As filed with the Securities and Exchange Commission on August 30, 2023
File No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
WINDTREE THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
Delaware | 94-3171943 | |
(State or other jurisdiction of | (IRS Employer |
2600 Kelly Road, Suite 100
Warrington, Pennsylvania 18976
(215) 488-9300
(Address, including zip code, of Principal Executive Offices)
Amended and Restated Windtree Therapeutics, Inc. 2020 Equity Incentive Plan
(Full title of the plan)
Craig E. Fraser
President & Chief Executive Officer
Windtree Therapeutics, Inc.
2600 Kelly Road, Suite 100
Warrington, Pennsylvania 18976
(Name and Address of agent for service)
(215) 488-9300
(Telephone number, including area code, of agent for service)
With copies to:
Rachael M. Bushey Jennifer L. Porter Goodwin Procter LLP One Commerce Square 2005 Market St, 32nd Floor Philadelphia, Pennsylvania 19103 (445) 207-7800 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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
This Registration Statement on Form S-8 (this “Registration Statement”) registers an additional 645,000 shares of common stock, par value $0.001 per share (“Common Stock”), of Windtree Therapeutics, Inc. (the “Company”) that were added to the number of shares authorized for issuance under the Amended and Restated Windtree Therapeutics, Inc. 2020 Equity Incentive Plan (the “2020 Plan”) pursuant to an amendment to the 2020 Plan adopted by the Company’s stockholders on August 15, 2023. This Registration Statement registers additional securities of the same class as other securities for which a Registration Statement on Form S-8 relating to the same employee benefit plan is effective.
The Company previously filed Registration Statements on Form S-8 (File No. 333-272096, File No. 333-265053 and File No. 333-253065) (the “Prior Registration Statements”) with the Securities and Exchange Commission (the “Commission”) on May 19, 2023, May 18, 2022 and February 12, 2021 to register 30,888, 22,615 and 30,710 shares of Common Stock, respectively, that were authorized for issuance under the 2020 Plan. Upon the effectiveness of this Registration Statement, an aggregate of 729,213 shares of Common Stock will be registered for issuance from time to time under the 2020 Plan. Pursuant to General Instruction E to Form S-8, the contents of the Prior Registration Statement are incorporated herein by reference except to the extent supplemented, amended or superseded by the information set forth herein. Only those items of Form S-8 containing new information not contained in the Prior Registration Statement are presented herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or included in this Registration Statement (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the Company with the Commission are incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:
● | the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 filed with the Commission on March 31, 2023, as amended by the Company’s Annual Report on Form 10-K/A filed with the Commission on May 1, 2023; |
● | the Company’s Quarterly Reports on Form 10-Q for the quarter ended March 31, 2023 filed with the Commission on May 15, 2023 and for the quarter ended June 30, 2023 filed with the Commission on August 7, 2023; |
● | the Company’s Current Reports on Form 8-K (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) filed with the Commission on January 19, 2023, January 26, 2023, February 8, 2023, February 22, 2023, February 23, 2023, April 19, 2023, April 24, 2023, June 14, 2023, June 27, 2023, August 16, 2023 and August 28, 2023; and |
● | the description of the Common Stock included in Exhibit 4.16 of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, including any amendments or reports filed for the purpose of updating such description. |
All reports and other documents the Company subsequently files (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) pursuant to Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) including all such documents the Company may file with the Commission after the date of this Registration Statement and prior to the effectiveness of this Registration Statement, but excluding any information furnished to, rather than filed with, the Commission, will also be incorporated by reference into this Registration Statement and deemed to be part of this Registration Statement from the date of the filing of such reports and documents.
For purposes of this Registration Statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained therein, or in any other subsequently filed document which also is or is deemed to be incorporated by reference, modifies or supersedes such document or such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
You may request a copy, without charge, of any of the documents incorporated by reference in this prospectus (other than exhibits, unless they are specifically incorporated by reference in the documents) by writing or telephoning us at the address and telephone number on the cover 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.
Not applicable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this Registration Statement:
EXHIBIT INDEX
Exhibit Number | Description of Exhibit | |
4.1 | ||
4.2 | ||
5.1* | ||
23.1* | ||
23.2* | Consent of EisnerAmper LLP, Independent Registered Public Accounting Firm. | |
23.3* | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. | |
24.1* | Power of Attorney (included on the signature page of the Registration Statement). | |
99.1 | ||
99.2 | ||
99.3 | ||
107* |
* Filed herewith
Item 9. Undertakings.
Not applicable.
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 Warrington, Commonwealth of Pennsylvania, on August 30, 2023.
| Windtree Therapeutics, Inc. | |
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| By: | /s/ Craig E. Fraser |
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| Name: Craig E. Fraser Title: President and Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Craig E. Fraser as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorney-in-fact, proxy, and agent 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, proxy and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
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/ Craig E. Fraser | Director, President, and Chief Executive Officer | August 30, 2023 | ||
Craig E. Fraser | (Principal Executive Officer) | |||
/s/ John Tattory | Interim Chief Financial Officer | August 30, 2023 | ||
John Tattory | (Principal Financial Officer) | |||
/s/ Jamie McAndrew | Vice President, Controller & Chief Accounting Officer | August 30, 2023 | ||
Jamie McAndrew | (Principal Accounting Officer) | |||
/s/ Daniel Geffken | Director | August 30, 2023 | ||
Daniel Geffken | ||||
/s/ Robert Scott, M.D. | Director | August 30, 2023 | ||
Robert Scott, M.D. | ||||
/s/ Mark Strobeck, Ph.D. | Director | August 30, 2023 | ||
Mark Strobeck, Ph.D. | ||||
/s/ Leslie J. Williams | Director | August 30, 2023 | ||
Leslie J. Williams |