As filed with the Securities and Exchange Commission on September 27, 2021
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 |
59-3843182 |
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(State or other jurisdiction of
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(I.R.S. Employer Identification No.) |
110 Allen Road
Basking Ridge, New Jersey 07920
(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.
110 Allen Road
Basking Ridge, New Jersey 07920
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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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
⌧ |
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Emerging growth company |
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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.
CALCULATION OF REGISTRATION FEE
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Title of Securities To Be Registered |
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Amount To Be Registered(1) |
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Proposed
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Proposed
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Amount of Registration Fee (2) |
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Common stock, $0.001 par value per share |
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3,697,486 |
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$ |
0.8903 |
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3,291,871.79 |
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$ |
359.15 |
| (1) | Represents 3,697,486 shares of common stock issuable under the Timber Pharmaceuticals, Inc. 2020 Omnibus Equity Incentive Plan. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described herein, as these amounts may be adjusted as a result of stock splits, stock dividends, antidilution provisions, and similar transactions. |
| (2) | 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 on the NYSE American on September 24, 2021. |
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 2,056,130 to 4,668,319 (the “Amendment”) was approved by the Board of Directors of the Company (the “Board”) on April 20, 2021 and by the stockholders of the Company on July 1, 2021.
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, 2021, the number of shares of Common Stock available for grant and issuance under the 2020 Plan increased by 1,085,297 shares.
This Registration Statement registers (i) 2,612,189 additional shares of Common Stock available for issuance under the 2020 Plan as a result of the Amendment and (ii) 1,085,297 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, 2021.
Pursuant to General Instruction E of Form S-8, the contents of the Registration Statement 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) 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:
| ● | the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, filed with the Commission on March 23, 2021, as amended on Form 10-K/A, filed with the SEC on May 17, 2021; |
| ● | the Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30, 2021 filed with the Commission on May 11 and August 10, 2021, respectively; |
| ● | the Company’s Current Reports on Form 8-K dated January 12, 2021, January 19, 2021, February 4, 2021 (other than any portions thereof deemed furnished and not filed), March 16, 2021, March 17, 2021, April 16, 2021, April 23, 2021, April 28, 2021, May 26, 2021, June 3, 2021, July 1, 2021 (including Item 7.01), July 2, 2021, and August 24, 2021, September 13, 2021 (including Item 7.01) and September 16, 2021; |
| ● | the Company’s definitive Proxy Statement on Schedule 14A, filed with the SEC on April 23, 2021 (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, 2020), as supplemented by the Proxy Supplement on Schedule 14A, filed with the Commission on April 29, 2021; and |
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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4.2 |
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4.3 |
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4.4 |
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4.5 |
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4.6 |
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4.7 |
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4.8 |
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4.9 |
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Amendment to the Timber Pharmaceuticals, Inc. 2020 Omnibus Incentive Plan, dated April 20, 2021.* |
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5.1 |
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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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* 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 Basking Ridge, New Jersey, on September 27, 2021.
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TIMBER PHARMACEUTICALS, INC. |
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By: |
/s/ John Koconis |
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John Koconis |
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Chief Executive Officer |
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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September 27, 2021 |
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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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September 27, 2021 |
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/s/ David Cohen, M.D. |
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David Cohen |
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Director |
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September 27, 2021 |
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/s/ Lubor Gaal, Ph. D. |
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Lubor Gaal |
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Director |
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September 27, 2021 |
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/s/ Gianluca Pirozzi |
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Gianluca Pirozzi |
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Director |
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September 27, 2021 |
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/s/ Zachary Rome |
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Zachary Rome |
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Director |
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September 27, 2021 |
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/s/ Edward J. Sitar |
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Edward J. Sitar |
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Director |
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September 27, 2021 |
Exhibit 4.9
AMENDMENT TO
TIMBER PHARMACEUTICALS, INC.
2020 OMNIBUS EQUITY INCENTIVE PLAN
Dated: April 20, 2021
This Amendment amends the Timber Pharmaceuticals, Inc. 2020 Omnibus Equity Incentive Plan (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.
1.1 Section 4.1(a) of the Plan is amended and restated in its entirety as follows:
“(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 4,668,319 shares; all of which may, but need not, be issued in respect of Incentive Stock Options.”
1.2 The last sentence of Section 17.2 of the Plan is amended and restated in its entirety as follows:
“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: |
/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
September 27, 2021
Timber Pharmaceuticals, Inc.
110 Allen Road, Suite 401
Basking Ridge, NJ 07920
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 of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended. The Registration Statement relates to the registration of 3,697,486 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 By-Laws 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 of 1933, as amended, 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 |
For a list of exhibits, see the Exhibit Index in this Registration Statement, which is incorporated into this Item by reference.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Timber Pharmaceuticals, Inc.:
We consent to the use of our report incorporated by reference herein.
Our report dated March 23, 2021, contains an explanatory paragraph that states that Timber Pharmaceuticals, Inc. has suffered recurring losses from operations that raise substantial doubt about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.
/s/ KPMG LLP
Short Hills, New Jersey
September 27, 2021