As filed with the Securities and Exchange Commission on April 4, 2019
RegistrationNo. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORMS-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. 2019 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
Copies to: | ||
Dr. Vipin K. Garg | Ori Solomon, Esq. | |
Chief Executive Officer | Morrison & Foerster LLP | |
Altimmune, Inc. 910 Clopper Road, Suite 201S | John Hancock Tower 200 Clarendon Street, Floor 20 | |
Gaithersburg, Maryland 20878 | Boston, MA 02116 | |
(Name and Address of Agent for Service) | (617)648-4700 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, anon-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 Rule12b-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
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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. 2019 Employee Stock Purchase Plan | ||||||||
Common Stock, par value $0.0001 per share | 403,500 | $2.96 | $1,194,360 | $145 | ||||
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(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. 2019 Employee Stock Purchase 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 $2.96 per share, which was the average of the high and low prices for a share of Common Stock of the Registrant on March 29, 2019, as reported on the Nasdaq Global Stock Market. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Items 1 and 2 of Part I of the FormS-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 FormS-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 Form10-K for the fiscal year ended December 31, 2018, filed with the Commission on April 1, 2019; |
(b) | The Company’s Current Reports on Form8-K filed with the Commission on March 8, 2019, March 11, 2019, March 15, 2019, in each case solely to the extent filed and not furnished; |
(c) | 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, 2018; and |
(d) | The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form8-A (FileNo. 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 Form8-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 | Amended and Restated Bylaws of the Registrant, amended and restated as of October 18, 2017 | 8-K | 001-32587 | 3.2 | October 18, 2017 | |||||||||||||
5.1* | Opinion of Morrison & Foerster LLP | |||||||||||||||||
23.1* | Consent of Morrison & Foerster LLP (included in Exhibit 5.1) | |||||||||||||||||
23.2* | Consent of Ernst & Young LLP, independent registered public accounting firm | |||||||||||||||||
24.1* | Power of Attorney (included on the signature page of thisForm S-8) | |||||||||||||||||
99.1* | Altimmune, Inc. 2019 Employee Stock Purchase 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.
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 FormS-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 April 4, 2019.
ALTIMMUNE, INC. | ||
By: | /s/ Will Brown | |
Will 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 lawfulattorneys-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 FormS-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 saidattorneys-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 saidattorneys-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) | April 4, 2019 | ||
/s/ Will Brown Will Brown | Acting Chief Financial Officer (Principal Financial and Accounting Officer) | April 4, 2019 | ||
/s/ Mitchel Sayare Mitchel Sayare, Ph.D. | Chairman of the Board, Director | April 4, 2019 | ||
/s/ David Drutz David Drutz, M.D. | Director | April 4, 2019 | ||
/s/ John Gill John Gill | Director | April 4, 2019 | ||
/s/ Philip Hodges Philip Hodges | Director | April 4, 2019 | ||
/s/ Wayne Pisano Wayne Pisano | Director | April 4, 2019 | ||
/s/ Klaus Schafer Klaus Schafer, M.D. | Director | April 4, 2019 |