As filed with the Securities and Exchange Commission on December
10, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
DERMATA THERAPEUTICS, INC.
(Exact name of
registrant as specified in its charter)
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Delaware
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86-3218736
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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3525 Del Mar Heights Rd., #322
San Diego, CA 92130
(Address of Principal Executive Offices) (Zip
Code)
Dermata Therapeutics, Inc. 2021 Omnibus Equity Incentive
Plan
(Full title of the plans)
Gerald T. Proehl
Chief Executive Officer
3525 Del Mar Heights Rd., #322
San Diego, CA 92130
Tel: (858) 800-2543
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Please send copies of all communications to:
Steven M. Skolnick, Esq.
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, New York 10020
Tel: (212) 262-6700
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:
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Large
accelerated filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[X]
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Smaller
reporting company
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[X]
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Emerging
growth company
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[X]
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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.
[X]
CALCULATION OF REGISTRATION FEE
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Title
of Securities
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Amount
To Be Registered (1)
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Proposed Maximum Offering Price Per Share
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Proposed Maximum Aggregate Offering Price
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Common stock, $0.0001
par value per share:
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- Reserved for
issuance pursuant to outstanding awards under the Dermata
Therapeutics, Inc. 2021 Omnibus Equity Incentive
Plan
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523,199 shares
(2)
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$5.84(3)
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$3,055,482.16
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$283.24
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- Reserved for
issuance under the Dermata Therapeutics, Inc. 2021 Omnibus Equity
Incentive Plan
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1,125,014 shares
(4)
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$2.15(5)
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$2,418,780.10
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$224.22
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TOTAL
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1,648,213
shares
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$5,474,262.26
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$507.46
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(1)
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Covers
1,648,213 shares of common stock issuable under the Dermata
Therapeutics, Inc. 2021 Omnibus Equity Incentive Plan (the
“2021 Plan”). In addition, pursuant to Rule 416(c)
under the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to
the employee benefit plan(s) described herein, as these amounts may
be adjusted as a result of stock splits, stock dividends,
antidilution provisions, and similar transactions.
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(2)
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Represents
523,199 shares of the Registrant’s common stock reserved for
issuance pursuant to options outstanding under the Dermata
Therapeutics, Inc. 2021 Omnibus Equity Incentive Plan (the
“2021 Plan”).
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(3)
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Estimated
in accordance with Rule 457(h) under the Securities Act
(“Rule 457(h)”) solely for the purpose of calculating
the registration fee. The price of $5.84 represents the weighted
average exercise price for outstanding options under the 2021 Plan
as of the date of this Registration Statement.
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(4)
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Represents
1,125,014 shares of the Registrant’s common stock reserved
for issuance pursuant to future equity awards under the 2021 Plan
as of the date of this Registration Statement.
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(5)
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Estimated
pursuant to Rule 457(c) and 457(h) of the Securities Act solely for
purposes of calculating the registration fee. The price per share
is based upon the average of the high and low prices of the common
stock on December 6, 2021, as reported by the NASDAQ Capital
Market.
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PART I
Information Required in the Section 10(a) Prospectus
Item 1. Plan
Information.
The
information called for by Part I of Form S-8 is omitted from this
Registration Statement on Form S-8 (the “Registration
Statement”) and has been or will be sent or given to
participating service providers in accordance with Rule 428 of the
Securities Act of 1933, as amended (the “Securities
Act”), and the instructions to Form S-8. In accordance
with the rules and regulations of the Securities and Exchange
Commission (the “Commission”)
and the instructions to Form S-8, such documents are not being
filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act.
Item 2. Registrant
Information and Employee Plan Annual
Information.
Dermata
Therapeutics, Inc. (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 into this
Registration Statement pursuant to Item 3 of Part II hereof, other
than exhibits to such documents (unless such exhibits are
specifically incorporated by reference in such documents that are
incorporated), and the other documents required to be delivered to
eligible participants in the Plan pursuant to Rule 428(b) under the
Securities Act. Those documents are incorporated by reference in
the Section 10(a) prospectus. Requests should be directed
to:
Dermata
Therapeutics, Inc.
Attn:
Corporate Secretary
3525
Del Mar Heights Rd., #322
San
Diego, CA 92130
Tel:
(858) 800-2543
PART II
Information Required in the Registration Statement
Item 3. Incorporation of
Documents by Reference.
The
following documents filed by the Company with the Commission
pursuant to the Securities Act and the Securities Exchange Act of
1934, as amended (the “Exchange
Act”), are incorporated herein by
reference:
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(a)
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the
Company’s quarterly reports on Form 10-Q filed pursuant to
Section 13(a) or 15(d) of the Exchange Act for the fiscal periods
ended June 30, 2021 and September 30, 2021, as filed with the
Commission on September 27, 2021 and November 15, 2021,
respectively;
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(b)
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the
Company’s current reports on Form 8-K filed with the
Commission on September 1, 2021, September 27, 2021, November 15,
2021, November 19, 2021, and December 10,
2021 (other than any portions thereof deemed furnished and
not filed);
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(c)
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the
Company's prospectus filed on August 16, 2021 pursuant to Rule
424(b) under the Securities Act relating to the Registration
Statement on Form S-1, as amended (Registration No. 333-256997),
which contains audited financial statements for the Company’s
latest fiscal year for which such statements have been filed;
and
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(d)
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the
description of the Company’s common stock contained in the
Company’s Registration Statement
on Form 8-A (Registration No. 001-40739) filed
with the Commission on August 11, 2021 under Section 12(b) of
the Exchange Act, including any amendments or reports filed for the
purpose of updating such description.
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All
documents filed by the Company pursuant to Section 13(a), 13(c),
14, or 15(d) of the Exchange Act subsequent to the filing of this
Registration Statement and prior to the filing of a post-effective
amendment, which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of
filing such documents, except as to specific sections of such
documents as set forth therein. Any statement contained in a
document 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 in any subsequently filed document, which also is deemed
to be incorporated by reference herein, modifies or supersedes such
statement.
Item 4. Description of
Securities.
Not
applicable.
Item 5. Interests of Named
Experts and Counsel.
Not
applicable.
Item 6. Indemnification of
Directors and Officers.
Section
145 of the Delaware General Corporation Law (the
“DGCL”) provides, in general, that a corporation
incorporated under the laws of the State of Delaware, as the
Company is, may 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 (other than a derivative
action by or in the right of the corporation) by reason of the fact
that such 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
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a
manner such 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
such person’s conduct was unlawful. In the case of a
derivative action, a Delaware corporation may indemnify any such
person against expenses (including attorneys’ fees) actually
and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted
in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the corporation, except
that no indemnification will be made in respect of any claim, issue
or matter as to which such person will have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or any other court in
which such action was brought determines such person is fairly and
reasonably entitled to indemnity for such expenses.
As
permitted by the DGCL, the Company’s certificate of
incorporation contains provisions that eliminate the personal
liability of its directors for monetary damages for any breach of
fiduciary duties as a director, except liability for the
following:
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any breach of the
director’s duty of loyalty to the Company or its
stockholders;
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acts or omissions
not in good faith or that involve intentional misconduct or a
knowing violation of law;
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under Section 174
of the DGCL (regarding unlawful dividends and stock purchases);
or
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any transaction
from which the director derived an improper personal
benefit.
As
permitted by the DGCL, the Company’s certificate of
incorporation provides that the Company is required to indemnify
each person that it has the power to indemnify to the fullest
extent permitted by Section 145 of the DGCL.
The
Company maintains a general liability insurance policy that covers
certain liabilities of directors and officers of the Company
arising out of claims based on acts or omissions in their
capacities as directors or officers.
The
Company has entered into indemnification agreements with all its
directors and named executive officers whereby the Company has
agreed to indemnify those directors and officers to the fullest
extent permitted by law, including indemnification against expenses
and liabilities incurred in legal proceedings to which the director
or officer was, or is threatened to be made, a party by reason of
the fact that such director or officer is or was a director,
officer, employee or agent of the Company, provided that such
director or officer acted in good faith and in a manner that the
director or officer reasonably believed to be in, or not opposed
to, the best interests of the Company.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to the Company’s directors, officers and
controlling persons pursuant to the foregoing provisions, or
otherwise, the Company has been advised 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.
For a
list of exhibits, see the Exhibit Index in this Registration
Statement, which is incorporated into this Item by
reference.
Item 9. Undertakings.
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(a)
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The
undersigned Registrant hereby undertakes:
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(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;
(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) 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; and
(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) of this section shall not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m
or 78o(d)) that are incorporated by reference in the registration
statement.
(2) That, for
the purpose of determining any liability under the Securities Act
of 1933, 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 of 1933, each
filing of the registrant’s annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) 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 of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer,
or controlling person of 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 Act and will be governed by the final adjudication of such
issue.
EXHIBIT INDEX
INDEX
TO EXHIBITS
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Exhibit No.
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Description
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Form of Amended and Restated
Certificate of Incorporation of Dermata Therapeutics, Inc.,
incorporated by reference to Exhibit 3.2 to the Company’s
Registration Statement on Form S-1/A (File No. 333-256997), filed
with the Commission on August 6, 2021).
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Form of Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.4 to the Company’s Registration Statement on Form
S-1/A (File No. 333-256997), filed with the Commission on August 6,
2021).
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Specimen Stock Certificate (incorporated by reference to Exhibit
4.1 to the Company’s Registration Statement on Form S-1/A
(File No. 333-256997), filed with the Commission on August 6,
2021).
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Dermata Therapeutics, Inc. 2021 Omnibus Equity Incentive Plan
(incorporated by reference to Exhibit 10.2 to the Company’s
Registration Statement on Form S-1/A (File No. 333-256997), filed
with the Commission on August 6, 2021).
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Amendment No. 1 to the Dermata Therapeutics, Inc. 2021 Omnibus
Equity Incentive Plan (incorporated by reference to Exhibit 10.15
to the Company’s Registration Statement on Form S-1/A (File
No. 333-256997), filed with the Commission on August 6,
2021).
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Form of Nonqualified Stock Option Award (incorporated by reference
to Exhibit 10.3 to the Company’s Registration Statement on
Form S-1/A (File No. 333-256997), filed with the Commission on
August 6, 2021).
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Form of Incentive Stock Option Award (incorporated by reference to
Exhibit 10.4 to the Company’s Registration Statement on Form
S-1/A (File No. 333-256997), filed with the Commission on August 6,
2021).
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Legal opinion Lowenstein Sandler LLP.*
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Consent of Mayer Hoffman McCann, P.C., Independent Registered
Public Accounting Firm.*
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Consent of Lowenstein Sandler LLP (included in Exhibit
5.1).*
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Power of Attorney (included on the signature page).*
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* Filed
herewith.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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 San Diego,
California, on December 10, 2021.
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DERMATA
THERAPEUTICS, INC.
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By:
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/s/ Gerald T. Proehl
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Gerald
T. Proehl
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Chief
Executive Officer
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POWER OF ATTORNEY AND
SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Gerald T. Proehl
and Kyri K. Van Hoose, and each of them, each with full power to
act without the other, his true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all
capacities, to sign any amendments to this registration statement,
and to sign any registration statement for the same offering
covered by this registration statement, including post-effective
amendments or registration statements filed pursuant to Rule 462(b)
under the Securities Act of 1933, and to file the same, with all
exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and
confirming that each of said such attorneys-in-fact and agents or
his substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons on
behalf of the registrant in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Gerald T. Proehl
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Chief
Executive Officer (Principal Executive Officer) and
Chairman
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December
10, 2021
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Gerald
T. Proehl
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/s/
Kyri K. Van Hoose
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Chief
Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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December
10, 2021
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Kyri K.
Van Hoose
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/s/
David Hale
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Lead
Director
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December
10, 2021
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David
Hale
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/s/
Wendell Wierenga
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Director
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December
10, 2021
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Wendell
Wierenga, Ph.D.
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/s/
Mary Fisher
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Director
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December
10, 2021
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Mary
Fisher
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/s/
Andrew Sandler, M.D.
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Director
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December
10, 2021
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Andrew
Sandler, M.D.
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/s/
Steven J. Mento, Ph.D.
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Director
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December
10, 2021
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Steven
J. Mento, Ph.D.
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/s/
Kathleen Scott
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Director
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December
10, 2021
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Kathleen
Scott
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