S-8 1 d660611ds8.htm FORM S-8 Form S-8

As filed with the Securities and Exchange Commission on November 30, 2018

Registration No. 333-                

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

ALTIMMUNE, INC.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   20-2726770

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification Number)

910 Clopper Road, Suite 201S

Gaithersburg, Maryland

   20878
(Address of Principal Executive Offices)   (ZIP Code)

ALTIMMUNE, INC. 2018 INDUCEMENT GRANT PLAN

(Full Title of the Plan)

 

  Copies to:
Dr. Vipin K. Garg   Ori Solomon, Esq.
Chief Executive Officer   Proskauer Rose LLP
Altimmune, Inc.   One International Place
910 Clopper Road, Suite 201S   Boston, MA 02110
Gaithersburg, Maryland 20878   (617) 526-9600
(Name and Address of Agent for Service)  

 

 

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.  ☐

 

 

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

Altimmune, Inc. 2018 Inducement Plan                

Common Stock, par value $0.0001 per share

   2,000,000(3)   $3.27   $6,540,000   $792.65

 

 

(1)

Pursuant to Rule 416 under 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, par value $0.0001 per share (the “Common Stock”) that become issuable under the Altimmune, Inc. 2018 Inducement Grant Plan (the “Plan”) by reason of any stock split, stock dividend, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of the Registrant’s outstanding shares of Common Stock.

(2)

Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act on the basis of $3.27 per share, which was the average of the high and low prices for a share of Common Stock of the Registrant on November 27, 2018, as reported on the Nasdaq Global Stock Market.

(3)

Represents 2,000,000 additional shares of Common Stock reserved and available for issuance under the Plan.

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information specified in Items 1 and 2 of Part I of the Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the Plan covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The Company hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):

 

(a)

The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on April 2, 2018 and amended on April 30, 2018;

 

(b)

The Company’s Current Reports on Form 8-K filed with the Commission on May 10, 2018, May 18, 2018, June 22, 2018, June 25, 2018, July 16, 2018, August 31, 2018, September 4, 2018, September 12, 2018, September 13, 2018, September 24, 2018, September 25, 2018, October 1, 2018, October 9, 2018, October 22, 2018, November 27, 2018 and November 30, 2018 in each case solely to the extent filed and not furnished;

 

(c)

The Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2018, June 30, 2018, and September 30, 2018, filed with the Commission on May 15, 2018, August 14, 2018, and November 13, 2018, respectively;

 

(d)

All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the end of the fiscal year ended December 31, 2017; and

 

(e)

The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A (File No. 001-32587) filed with the SEC on May 4, 2017, including any other amendments or reports filed for the purposes of updating this description.

All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the effective date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. In no event, however, will any information that the Registrant discloses under Item 2.02 or Item 7.01 of any Current Report on Form 8-K that the Registrant may from time to time furnish to the Commission be incorporated by reference into, or otherwise become a part of, this Registration Statement, unless otherwise indicated therein. Any statement contained in any 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 herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.

Item 4.

Description of Securities.

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act.

The Company’s amended and restated certificate of incorporation and amended and restated bylaws provide that the Registrant will indemnify its directors and officers, and may indemnify its employees and other agents, to the fullest extent permitted by the Delaware General Corporation Law. However, Delaware law prohibits the Company’s certificate of incorporation from limiting the liability of the Company’s directors for the following:

 

  •  

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

 

  •  

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

 

  •  

unlawful payment of dividends or unlawful stock repurchases or redemptions; and

 

  •  

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

The Company has entered into agreements to indemnify each of its directors and officers. These agreements provide for the indemnification of such persons for all reasonable expenses and liabilities incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were serving in such capacity.

The Company may maintain insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his capacity as such. The Company has obtained director and officer liability insurance to cover liabilities directors and officers may incur in connection with their services to the Company.

 

Item 7.

Exemption from Registration Claimed.

Not applicable.

Item 8.

Exhibits.

 

Exhibit
No.

   

Exhibit Description

   

Schedule/
Form

   

File Number

   

Exhibit

   

Filing Date

4.1    Amended and Restated Certificate of Incorporation of the Registrant    8-K    001-32587    3.1    October 18, 2017
4.2    Certificate of Amendment to Amended and Restated Certificate of Incorporation regarding a reverse stock split    8-K    001-32587    3.1    September 13, 2018
4.3    Certificate of Amendment to Amended and Restated Certificate of Incorporation regarding an increase in authorized shares    8-K    001-32587    3.2    September 13, 2018
4.4    Bylaws of the Registrant, amended and restated as of May 4, 2017    8-K    001-32587    3.3    May 8, 2017
5.1*    Opinion of Proskauer Rose LLP            
23.1*    Consent of Proskauer Rose LLP (included in Exhibit 5.1)            
23.2*    Consent of Ernst & Young LLP, independent registered public accounting firm            
23.3*    Consent of BDO USA, LLP, independent registered public accounting firm            
24.1*    Power of Attorney (included on the signature page of this Form S-8)            
99.1*    Altimmune, Inc. 2018 Inducement Grant Plan            
99.2*    Form of Non-Qualified Stock Option Agreement under the Altimmune, Inc. 2018 Inducement Grant Plan            
99.3*    Form of Restricted Stock Agreement under the Altimmune, Inc. 2018 Inducement Grant Plan            

 

*

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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

(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 (A) paragraphs (a)(1)(i) and (a)(1)(ii) 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 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 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.

(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 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.

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 Gaithersburg, State of Maryland, on November 30, 2018.

 

ALTIMMUNE, INC.
By:   /s/ William Brown
 

William Brown

Acting Chief Financial Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears below hereby constitutes and appoints Vipin K. Garg, William Brown, and Ori Solomon, or any of them individually, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for and in such person’s name, place and stead, in the capacities indicated below, to sign this Registration Statement on Form S-8 of Altimmune, Inc. and any and all amendments (including post-effective amendments) thereto, and to file or cause to be filed 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 and necessary to be done in connection therewith, as fully to all intents and purposes as such person might, or could, do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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 date indicated.

 

Signatures

   

Title

  

Date

/s/ Vipin K. Garg

Vipin K. Garg

   

Chief Executive Officer and Director (Principal

Executive Officer)

   November 30, 2018

/s/ William Brown

William Brown

   

Acting Chief Financial Officer (Principal Financial

and Accounting Officer)

   November 30, 2018

/s/ Mitchel Sayare

Mitchel Sayare, Ph.D.

    Chairman of the Board, Director   November 30, 2018

/s/ David Drutz

David Drutz, M.D.

    Director   November 30, 2018

/s/ John Gill

John Gill

    Director   November 30, 2018

/s/ Philip Hodges

Philip Hodges

    Director   November 30, 2018

/s/ Wayne Pisano

Wayne Pisano

    Director   November 30, 2018

/s/ Klaus Schafer

Klaus Schafer, M.D.

    Director   November 30, 2018