Securities Registration: Employee Benefit Plan (s-8)

Date : 08/20/2019 @ 9:11PM
Source : Edgar (US Regulatory)
Stock : Diffusion Pharmaceuticals Inc (DFFN)
Quote : 0.6202  -0.1398 (-18.39%) @ 4:59AM
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Securities Registration: Employee Benefit Plan (s-8)

As filed with the Securities and Exchange Commission on August 20 , 2019 .

                                                                                                            Registration No. 333 -________

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 


 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 


 

DIFFUSION PHARMACEUTICALS INC.

(Exact name of Registrant as specified in its charter)

 

 Delaware

1317 Carlton Avenue, Suite 200

Charlottesville, VA 22902

(434) 220-0718

 30-0645032

(State of Incorporation)

(Address, including zip code, and telephone number,

including area code, of registrant’s principal executive offices)

(I.R.S. Employer
Identification No.)

 

DIFFUSION PHARMACEUTICALS INC.

2015 EQUITY INCENTIVE PLAN, AS AMENDED

(Full Title of the Plan)

 
 

David G. Kalergis

Chief Executive Officer

1317 Carlton Avenue, Suite 200

  (434) 220-0718

(Name, address including zip code, and telephone number, including area code, of agent for service)

 
 

With a Copy to:

David S. Rosenthal, Esq.
Dechert LLP
Three Bryant Park
New York, New York 10036
(212) 698-3500

 

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, par value $0.001 per share (2 )

 

 

115,456

 

 

$2.62 (4 )

 

 

$302,494.72 ( 4 )

 

 

$36.66

Common Stock, par value $0.001 per share (3 )

   

19,593

   

$2.16 (5 )

   

$42,320.88 (5 )

   

$5.13

Total

   

135,049

   

--

   

$344,815.60

   

$41.79

 

(1)

This Registration Statement relates to 135,049 shares of common stock of Diffusion Pharmaceuticals Inc. (the “Registrant”) not previously registered and available for issuance under the Registrant’s 2015 Equity Incentive Plan, as amended (the “Plan”). Pursuant to Rule 416 of 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 which become issuable under the Plan pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of common stock.

(2)

Represents shares of the Registrant’s common stock not previously registered and subject to awards outstanding under the Plan.

(3)

Represents shares of the Registrant’s common stock not previously registered and available for issuance under the Plan.

(4)

The Proposed Maximum Offering Price Per Share and Proposed Maximum Aggregate Offering Price have been calculated solely for purposes of determining the registration fee for this offering under Rule 457(h) of the Securities Act and based on the weighted average exercise price of the awards outstanding under the Plan.

(5)

The Proposed Maximum Offering Price Per Share and Proposed Maximum Aggregate Offering Price have been calculated solely for purposes of determining the registration fee for this offering under Rule 457(c) and (h) of the Securities Act of 1933 on the basis of the average of the high and low selling price per share of common stock of the Registrant on August 6, 2019, as reported by the NASDAQ Capital Market.

 

- 2 -

 

 

REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E

 

Pursuant to General Instruction E of Form S-8, the Registrant is filing this Registration Statement with the Commission to register 135,049 additional shares of Common Stock under the Plan, all of which are related to an automatic increase in the number of shares reserved for issuance under the Plan on January 1, 2019 pursuant to the provisions thereof. This Registration Statement hereby incorporates by reference the contents of the Registrant's registration statements on Form S-8 filed with the Commission on each of August 14, 2015 (Registration No. 333-206408), May 17, 2017 (Registration No. 333-218060) and August 10, 2018 (Registration No. 333-226782) (collectively, the “Previous Registration Statements”). The additional shares are of the same class as other securities relating to the Plan for which the Registrant’s registration statements on Form S-8 were filed with the Commission on each of the Previous Registration Statements.

 

 

PART I

 

INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS

 

Information required in Part I of Form S-8 to be contained in a prospectus meeting the requirements of Section 10(a) of the Securities Act is not required to be filed with the Commission and is omitted from this Registration Statement in accordance with the explanatory note to Part I of Form S-8 and Rule 428 under the Securities Act.  The documents containing the information specified in Part I of Form S-8 will be sent or given to directors, officers, employees and consultants as specified by Rule 428(b)(1) of the Securities Act.

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The Registrant is registering additional securities under the Plan covered hereby for which the Previous Registration Statements are currently effective.  This registration statement is filed solely to register an additional 135,049 additional shares of Common Stock for issuance under the Plan. Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Previous Registration Statements, including periodic reports that the Company filed with the Commission pursuant to the Exchange Act.

 

 

 

Item 8. Exhibits.

 

See the attached Exhibit Index, which is incorporated herein by reference.

 

- 3 -

 

 

EXHIBIT INDEX

 

Exhibit Number

Description

   

4.1

Certificate of Incorporation of Diffusion Pharmaceuticals Inc., as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018 (File No. 001-37942), filed March 19, 2019).

   

4.2

Bylaws of Diffusion Pharmaceuticals Inc., as amended (incorporated by reference to Exhibit 3.4 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2015 (File No. 001-24477), filed March 25, 2016).

   

4.3

Diffusion Pharmaceuticals Inc. 2015 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K (File No. 001-24477) as filed on June 18, 2015).

   

4.4

Amendment No. 1 to Diffusion Pharmaceuticals Inc. 2015 Equity Incentive Plan (incorporated by reference to Appendix B to the Registrant’s Definitive Proxy Statement (File No. 001-24477) on Schedule 14A filed on June 10, 2016).

   

4.5

Form of 2015 Incentive Stock Option Agreement under the Diffusion Pharmaceuticals Inc. 2015 Equity Incentive Plan (incorporated by reference to Exhibit 10.3 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016 (File No. 001-37942), filed March 31, 2017).

   

4.6

Form of 2015 Non-Statutory Stock Option Agreement under the Diffusion Pharmaceuticals Inc. 2015 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016 (File No. 001-37942), filed March 31, 2017).

   

4.7

Form of Diffusion Pharmaceuticals Inc. Stock Option Award Agreement (incorporated by reference to Exhibit 10.5 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2017 (File No. 000-24477), filed April 2, 2018).

   

5.1

Opinion of Dechert LLP (counsel to the Registrant) as to the legality of the securities being registered. 

   

23.1

Consent of KPMG LLP

   

23.2

Consent of Dechert LLP (included in Exhibit 5.1 hereto).

   

24.1

Power of Attorney (included in the signature page to this Registration Statement).

 

- 4 -

 

 

SIGNATURES

 

The Registrant . 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Charlottesville, Commonwealth of Virginia, on this 20th day of August, 2019.

 

 

DIFFUSION PHARMACEUTICALS INC.

 

 

 

 

 

 

 

By:

/s/  David G. Kalergis

 

 

David G. Kalergis

 

 

Chief Executive Officer

    (Principal Executive Officer)

 

 

 

POWER OF ATTORNEY

 

KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David G. Kalergis, Chief Executive Officer and Chairman of Diffusion Pharmaceuticals Inc. and William Hornung, Chief Financial Officer of Diffusion Pharmaceuticals Inc., or either of them, his true and lawful attorneys-in-fact and agents, each of whom may act alone, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, including post-effective amendments to this Registration Statement and registration statements filed pursuant to Rule 429 under the Securities Act, and to file the same, with all exhibits thereto, and other documents and in connection therewith, with the 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 and about the premises, as fully to all intents and purposes as he might or could do in person, and hereby ratifies and confirms all his said attorneys-in-fact and agents or any of them or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.

 

This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument. 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/ David G. Kalergis

Chief Executive Officer and Chairman (Principal Executive Officer)

August 20, 2019

David G. Kalergis

   
     

/s/ William Hornung

Chief Financial Officer (Principal Financial Officer and Accounting Officer)

August 20, 2019

William Hornung

   
     

/s/ John L. Gainer

Director

August 20, 2019

John L. Gainer

   
     

/s/ Robert Adams 

Director

August 20, 2019

Robert Adams

   
     

/s/ Mark T. Giles

Director

August 20, 2019

Mark T. Giles

   
     

/s/ Alan Levin

Director

August 20, 2019

Alan Levin

   

 

- 5 -

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