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
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; |
| (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.
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.
| Exhibit No. |
Description of Exhibits |
| |
(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. |
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 |
POWER
OF ATTORNEY
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 |
|
|
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.
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