As filed with the Securities and Exchange Commission on September 18, 2015

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. 2003 Employee, Director and Consultant Stock Plan

and

Pulmatrix Inc. 2013 Employee, Director and Consultant Equity Incentive Plan

(Full title of the Plan)

 

 

Robert W. Clarke, Ph.D.

Chief Executive Officer and President

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.

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, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

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Large accelerated filer ¨		Accelerated filer ¨
Non-accelerated filer ¨ (Do not check if a smaller reporting company)		Smaller reporting company x

CALCULATION OF REGISTRATION FEE

 

Title of each class of securities to be registered		Amount to be registered (1) (2)				Proposed maximum offering price per share (3)				Proposed maximum aggregate offering price (3)				Amount of registration fee (4)
Common Stock, par value $0.0001, reserved for issuance under:
The 2003 Plan:
			249,581			$	2.03			$	506,649.43			$	58.87
			3,388			$	2.20			$	7,453.60			$	0.87
			279,068			$	2.21			$	616,740.28			$	71.67
The 2013 Plan:
			622			$	1.70			$	1,057.40			$	0.12
			889			$	1.71			$	1,520.19			$	0.18
			207			$	1.91			$	395.37			$	0.05
			415			$	2.04			$	846.60			$	0.10
			578			$	2.05			$	1,184.90			$	0.14

 

(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 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)

Represents shares of Common Stock issuable pursuant to stock options awarded under the Pulmatrix Inc. 2003 Employee, Director, and Consultant Stock Plan (the “2003 Plan”) and the Pulmatrix Inc. 2013 Employee, Director and Consultant Equity Incentive Plan (the “2013 Plan,” and together with the 2003 Plan, the “Plans”), as applicable, and assumed by the registrant in connection with the merger of one of the registrant’s subsidiaries with Pulmatrix Operating Company Inc., a Delaware corporation formerly known as Pulmatrix Inc. (“Pulmatrix Operating”).

 

(3)	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.

 

(4)	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 0.0001162.

 

 

 

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EXPLANATORY NOTE

On June 15, 2015, pursuant to the Agreement and Plan of Merger, dated as of March 13, 2015 (the “Merger Agreement”), by and among Pulmatrix, Inc., a Delaware corporation previously known as Ruthigen (“we,” “us,” “our,” or the “Company”), Pulmatrix Operating and Ruthigen Merger Corp., a Delaware corporation and a wholly owned subsidiary of the Company (“Merger Sub”), Pulmatrix Operating merged with and into Merger Sub, with Pulmatrix Operating surviving as a wholly owned subsidiary of the Company (the “Merger”). Pursuant to the terms of the Merger Agreement, the Company assumed all of Pulmatrix Operating’s outstanding stock options under the Plans immediately prior to the effective time of the Merger, and each assumed stock option became exercisable for shares of the Company’s Common Stock, with the number of shares issuable upon the exercise of such stock options and the exercise price per share adjusted by the exchange ratio in the Merger. Immediately following the Merger, the Company effected a reverse stock split on a 1-for-2.5 basis, which further adjusted the number of shares issuable upon the exercise of such stock options and the exercise price per share.

This Registration Statement on Form S-8 (this “Registration Statement”) is being filed for the purpose of registering an aggregate of 534,748 shares of the Company’s Common Stock that may be issued pursuant to stock options issued under the Plans.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The document(s) containing the information specified in Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) under the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. In accordance with the introductory note to Part I of Form S-8, these documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

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 March 31, 2015, filed with the SEC on June 10, 2015 (the “Annual Report”);

 

2.

Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, filed with the SEC on August 14, 2015;

 

3.

Our Current Reports on Form 8-K filed with the SEC on June 12, 2015, June 16, 2015, June 30, 2015 and July 7, 2015 and our Amendment No. 1 to Current Report on Form 8-K/A filed with the SEC on August 14, 2015 (in each case only to the extent filed and not furnished); and

 

4.

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, 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 (the “Exchange Act”), 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

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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 4.

DESCRIPTION OF SECURITIES.

Not applicable.

 

ITEM 5.

INTERESTS OF NAMED EXPERTS AND COUNSEL.

Not applicable.

 

ITEM 6.

INDEMNIFICATION OF DIRECTORS AND OFFICERS.

Delaware Law and Our Governing Documents

Our Amended and Restated Certificate of Formation, as amended (the “Charter”), and our Amended and Restated Bylaws, as amended (the “Bylaws”), provide that we shall indemnify, to the fullest extent authorized by the Delaware General Corporation Law (the “DGCL”), each person who is involved in any litigation or other proceeding because such person is or was one of our directors or officers or is or was serving as an officer or director of another entity at our request, against all expense, loss or liability reasonably incurred or suffered in connection therewith. Our Charter provides that the right to indemnification includes the right to be paid expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that such advance payment will only be made upon delivery to us of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately determined that such director is not entitled to indemnification. If we do not pay a proper claim for indemnification in full within sixty (60) days after we receives a written claim for such indemnification, except in the case of a claim for an advancement of expenses, in which case such period is twenty (20) days, our Charter and Bylaws authorize the claimant to bring an action against us and prescribe what constitutes a defense to such action.

Section 145 of the DGCL permits a corporation to indemnify any director or officer of the corporation against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that 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, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action, (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.

The rights conferred in our Charter and Bylaws are not exclusive, and we are authorized to enter into indemnification agreements with our directors, officers, employees and agents and to obtain insurance to indemnify such persons.

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Pursuant to Section 102(b)(7) of the DGCL, our Charter eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:

 

•

from any breach of the director’s duty of loyalty to us or our stockholders;

 

•

from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

 

•

under Section 174 of the DGCL; or

 

•

from any transaction from which the director derived an improper personal benefit.

Indemnification Agreements

We have entered into or plan to enter into indemnification agreements with each of our officers and directors. These indemnification agreements require or will require us to indemnify our directors and executive officers to the fullest extent permitted by Delaware law.

Insurance

We carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers. The effect of these policies is to indemnify our directors and officers against expenses, judgments, attorney’s fees and other amounts paid in settlements incurred by officers and directors for acting in their capacity as such.

 

ITEM 7.

EXEMPTION FROM REGISTRATION CLAIMED.

Not applicable.

 

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.

 

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 this 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 this Registration Statement; and

 

(iii)

To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2)

That, for the purpose of determining any liability under the Securities Act, each such post-effective

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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 that is incorporated by reference in this 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.

 

(h)

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 SEC 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.

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SIGNATURES

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 September 17, 2015.

 

POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints Robert W. Clarke, Ph.D. and William Duke, Jr., severally, each with full power to act alone and without the others, his 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.

 

Signature		Title		Date
/s/ Robert W. Clarke, Ph.D. Robert W. Clarke, Ph.D.		Chief Executive Officer, President and Director (Principal Executive Officer)		September 17, 2015
/s/ William Duke, Jr. William Duke, Jr.		Chief Financial Officer, Treasurer and Secretary (Principal Financial Officer and Principal Accounting Officer)		September 17, 2015
/s/ Steven Gillis, Ph.D. Steven Gillis, Ph.D.		Director		September 17, 2015
/s/ Kurt C. Graves Kurt C. Graves		Director		September 17, 2015
/s/ Michael J. Higgins Michael J. Higgins		Director		September 17, 2015
/s/ David J. Maki David J. Maki		Director		September 17, 2015
/s/ Terrance G. McGuire Terrance G. McGuire		Director		September 17, 2015
/s/ Scott M. Rocklage, Ph.D. Scott M. Rocklage, Ph.D.		Director		September 17, 2015

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EXHIBIT INDEX

 

Exhibit Number

Exhibit Description

Filed with this Report

Incorporated by Reference herein from Form or Schedule

Filing Date

SEC File/Reg Number

Plans Related to Acquisitions, Reorganizations, Arrangements, Liquidations or Successions

2.1#

Agreement and Plan of Merger, dated March 13, 2015, by and among Pulmatrix, Inc., Pulmatrix Operating Company and Ruthigen Merger Corp.

Form 8-K (Exhibit 2.1)

03/13/15

001-36199

Instruments Defining Security Holders’ Rights

4.1

Amended and Restated Certificate of Incorporation of Pulmatrix, Inc., as amended through June 15, 2015.

Form 10-Q (Exhibit 3.1)

08/14/15

001-36199

4.2

Restated Bylaws of Pulmatrix, Inc., as amended through June 15, 2015.

Form 10-Q (Exhibit 3.2)

08/14/15

001-36199

4.3

Form of Specimen Stock Certificate.

Form 8-K (Exhibit 4.1)

06/16/15

001-36199

Legal Opinions

5.1

Opinion of Haynes and Boone, LLP.

X

Consents and Power of Attorney

23.1

Consent of Haynes and Boone, LLP (included in the opinion filed as Exhibit 5.1).

X

23.2

Consent of Marcum LLP, independent registered public accounting firm.

X

23.3

Consent of Marcum LLP, independent registered public accounting firm.

X

24.1

Power of Attorney (included on the signature page to this Registration Statement on Form S-8).

X

Additional Exhibits

99.1

Pulmatrix Inc. 2003 Employee, Director and Consultant Stock Plan.

Form S-8 (Exhibit 99.3)

07/20/15

333-205752

99.2

Pulmatrix Inc. 2013 Employee, Director and Consultant Equity Incentive Plan.

Form S-8 (Exhibit 99.2)

07/20/15

333-205752

 

#	Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Pulmatrix, Inc. hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the Securities and Exchange Commission.