As filed with the Securities and Exchange Commission on December 4, 2023
Registration No. ______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Azitra, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 46-4478536 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
21 Business Park Drive Branford, CT |
06405 | |
| (Address of Principal Executive Offices) | (Zip Code) |
2016 Stock Incentive Plan
2023 Stock Incentive Plan
(Full title of the plan)
Daniel K. Donahue
Greenberg Traurig, LLP
18565 Jamboree Road, Suite 500
Irvine, California 92612
(949) 732-6500
(Name and address of agent for service)
(949) 732-6500
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filter, an accelerated filer, a non-accelerated filer, or a smaller reporting 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 ☒ | |
| (Do not check if a 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 or accounting standards pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
| Item 1. | Plan Information |
Azitra, Inc. (the “Company”) has adopted its 2016 Stock Incentive Plan (“(2016 Plan”) and its 2023 Stock Incentive Plan (“2023 Plan” and with the 2016 Plan, the “Plans”). The maximum number of shares of common stock of the Company that are available for issuance under the 2016 Plan is 1,490,600 shares and the maximum number of shares of common stock of the Company that are available for issuance under the 2023 Plan is 2,000,000 shares. This Registration Statement on Form S-8 is filed with the Securities and Exchange Commission (“Commission”) for the purposes of registering the 3,490,600 shares of the Company’s common stock issuable under the Plans.
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plans 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 Azitra, Inc. at 21 Business Park Drive, Branford, CT 06405 or to the email address at investor@azitra.com.
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 prospectus filed on June 21, 2023 pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form S-1 (File No. 333-269876), which contains audited financial statements for the Company’s latest fiscal year for which such statements have been filed; |
| (b) | Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, which was filed on August 14, 2023; |
| (c) | Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2023, which was filed on November 14, 2023; |
| (d) | Our Current Reports on Form 8-K, which were filed on June 21, 2023, July 7, 2023 and July 11, 2023; |
| (e) | The description of the Company’s common stock in its Form 8-A12B, which was filed on May 16, 2023, and any amendments or reports filed for the purpose of updating this description; and |
| (f) | 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 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 Amended and Restated Certificate of Incorporation of Azitra, 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.
Our 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.
Our Amended and Restated Certificate of Incorporation requires us, to the fullest extent permitted by applicable law, to provide indemnification of (and advancement of expenses to) our directors and officers, and authorizes us, to the fullest extent permitted by applicable law, to provide indemnification of (and advancement of expenses to) to other employees and agents (and any other persons to which the DGCL permits us to provide indemnification) through bylaw provisions, agreements with such directors, officers, employees, agents or other persons, vote of stockholders or disinterested directors or otherwise, subject only to limits created by the DGCL with respect to actions for breach of duty to our corporation, our stockholders and others.
| 2 |
Our 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 of the Company. We may maintain insurance, at our expense, to protect the Company and any of our directors, officers, employees or agents against any such expense, liability or loss, whether or not we have the power to indemnify such person.
We have entered into indemnification agreements with each of our directors and executive officers that are broader than the specific indemnification provisions contained in the DGCL. These indemnification agreements require us, among other things, to indemnify our directors and executive officers against liabilities that may arise by reason of their status or service. These indemnification agreements also require us to advance all expenses incurred by the directors and executive officers in investigating or defending any such action, suit, or proceeding. We believe that these agreements are necessary to attract and retain qualified individuals to serve as directors and executive officers.
We maintain insurance, at our expense, to protect the Company and any of our directors, officers, employees or agents against any such expense, liability or loss, whether or not we have the power to indemnify such person.
Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to the our directors, officers or persons controlling our Company 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.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
| Item 8. | Exhibits. |
| Exhibit No. | Description of Exhibits |
Exhibit No. |
Description |
Method of Filing | ||
| 5.1 | Opinion and Consent of Greenberg Traurig, LLP | Filed electronically herewith | ||
| 23.1 | Consent of Grassi & Co., CPAs, P.C. | 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 | ||
| 99.1 | Azitra, Inc. 2016 Stock Incentive Plan | Incorporated by reference from the Company’s Registration Statement on Form S-1 filed on February 21, 2023 | ||
| 99.2 | Azitra, Inc. 2023 Stock Incentive Plan | Incorporated by reference from the Company’s Registration Statement on Form S-1/A filed on March 20, 2023 | ||
| 107 | Filing Fee Table | Filed electronically herewith |
| 3 |
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. |
| (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. |
| 4 |
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 Branford, State of Connecticut on December 4, 2023.
| AZITRA, INC. | ||
| By: | /s/ Francisco D. Salva | |
| Francisco D. Salva, | ||
| Chief Executive Officer | ||
Each person whose signature appears below hereby constitutes and appoints Francisco D. Salva and Norman Staskey, 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 December 4, 2023 by the following persons in the capacities indicated.
| Signature | Title | |
| /s/ Francisco D. Salva | President, Chief Executive Officer and Director | |
| Francisco D. Salva | (Principal Executive Officer) | |
| /s/ Norman Staskey | Chief Financial Officer | |
| Norman Staskey | (Principal Financial and Accounting Officer) | |
| /s/ Travis Whitfill | Chief Operating Officer and Director | |
| Travis Whitfill | ||
| /s/ Andrew McClary | Director | |
| Andrew McClary | ||
| /s/ Barbara Ryan | Director | |
| Barbara Ryan | ||
| /s/ John Schroer | Director | |
| John Schroer |
| 5 |
Exhibit 5.1
GREENBERG TRAURIG, LLP
18565 Jamboree Road, Suite 500
Irvine, California 92612
December 4, 2023
Azitra, Inc.
21 Business Park Drive
Branford, CT 06405
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to Azitra, 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 3,490,600 shares (the “Shares”) of common stock, $0.0001 par value per share (the “Common Stock”), of the Company issuable under the Company’s 2016 Stock Incentive Plan and 2023 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 hereby consent to the inclusion in this Registration Statement on Form S-8 of our report dated February 20, 2023, except for Notes 9, 10, 11, 14, and 19, as to which the date is June 13, 2023, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, relating to the financial statements of Azitra, Inc. as of and for the years ended December 31, 2022 and 2021.
/s/ Grassi & Co., CPAs, P.C.
Grassi & Co., CPAs, P.C.
Jericho, New York
December 4, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Azitra, 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) | 3,490,600 | $ | 1.10 | $ | 3,839,660 | $147.60 per $1,000,000 | $ | 566.74 | ||||||||||||||
| Total Offering Amounts | $ | 566.74 | ||||||||||||||||||||||||
| Total Fee Offsets | — | |||||||||||||||||||||||||
| Net Fee Due | $ | 566.74 | ||||||||||||||||||||||||
(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.