As filed with the Securities and Exchange Commission on March 29, 2022
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. ☐
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 17,252 shares of common stock, par value $0.0001 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) 4,518 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, 3,712 shares of Common Stock were added to the total number of shares of Common Stock reserved for issuance under the Original Plan, and effective January 1, 2018, 4,518 shares of Common Stock 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 “2018 Annual Meeting”), the Company’s stockholders approved amendments (the “First Amendment” and the Original Plan, as amended by the First Amendment, the “Plan”) to the Original Plan (i) to increase the number of shares of Common Stock authorized to be issued under the Original Plan by 37,018 to a total of 62,500 shares and (ii) to modify the Original Evergreen Provision by removing the cap on the number of shares that may be reserved for issuance, so that on January 1st of each year, commencing on January 1, 2019, the number of shares reserved for issuance under the Original Plan will automatically increase by 5% of the number of outstanding shares of Common Stock on such date (as amended, the “Evergreen Provision”). The First Amendment is described in the Company’s definitive proxy materials for the 2018 Annual Meeting, which were filed with the Securities and Exchange Commission (the “SEC”) on April 26, 2018. Pursuant to the Evergreen Provision, on January 1, 2019, 12,331 shares of Common Stock were added to the total number of shares of Common Stock reserved for issuance as awards under the Plan, so that 74,831 shares of Common Stock were available for issuance pursuant to awards under the Plan.
On March 11, 2019, the Company approved a second amendment to the Plan (the “Second Amendment”) to remove the cap on the annual share award limit.
At the 2019 annual meeting of stockholders held on September 6, 2019 (the “2019 Annual Meeting”), the stockholders approved a third amendment to the Plan (the “Third Amendment,” and the Plan, as amended by the Second Amendment and the Third Amendment, the “Revised Plan”) to increase the total number of shares of Common Stock authorized for issuance under the Plan by an additional 128,169 shares, to a total of 203,000 shares. For the 2020 calendar year, no additional shares were reserved pursuant to the Evergreen Provision. The Third Amendment is described in the Company’s definitive proxy materials for the 2019 Annual Meeting, which were filed with the SEC on July 26, 2019.
Pursuant to the Evergreen Provision, on January 1, 2021, 90,262 shares of Common Stock were added to the total number of shares of Common Stock reserved for issuance under the Revised Plan.
Pursuant to the Evergreen Provision, on January 1, 2022, 161,101 shares of Common Stock (the “2022 Evergreen Shares”) were added to the total number of shares of Common Stock reserved for issuance under the Revised Plan.
This Registration Statement on Form S-8 (this “Registration Statement”) is being filed to register:
| ● | 5,165 shares of our Common Stock underlying options previously granted and outstanding as of the date of this Registration Statement with underlying shares from the 2022 Evergreen Shares; and | |
| ● | 155,936 shares of Common Stock to be offered to participants under the Revised Plan reserved for issuance pursuant to future awards under the Revised Plan from the 2022 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, a 1-for-10 reverse stock split of its issued and outstanding Common Stock that occurred on February 5, 2019, and a 1-for-20 reverse stock split of its issued and outstanding common stock that occurred on February 28, 2022.
Except as otherwise set forth below, the contents of the Registration Statements on Form S-8 filed with 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), June 14, 2018 (File No. 333-225627) June 4, 2019 (File No. 333-231935) and January 26, 2021 (File No. 333-252439) 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, 2021, filed with the SEC on March 29, 2022; | |
| 2. | Our Current Report on Form 8-K filed with the SEC on February 11, 2022; | |
| 3. | Our Current Report on Form 8-K filed with the SEC on February 15, 2022; | |
| 4. | Our Current Report on Form 8-K filed with the SEC on March 4, 2022; | |
| 5. | Our Current Report on Form 8-K filed with the SEC on March 17, 2022; and | |
| 6. | 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 March 29, 2022.
| PULMATRIX, INC. | ||
| By: | /s/ Teofilo David Raad | |
| Name: | Teofilo David Raad | |
| Title: | Chief Executive Officer | |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Teofilo David Raad and Michelle S. Siegert, severally, each with full power to act alone and without the others, his or her 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.
| Title | Title | Date | ||
/s/ Teofilo David Raad |
Chief Executive Officer, President and Director |
March 29, 2022 | ||
| Teofilo David Raad | (Principal Executive Officer) | |||
| /s/ Michelle Siegert | Vice President, Finance, Treasurer and Secretary | March 29, 2022 | ||
| Michelle Siegert | (Principal Financial Officer and Principal Accounting Officer) |
|||
| /s/ Michael J. Higgins | Chairman of the Board of Directors | March 29, 2022 | ||
| Michael J. Higgins | ||||
| /s/ Todd Bazemore | Director | March 29, 2022 | ||
| Todd Bazemore | ||||
| /s/ Anand Varadan | Director | March 29, 2022 | ||
| Anand Varadan | ||||
| /s/ Richard Batycky | Director | March 29, 2022 | ||
| Richard Batycky | ||||
| /s/ Christopher Cabell | Director | March 29, 2022 | ||
| Christopher Cabell |
Exhibit 5.1
March 29, 2022
Pulmatrix, Inc.
99 Hayden Avenue, Suite 390
Lexington, MA 02421
| Re: | Registration Statement on Form S-8 of 161,101 Shares of Common Stock of Pulmatrix, Inc. |
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”) on the date hereof, 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 161,101 shares (the “Shares”) of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), comprised of (i) 5,165 shares available for issuance upon the exercise of stock options and (ii) 155,936 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, March 11, 2019 and September 6, 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 have deemed necessary or appropriate for purposes of the opinions hereafter expressed.
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”).
We have also assumed that, at the time of the issuance of the Shares: (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; (iii) no stop order of the Commission preventing or suspending the use of the prospectus contained in the Registration Statement or any required prospectus supplement will have been issued; (iv) the prospectus contained in the Registration Statement and any required prospectus supplement will have been prepared and filed with the Commission properly describing the Shares and will have been delivered to the recipient of the Shares as required in accordance with applicable law; (v) the resolutions 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 Shares required by the Plan and that is at least equal to the par value of the Common Stock, (vii) all requirements of the DGCL, the Certificate of Incorporation and the Bylaws will be complied with when the Shares are issued, (viii) all Shares will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement, (ix) 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 (x) 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 do not hereby admit we are in 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 dated March 29, 2022, with respect to our audits of the consolidated financial statements of Pulmatrix, Inc. as of December 31, 2021 and 2020 and for each of the two years in the period ended December 31, 2021, appearing in the Annual Report on Form 10-K of Pulmatrix, Inc. for the year ended December 31, 2021.
/s/ Marcum llp
Marcum llp
New York, NY
March 29, 2022
Exhibit 107
Calculation of Filing Fee Table
Form S-8
Pulmatrix, Inc.
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee (2) | |||||||||||||||||
| Equity | Common Stock, par value $0.0001 per share | Rule 457(h) | 5,165 | (3) | $ | 16.44 | (4) | $ | 84,912.60 | $ | 0.0000927 | $ | 7.87 | |||||||||||
| Equity | Common Stock, par value $0.0001 per share | Rule 457(c) and Rule 457(h) | 155,936 | (5) | $ | 6.81 | (6) | $ | 1,061,924.16 | $ | 0.0000927 | $ | 98.44 | |||||||||||
| Total | 161,101 | $ | 1,146,836.76 | $ | 106.31 | |||||||||||||||||||
| Total Fee Offsets | $ | - | ||||||||||||||||||||||
| Net Fee Due | $ | 106.31 | ||||||||||||||||||||||
| (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 0.0000927. |
| (3) | Represents shares of Common Stock added to the Pulmatrix, Inc. Amended and Restated 2013 Employee, Director and Consultant Equity Incentive Plan (the “Plan”) 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 (the “Evergreen Provision”), and that are issuable upon the exercise of stock options awarded thereunder. |
| (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 pursuant to the Evergreen Provision, 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 Rules 457(c) and 457(h) promulgated under the Securities Act, upon the high and low selling prices of the Common Stock on March 24, 2022 as reported on the NASDAQ Capital Market. |