UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
ARMATA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
| Washington |
91-1549568 |
|
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
5005 McConnell Avenue
Los
Angeles, CA 90066
(Address of Principal Executive Offices) (Zip Code)
Armata Pharmaceuticals, Inc. 2016 Equity
Incentive Plan
Armata Pharmaceuticals, Inc. 2016 Employee
Stock Purchase Plan
(Full titles of the plans)
Armata Pharmaceuticals, Inc.
5005 McConnell Avenue
Los
Angeles, CA 90066
(Name and address of agent for service)
(310) 655-2928
(Telephone number, including area code, of agent
for service)
Copies to:
|
Deborah L. Birx
Armata Pharmaceuticals, Inc.
5005 McConnell Avenue
Los Angeles, CA 90066
(310) 655-2928 |
Jared Fertman
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019-6099
(212) 728-8000 |
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 |
x |
|
Smaller reporting company |
x |
| |
|
|
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
REGISTRATION OF ADDITIONAL SHARES
PURSUANT TO GENERAL INSTRUCTION E
Pursuant to General Instruction
E to Form S-8, this Registration Statement on Form S-8 (this “Registration Statement”) is filed by Armata
Pharmaceuticals, Inc. (the “Registrant”) to register an additional 4,601,977 shares of the Registrant’s
common stock, par value $0.01 per share (“Common Stock”), issuable under the Armata Pharmaceuticals, Inc. 2016
Equity Incentive Plan (the “Armata 2016 Plan”) or the Armata Pharmaceuticals, Inc. 2016 Employee Stock Purchase
Plan (the “Armata 2016 ESPP”). Such shares consist of the following:
| · | (i) 496,137 shares of Common Stock that were automatically added to the shares authorized for issuance
under the Armata 2016 Plan on January 1, 2020, (ii) 934,423 shares of Common Stock that were automatically added to the shares
authorized for issuance under the Armata 2016 Plan on January 1, 2021, (iii) 1,355,614 shares of Common Stock that were automatically
added to the shares authorized for issuance under the Armata 2016 Plan on January 1, 2022, and (iv) 1,807,235 shares of Common
Stock that were automatically added to the shares authorized for issuance under the Armata 2016 Plan on January 1, 2023, in each
case, pursuant to an “evergreen” provision contained in the Armata 2016 Plan. Pursuant to such “evergreen” provision,
on January 1st of each calendar year, from January 1, 2017 through and including January 1, 2026, the number of shares
authorized for issuance under the Armata 2016 Plan is automatically increased by: (a) a number equal to 5% of the total number of
shares of the Registrant’s capital stock outstanding on December 31st of the preceding calendar year, or (b) a lesser
number of shares determined by the Registrant’s board of directors (the “Board”); and |
| · | (i) 2,142 shares of Common Stock that were automatically added to the shares authorized for issuance
under the Armata 2016 ESPP on January 1, 2020, (ii) 2,142 shares of Common Stock that were automatically added to the shares
authorized for issuance under the Armata 2016 ESPP on January 1, 2021, (iii) 2,142 shares of Common Stock that were automatically
added to the shares authorized for issuance under the Armata 2016 ESPP on January 1, 2022, and (iv) 2,142 shares of Common Stock
that were automatically added to the shares authorized for issuance under the Armata 2016 ESPP on January 1, 2023, in each case,
pursuant to an “evergreen” provision contained in the Armata 2016 ESPP. Pursuant to such provision, on January 1st of
each calendar year, from January 1, 2017 through and including January 1, 2026, the number of shares authorized for issuance
under the Armata 2016 ESPP is automatically increased by a number equal to the least of: (a) 1% of the total number of shares of
the Registrant’s capital stock outstanding on December 31st of the preceding calendar year; (b) 2,142 shares; or (c) a
number determined by the Board that is less than (a) and (b). |
This
Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statement on Form S-8
filed with the Commission on June 22, 2016 (File No. 333-212183), May 1, 2017 (File No. 333-217563), November 14, 2017 (File No. 333-221564), March 28, 2018 (File No. 333-223987), and June 10, 2019 (File No. 333-232058), respectively (the
“Prior Registration Statements”), in each case, to the extent not superseded
hereby. The additional shares of Common Stock being registered by this Registration Statement are of the same class as those securities
registered on the Prior Registration Statements.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
All information required by
Part I to be contained in the prospectus is omitted from this Registration Statement in accordance with Section 428 of the Securities
Act of 1933, as amended (the “Securities Act”) and the instructions to Form S-8 and instead will be delivered,
pursuant to Rule 428 under the Securities Act, to each participant in the Armata 2016 Plan and the Armata 2016 ESPP, as applicable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item
3. | Incorporation
of Documents By Reference |
This Registration Statement
is being filed for the purpose of increasing the number of securities of the same class as other securities for which Registration Statements
of the Registrant on Form S-8 relating to the same employee benefit plan are effective. Pursuant to General Instruction E to Form S-8,
this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.
The following documents, which
we have filed with the Securities and Exchange Commission (the “Commission”), are incorporated by reference in this
registration statement:
| |
· |
The
Registrant’s Current Reports on Form 8-K, filed with the Commission on January 10,
2023, May 5,
2023, June 27, 2023, July 11,
2023, July 19,
2023 and September 20,
2023; and |
All documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended, prior
to the filing of a post-effective amendment that indicates that all shares of common stock offered hereby have been sold or which deregisters
all shares of common stock then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to
be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have
been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this registration
statement.
Any statement contained herein
or in a document, all or a portion of which is 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, except as so modified or amended, to constitute a part of this registration statement.
The following exhibits are filed herewith:
| Exhibit |
|
|
| Number |
|
Exhibit Description |
| 4.1 |
|
Articles of Amendment to Articles of Incorporation of the Company (effective March 26, 2020) (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on March 30, 2020). |
| 4.2 |
|
Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.5 to the Company’s Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2019). |
| 4.3 |
|
Amendment to Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed with the SEC on December 11, 2019). |
| 4.4 |
|
Amendment to Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on February 26, 2020). |
| 5.1 |
|
Opinion of Counsel |
| 23.1 |
|
Consent of Independent Registered Public Accounting Firm |
| 23.2 |
|
Consent of Counsel (included in Exhibit 5.1 to this Registration Stated and filed herewith) |
| 24.1 |
|
Power of Attorney (included on the signature pages of this Registration Statement) |
| 99.1 |
|
Armata Pharmaceuticals, Inc. 2016 Equity Incentive Plan, as amended incorporated by reference to Exhibit 99.1 to the registrant’s Registration Statement on Form S-8, filed with the SEC on June 10, 2019). |
| 99.2 |
|
Armata Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan (incorporated herein by reference to Exhibit 10.10 to the Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2019). |
| 107 |
|
Filing Fee Table |
SIGNATURES
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 to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Los Angeles, State of California on November 15, 2023.
| |
Armata Pharmaceuticals, Inc. |
| |
|
| |
|
| |
By: |
/s/ Deborah L. Birx |
| |
|
Deborah L. Birx |
| |
|
Chief Executive Officer |
POWER OF ATTORNEY
Know
All Persons By These Presents, that each person whose signature appears
below constitutes and appoints each of Deborah L. Birx and Richard Rychlik as his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all 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 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 he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, 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 date indicated.
| SIGNATURE |
|
TITLE |
|
DATE |
| |
|
|
|
|
| /s/
Deborah L. Birx |
|
Chief Executive Officer and a Director |
|
November 15, 2023 |
| Deborah L. Birx |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Richard Rychlik |
|
Corporate Controller |
|
November 15, 2023 |
| Richard Rychlik |
|
(Principal Financial Officer) |
|
|
| |
|
|
|
|
| /s/ Robin C. Kramer |
|
Chair of the Board of Directors |
|
November 15, 2023 |
| Robin C. Kramer |
|
|
|
|
| |
|
|
|
|
| /s/ Odysseas D. Kostas, M.D. |
|
Director |
|
November 15, 2023 |
| Odysseas D. Kostas, M.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Jules Haimovitz |
|
Director |
|
November 15, 2023 |
| Jules Haimovitz |
|
|
|
|
| |
|
|
|
|
| /s/ Sarah J. Schlesinger, M.D. |
|
Director |
|
November 15, 2023 |
| Sarah J. Schlesinger, M.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Joseph M. Patti, Ph.D. |
|
Director |
|
November 15, 2023 |
|
Joseph M. Patti,
Ph.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Todd C. Peterson, Ph.D. |
|
Director |
|
November 15, 2023 |
|
Todd C. Peterson,
Ph.D. |
|
|
|
|
Exhibit 5.1
November 15, 2023
Armata Pharmaceuticals, Inc.
4503 Glencoe Avenue
Marina del Rey, CA 90292
Ladies and Gentlemen:
We have acted as special counsel
to Armata Pharmaceuticals, Inc., a Washington corporation (the “Company”) in connection with its Registration
Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Securities Act”) relating to the
proposed offering of up to 4,601,977 shares (“Shares”) of common stock, par value $0.01 per share (“Common
Stock”) of the Company, 4,593,409 of which are issuable pursuant to the Company’s 2016 Equity Incentive Plan, as amended
(the “Equity Plan”), and 8,568 of which are issuable pursuant to the Company’s 2016 Employee Stock Purchase Plan,
as amended (the “ESPP”, and together with the Equity Plan, the “Plans” and each a “Plan”).
For purposes of this opinion
letter, we have examined (i) the Company’s Amended and Restated Articles of Incorporation dated May 21, 2009, as amended
on February 22, 2011, as amended on June 26, 2013, as corrected on October 23, 2013, as amended on January 5, 2015,
as amended August 3, 2015, as amended April 21, 2017, as corrected November 7, 2018, as amended December 17, 2018,
as amended May 9, 2019, as amended December 10, 2019, as amended March 31, 2020; (ii) the Company’s Amended
and Restated Bylaws dated May 9, 2019, as amended on December 10, 2019, as amended on February 24, 2020; (iii) the
Registration Statement and the exhibits thereto; (iv) the Equity Plan; (v) the ESPP; and (vi) such other corporate records,
written consents, certificates and other instruments as in our opinion are necessary or appropriate in connection with expressing the
opinions set forth below.
In our examination of the
aforesaid documents and in rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that:
(i) all documents submitted to us as originals are authentic and complete; (ii) all documents submitted to us as copies (including
..pdfs) conform to authentic, complete originals; (iii) all documents filed as exhibits to the Registration Statement that have not
been executed will conform to the forms thereof; (iv) all signatures on all documents that we reviewed are genuine; (v) all
natural persons executing documents had and have the legal capacity to do so; (vi) all statements in certificates of public officials
and the officers of the Company that we reviewed were and are accurate; and (vii) all representations made by the Company as to matters
of fact in the documents that we reviewed were and are accurate. We have also assumed that any certificates or instruments representing
the Shares, including the applicable award or purchase agreements, when issued, will be executed by the Company and by officers of the
Company duly authorized to do so, and that the terms of the applicable award or purchase agreements will be consistent with the forms
of agreement approved by the Board. In rendering our opinion, we have also relied upon a Certificate of Existence dated November 15,
2023, issued by the Washington Secretary of State with respect to the Company and representations and certifications made to us by the
Company, including without limitation representations in an Officer’s Certificate addressed to us of even date herewith that, as
of the date of this letter, the Company has available a sufficient number of authorized shares of Common Stock that are not currently
outstanding or reserved for issuance under any other outstanding securities or plans of the Company, to enable the Company to issue and
deliver all of the Shares. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
Based upon, subject to, and
limited by the foregoing, we are of the opinion that following (i) the effectiveness of the Registration Statement, (ii) the
issuance of Shares pursuant to the terms of the applicable Plan and applicable award or purchase agreement, (iii) receipt by the
Company of the consideration for the Shares specified in the applicable Plan and the applicable resolutions of the Board of Directors
of the Company (or a duly authorized committee of the Board of Directors of the Company) authorizing the grant and issuance thereof, and
(iv) the registration on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof,
such Shares will be validly issued, fully paid, and nonassessable.
This opinion letter is rendered
as of the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events, or developments that hereafter may
be brought to our attention and that may alter, affect, or modify the opinion expressed herein. Our opinion is expressly limited to the
matters set forth above and we render no opinion, whether by implication or otherwise, as to any matters beyond the matters expressly
set forth herein.
This
opinion letter is based as to matters of law solely on the Washington Business Corporation Act, as amended. We do not express any opinion
herein concerning any law other than the corporate laws of the State of Washington. We assume no obligation to supplement this
opinion letter if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed
herein after the date hereof. We express no opinion herein as to any other statutes, rules, or regulations.
We hereby consent to the filing
of this opinion letter with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby
admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations
of the Commission promulgated thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Lane Powell PC |
| |
|
| |
Lane Powell PC |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation
by reference in the Registration Statement (Form S-8) pertaining to the 2016 Equity Incentive Plan and 2016 Employee Stock
Purchase Plan of Armata Pharmaceuticals, Inc. of our report dated March 16, 2023, with respect to the consolidated financial
statements of Armata Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young
LLP
San Diego, California
November 15, 2023
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
ARMATA PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities.
Security
Type |
|
Security
Class Title |
|
Fee
Calculation
Rule |
|
Amount
to be
registered (1) |
|
Proposed
maximum
offering
price per
share(3) |
|
Maximum
aggregate
offering price(3) |
|
Fee
Rate |
|
Amount
of
registration fee |
| Equity |
|
Common
Stock, par value $0.01 per share |
|
457(c) and
457(h) |
|
4,593,409
(2) |
|
$2.42
(3) |
|
$11,116,049.78 |
|
0.00014760 |
|
$1,640.73
(4) |
| Equity |
|
Common
Stock, par value $0.01 per share |
|
457(c) and
457(h) |
|
8,568
(5) |
|
$2.42
(3) |
|
$20,734.56 |
|
0.00014760 |
|
$3.06
(4) |
| Total
Offering Amount |
|
|
|
|
|
|
|
$1,643.79 |
| Total
Fee Offsets |
|
|
|
|
|
|
|
$0 |
| Net
Fees Due |
|
|
|
|
|
|
|
$1,643.79 |
|
(1) |
Pursuant to Rule 416(a) 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 $0.01 per share (“Common
Stock”) of Armata Pharmaceuticals, Inc. (the “Company”) that become issuable under the Armata Pharmaceuticals, Inc.
2016 Equity Incentive Plan (the “Armata 2016 Plan”) or the Armata Pharmaceuticals, Inc. 2016 Employee Stock
Purchase Plan (the “Armata 2016 ESPP”) by reason of any future stock dividend, stock split, recapitalization or
other similar adjustments of the outstanding Common Stock. |
|
(2) |
Represents (i) 496,137
shares of Common Stock that were automatically added to the shares authorized for issuance under the Armata 2016 Plan on January 1,
2020, (ii) 934,423 shares of Common Stock that were automatically added to the shares authorized for issuance under the Armata
2016 Plan on January 1, 2021, (iii) 1,355,614 shares of Common Stock that were automatically added to the shares authorized
for issuance under the Armata 2016 Plan on January 1, 2022, and (iv) 1,807,235 shares of Common Stock that were automatically
added to the shares authorized for issuance under the Armata 2016 Plan on January 1, 2023, in each case, pursuant to an “evergreen”
provision contained in the Armata 2016 Plan. Pursuant to such “evergreen” provision, on January 1st of each calendar
year, from January 1, 2017 through and including January 1, 2026, the number of shares authorized for issuance under the
Armata 2016 Plan is automatically increased by: (a) a number equal to 5% of the total number of shares of the Company’s
capital stock outstanding on December 31st of the preceding calendar year, or (b) a lesser number of shares determined
by the Company’s board of directors (the “Board”). |
|
(3) |
Estimated solely for purposes
of calculating the amount of the registration fee, pursuant to Rules 457(c) and 457(h) under the Securities Act, the
proposed maximum aggregate offering price is the product obtained by multiplying (i) $2.42 (the average of the high and low
prices of the Company’s Common Stock on November 8, 2023, as reported on the NYSE American) by (ii) 4,601,977 (the
number of shares of Common Stock issuable in connection with equity awards that may be granted in the future pursuant to the Armata
2016 Plan or the Armata 2016 ESPP). |
|
(4) |
The amount of registration
fee is calculated only with respect to the additional shares of Common Stock registered on this Registration Statement. The existing
securities issuable under the Armata 2016 Plan and Armata 2016 ESPP were registered, and the correlating registration fee paid, pursuant
to the Registration Statements on Form S-8 filed on June 22, 2016 (File No. 333-212183), May 1, 2017 (File No. 333-217563),
November 14, 2017 (File No. 333-221564), March 28, 2018 (File No. 333-223987), and June 10, 2019 (File No. 333-232058). |
|
(5) |
Represents (i) 2,142
shares of Common Stock that were automatically added to the shares authorized for issuance under the Armata 2016 ESPP on January 1,
2020, (ii) 2,142 shares of Common Stock that were automatically added to the shares authorized for issuance under the Armata
2016 ESPP on January 1, 2021, (iii) 2,142 shares of Common Stock that were automatically added to the shares authorized
for issuance under the Armata 2016 ESPP on January 1, 2022, and (iv) 2,142 shares of Common Stock that were automatically
added to the shares authorized for issuance under the Armata 2016 ESPP on January 1, 2023, in each case, pursuant to an “evergreen”
provision contained in the Armata 2016 ESPP. Pursuant to such provision, on January 1st of each calendar year, from January 1,
2017 through and including January 1, 2026, the number of shares authorized for issuance under the Armata 2016 ESPP is automatically
increased by a number equal to the least of: (a) 1% of the total number of shares of the Company’s capital stock outstanding
on December 31st of the preceding calendar year; (b) 2,142 shares; or (c) a number determined by the Board that is
less than (a) and (b). |
Table 2: Fee Offset Claims and Sources
N/A
Armata Pharmaceuticals (AMEX:ARMP)
Historical Stock Chart
From Mar 2024 to Apr 2024
Armata Pharmaceuticals (AMEX:ARMP)
Historical Stock Chart
From Apr 2023 to Apr 2024
