulmatrix, Inc. on Form S-8 of our report, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, dated February 19, 2019, with respect to our audits of the consolidated financial statements of Pulmatrix, Inc. as of December 31, 2018 and 2017 and for each of the two years in the period ended December 31, 2018 appearing in the Annual Report on Form 10-K of Pulmatrix, Inc. for the year ended December 31, 2018.
/s/ Marcum LLP
Marcum LLP
New York, NY
June 4, 2019
Exhibit 99.3
AMENDMENT TO
PULMATRIX, INC. AMENDED AND RESTATED 2013 EMPLOYEE, DIRECTOR, AND
CONSULTANT EQUITY INCENTIVE PLAN
This AMENDMENT TO PULMATRIX, INC. AMENDED AND RESTATED 2013 EMPLOYEE, DIRECTOR, AND CONSULTANT EQUITY INCENTIVE PLAN (this “ Amendment ”), effective as of March 11, 2019 (the “ Effective Date ”), is made and entered into by Pulmatrix, Inc., a Delaware corporation (the “ Company ”). Terms used in this Amendment with initial capital letters that are not otherwise defined herein shall have the meanings ascribed to such terms in the Pulmatrix, Inc. Amended and Restated 2013 Employee, Director, and Consultant Equity Incentive Plan (the “ Incentive Plan ”).
RECITALS
WHEREAS , Section 4(c) of the Incentive Plan provides that (after giving effect to a prior four-for-ten reverse stock split in accordance with the provisions of Section 25 of the Incentive Plan) no participant shall receive an award with respect to more than 800,000 Shares in any fiscal year;
WHEREAS , pursuant to Section 32 of the Incentive Plan, the Company may amend the Incentive Plan from time to time; and
WHEREAS , the Company desires to amend the Incentive Plan to remove the annual share award limit.
NOW, THEREFORE , in accordance with Section 32 of the Incentive Plan, the Incentive Plan is hereby amended, effective as of the Effective Date, as follows:
1. Section 4(c) of the Incentive Plan is amended by deleting said section in its entirety and replacing it with the following new Section 4(c):
(c) Determine the number of Shares for which a Stock Right or Stock Rights shall be granted.
2. Except as expressly amended by this Amendment, the Incentive Plan shall continue in full force and effect in accordance with the provisions thereof, and all awards granted under the Incentive Plan prior to the Effective Date shall continue to be governed pursuant to the terms of the Incentive Plan as in effect prior to the Effective Date.
[Remainder of Page Intentionally Left Blank;
Signature Page Follows.]
IN WITNESS WHEREOF , the Company has caused this Amendment to be duly executed as of the Effective Date.
| PULMATRIX, INC. | ||
| By: | /s/ Robert W. Clarke | |
| Name: | Robert W. Clarke | |
| Title: | Chief Executive Officer | |
Signature Page to
Amendment to Pulmatrix, Inc. Amended and Restated 2013 Employee,
Director, and Consultant Equity Incentive Plan