As filed with the Securities and Exchange Commission on October 7, 2020

Registration No. ______

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

 

TFF Pharmaceuticals, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware   82-4344737

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

2600 Via Fortuna, Suite 360

Austin, Texas

 

 

78746

(Address of Principal Executive Offices)   (Zip Code)

 

 

 

2018 Stock Incentive Plan

(Full title of the plan)
 

 

 

Glenn Mattes
Chief Executive Officer
2600 Via Fortuna, Suite 360
Austin, Texas 78746
(Name and address of agent for service)

 

(737) 802-1973

(Telephone number, including area code, of agent for service)

 

Copy to:

 

Daniel K. Donahue

Greenberg Traurig, LLP

18565 Jamboree Road, Suite 500

Irvine, California 92612

(949) 732-6500

 

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

   Proposed Maximum Aggregate Offering Price   Amount of Registration Fee 
Common Stock   3,284,480 shares   $17.77(2)  $58,365,209(2)  $6,367.65 

 

(1)In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement includes an indeterminate number of additional shares which may be offered and sold as a result of anti-dilution provisions described in the above-referenced plan.

 

(2)Estimated solely for the purpose of calculating the amount of the registration fee and calculated pursuant to Rule 457(h)(1) and Rule 457(c) under the Securities Act.

 

 

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.Plan Information

 

On January 24, 2018, TFF Pharmaceuticals, Inc. (the “Company”) adopted its 2018 Stock Incentive Plan (“Plan”). The maximum number of shares of common stock of the Company that are available for issuance under the Plan is 3,284,480 shares. This Registration Statement on Form S-8 is filed with the Securities and Exchange Commission (“Commission”) for the purposes of registering the 3,284,480 shares of the Company’s common stock issuable under the Plan.

 

The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission, but constitute, along with the documents incorporated by reference into this Registration Statement, a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

Item 2.Registrant Information and Employee Plan Annual Information

 

The Company will furnish without charge to each person to whom the prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference in Item 3 of Part II of this Registration Statement and incorporated by reference in the Section 10(a) prospectus, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference to the information that is incorporated). Written requests should be made to Investor Relations of TFF Pharmaceuticals, Inc. at 2600 Via Fortuna, Suite 360, Austin, Texas 78746; telephone number (737) 802-1973 or to the email address at investorinfo@tffpharma.com.

 

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Part II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.Incorporation of Certain Documents by Reference

 

The following documents filed by the Company with the Commission are incorporated by reference into this Registration Statement:

 

(a)The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, which was filed on March 27, 2020;

 

(b)The Company’s Amendment No. 1 to Annual Report on Form 10-K for the fiscal year ended December 31, 2019, which was filed on April 29, 2020;

 

(c)The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, which was filed on May 14, 2020;

 

(d)The Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2020, which was filed on August 13, 2020

 

(e)The Company’s Current Reports on Form 8-K filed on January 31, 2020, August 11, 2020, September 30, 2020 and October 1, 2020 (excluding any information furnished pursuant to Item 2.02 or Item 7.01 of such Current Report on Form 8-K, unless otherwise indicated therein);

 

(f)The description of the Company’s common stock in its Form 8-A12B, which was filed on October 22, 2019, and any amendments or reports filed for the purpose of updating this description; and

 

(g)All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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.

 

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Item 4.Description of Securities

 

Not applicable.

 

Item 5.Interests of Named Experts and Counsel

 

The validity of the issuance of the shares of the Company’s common stock offered by this Registration Statement has been passed upon by Greenberg Traurig, LLP, Irvine, California.

 

Item 6.Indemnification of Directors and Officers

 

The following summary is qualified in its entirety by reference to the complete text of any statutes referred to below and the second amended and restated certificate of incorporation of TFF Pharmaceuticals, Inc., a Delaware corporation.

 

Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) permits a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.

 

In the case of an action by or in the right of the corporation, Section 145 of the DGCL permits a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or such other court shall deem proper.

 

Section 145 of the DGCL also permits a Delaware corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145 of the DGCL.

 

Article Sixth of our Second Amended and Restated Certificate of Incorporation states that to the fullest extent permitted by the DGCL our directors shall not be personally liable to us or to our stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended after the date hereof to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of our directors shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

 

Article Seventh of our Second Amended and Restated Certificate of Incorporation provides that we shall, to the maximum extent and in the manner permitted by the DGCL, indemnify each of our directors, officers and all other persons we have the power to indemnify under Section 145 of the DGCL against expenses (including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was a director, officer, employee or agent of the Company.

 

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As permitted by the DGCL, we have entered into indemnification agreements with each of our directors and executive officers that require us to indemnify such persons against various actions including, but not limited to, third-party actions where such director or executive officer, by reason of his or her corporate status, is a party or is threatened to be made a party to an action, or by reason of anything done or not done by such director in any such capacity. We intend to indemnify directors and executive officers against all costs, judgments, penalties, fines, liabilities, amounts paid in settlement by or on behalf such directors or executive officers and for any expenses actually and reasonably incurred by such directors or executive officers in connection with such action, if such directors or executive officers acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal proceeding, had no reasonable cause to believe their conduct was unlawful. We also intend to advance to our directors and executive officers expenses (including attorney’s fees) incurred by such directors and executive officers in advance of the final disposition of any action after the receipt by us of a statement or statements from directors or executive officers requesting such payment or payments from time to time, provided that such statement or statements are accompanied by an undertaking, by or on behalf of such directors or executive officers, to repay such amount if it shall ultimately be determined that they are not entitled to be indemnified against such expenses by us.

 

The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification or advancement of expenses, including, among others, provisions about providing notice to us of any action in connection with which a director or executive officer seeks indemnification or advancement of expenses from us and provisions concerning the determination of entitlement to indemnification or advancement of expenses.

 

Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to our directors, officers or persons controlling us pursuant to the provisions contained in our Amended and Restated Certificate of Incorporation, Bylaws, the DGCL or otherwise, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. If a claim for indemnification against such liabilities, other than the payment by us of expenses incurred or paid by one of our directors, officers or controlling persons in the successful defense of any action, suit, or proceeding, is asserted by such director, officer or controlling person, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of this issue.

 

Item 7.Exemption from Registration Claimed

 

Not applicable.

 

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Item 8.Exhibits.

 

Exhibit No.  Description of Exhibits    

 

Exhibit

No.

  Description  

 

Method of Filing

         
3.1   Second Amended and Restated Certificate of Incorporation of the Registrant   Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on August 20, 2019.
         
3.2   Amended and Restated Bylaws of the Registrant   Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on August 20, 2019.
         
4.1   Specimen Certificate representing shares of common stock of Registrant   Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on September 27, 2019.
         
5.1   Opinion and Consent of Greenberg Traurig, LLP   Filed electronically herewith
         
10.1   TFF Pharmaceuticals, Inc. 2018 Stock Incentive Plan   Incorporated by reference from the Registrant’s Annual Report on Form 10-K filed on March 27, 2020
         
23.1   Consent of Marcum LLP   Filed electronically herewith
         
23.4   Consent of Greenberg Traurig, LLP   Included in Exhibit 5.1
         
24.1   Power of Attorney   Included on the signature page to this registration statement

 

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 of 1933, as amended (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) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.

 

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(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 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 periodic 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 Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (and where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 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.

 

(c)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 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 of 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 Austin, Texas on October 7, 2020.

 

  TFF PHARMACEUTICALS, INC.
     
  By:  /s/ Glenn Mattes                     
    Glenn Mattes
    Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below hereby constitutes and appoints Glenn Mattes and Kirk Coleman, and each of them, as such person’s true and lawful attorney-in-fact and agent, each with full powers of substitution and re-substitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any or all amendments (including post effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on October 7, 2020 by the following persons in the capacities indicated.

 

Signature   Title

 

/s/ Glenn Mattes   President, Chief Executive Officer and Director (Principal Executive Officer)
Glenn Mattes    
     
/s/ Kirk Coleman   Chief Financial Officer (Principal Financial and Accounting Officer)
Kirk Coleman    
     
/s/ Aaron Fletcher, Ph.D.   Chairman of the Board
Aaron Fletcher, Ph.D.    
     
/s/ Brian Windsor, Ph.D   Director
Brian Windsor, Ph.D.    
     
/s/ Robert S. Mills, Jr.   Director
Robert S. Mills, Jr.    
     
/s/ Stephen C. Rocamboli   Director
Stephen C. Rocamboli    
     
/s/ Harlan Weisman, M.D.   Director
Harlan Weisman, M.D.    
     
/s/ Randy Thurman   Director
Randy Thurman    
     
/s/ Malcolm Fairbairn   Director
Malcolm Fairbairn    

 

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INDEX TO EXHIBITS

 

No.   Item   Method of Filing
         
3.1   Second Amended and Restated Certificate of Incorporation of the Registrant   Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on August 20, 2019.
3.2   Amended and Restated Bylaws of the Registrant   Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on August 20, 2019.
4.1   Specimen Certificate representing shares of common stock of Registrant   Incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on September 27, 2019.
5.1   Opinion and Consent of Greenberg Traurig, LLP   Filed electronically herewith
10.1   TFF Pharmaceuticals, Inc. 2018 Stock Incentive Plan   Incorporated by reference from the Registrant’s Annual Report on Form 10-K filed on March 27, 2020
23.1   Consent of Marcum LLP   Filed electronically herewith
23.4   Consent of Greenberg Traurig, LLP   Included in Exhibit 5.1
24.1   Power of Attorney   Included on the signature page to this registration statement

 

 

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Exhibit 5.1

 

GREENBERG TRAURIG, LLP

18565 Jamboree Road, Suite 500

Irvine, CA 92612

  

October 7, 2020

 

TFF Pharmaceuticals, Inc.

2600 Via Fortuna, Suite 360

Austin, Texas 78746

 

Re:Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to TFF Pharmaceuticals, Inc. (the “Company”) in connection with its Registration Statement on Form S-8, as may be amended and supplemented from time to time (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended), in connection with the registration by the Company of 3,284,480 shares (the “Shares”) of common stock, $0.001 par value per share (the “Common Stock”), of the Company issuable under the Company’s 2018 Stock Incentive Plan.

 

For purposes of rendering this opinion, we have examined originals or copies of such documents and records as we have deemed appropriate. In conducting such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and conformity to original documents of all documents submitted to us as copies.

 

Based upon and subject to the foregoing and the effect, if any, of the matters discussed below, after having given due regard to such issues of law as we deemed relevant, we are of the opinion that the Shares, when issued, delivered and paid for in accordance with the relevant plan and the terms of the individual option agreements and stock agreements, as applicable, will be legally issued, fully paid and non-assessable.

 

We are furnishing this opinion to the Company solely in connection with the Registration Statement. This opinion may not be relied on by, nor copies delivered to, any other person or entity without our prior written consent. Notwithstanding the preceding sentence we hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to its use as part of the Registration Statement.

 

 Very truly yours,

 

 /s/ GREENBERG TRAURIG, LLP

 

Exhibit 23.1

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of TFF Pharmaceuticals, Inc. on Form S-8 of our report dated March 26, 2020, with respect to our audits of the consolidated financial statements of TFF Pharmaceuticals, Inc. as of December 31, 2019 and 2018 and for the year ended December 31, 2019, period from January 24, 2018 to December 31, 2018 and period from January 1, 2018 to January 23, 2018 (Predecessor), appearing in the Annual Report on Form 10-K of TFF Pharmaceuticals, Inc. for the year ended December 31, 2019.

 

/s/ Marcum llp  
   

Marcum llp

New York, NY

October 7, 2020