DEFA14A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 17, 2021

PULMATRIX, INC.

(Exact name of registrant as specified in its charter)

Delaware	001-36199	46-1821392
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

99 Hayden Avenue, Suite 390
Lexington, MA 02421

(Address of principal executive offices) (Zip Code)

(781) 357-2333

(Registrant’s telephone number, including area code)

N/A

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☒	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of exchange on which registered
Common Stock, par value $0.0001 per share	PULM	The NASDAQ Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

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 13(a) of the Exchange Act. ☐

Item 8.01 Other Events.

As previously reported, on December 15, 2021, Pulmatrix, Inc. (“Pulmatrix” or the “Company”) entered into a securities purchase agreement with certain institutional investors (the “Investors”), pursuant to which the Company agreed to issue and sell to the Investors in a registered direct offering (the “Offering”) (i) 6,745.0008 shares of the Company’s Series A Convertible Preferred Stock, par value $0.0001 per share (the “Preferred Stock”), and (ii) 5,620,834 warrants (the “Common Warrants”) to purchase an aggregate of 5,620,834 shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”). In connection with the Offering and pursuant to an engagement letter entered into on December 3, 2021, by and between the Company and H.C. Wainwright & Co., LLC (the “Placement Agent”), the Company also agreed to grant to the Placement Agent or its designees warrants to purchase up to 730,708 shares of Common Stock at an exercise price of $0.75 per share (the “Placement Agent Warrants”). On December 17, 2021, the Offering closed.

The legal opinion of Haynes and Boone, LLP relating to the legality of the issuance and sale of the Preferred Stock, the Common Warrants and the Placement Agent Warrants and the shares issuable upon the conversion or exercise of the Preferred Stock, the Common Warrants and the Placement Agent Warrants, as applicable, is attached as Exhibit 5.1 to this Current Report on Form 8-K and is hereby incorporated by reference herein.

On December 17, 2021, the Company issued a press release announcing the closing of the Offering. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is hereby incorporated by reference herein.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

The following exhibits are filed herewith:

5.1	Opinion of Haynes and Boone, LLP.
23.1	Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
99.1	Press release, dated December 17, 2021.
104	Cover Page Interactive Data File (embedded within the Inline XBRL document)

Additional Information and Where to Find It

The reverse stock split proposal described in the press release attached as Exhibit 99.1 to this Current Report on Form 8-K, will be submitted to Pulmatrix’s stockholders for their consideration. The Company intends to file a proxy statement (the “Proxy Statement”) that will be sent to all holders of record of Pulmatrix’s Common Stock and Preferred Stock in connection with the reverse stock split. This press release does not contain all the information that should be considered concerning the reverse stock split and is not intended to form the basis of any investment decision or any other decision in respect of the reverse stock split. Pulmatrix’s stockholders and other interested persons are advised to read, when available, the preliminary Proxy Statement and the amendments thereto and the definitive Proxy Statement and other documents filed in connection with the reverse stock split, as these materials will contain important information about Pulmatrix and the reverse stock split. When available, the definitive Proxy Statement and other relevant materials for the proposed reverse stock split will be mailed to stockholders of Pulmatrix as of the record date for voting on the reverse stock split. Pulmatrix stockholders will also be able to obtain copies of the preliminary Proxy Statement, the definitive Proxy Statement and other documents filed with the SEC, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to Pulmatrix’s corporate secretary at Pulmatrix, Inc., 99 Hayden Avenue, Suite 390, Lexington, Massachusetts 02421; telephone number (781) 357-2333.

Participants in Solicitation

Pulmatrix and its directors and executive officers may be deemed participants in the solicitation of proxies from Pulmatrix’s stockholders with respect to the proposed reverse stock split. A list of the names of those directors and executive officers and a description of their interests in Pulmatrix is contained in Pulmatrix’s definitive proxy statement for its 2021 Annual Meeting of Stockholders, which was filed with the SEC and is available free of charge at the SEC’s web site at www.sec.gov. To the extent such holdings of Pulmatrix’s securities may have changed since that time, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Additional information regarding the interests of such participants will be contained in the Proxy Statement for the proposed reverse stock split when available.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	PULMATRIX, INC.
Date: December 17, 2021	By:	/s/ Teofilo Raad
		Teofilo Raad
		Chief Executive Officer

EX-5.1

Exhibit 5.1

 

December 15, 2021

Pulmatrix, Inc.
99 Hayden Avenue, Suite 390
Lexington, MA 02421

Re:	Pulmatrix, Inc.
	Registration Statement on Form S-3, Registration No. 333-256502

Ladies and Gentlemen:

We have acted as counsel for Pulmatrix, Inc., a Delaware corporation (the “Company”), in connection with the filing with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Act”) of the Company’s prospectus supplement, dated December 15, 2021 ( the “Prospectus Supplement”), forming part of the registration statement on Form S-3 (Registration No. 333-256502), initially filed by the Company with the Commission on May 26, 2021, and declared effective on June 9, 2021 (the “Registration Statement”). The Prospectus Supplement relates to the proposed sale of (i) 6,745.0008 shares (the “Preferred Shares”) of the Company’s Series A Convertible Preferred Stock, par value $0.0001 per share and convertible into an aggregate of 11,241,668 shares of common stock, par value $0.0001 per share (the “Common Stock”) at an initial conversion price of $0.60 per share at any time after the original issuance date (the “Conversion Shares”), (ii) warrants (the “Common Warrants”) to purchase up to 5,620,834 shares of Common Stock with an exercise price of $0.70 per share of Common Stock (the “Warrant Shares”), and (iii) 730,708 warrants (the “Placement Agent Warrants”) to purchase up to an aggregate of 730,708 shares of Common Stock (the “Placement Agent Warrant Shares” and, together with the Preferred Shares, the Conversion Shares, the Common Warrants and the Placement Agent Warrants, collectively, the “Securities”).

Certain of the Securities are being sold pursuant a securities purchase agreement, dated December 15, 2021, between the Company and each purchaser named therein (the “Securities Purchase Agreement”).

In rendering the opinions expressed herein, we have examined and relied upon the originals, or copies certified or otherwise identified to our satisfaction, of (i) the Company’s Amended and Restated Certificate of Incorporation and the Restated Bylaws, each as amended and/or restated to date (“Company Charter Documents”); (ii) certain resolutions of the Board of Directors of the Company and the Pricing Committee of the Board of Directors of the Company related to the filing of the Prospectus Supplement, the authorization and issuance of the Securities and related matters; (iii) the Registration Statement, including the prospectus, and all exhibits thereto; (iv) the Prospectus Supplement and the prospectus included in the Registration Statement dated June 9, 2021 (the “Base Prospectus” and together with the Prospectus Supplement, the “Prospectus”); (iv) the Securities Purchase Agreement; (v) the Engagement Agreement, dated December 3, 2021, between the Company and H.C. Wainwright & Co., LLC (the “Engagement Agreement”); (v) a specimen of the Company’s Common Stock certificate; (vi) the form of the Common Warrants; (vii) the Certificate of Designation of Preferences, Rights and Limitations of the Series A Convertible Preferred Stock, certified by the Secretary of State of Delaware as of December 15, 2021, as amended by the Certificate of Correction, dated December 16, 2021 (collectively, the “Certificate of Designation”) and (viii) such other corporate records of the Company, as we have deemed necessary or appropriate for the purposes of the opinions hereafter expressed.

Haynes and Boone, LLP 30 Rockefeller Plaza | 26th Floor | New York, NY 10112 T: 212.659.7300 | haynesboone.com

Pulmatrix, Inc.
December 15, 2021

Page 2

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 also assumed that, at the time of the issuance of the Securities: (i) the Company will continue to be incorporated and in existence and good standing in its jurisdiction of organization; (ii) the Registration Statement, and any amendments thereto (including post-effective amendments) will have become effective and will have remained effective; (iii) no stop order of the Commission preventing or suspending the use of the Prospectus will have been issued; (iv) the resolutions of the Board of Directors of the Company and the Pricing Committee of the Board of Directors of the Company referred to above will not have been modified or rescinded; (vi) the Company will receive consideration for the issuance of the Securities and that is at least equal to the par value of the Common Stock; (v) the Securities Purchase Agreement will have been duly authorized and validly executed and delivered by the parties thereto and will be enforceable obligations of the parties thereto; (vi) all requirements of the DGCL, the Company Charter Documents will be complied with when the Securities are issued; (vii) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Prospectus; and (viii) neither the issuance nor sale of the Securities 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.

Pulmatrix, Inc.
December 15, 2021

Page 3

Based upon the foregoing and subject to the assumptions and qualifications stated herein, we are of the opinion that:

(1) the Preferred Shares, upon payment and delivery in accordance with the Securities Purchase Agreement and the Prospectus, will be validly issued, fully paid and non-assessable;

(2) when the Common Warrants have been duly executed by the Company and the Common Warrants have been issued and sold pursuant to the Prospectus, against payment in full of the consideration payable therefor, the Common Warrants will constitute valid and legally binding obligations of the Company;

(3) when the Placement Agent Warrants have been duly executed by the Company and the Placement Agent Warrants have been issued pursuant to the Prospectus, the Placement Agent Warrants will constitute valid and legally binding obligations of the Company;

(4) the Warrant Shares have been duly authorized and, upon the valid exercise in accordance with the terms of the Common Warrants and payment in full of the consideration payable therefor, the Warrant Shares will be validly issued, fully paid and non-assessable;

(5) the Conversion Shares have been duly authorized and, upon the valid conversion of the Preferred Shares in accordance with the terms of the Certificate of Designation and the Prospectus, the Conversion Shares will be validly issued, fully paid and non-assessable; and

(6) the Placement Agent Warrant Shares have been duly authorized and, upon the valid exercise of the Placement Agent Warrants in accordance with the terms of the Placement Agent Warrants and the Prospectus, the Placement Agent Warrant Shares will be validly issued, fully paid and non-assessable.

The opinions expressed herein are limited exclusively to the General Corporation Law of the State of Delaware (the “DGCL”) and applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the DGCL and such provisions of the Delaware Constitution and we have not considered, and express no opinion on, any other laws or the laws of any other jurisdiction.

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the Prospectus. 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 thereunder.

Very truly yours,

/s/ Haynes and Boone, LLP

Haynes and Boone, LLP

EX-99.1

Exhibit 99.1

Pulmatrix Announces Closing of $6.75 Million Registered Direct Offering

LEXINGTON, Mass., December 17, 2021 /PRNewswire/ — Pulmatrix, Inc. (Nasdaq: PULM) (“Pulmatrix” or the “Company”), a clinical stage biopharmaceutical company developing innovative inhaled therapies to address serious pulmonary and non-pulmonary disease using its patented iSPERSE™ technology, today announced that it has closed its previously announced registered direct offering with certain institutional investors for the issuance and sale of an aggregate of 6,745.008 shares of convertible preferred stock and warrants to purchase up to an aggregate of 5,620,834 shares of common stock for gross proceeds of $6.75 million, prior to deducting placement agent’s fees and other offering expenses. The shares of preferred stock have a stated value of $1,000 per share and are initially convertible into an aggregate of 11,241,668 shares of common stock at a conversion price of $0.60 per share at any time. The warrants have an exercise price of $0.70 per share, will become exercisable six months following the date of issuance, and will expire 5 years following the date of issuance.

H.C. Wainwright & Co. acted as the exclusive placement agent for the offering.

The Company currently intends to use the net proceeds from the offering for general corporate and working capital purposes.

The Company expects to call a special meeting of stockholders for the approval of a proposal to effect a reverse split of the common stock. The preferred stock has voting rights, with the common stock as a single class, equal to 5,000 votes per share of common stock underlying the preferred stock on the proposal, that, in accordance with Nasdaq listing rules, any votes cast by the preferred stock with respect to the proposal to effect a reverse split of the common stock must be counted by the Company in the same proportion as the aggregate shares of common stock voted on such proposal.

The securities described above were offered and sold by Pulmatrix in a registered direct offering pursuant to a “shelf” registration statement on Form S-3 (Registration No. 333-256502), including a base prospectus previously filed with the Securities and Exchange Commission (the “SEC”) on May 26, 2021 and became effective on June 9, 2021. The securities were offered by means of a prospectus supplement and accompanying prospectus, forming part of the registration statement. The prospectus supplement dated December 17, 2021 and the accompanying base prospectus relating to and describing the terms of the registered direct offering were filed with the SEC on December 17, 2021. Electronic copies of the prospectus supplement and the accompanying base prospectus may be obtained on the SEC’s website at http://www.sec.gov or by contacting H.C. Wainwright & Co., LLC at 430 Park Avenue, 3rd Floor, New York, NY 10022, by phone at (212) 856-5711 or e-mail at placements@hcwco.com.

This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

About Pulmatrix, Inc.

Pulmatrix is a clinical stage biopharmaceutical company developing innovative inhaled therapies to address serious pulmonary and non-pulmonary disease using its patented iSPERSE™ technology. The Company’s proprietary product pipeline includes treatments for serious lung diseases, such as allergic bronchopulmonary aspergillosis (“ABPA”), COPD, and neurologic disorders such as acute migraine. Pulmatrix’s product candidates are based on iSPERSE™, its proprietary engineered dry powder delivery platform, which seeks to improve therapeutic delivery to the lungs by maximizing local concentrations and reducing systemic side effects to improve patient outcomes.

Forward-Looking Statements

Certain statements in this press release that are forward-looking and not statements of historical fact are forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements include, but are not limited to, statements of historical fact and statements regarding the intended use of proceeds from the registered direct offering and may be identified by words such as “anticipates,” “assumes,” “believes,” “can,” “could,” “estimates,” “expects,” “forecasts,” “guides,” “intends,” “is confident that”, “may,” “plans,” “seeks,” “projects,” “targets,” and “would,” and their opposites and similar expressions are intended to identify forward-looking statements. Such forward-looking statements are based on the beliefs of management as well as assumptions made by and information currently available to management. Actual results could differ materially from those contemplated by the forward-looking statements as a result of certain factors, including, but not limited to, the use of net proceeds from the registered direct offering; the impact of the novel coronavirus (COVID-19) on the Company’s ongoing and planned clinical trials; the geographic, social and economic impact of COVID-19 on the Company’s ability to conduct its business and raise capital in the future when needed; delays in planned clinical trials; the ability to establish that potential products are efficacious or safe in preclinical or clinical trials; the ability to establish or maintain collaborations on the development of therapeutic candidates; the ability to obtain appropriate or necessary governmental approvals to market potential products; the ability to obtain future funding for developmental products and working capital and to obtain such funding on commercially reasonable terms; the Company’s ability to manufacture product candidates on a commercial scale or in collaborations with third parties; changes in the size and nature of competitors; the ability to retain key executives and scientists; the ability to secure and enforce legal rights related to the Company’s products, including patent protection; and the outcome of the Company’s dispute with Cipla regarding the continued development of Pulmazole. A discussion of these and other factors, including risks and uncertainties with respect to the Company, is set forth in the Company’s filings with the SEC, including its most recent annual report on Form 10-K, as amended, as may be supplemented or amended by the Company’s Quarterly Reports on Form 10-Q. The Company disclaims any intention or obligation to revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.

Additional Information and Where to Find It

The reverse stock split proposal described above will be submitted to Pulmatrix’s stockholders for their consideration. The Company intends to file a proxy statement (the “Proxy Statement”) that will be sent to all holders of record of Pulmatrix’s common stock and preferred stock in connection with the reverse stock split. This press release does not contain all the information that should be considered concerning the reverse stock split and is not intended to form the basis of any investment decision or any other decision in respect of the reverse stock split. Pulmatrix’s stockholders and other interested persons are advised to read, when available, the preliminary Proxy Statement and the amendments thereto and the definitive Proxy Statement and other documents filed in connection with the reverse stock split, as these materials will contain important information about Pulmatrix and the reverse stock split. When available, the definitive Proxy Statement and other relevant materials for the proposed reverse stock split will be mailed to stockholders of Pulmatrix as of the record date for voting on the reverse stock split. Pulmatrix stockholders will also be able to obtain copies of the preliminary Proxy Statement, the definitive Proxy Statement and other documents filed with the SEC, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to Pulmatrix’s corporate secretary at Pulmatrix, Inc., 99 Hayden Avenue, Suite 390, Lexington, Massachusetts 02421; telephone number (781) 357-2333.

Participants in Solicitation

Pulmatrix and its directors and executive officers may be deemed participants in the solicitation of proxies from Pulmatrix’s stockholders with respect to the proposed reverse stock split. A list of the names of those directors and executive officers and a description of their interests in Pulmatrix is contained in Pulmatrix’s definitive proxy statement for its 2021 Annual Meeting of Stockholders, which was filed with the SEC and is available free of charge at the SEC’s web site at www.sec.gov. To the extent such holdings of Pulmatrix’s securities may have changed since that time, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Additional information regarding the interests of such participants will be contained in the Proxy Statement for the proposed reverse stock split when available.

Investor Contact:

Timothy McCarthy, CFA

212.915.2564

tim@lifesciadvisors.com