S-8 1 dffn20170516_s8.htm FORM S-8 dffn20170516_s8.htm

As filed with the Securities and Exchange Commission on May 17, 2017.

                                                                                                            Registration No. ___-________

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

 Washington, DC 20549

 

 

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 

 

DIFFUSION PHARMACEUTICALS INC.

(Exact name of Registrant as specified in its charter)

 

Delaware

2020 Avon Court, #4

Charlottesville, VA 22902

(434) 220-0718

 

30-0645032

(State of Incorporation)

(Address, including zip code, and telephone number, including

area code, of registrant’s principal executive offices)

(I.R.S. Employer
Identification No.)

 

 

 DIFFUSION PHARMACEUTICALS INC.

2015 EQUITY INCENTIVE PLAN, AS AMENDED

(Full Title of the Plan)

 

 

David G. Kalergis

CHIEF EXECUTIVE OFFICER

2020 Avon Court, #4

(434) 220-0718

(Name, address including zip code, and telephone number, including area code, of agent for service)

 

 

With a Copy to:

David S. Rosenthal, Esq.
Dechert LLP 
1095 Avenue of the Americas
New York, New York 10036
(212) 698-3500

 

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. (Check one):

Large accelerated filer  ☐                                                                                Accelerated filer  ☐

Non-accelerated filer  ☐ (Do not check if a smaller reporting company) 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. ☐

 

 
 
 

 

CALCULATION OF REGISTRATION FEE 

         

Title Of Securities

To Be Registered

Amount

To Be Registered(1)

Proposed

Maximum Offering
Price Per Share(2)

Proposed

Maximum

Aggregate

Offering Price(2)

Amount Of
Registration Fee

Common Stock, par value $0.001 per share

2,159,074

$2.90

$6,261,314.60

$726

 

(1)

This Registration Statement relates to 2,159,074 shares of common stock of Diffusion Pharmaceuticals Inc. (the “Registrant”) not previously registered and available for issuance under the Registrant’s 2015 Equity Incentive Plan, as amended (the “Plan”). Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock which become issuable under the Plan pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of common stock.

(2)

The Proposed Maximum Offering Price Per Share and Proposed Maximum Aggregate Offering Price have been calculated solely for purposes of determining the registration fee for this offering under Rule 457(c) and (h) of the Securities Act of 1933 on the basis of the average of the high and low selling price per share of common stock of the Registrant on May 11, 2017, as reported by the NASDAQ Capital Market.

 

 
-2-
 

 

REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E

 

Pursuant to General Instruction E of Form S-8, the Registrant is filing this Registration Statement with the Commission to register 2,159,074 additional shares of Common Stock under the Plan, which includes (i) 1,495,249 shares of Common Stock underlying options assumed by the Registrant pursuant to the consummation of the merger with Diffusion Pharmaceuticals LLC as described in the Registrant’s Current Report on Form 8-K filed on January 8, 2016, (ii) 250,000 shares of Common Stock related to an amendment to the Plan increasing the number of shares reserved for issuance thereunder, which was approved by the stockholders of the Registrant at the 2016 Annual Meeting on July 21, 2016, and (iii) 413,825 shares of Common Stock related to an automatic increase in the number of shares reserved for issuance under the Plan on January 1, 2017 pursuant to the provisions thereof. This Registration Statement hereby incorporates by reference the contents of the Registrant's registration statements on Form S-8 filed with the Commission on August 14, 2015 (Registration No. 333-206408). The additional shares are of the same class as other securities relating to the Plan for which the Registrant’s registration statements on Form S-8 filed with the Commission on August 14, 2015 (Registration No. 333-206408) are effective. All share amounts in this Registration Statement have been adjusted to reflect the Registrant's 1-to-10 reverse stock split on August 17, 2016.

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8.          Exhibits.

 

See the attached Exhibit Index, which is incorporated herein by reference.

 

 
 

 

SIGNATURES

 

The Registrant. Pursuant to the requirements of the Securities Act, 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Charlottesville, Commonwealth of Virginia, on this 17th day of May, 2017.

 

 

 

DIFFUSION PHARMACEUTICALS INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/ David G. Kalergis

 

 

 

David G. Kalergis

 

 

 

Chief Executive Officer

 

    (Principal Executive Officer)  

 

 

 

POWER OF ATTORNEY

 

KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David G. Kalergis, Chief Executive Officer and Director of Diffusion Pharmaceuticals Inc. and Ben L. Shealy, Senior Vice President – Finance, Treasurer and Secretary of Diffusion Pharmaceuticals Inc., or either of them, his true and lawful attorneys-in-fact and agents, each of whom may act alone, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, including post-effective amendments to this Registration Statement and registration statements filed pursuant to Rule 429 under the Securities Act, and to file the same, with all exhibits thereto, and other documents and in connection therewith, with the 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 and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, and hereby ratifies and confirms all his said attorneys-in-fact and agents or any of them or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.

 

This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

 

Signature

Title

Date

     
     

/s/ David G. Kalergis

Chief Executive Officer and Chairman

May 17, 2017

David G. Kalergis

    
     

/s/ Ben L. Shealy

Senior Vice President – Finance, Treasurer and

Secretary (Principal Financial Officer)

May 17, 2017

Ben L. Shealy

    
     

/s/ Isaac Blech

Vice Chairman, Board of Directors

May 17, 2017

Isaac Blech

    
     

/s/ John L. Gainer

Director

May 17, 2017

John L. Gainer, Ph.d.

    

 

 
 

 

/s/ Robert Adams

Director

May 17, 2017

Robert Adams

    
     

/s/ Mark T. Giles

Director

May 17, 2017

Mark T. Giles

    
     

/s/ Alan Levin

Director

May 17, 2017

Alan Levin

    

 

 
 

 

EXHIBIT INDEX

 

Exhibit Number

Description

   

4.1

Certificate of Incorporation of Diffusion Pharmaceuticals Inc., as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016 (File No. 001-37942), filed March 31, 2017).

   

4.2

Bylaws of Diffusion Pharmaceuticals Inc., as amended (incorporated by reference to Exhibit 3.4 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2015 (File No. 001-24477), filed March 25, 2016).

   

4.3

Diffusion Pharmaceuticals Inc. 2015 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K (File No. 001-24477) as filed on June 18, 2015).

   

4.4

Amendment No. 1 to Diffusion Pharmaceuticals Inc. 2015 Equity Incentive Plan (incorporated by reference to Appendix B to the Registrant’s Definitive Proxy Statement (File No. 001-24477) on Schedule 14A filed on June 10, 2016).

   

4.5

Form of 2015 Incentive Stock Option Agreement under the Diffusion Pharmaceuticals Inc. 2015 Equity Incentive Plan (incorporated by reference to Exhibit 10.7 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016 (File No. 001-37942), filed March 31, 2017).

   

4.6

Form of 2015 Non-Statutory Stock Option Agreement under the Diffusion Pharmaceuticals Inc. 2015 Equity Incentive Plan (incorporated by reference to Exhibit 10.8 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016 (File No. 001-37942), filed March 31, 2017).

   

5.1

Opinion of Dechert LLP (counsel to the Registrant) as to the legality of the securities being registered.

   

23.1

Consent of KPMG LLP.

   

23.2

Consent of Dechert LLP (included in Exhibit 5.1 hereto).

   

24.1

Power of Attorney (included in the signature page to this Registration Statement).