10-K/A
Pulmatrix, Inc. (PULM)
UNITEDSTATES
SECURITIESAND EXCHANGE COMMISSION
Washington,D.C. 20549
FORM10-K/A
AmendmentNo. 2
(MarkOne)
| [X] | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|---|
Forthe fiscal year ended December 31, 2020
or
| [ ] | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
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Forthe transition period from __________to _____________
Commissionfile number: 001-36199
PULMATRIX,INC.
(Exactname of registrant as specified in its charter)
| Delaware | 46-1821392 |
|---|---|
| (State or other jurisdiction of<br><br> <br>incorporation or organization) | (I.R.S. Employer<br><br> <br>Identification No.) |
| 99 Hayden Avenue, Suite 390 | |
| --- | --- |
| Lexington, MA | 02421 |
| (Address of principal executive offices) | (Zip Code) |
Registrant’stelephone number, including area code (781) 357-2333
Securitiesregistered pursuant to Section 12(b) of the Exchange Act:
| Title of each class | Name of each exchange on which registered |
|---|---|
| Common Stock, par value $0.0001 per share | The NASDAQ Stock Market LLC |
Securitiesregistered pursuant to Section 12(g) of the Exchange Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes [ ] No [X]
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes [X] No [ ]
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<br> accelerated filer | [ ] | Accelerated<br> filer | [ ] |
|---|---|---|---|
| Non-accelerated<br> filer | [X] | Smaller<br> reporting company | [X] |
| Emerging<br> 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 13(a) of the Exchange Act [ ]
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [X]
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. Yes [ ] No [X]
The aggregate market value of the registrant’s voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, as of June 30, 2020, the last business day of registrants most recently completed second fiscal quarter, was $43,642,977.
As of March 19, 2021, the registrant had 56,249,062 shares of common stock outstanding.
DOCUMENTSINCORPORATED BY REFERENCE
Specified portions of Pulmatrix, Inc.’s Definitive Proxy Statement on Schedule 14A relating to the 2021 Annual Meeting of Stockholders are incorporated by reference into PART III.
EXPLANATORYNOTE
Pulmatrix, Inc. (the “Company”) is filing this Amendment No. 2 on Form 10-K/A (the “Amendment”) to its annual report on Form 10-K for the fiscal year ended December 31, 2020, which was originally filed with the Securities and Exchange Commission (the “Commission”) on March 23, 2021 (the “Original 10-K”) and amended by Amendment No. 1 to the Original 10-K filed with the Commission on March 26, 2021 (“Amendment No. 1”).
The purpose of the Amendment is to file Exhibit 4.19, which was inadvertently omitted from the Original 10-K. Except as otherwise expressly noted herein, this Amendment does not amend or otherwise update any other information in our Original 10-K, as amended by Amendment No. 1. Accordingly, this Amendment should be read in conjunction with our Original 10-K and Amendment No. 1.
PARTIV
| ITEM 15. | EXHIBITS, FINANCIAL STATEMENT SCHEDULES. |
|---|---|
| (a) | The<br> following documents are filed as part of this Annual Report on Form 10-K: |
| --- | --- |
| (1) | Financial<br> Statements: |
| --- | --- |
No financial statements are filed with this Amendment No. 2. These items were included as part of the Original 10-K.
| (2) | Financial<br> Statement Schedules: |
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None. Financial statement schedules have not been included because they are not applicable or the information is included in the financial statements or notes thereto.
| (3) | Exhibits: |
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See “Index to Exhibits” for a description of our exhibits.
| Item 16. | FORM 10-K SUMMARY |
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Not applicable.
INDEXTO EXHIBITS
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized**.**
| PULMATRIX, INC. | ||
|---|---|---|
| Date:<br> May 14, 2021 | By: | /s/ Teofilo Raad |
| Teofilo<br> Raad | ||
| Chief<br> Executive Officer, President and Director<br><br> <br>(Principal<br> Executive Officer) | ||
| By: | /s/ Michelle S. Siegert | |
| --- | --- | |
| Michelle<br> S. Siegert | ||
| VP,<br> Finance, Treasurer and Secretary<br><br> <br>(Principal<br> Financial Officer and Principal Accounting Officer) |
Exhibit4.19
DESCRIPTION OF SECURITIES
The following description is intended as a summary and is qualified in its entirety by reference to our Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”) and our Restated Bylaws, as amended (the “By-laws”) as currently in effect, copies of which are filed as exhibits to this Amendment No. 2 to the Annual Report on Form 10-K and are incorporated by reference herein.
AuthorizedCapital Stock
As of December 31, 2020, we have authorized 200,500,000 shares of capital stock, par value $0.0001 per share, of which 200,000,000 are shares of common stock and 500,000 are shares of “blank check” preferred stock. As of December 31, 2020, there were 36,105,097 shares of common stock issued and outstanding and no shares of preferred stock issued and outstanding. The authorized and unissued shares of common stock and the authorized and undesignated shares of preferred stock are available for issuance without further action by our stockholders, unless such action is required by applicable law or the rules of any stock exchange on which our securities may be listed. Unless approval of our stockholders is so required, our board of directors does not intend to seek stockholder approval for the issuance and sale of our common stock or preferred stock.
CommonStock
The holders of our common stock are entitled to one vote per share. Our certificate of incorporation does not provide for cumulative voting. Our directors are divided into three classes. At each annual meeting of stockholders, directors elected to succeed those directors whose terms expire are elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. The holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared by our board of directors out of legally available funds; however, the current policy of our board of directors is to retain earnings, if any, for operations and growth. Upon liquidation, dissolution or winding-up, the holders of our common stock are entitled to share ratably in all assets that are legally available for distribution. The holders of our common stock have no preemptive, subscription, redemption or conversion rights. The rights, preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of any series of preferred stock, which may be designated solely by action of our board of directors and issued in the future.
Anti-TakeoverLaw and Provisions of our Certificate of Incorporation and By-laws
Section 203 of the Delaware General Corporation Law, in general, prohibits a business combination between a corporation and an interested stockholder within three years of the time such stockholder became an interested stockholder, unless:
| ● | prior<br> to such time the board of directors of the corporation approved either the business combination or the transaction that resulted<br> in the stockholder becoming an interested stockholder; |
|---|---|
| ● | upon<br> consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder<br> owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, exclusive of<br> shares owned by directors who are also officers and by certain employee stock plans; or |
| --- | --- |
| ● | at<br> or subsequent to such time, the business combination is approved by the board of directors and authorized by the affirmative<br> vote at a stockholders’ meeting of at least 66 2/3% of the outstanding voting stock that is not owned by the interested<br> stockholder. |
| --- | --- |
The term “business combination” is defined to include, among other transactions between an interested stockholder and a corporation or any direct or indirect majority owned subsidiary thereof: a merger or consolidation; a sale, lease, exchange, mortgage, pledge, transfer or other disposition (including as part of a dissolution) of assets having an aggregate market value equal to 10% or more of either the aggregate market value of all assets of the corporation on a consolidated basis or the aggregate market value of all the outstanding stock of the corporation; certain transactions that would result in the issuance or transfer by the corporation of any of its stock to the interested stockholder; certain transactions that would increase the interested stockholder’s proportionate share ownership of the stock of any class or series of the corporation or such subsidiary; and any receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation or any such subsidiary.
In general, Section 203 defines an “interested stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with, or controlling, or controlled by, the entity or person. The term “owner” is broadly defined to include any person that individually, with or through that person’s affiliates or associates, among other things, beneficially owns the stock, or has the right to acquire the stock, whether or not the right is immediately exercisable, under any agreement or understanding or upon the exercise of warrants or options or otherwise or has the right to vote the stock under any agreement or understanding, or has an agreement or understanding with the beneficial owner of the stock for the purpose of acquiring, holding, voting or disposing of the stock.
The restrictions in Section 203 do not apply to corporations that have elected, in the manner provided in Section 203, not to be subject to Section 203 of the Delaware General Corporation Law or, with certain exceptions, which do not have a class of voting stock that is listed on a national securities exchange or held of record by more than 2,000 stockholders. Our Amended and Restated Certificate of Incorporation and By-laws do not opt out of Section 203.
Section 203 could delay or prohibit mergers or other takeover or change in control attempts with respect to us and, accordingly, may discourage attempts to acquire us even though such a transaction may offer our stockholders the opportunity to sell their stock at a price above the prevailing market price.
Provisions of our Certificate of Incorporation and By-laws may delay or discourage transactions involving an actual or potential change in our control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock. Among other things, our Certificate of Incorporation and By-laws:
| ● | permits<br> our board of directors to issue up to 500,000 shares of preferred stock, without further action by the stockholders, with<br> any rights, preferences and privileges as they may designate, including the right to approve an acquisition or other change<br> in control; |
|---|---|
| ● | provide<br> that all vacancies, including newly created directorships, may, except as otherwise required by law, be filled by the affirmative<br> vote of a majority of directors in office; |
| ● | divide<br> our board of directors into three classes, with each class serving staggered three-year terms; |
| ● | do<br> not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled<br> to vote in any election of directors to elect all of the directors standing for election, if they should so choose); |
| ● | provide<br> that special meetings of our stockholders may be called only by our board of directors, chairman or chief executive officer;<br> and |
| ● | provide<br> advance notice provisions with which a stockholder who wishes to nominate a director or propose other business to be considered<br> at a stockholder meeting must comply. |
TransferAgent and Listing Information
The transfer agent and registrar for our common stock is Vstock Transfer, LLC. The transfer agent’s address is 18 Lafayette Place, Woodmere, NY 11598. Our common stock is listed on the Nasdaq Capital Market under the symbol “PULM.”
Exhibit 31.1
CERTIFICATION PURSUANT TO
SECURITIES EXCHANGE ACT RULES 13a-14 and15d-14
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF2002
I, Teofilo Raad, President and Chief Executive Officer, certify that:
I have reviewed this Amendment No. 2 to the report on Form 10-K of Pulmatrix, Inc.; and
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.
| Date: May 14, 2021 |
|---|
| /s/ Teofilo Raad |
| Teofilo Raad |
| President & Chief Executive Officer |
| (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION PURSUANT TO
SECURITIES EXCHANGE ACT RULES 13a-14 and15d-14
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF2002
I, Michelle S. Siegert., Vice President of Finance, certify that:
I have reviewed this Amendment No. 2 to the report on Form 10-K of Pulmatrix, Inc.; and
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.
| Date: May 14, 2021 |
|---|
| /s/ Michelle S. Siegert |
| Michelle S. Siegert |
| Vice President of Finance |
| (Principal Financial Officer) |