As filed with the Securities and Exchange Commission on June 28, 2024
Registration No. 333-275371
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-4 ON
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CYCLO THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
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Nevada |
59-3029743 |
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(State or Other Jurisdiction of |
(I.R.S. Employer |
6714 NW 16th Street, Suite B
Gainesville, Florida 32653
(Address of Principal Executive Offices) (Zip Code)
Applied Molecular Transport Inc. 2020 Equity Incentive Plan
(Full title of the plans)
N. Scott Fine
Chief Executive Officer
6714 NW 16th St. Suite B
Gainesville, Florida 32653
(386) 418-8060
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Alison Newman, Esq.
Fox Rothschild LLP
101 Park Avenue, 17th Floor
New York, NY 10178
(212) 878-7997
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
Cyclo Therapeutics, Inc., a Nevada corporation (“Cyclo,” the “Company,” or “we”), hereby amends its registration statement on Form S-4 (File No. 333-275371) filed with the Securities and Exchange Commission (the “SEC” or the “Commission”) on November 7, 2023, as amended by the Pre-Effective Amendment No. 1 filed with the SEC on November 20, 2023, which became effective on November 21, 2023 (the “Form S-4”), by filing this Post-Effective Amendment No. 1 on Form S-8 (this “Post-Effective Amendment”) relating to the shares of our common stock (our “Common Stock”) that may be issued pursuant to the Applied Molecular Transport Inc. 2020 Equity Incentive Plan (the “Plan”). All such shares of our Common Stock were previously registered on the Form S-4 but will be subject to issuance pursuant to this Post-Effective Amendment. The Company hereby amends the Form S-4 by filing this Post-Effective Amendment relating to 108,875 shares of our Common Stock issuable pursuant to the Plan. All filing fees payable in connection with the issuance of these shares were previously paid in connection with the filing of the Form S-4.
The Company filed the Form S-4 in connection with the Agreement and Plan of Merger (the “Merger Agreement”), by and among Cyclo, Applied Molecular Transport Inc., a Delaware corporation (“AMTI”), and Cameo Merger Sub Corp., a Delaware corporation and a wholly-owned subsidiary of Cyclo (“Merger Sub”), pursuant to which, on December 26, 2023, Merger Sub merged with and into Cyclo (the “Merger”), with AMTI continuing as a wholly-owned subsidiary of Cyclo.
At the effective time of the Merger (the “Effective Time”) on December 27, 2023, each option (each, an “AMTI Option”) to purchase shares of AMTI’s common stock, par value $0.0001 per share (“AMTI Common Stock”) that was outstanding immediately prior to the Effective Time was assumed and converted as of the Effective Time into an option to acquire, on substantially similar terms and conditions as were applicable under such AMTI Option, the number of shares of our Common Stock determined by multiplying the number of shares of AMTI Common Stock subject to such AMTI Option immediately prior to the Effective Time by 0.1331 (the “Exchange Ratio”) (rounded down to the nearest whole share), with an exercise price per share equal to the exercise price per share of such AMTI Option as of immediately prior to the Effective Time, divided by the Exchange Ratio (rounded up to the nearest whole cent), subject to compliance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).
Unless otherwise indicated or the context otherwise requires, all references in this prospectus to “we,” “our,” “us,” “Cyclo” or the “Company” refer to Cyclo Therapeutics, Inc., a Nevada corporation, and its consolidated subsidiaries.
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plan in accordance with Rule 428(b)(1) under the Securities Act. Such documents are not required to be and 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, but constitute, along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof, a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Item 2. Registrant Information and Employee Annual Information.*
The Company will furnish without charge to each person to whom the prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference in such documents that are incorporated), and the other documents required to be delivered to eligible participants in the Plan pursuant to Rule 428(b) under the Securities Act. Those documents are incorporated by reference in the Section 10(a) prospectus. Requests should be directed to:
Cyclo Therapeutics, Inc.
Josh Fine, Chief Financial Officer
6714 NW 16th Stret, Suite B
Gainesville, Florida 32653
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The rules of the Commission allow the Registrant to incorporate by reference information into this Registration Statement. This means that the Registrant may disclose important information to you by referring you to another document.
The following documents previously filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
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(a) |
The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023 (filed with the SEC on March 18, 2024) and Amendment No. 1 thereto (filed with the SEC on April 29, 2024); |
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(b) |
The Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2024 (filed with the SEC on May 15, 2024); |
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(c) |
Cyclo’s Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such reports that are related to such items) filed with the SEC on January 22, 2024 and March 4, 2024; |
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Cyclo’s Definitive Proxy Statement for its 2023 Annual Meeting filed with the SEC on June 13, 2023; |
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The description of Cyclo’s common stock contained in its Registration Statement on Form 8-A, filed with the SEC on December 8, 2020, and any other amendment or report filed for the purpose of updating such description; and |
In addition, all documents filed with the Commission by the Registrant (other than portions of such documents which are furnished and not filed) pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) subsequent to the date 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 such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the time of filing of such documents.
Any statement contained in the documents incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference in this Registration Statement 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 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Nevada Revised Statutes (“NRS”) Section 78.7502 provides that a corporation shall indemnify any director, officer, employee, or agent of a corporation against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with any the defense to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to Section 78.7502(1) or 78.7502(2), or in defense of any claim, issue or matter therein.
NRS 78.7502(1) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit, or proceeding if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
NRS Section 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals there from, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
NRS Section 78.747 provides that except as otherwise provided by specific statute, no director or officer of a corporation is individually liable for a debt or liability of the corporation unless the director or officer acts as the alter ego of the corporation. The court as a matter of law must determine the question of whether a director or officer acts as the alter ego of a corporation.
Our articles of incorporation, as amended, and bylaws, as amended, provide that we shall indemnify our directors, officers, employees, and agents to the full extent permitted by NRS, including in circumstances in which indemnification is otherwise discretionary under such law.
These indemnification provisions may be sufficiently broad to permit indemnification of our officers, directors, and other corporate agents for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of our company pursuant to the foregoing provisions, or otherwise, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
We have the power to purchase and maintain insurance on behalf of any person who is or was one of our directors or officers, or is or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other business against any liability asserted against the person or incurred by the person in any of these capacities, or arising out of the person’s fulfilling one of these capacities, and related expenses, whether or not we would have the power to indemnify the person against the claim under the provisions of the NRS. We currently maintain director and officer liability insurance on behalf of our directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference into this Registration Statement:
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Exhibit No. |
Description |
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4.1 |
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4.2 |
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5.1* |
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23.1* |
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23.2* |
Consent of Fox Rothschild LLP (included in legal opinion filed as Exhibit 5.1) |
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24.1* |
Power of Attorney (included on the signature page to this Registration Statement) |
*Filed herewith
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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 Gainesville, State of Florida on June 28, 2024.
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CYCLO THERAPEUTICS INC. |
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(Registrant) |
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By: |
/s/ N. Scott Fine |
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N. Scott Fine |
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Chief Executive Officer and President |
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POWER OF ATTORNEY
We, the undersigned officers and directors of Cyclo Therapeutics, Inc. constitute and appoint N. Scott Fine and Jeffrey L. Tate, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign (i) any and all amendments (including post-effective amendments) to this Registration Statement and (ii) any registration statement or post-effective amendment thereto to be filed with the Securities and Exchange Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully 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 in the capacities and on the dates indicated.
| Name and Signature | Title | Date | ||
| /s/ N. Scott Fine | President, Chief Executive Officer, and Director | June 28, 2024 | ||
| N. Scott Fine | (Principal Executive Officer) | |||
| /s/ Joshua Fine | Chief Financial Officer | June 28, 2024 | ||
| Joshua Fine | (Principal Financial and Accounting Officer) | |||
| /s/ Jeffrey L. Tate | Chief Operating Officer and Director | June 28, 2024 | ||
| Jeffrey L. Tate | ||||
| /s/ Markus W. Sieger | Chairman of the Board and Director | June 28, 2024 | ||
| Markus W. Sieger | ||||
| /s/ F. Patrick Ostronic | Director | June 28, 2024 | ||
| F. Patrick Ostronic | ||||
| /s/ William Conkling | Director | June 28, 2024 | ||
| William Conkling | ||||
| Director | June 28, 2024 | |||
| William S. Shanahan | ||||
| /s/ C.E. Rick Strattan | Director | June 28, 2024 | ||
| C.E. Rick Strattan | ||||
| /s/ Randall M. Toig | Director | June 28, 2024 | ||
| Randall M. Toig | ||||
| /s/ Vivien Wong | Director | June 28, 2024 | ||
| Vivien Wong | ||||
| /s/ Shawn Cross | Director | June 28, 2024 | ||
| Shawn Cross |
Exhibit 5.1
[Fox Rothschild LLP Letterhead]
June 28, 2024
Cyclo Therapeutics, Inc.
6714 NW 16th St. Suite B
Gainesville, Florida 32653
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Re: |
Cyclo Therapeutics, Inc. |
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Post-Effective Amendment No. 1 to Form S-4 on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to Cyclo Therapeutics, Inc., a Nevada corporation (the “Company”), in connection with a Post-Effective Amendment No. 1 on Form S-8 (the “Post-Effective Amendment”) filed by the Company with the Securities and Exchange Commission (“SEC”) on the date hereof relating to the shares (the “Shares”) of the Company’s common stock (the “Common Stock”) that may be issued pursuant to the Applied Molecular Transport Inc. 2020 Equity Incentive Plan (the “Plan”). All such shares of the Common Stock were previously registered on Form S-4 but will be subject to issuance pursuant to the Post-Effective Amendment.
We have examined such documents and have reviewed such questions of law as we have considered necessary or appropriate for the purposes of our opinions set forth below. In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents, including signatures made and/or transmitted using electronic signature technology (e.g., via DocuSign or similar electronic signature technology), that any such signed electronic record shall be valid and as effective to bind the party so signing as a paper copy bearing such party’s handwritten signature; the legal capacity of all natural persons; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as certified or photocopies; the authenticity of the originals of such latter documents; the accuracy and completeness of all documents and records reviewed by us; the accuracy, completeness and authenticity of certificates issued by any governmental official, office or agency and the absence of change in the information contained therein from the effective date of any such certificate; and the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents
Based upon and subject to the foregoing, it is our opinion that (i) the Shares have been duly authorized and, upon issuance and payment therefor in accordance with the terms of the Plan, and the applicable award agreement, will be validly issued, fully paid and nonassessable.
Our opinion herein is expressed solely with respect to the Chapter 78 of the Nevada Revised Statutes (including the statutory provisions, all applicable provisions of the Nevada Constitution and reported judicial decisions interpreting the foregoing) and is based on these laws as in effect on the date hereof. We express no opinion herein as to any other statutes, rules, or regulations. We express no opinion herein as to whether the laws of any jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or other state law, rule, or regulation relating to securities, or to the sale or issuance thereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Post-Effective Amendment in accordance with the requirements of Form S-8 and the rules and regulations promulgated under the Securities Act. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Post-Effective Amendment and to the use of the name of our firm in the section entitled “Legal Matters” in the Post-Effective Amendment. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. This opinion is expressed as of the date hereof, and we disclaim any undertaking to update or supplement this opinion or to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable law.
| Very truly yours, | ||
| /s/ Fox Rothschild LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to Form S-4 on Form S-8 of Cyclo Therapeutics, Inc. (“the Company”) of our report dated March 17, 2024, which includes an explanatory paragraph regarding the Company’s ability to continue as a going concern, relating to the financial statements of Cyclo Therapeutics, Inc. and Subsidiaries, as of and for the years ended December 31, 2023 and 2022, appearing in the Company’s Form 10-K filed on March 18, 2024.
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/s/ WithumSmith+Brown, PC |
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East Brunswick, New Jersey |
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June 28, 2024 |