Form S-8 - Securities to be offered to employees in employee benefit plans

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

ARMATA PHARMACEUTICALS, INC.

(Exact name of registrant as specified in its charter)

Washington

91-1549568

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

5005 McConnell Avenue

Los Angeles, CA 90066

(Address of Principal Executive Offices) (Zip Code)

Armata Pharmaceuticals, Inc. 2016 Equity Incentive Plan

Armata Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan

(Full titles of the plans)

Armata Pharmaceuticals, Inc.

5005 McConnell Avenue

Los Angeles, CA 90066

(Name and address of agent for service)

(310) 655-2928

(Telephone number, including area code, of agent for service)

Copies to:

Deborah L. Birx

Armata Pharmaceuticals, Inc.

5005 McConnell Avenue

Los Angeles, CA 90066

(310) 655-2928

Jared Fertman

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019-6099

(212) 728-8000

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	x	Smaller reporting company	x
		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
REGISTRATION OF ADDITIONAL SHARES
PURSUANT TO GENERAL INSTRUCTION E

Pursuant to General Instruction E to Form S-8, this Registration Statement on Form S-8 (this “Registration Statement”) is filed by Armata Pharmaceuticals, Inc. (the “Registrant”) to register an additional 1,809,470 shares of the Registrant’s common stock, par value $0.01 per share (“Common Stock”), issuable under the Armata Pharmaceuticals, Inc. 2016 Equity Incentive Plan (the “Armata 2016 Plan”) or the Armata Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan (the “Armata 2016 ESPP”). Such shares consist of the following:

(i) 1,807,328 shares of Common Stock that were automatically added to the shares authorized for issuance under the Armata 2016 Plan on January 1, 2024, pursuant to an “evergreen” provision contained in the Armata 2016 Plan. Pursuant to such “evergreen” provision, on January 1st of each calendar year, from January 1, 2017 through and including January 1, 2026, the number of shares authorized for issuance under the Armata 2016 Plan is automatically increased by: (a) a number equal to 5% of the total number of shares of the Registrant’s capital stock outstanding on December 31st of the preceding calendar year, or (b) a lesser number of shares determined by the Registrant’s board of directors (the “Board”); and

(i) 2,142 shares of Common Stock that were automatically added to the shares authorized for issuance under the Armata 2016 ESPP on January 1, 2024, pursuant to an “evergreen” provision contained in the Armata 2016 ESPP. Pursuant to such provision, on January 1st of each calendar year, from January 1, 2017 through and including January 1, 2026, the number of shares authorized for issuance under the Armata 2016 ESPP is automatically increased by a number equal to the least of: (a) 1% of the total number of shares of the Registrant’s capital stock outstanding on December 31st of the preceding calendar year; (b) 2,142 shares; or (c) a number determined by the Board that is less than (a) and (b).

This Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statement on Form S-8 filed with the Commission on November 15, 2023 (File No. 333-275580), June 22, 2016 (File No. 333-212183), May 1, 2017 (File No. 333-217563), November 14, 2017 (File No. 333-221564), March 28, 2018 (File No. 333-223987), and June 10, 2019 (File No. 333-232058), respectively (the “Prior Registration Statements”), in each case, to the extent not superseded hereby. The additional shares of Common Stock being registered by this Registration Statement are of the same class as those securities registered on the Prior Registration Statements.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

All information required by Part I to be contained in the prospectus is omitted from this Registration Statement in accordance with Section 428 of the Securities Act of 1933, as amended (the “Securities Act”) and the instructions to Form S-8 and instead will be delivered, pursuant to Rule 428 under the Securities Act, to each participant in the Armata 2016 Plan and the Armata 2016 ESPP, as applicable.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.

Incorporation of Documents By Reference

This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which Registration Statements of the Registrant on Form S-8 relating to the same employee benefit plan are effective. Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.

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The following documents, which we have filed with the Securities and Exchange Commission (the “Commission”), are incorporated by reference in this registration statement:

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March 16, 2023;

The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, filed with the Commission on May 11, 2023, August 14, 2023 and November 14, 2023;

The Registrant’s Preliminary Proxy Statement on Schedule 14A, filed with the Commission on July 24, 2023 (as amended and supplemented);

The Registrant’s Current Reports on Form 8-K, filed with the Commission on January 10, 2023, May 5, 2023, July 11, 2023, July 19, 2023 and September 20, 2023; and

The description of our common stock contained in our registration statement on Form 8-A, filed with the Commission on August 18, 2015, including all amendments and reports filed for the purpose of updating such description.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment that indicates that all shares of common stock offered hereby have been sold or which deregisters all shares of common stock then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this registration statement.

Any statement contained herein or in a document, all or a portion of which is 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 herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this registration statement.

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Item 8.

Exhibits.

The following exhibits are filed herewith:

Exhibit
Number			Exhibit Description
4.1			Articles of Amendment to Articles of Incorporation of the Company (effective March 26, 2020) (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on March 30, 2020).
4.2			Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.5 to the Company’s Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2019).
4.3			Amendment to Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed with the SEC on December 11, 2019).
4.4			Amendment to Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on February 26, 2020).
5.1			Opinion of Counsel
23.1			Consent of Independent Registered Public Accounting Firm
23.2			Consent of Counsel (included in Exhibit 5.1 to this Registration Stated and filed herewith)
24.1			Power of Attorney (included on the signature pages of this Registration Statement)
99.1			Armata Pharmaceuticals, Inc. 2016 Equity Incentive Plan, as amended (incorporated by reference to Exhibit 99.1 to the registrant’s Registration Statement on Form S-8, filed with the SEC on June 10, 2019).
99.2			Armata Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan (incorporated herein by reference to Exhibit 10.10 to the Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2019).
107			Filing Fee Table

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SIGNATURES

Pursuant to the requirements of the Securities Act, 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 the City of Los Angeles, State of California on January 23, 2024.

	Armata Pharmaceuticals, Inc.


	By:	/s/ Deborah L. Birx
		Deborah L. Birx
		Chief Executive Officer

POWER OF ATTORNEY

Know All Persons By These Presents, that each person whose signature appears below constitutes and appoints each of Deborah L. Birx and Richard Rychlik as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all 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 attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

SIGNATURE	TITLE	DATE

/s/ Deborah L. Birx	Chief Executive Officer and a Director	January 23, 2024
Deborah L. Birx	(Principal Executive Officer)

/s/ Richard Rychlik	Corporate Controller	January 23, 2024
Richard Rychlik	(Principal Financial Officer)

/s/ Robin C. Kramer	Chair of the Board of Directors	January 23, 2024
Robin C. Kramer

/s/ Odysseas D. Kostas	Director	January 23, 2024
Odysseas D. Kostas, M.D.

/s/ Jules Haimovitz	Director	January 23, 2024
Jules Haimovitz

/s/ Sarah J. Schlesinger	Director	January 23, 2024
Sarah J. Schlesinger, M.D.

/s/ Joseph M. Patti	Director	January 23, 2024
Joseph M. Patti, Ph.D.

/s/ Todd C. Peterson	Director	January 23, 2024
Todd C. Peterson, Ph.D.

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Exhibit 5.1

January 23, 2024

Armata Pharmaceuticals, Inc.

4503 Glencoe Avenue

Marina del Rey, CA 90292

Ladies and Gentlemen:

We have acted as special counsel to Armata Pharmaceuticals, Inc., a Washington corporation (the “Company”) in connection with its Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”) relating to the proposed offering of up to 1,809,470 shares (“Shares”) of common stock, par value $0.01 per share (“Common Stock”) of the Company, 1,807,328 of which are issuable pursuant to the Company’s 2016 Equity Incentive Plan, as amended (the “Equity Plan”), and 2,142 of which are issuable pursuant to the Company’s 2016 Employee Stock Purchase Plan, as amended (the “ESPP”, and together with the Equity Plan, the “Plans” and each a “Plan”).

For purposes of this opinion letter, we have examined (i) the Company’s Amended and Restated Articles of Incorporation dated May 21, 2009, as amended on February 22, 2011, as amended on June 26, 2013, as corrected on October 23, 2013, as amended on January 5, 2015, as amended August 3, 2015, as amended April 21, 2017, as corrected November 7, 2018, as amended December 17, 2018, as amended May 9, 2019, as amended December 10, 2019, as amended March 31, 2020; (ii) the Company’s Amended and Restated Bylaws dated May 9, 2019, as amended on December 10, 2019, as amended on February 24, 2020; (iii) the Registration Statement and the exhibits thereto; (iv) the Equity Plan; (v) the ESPP; and (vi) such other corporate records, written consents, certificates and other instruments as in our opinion are necessary or appropriate in connection with expressing the opinions set forth below.

In our examination of the aforesaid documents and in rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that: (i) all documents submitted to us as originals are authentic and complete; (ii) all documents submitted to us as copies (including ..pdfs) conform to authentic, complete originals; (iii) all documents filed as exhibits to the Registration Statement that have not been executed will conform to the forms thereof; (iv) all signatures on all documents that we reviewed are genuine; (v) all natural persons executing documents had and have the legal capacity to do so; (vi) all statements in certificates of public officials and the officers of the Company that we reviewed were and are accurate; and (vii) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate. We have also assumed that any certificates or instruments representing the Shares, including the applicable award or purchase agreements, when issued, will be executed by the Company and by officers of the Company duly authorized to do so, and that the terms of the applicable award or purchase agreements will be consistent with the forms of agreement approved by the Board. In rendering our opinion, we have also relied upon a Certificate of Existence dated January 19, 2024, issued by the Washington Secretary of State with respect to the Company and representations and certifications made to us by the Company, including without limitation representations in an Officer’s Certificate addressed to us of even date herewith that, as of the date of this letter, the Company has available a sufficient number of authorized shares of Common Stock that are not currently outstanding or reserved for issuance under any other outstanding securities or plans of the Company, to enable the Company to issue and deliver all of the Shares. This opinion letter is given, and all statements herein are made, in the context of the foregoing.

Based upon, subject to, and limited by the foregoing, we are of the opinion that following (i) the effectiveness of the Registration Statement, (ii) the issuance of Shares pursuant to the terms of the applicable Plan and applicable award or purchase agreement, (iii) receipt by the Company of the consideration for the Shares specified in the applicable Plan and the applicable resolutions of the Board of Directors of the Company (or a duly authorized committee of the Board of Directors of the Company) authorizing the grant and issuance thereof, and (iv) the registration on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, such Shares will be validly issued, fully paid, and nonassessable.

This opinion letter is rendered as of the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events, or developments that hereafter may be brought to our attention and that may alter, affect, or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any matters beyond the matters expressly set forth herein.

This opinion letter is based as to matters of law solely on the Washington Business Corporation Act, as amended. We do not express any opinion herein concerning any law other than the corporate laws of the State of Washington. We assume no obligation to supplement this opinion letter if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof. We express no opinion herein as to any other statutes, rules, or regulations.

We hereby consent to the filing of this opinion letter with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.

	Very truly yours,

	/s/ Lane Powell PC

	Lane Powell PC

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2016 Equity Incentive Plan and 2016 Employee Stock Purchase Plan of Armata Pharmaceuticals, Inc. of our report dated March 16, 2023, with respect to the consolidated financial statements of Armata Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Diego, California

January 23, 2024

Exhibit 107

Calculation of Filing Fee Table

Form S-8

(Form Type)

ARMATA 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 to be registered (1)	Proposed maximum offering price per share(3)	Maximum aggregate offering price(3)	Fee Rate	Amount of registration fee
Equity	Common Stock, par value $0.01 per share	457(c) and 457(h)	1,807,328 (2)	$3.60 (3)	$6,506,380.80	0.00014760	$960.34 (4)
Equity	Common Stock, par value $0.01 per share	457(c) and 457(h)	2,142 (5)	$3.60 (3)	$7,711.20	0.00014760	$1.13 (4)
Total Offering Amount							$961.47
Total Fee Offsets							$0
Net Fees Due							$961.47

	(1)	Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the registrant’s Common Stock, par value $0.01 per share (“Common Stock”) of Armata Pharmaceuticals, Inc. (the “Company”) that become issuable under the Armata Pharmaceuticals, Inc. 2016 Equity Incentive Plan (the “Armata 2016 Plan”) or the Armata Pharmaceuticals, Inc. 2016 Employee Stock Purchase Plan (the “Armata 2016 ESPP”) by reason of any future stock dividend, stock split, recapitalization or other similar adjustments of the outstanding Common Stock.
	(2)	Represents 1,807,328 shares of Common Stock that were automatically added to the shares authorized for issuance under the Armata 2016 Plan on January 1, 2024, pursuant to an “evergreen” provision contained in the Armata 2016 Plan. Pursuant to such “evergreen” provision, on January 1st of each calendar year, from January 1, 2017 through and including January 1, 2026, the number of shares authorized for issuance under the Armata 2016 Plan is automatically increased by: (a) a number equal to 5% of the total number of shares of the Company’s capital stock outstanding on December 31st of the preceding calendar year, or (b) a lesser number of shares determined by the Company’s board of directors (the “Board”).
	(3)	Estimated solely for purposes of calculating the amount of the registration fee, pursuant to Rules 457(c) and 457(h) under the Securities Act, the proposed maximum aggregate offering price is the product obtained by multiplying (i) $3.60 (the average of the high and low prices of the Company’s Common Stock on January 18, 2024, as reported on the NYSE American) by (ii) 1,809,470 (the number of shares of Common Stock issuable in connection with equity awards that may be granted in the future pursuant to the Armata 2016 Plan or the Armata 2016 ESPP).
	(4)	The amount of registration fee is calculated only with respect to the additional shares of Common Stock registered on this Registration Statement. The existing securities issuable under the Armata 2016 Plan and Armata 2016 ESPP were registered, and the correlating registration fee paid, pursuant to the Registration Statements on Form S-8 filed on November 15, 2023 (File No. 333-275580), June 22, 2016 (File No. 333-212183), May 1, 2017 (File No. 333-217563), November 14, 2017 (File No. 333-221564), March 28, 2018 (File No. 333-223987), and June 10, 2019 (File No. 333-232058).
	(5)	Represents 2,142 shares of Common Stock that were automatically added to the shares authorized for issuance under the Armata 2016 ESPP on January 1, 2024, pursuant to an “evergreen” provision contained in the Armata 2016 ESPP. Pursuant to such provision, on January 1st of each calendar year, from January 1, 2017 through and including January 1, 2026, the number of shares authorized for issuance under the Armata 2016 ESPP is automatically increased by a number equal to the least of: (a) 1% of the total number of shares of the Company’s capital stock outstanding on December 31st of the preceding calendar year; (b) 2,142 shares; or (c) a number determined by the Board that is less than (a) and (b).