As
filed with the Securities and Exchange Commission on June 14, 2024
Registration
No. 333-
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.) |
1751
River Run, Suite 400
Fort Worth, Texas |
|
76107 |
(Address
of Principal Executive Offices) |
|
(Zip Code) |
2021
Stock Incentive Plan
(Full
title of the plan)
Harlan
Weisman, M.D.
Chief Executive Officer
1751 River Run, Suite 400
Fort Worth, Texas 76107
(Name
and address of agent for service)
(817) 438-6168
(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. ☐
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 is being filed by TFF Pharmaceuticals, Inc (the “Company”) for the purpose of registering
an additional 500,000 shares of the Company’s Common Stock that became reserved for issuance as a result of stockholder approval
on June 4, 2024. These additional shares of the Company’s Common Stock are securities of the same class as other securities for
which an original Registration Statement on Form S-8 was filed with the Securities and Exchange Commission (the “Commission”)
on December 27, 2021 (File No. 333-261896). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates
by reference the contents of such prior Registration Statement.
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, 2023, which
was filed on March 28, 2024; |
| (b) | The
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, which
was filed on May 14, 2024; |
| (d) | 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 |
| (e) | 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. |
Item
8. Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Fort Worth, Texas on this 14th day of June 2024.
|
TFF PHARMACEUTICALS, INC. |
|
|
|
|
By: |
/s/
Harlan Weisman |
|
|
Harlan
Weisman, M.D. |
|
|
Chief
Executive Officer |
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Harlan Weisman, M.D., his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and 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 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, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed
in counterparts.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Harlan Weisman |
|
President, |
|
June
14, 2024 |
Harlan
Weisman, M.D. |
|
Chief
Executive Officer
and Director
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/
Kirk Coleman |
|
Chief
Financial Officer, |
|
June
14, 2024 |
Kirk
Coleman |
|
(Principal
Financial and
Accounting Officer) |
|
|
|
|
|
|
|
/s/
Brandi Roberts |
|
|
|
|
Robert
Roberts |
|
Director |
|
June
14, 2024 |
|
|
|
|
|
/s/
Robert S. Mills, Jr. |
|
|
|
|
Robert
S. Mills, Jr. |
|
Director |
|
June
14, 2024 |
|
|
|
|
|
/s/
Stephen Rocamboli |
|
|
|
|
Stephen
Rocamboli |
|
Director |
|
June
14, 2024 |
|
|
|
|
|
/s/
Catherine Lee |
|
|
|
|
Catherine
Lee |
|
Director |
|
June
14, 2024 |
|
|
|
|
|
/s/
Michael Patane |
|
|
|
|
Michael
Patane |
|
Director |
|
June
14, 2024 |
|
|
|
|
|
/s/
Thomas B. King |
|
|
|
|
Thomas
B. King |
|
Director |
|
June
14, 2024 |
II-3
Exhibit
5.1
GREENBERG
TRAURIG, LLP
18565
Jamboree Road, Suite 500
Irvine,
CA 92612
June
14, 2024
TFF
Pharmaceuticals, Inc.
1751
River Run, Suite 400
Fort Worth, Texas 76107
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 500,000 shares (the “Shares”)
of common stock, $0.001 par value per share (the “Common Stock”), of the Company issuable under the Company’s 2021
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 28, 2024, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect
to our audits of the consolidated financial statements of TFF Pharmaceuticals, Inc. as of December 31, 2023 and 2022 and for each of
the two years in the period ended December 31, 2023, appearing in the Annual Report on Form 10-K of TFF Pharmaceuticals, Inc. for the
year ended December 31, 2023.
/s/
Marcum llp
Marcum llp
New
York, NY
June
14, 2024
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-8
(Form Type)
TFF
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 Registered (a) | | |
Proposed Maximum Offering Price Per Unit (b) | | |
Maximum Aggregate Offering Price (b) | | |
Fee Rate | | |
Amount of Registration Fee | |
Fees to Be Paid | |
Equity | |
Common stock | |
| 457(h)(1) | | |
| 500,000 | | |
$ | 1.8415 | | |
$ | 920,750 | | |
| .0001476 | | |
$ | 135.91 | |
| |
Total Offering Amounts | | |
| | | |
| | | |
$ | 135.91 | |
| |
Total Fee Offsets | | |
| | | |
| | | |
| -- | |
| |
Net Fee Due | | |
| | | |
| | | |
$ | 135.91 | |
(a) | In
accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement
shall be deemed to cover an indeterminate number of additional shares of Common Stock to be offered or issued from stock splits, stock
dividends or similar transactions. |
(b) | Estimated
solely for the purpose of calculating the amount of the registration fee and calculated pursuant to Rule 457(h)(1) under the Securities
Act. |
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