As filed with the Securities and Exchange Commission on August 2, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TIMBER PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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59-3843182
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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3 Mountainview Road, Suite 100
Warren, NJ 07059
(Address of Principal Executive Offices) (Zip Code)
Timber Pharmaceuticals, Inc. 2020 Omnibus Equity Incentive Plan
(Full title of the plan)
John Koconis
Chief Executive Officer
Timber Pharmaceuticals, Inc.
3 Mountainview Road, Suite 100
Warren, NJ 07059
Tel: (908) 636-7160
(Name, address, including zip code, and 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: (212) 262-6700
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:
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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 (the “Registration Statement”) is filed by Timber Pharmaceuticals, Inc. (the “Company”) for the purpose of registering additional shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), under the Company’s 2020 Omnibus Equity Incentive Plan (as amended, the “2020 Plan”). The amendment to increase the number of shares available for issuance under the 2020 Plan from 263,179 to 449,223 (the “Amendment”) was approved by the Board of Directors of the Company (the “Board”) on April 11, 2023 and by the stockholders of the Company on June 23, 2023.
The number of shares of Common Stock available for grant and issuance under the 2020 Plan is subject to an automatic annual increase on January 1 of each year beginning in 2021 by an amount equal to the lesser of (i) 4% of the number of shares of all classes of Common Stock outstanding on December 31 of the preceding calendar year or (ii) a lesser number of shares of Common Stock determined by the Board (the “Evergreen Provision”). On January 1, 2023, the number of shares of Common Stock available for grant and issuance under the 2020 Plan increased by 97,101 shares.
This Registration Statement registers (i) 186,044 additional shares of Common Stock available for issuance under the 2020 Plan as a result of the Amendment and (ii) 97,101 additional shares of Common Stock which were available for grant and issuance under the 2020 Plan pursuant to the Evergreen Provision as of January 1, 2023.
Pursuant to General Instruction E of Form S-8, the contents of the Registration Statements on Form S-8 of the Registrant filed with the Securities and Exchange Commission (the “SEC” or the “Commission”) on June 16, 2020 (Registration No. 333-239216), September 27, 2021 (Registration No. 333-259830) and January 28, 2022 (Registration No. 333-262391), including any amendments thereto or filings incorporated therein, are incorporated herein by this reference to the extent not replaced hereby.
PART I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.
The information called for by Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration Statement”) and has been or will be sent or given to participating service providers in accordance with Rule 428 of the Securities Act of 1933, as amended (the “Securities Act”), and the instructions to Form S-8. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company 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:
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the Company’s Annual Report on Form 10-K for the year ended December 31, 2022, filed with the Commission on March 31, 2023;
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the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023 filed with the Commission on May 15, 2023;
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the Company’s Current Reports on Form 8-K, filed with the SEC on June 2, 2023, June 5, 2023, June 20, 2023 June 23, 2023 and July 3, 2023;
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the Company’s definitive Proxy Statement on Schedule 14A, filed with the SEC on May 1, 2023 (solely with respect to those portions incorporated by reference into the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022); and
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The description of our common stock contained in the our Registration Statement on Form 8-A filed with the SEC on June 1, 2015 under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description, including the Description of Securities filed as Exhibit 4.6 to our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 23, 2021.
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All documents filed by the Company 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. 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.
EXHIBIT INDEX
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Exhibit
No.
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Description
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4.1
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Certificate of Incorporation (incorporated by reference to Exhibit 4.01 to the Company’s Registration Statement on Form S-8 (File No. 333-201708), filed with the Commission on January 26, 2015).
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4.2
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Certificate of Amendment (incorporated by reference to Exhibit 3.5 to the Company’s Annual Report on Form 10-K (File No. 001-37411), filed with the Commission on April 21, 2017).
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4.3
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Certificate of Amendment (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-37411), filed with the Commission on April 26, 2019).
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4.4
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Certificate of Amendment (incorporated by reference to the Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-37411), filed with the Commission on May 22, 2020).
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4.5
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Certificate of Amendment, (incorporated by reference to the Exhibit 3.2 to the Company’s Current Report on Form 8-K (File No. 001-37411), filed with the Commission on May 22, 2020).
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4.6
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Certificate of Amendment of Certificate of Incorporation, as amended, of Timber Pharmaceuticals, Inc., dated November 7, 2022, incorporated by reference to the Exhibit 3.1 to our Current Report on Form 8-K (File No. 001-37411), filed with the SEC on November 9, 2022).
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4.7
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Amended and Restated Bylaws of Timber Pharmaceuticals, Inc., as amended (incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q (File No. 001-37411) filed with the SEC on May 12, 2022).
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4.8
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Specimen Stock Certificate (incorporated by reference to Exhibit 4.7 to the Company’s Registration Statement on Form S-8 (File No. 333-239216), filed with the Commission on June 16, 2020).
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4.9
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Timber Pharmaceuticals, Inc. 2020 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 10.25 to the Company’s Annual Report on Form 10-K (File No. 001-37411), filed with the Commission on March 23, 2021).
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4.10
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Amendment to the Timber Pharmaceuticals, Inc. 2020 Omnibus Incentive Plan, dated April 20, 2021 (incorporated by reference to Exhibit 4.9 to the Company’s Registration Statement on Form S-8 (File No. 333-259830), filed with the Commission on September 27, 2021).
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4.11
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Amendment to the Timber Pharmaceuticals, Inc. 2020 Omnibus Incentive Plan, dated June 23, 2023.*
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5.1
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Legal opinion Lowenstein Sandler LLP.*
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23.1
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Consent of KPMG, Independent Registered Public Accounting Firm.*
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23.2
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Consent of Lowenstein Sandler LLP (included in Exhibit 5.1).*
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24.1
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Power of Attorney (included on the signature page).*
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107.1
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Filing Fee Table.*
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* Filed herewith.
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 Warren, New Jersey, on August 2, 2023.
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TIMBER PHARMACEUTICALS, INC.
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By:
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/s/ John Koconis
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John Koconis
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Chief Executive Officer
(Principal Executive Officer)
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POWER OF ATTORNEY AND SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John Koconis and Joseph Lucchese, and each of them, each with full power to act without the other, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for such person and in his name, place and stead, in any and all capacities, to sign any amendments to this registration statement, and to sign any registration statement for the same offering covered by this registration statement, including post-effective amendments or registration statements filed pursuant to Rule 462(b) 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 that each of said such attorneys-in-fact and agents or his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the registrant in the capacities and on the dates indicated.
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Person
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Capacity
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Date
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/s/ John Koconis
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Chief Executive and Executive Chairman
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John Koconis
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(Principal Executive Officer)
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August 2, 2023
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/s/ Joseph Lucchese
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Chief Financial Officer
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Joseph Lucchese
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(Principal Financial and Accounting Officer)
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August 2, 2023
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/s/ David Cohen
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David Cohen
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Director
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August2, 2023
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/s/ Lubor Gaal
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Lubor Gaal
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Director
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August2, 2023
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/s/ Gianluca Pirozzi
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Gianluca Pirozzi
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Director
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August 2, 2023
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/s/ Edward J. Sitar
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Edward J. Sitar
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Director
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August 2, 2023
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Exhibit 4.11
AMENDMENT TO
TIMBER PHARMACEUTICALS, INC.
2020 OMNIBUS EQUITY INCENTIVE PLAN
Dated: June 23, 2023
This Amendment amends the Timber Pharmaceuticals, Inc. 2020 Omnibus Equity Incentive Plan, as amended (as amended, the “Plan”). All capitalized terms not defined herein shall have the meanings set forth in the Plan.
R E C I T A L S
WHEREAS, Section 17.2 of the Plan reserves to the Board of Directors (“Board”) of Timber Pharmaceuticals, Inc. (the “Company”) the right to amend the Plan from time to time; and
WHEREAS, the Board desires to amend the Plan in the manner hereinafter provided subject to approval by the Company’s stockholders.
NOW THEREFORE, the Plan is hereby amended as follows:
1. Amendments.
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1.1
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Section 4.1(a) of the Plan is amended and restated in its entirety as follows:
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“(a) Subject to adjustment pursuant to Section 4.3 and any other applicable provisions hereof, the maximum aggregate number of shares of Common Stock which may be issued under all Awards granted to Participants under the Plan shall be 449,223 shares; all of which may, but need not, be issued in respect of Incentive Stock Options.”
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1.2
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The last sentence of Section 17.2 of the Plan is amended and restated in its entirety as follows:
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“The Plan will continue in effect until terminated in accordance with this Section 17.2; provided, however, that no Award will be granted hereunder on or after the 10th anniversary of the date of the Board’s adoption of the initial Plan amendment (the “Expiration Date”); but provided further, that Awards granted prior to such Expiration Date may extend beyond that date.”
2. No Other Changes. Except as set forth herein, the Plan shall remain in full force and effect without modification.
IN WITNESS WHEREOF, the undersigned, a duly authorized officer of the Company, has executed this Amendment as of the date first above written as evidence of its adoption by the Company.
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TIMBER PHARMACEUTICALS, INC.
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By:
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/s/ John Koconis
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Name: John Koconis
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Title: Chief Executive Officer
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Exhibit 5.1
August 2, 2023
Timber Pharmaceuticals, Inc.
3 Mountainview Road, Suite 100
Warren, NJ 07059
Ladies and Gentlemen:
We have acted as counsel to Timber Pharmaceuticals, Inc. (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 283,145 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable pursuant to Timber Pharmaceuticals, Inc. 2020 Omnibus Equity Incentive Plan, as amended (the “Plan”).
In connection with rendering this opinion, we have examined or are familiar with the Registration Statement and related prospectuses, the Plan, the Company’s Certificate of Incorporation, as amended (the “Certificate of Incorporation”), the Bylaws of the Company, as amended, the corporate proceedings with respect to the authorization of the Registration Statement and such other certificates, instruments and documents as we have considered necessary or appropriate for purposes of this opinion. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, conformity to the original documents of all documents submitted to us as 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 the 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 upon such examination and review, we are of the opinion that the Shares, upon issuance and delivery as contemplated by the 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 (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing) 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 letter as an exhibit to the Registration Statement. In giving this consent, we do not 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 SEC promulgated thereunder.
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Very truly yours,
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/s/ Lowenstein Sandler LLP
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Lowenstein Sandler LLP
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 31, 2023, with respect to the consolidated financial statements of Timber Pharmaceuticals, Inc., incorporated herein by reference.
/s/ KPMG LLP
Short Hills, New Jersey
August 2, 2023
Exhibit 107.1
CALCULATION OF FILING FEE TABLE
Form S-8
(Form Type)
Timber Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
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Security Type
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Security Class
Title
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Fee Calculation
Rule
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Amount
Registered(1)
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Proposed
Maximum
Offering Price
Per Share(2)
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Maximum
Aggregate
Offering Price(2)
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Fee Rate
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Amount of Registration
Fee
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Equity
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Common Stock, $0.001 par value per share
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Rule 457(c) and Rule 457(h)
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283,145
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$1.71
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$484,177.95
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0.00011020
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$53.36
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Total Offering Amounts
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$53.36
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Total Fee Offsets(3)
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—
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Net Fee Due
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$53.36
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”), that become issuable under the Timber Pharmaceuticals, Inc. 2020 Omnibus Equity Incentive Plan (the “2020 Plan”) in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without the Registrant’s receipt of consideration that increases the number of the outstanding shares of the Registrant’s Common Stock. In addition, pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the 2020 Plan, as these amounts may be adjusted as a result of stock splits, stock dividends, antidilution provisions, and similar transactions. Represents an automatic annual increase on January 1, 2023, which annual increase is provided for in the 2020 Plan, and an increase approved by the Board of Directors of the Registrant on April 11, 2023 and by the stockholders of the Registrant on June 23, 2023, to the number of shares of the Registrant’s Common Stock reserved for issuance under the 2020 Plan.
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(2)
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Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price are estimated for the purpose of calculating the amount of the registration fee and are based on the average of the high and low sales price of the Registrant’s Common Stock as reported on the NYSE American on July 26, 2023.
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(3)
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The Registrant does not have any fee offsets.
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