As
filed with the Securities and Exchange Commission on June 12, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
THARIMMUNE,
INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
84-2642541 |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification No.) |
| |
|
|
1200
Route 22 East, Suite 2000
Bridgewater,
NJ |
|
08807 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
Tharimmune,
Inc. Amended and Restated 2023 Omnibus Equity Incentive Plan
(Full
title of the plan)
Randy
Milby
Chief Executive Officer
Tharimmune, Inc.
1200
Route 22 East, Suite 2000
Bridgewater,
NJ 08807
(Name
and address of agent for service)
(908)
955-3140
(Telephone
number, including area code, of agent for service)
With
a copy to:
Jeffrey
Fessler, Esq.
Emily
Mastoloni, Esq.
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, NY 10112-0015
Phone:
(212) 653-8700
Fax:
(212) 653-8701
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 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 ☒ |
|
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
Pursuant
to General Instruction E of Form S-8, Tharimmune, Inc, a Delaware corporation (the “Registrant”), is filing this registration
statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”)
to register 159,733 additional shares of common stock, par value $0.0001 per share (the “Common Stock”), available for issuance
under the Registrant’s 2023 Omnibus Equity Incentive Plan (the “2023 Plan”), pursuant to the amendment and restatement
of the 2023 Plan (the “Amended and Restated 2023 Plan”) which (i) increased the number of shares of Common Stock that may
be issued under such plan to 166,667 shares and (ii) added an “evergreen” provision to automatically increase the number
of shares of our common stock available under the Amended and Restated 2023 Plan on January 1st of each year, beginning January 1, 2025
and ending January 1, 2033, equal to the lesser of (A) five percent (5%) of the shares of Common Stock outstanding (on an as-converted
basis) on the final day of the immediately preceding calendar year and (B) such lesser number of shares of Common Stock as determined
by the Board.
In
accordance with General Instruction E of Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registrant’s
prior registration statement on Form S-8 filed with the Commission on November 2, 2023 (Registration No. 333-275272), except to the extent
supplemented, amended or superseded by the information set forth herein. Additionally, in accordance with the instructional note to Part
I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration
Statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The
following documents filed by the Company with the Securities and Exchange Commission (“SEC”) pursuant to the Securities Act
and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:
| |
● |
The
Company’s Annual Report on Form
10-K for the year ended December 31, 2023 filed with the SEC on February 23, 2024; |
| |
|
|
| |
● |
The
Company’s Quarterly Reports on Form
10-Q for the quarter ended March 31, 2024 filed with the SEC on May 9, 2024; |
| |
|
|
| |
● |
The
Company’s Current Reports on Form 8-K filed with the SEC on February
8, 2024; March
11, 2024, May
14, 2024,May
22, 2024, June
7, 2024 and June 11, 2024 (except for any portions of such Current Reports on Form 8-K furnished pursuant to Item 2.02
and/or Item 7.01 thereof and any corresponding exhibits thereto not filed with the SEC); |
| |
|
|
| |
● |
The
Company’s definitive
proxy statement on Schedule 14A for the Company’s 2024 annual meeting of stockholders filed with the SEC on March 21, 2024; |
| |
|
|
| |
● |
The
description of the Company’s common stock contained in its Registration Statement on Form
8-A (File No. 001-41210) filed with the SEC on January 10, 2022, under Section 12(b) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description. |
| |
|
|
| |
● |
All
other reports and documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than Current
Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) subsequent
to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered hereby have been sold or that 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 reports and
documents. 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 herein or in any subsequently
filed document that 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 constitute a part of this Registration Statement, except as so modified or superseded. |
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
102 of the Delaware General Corporation Law (the “DGCL”) permits a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal
benefit. Our Certificate of Incorporation, as amended (“Certificate of Incorporation”), provides that no director of our
Company shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding
any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability
of directors for breaches of fiduciary duty.
Section
145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or
a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in
related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party
to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation,
no indemnification shall be made with respect to 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 other adjudicating court determines that, despite the
adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other court shall deem proper.
Our
Certificate of Incorporation and Bylaws provide indemnification for our directors and officers to the fullest extent permitted by the
DGCL. We will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become,
a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee
of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being
referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable
cause to believe his or her conduct was unlawful. Our Certificate of Incorporation and Bylaws provide that we will indemnify any Indemnitee
who was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the
Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as
a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or who was an employee or agent
of a predecessor corporation or another enterprise at the request of such predecessor corporation, against all expenses (including attorneys’
fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action,
suit or proceeding, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to us, unless a court determines that, despite such adjudication but in view of all of the circumstances,
he or she is entitled to indemnification of such expenses. Expenses must be advanced to an Indemnitee under certain circumstances.
We
have entered into separate indemnification agreements with each of our directors and executive officers. Each indemnification agreement
provides, among other things, for indemnification to the fullest extent permitted by law and our Certificate of Incorporation and Bylaws
against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements
provide for the advancement or payment of all expenses to the indemnitee and for the reimbursement to us if it is found that such indemnitee
is not entitled to such indemnification.
In
addition, we maintain a general liability insurance policy that covers certain liabilities of directors and officers of our Company arising
out of claims based on acts or omissions in their capacities as directors or officers.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM
8. EXHIBITS.
See
the attached Exhibit Index on the page immediately following the signature pages hereto, which is incorporated herein by reference.
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;
(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.
(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 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 herein, 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 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 herein, 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 Securities
and Exchange 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 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 Securities Act and will be governed by the final
adjudication of such issue.
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 Bridgewater, New Jersey, on the 12th day of June, 2024.
| |
THARIMMUNE,
INC. |
| |
|
|
| |
By:
|
/s/
Randy Milby |
| |
|
Randy
Milby |
| |
|
Chief
Executive Officer (Principal Executive Officer) and Chairman of the Board of Directors |
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Randy Milby 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 their name, place and stead,
in any and all capacities, to sign any and all amendments (including post-effective amendments), 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 and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
and on the date indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Randy Milby |
|
Chief
Executive Officer (Principal Executive Officer) |
|
June
12, 2024 |
| Randy
Milby |
|
and
Chairman of the Board of Directors |
|
|
| |
|
|
|
|
| /s/
Thomas Hess |
|
Chief
Financial Officer |
|
June
12, 2024 |
| Thomas
Hess |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Lynne Bui |
|
Director |
|
June
12, 2024 |
| Lynne
Bui |
|
|
|
|
| |
|
|
|
|
| /s/
Leonard Mazur |
|
Director |
|
June
12, 2024 |
| Leonard
Mazur |
|
|
|
|
| |
|
|
|
|
| /s/
Sireesh Appajosyula |
|
Director |
|
June
12, 2024 |
| Sireesh
Appajosyula |
|
|
|
|
| |
|
|
|
|
| /s/
Kelly Anderson |
|
Director |
|
June
12, 2024 |
| Kelly
Anderson |
|
|
|
|
EXHIBIT
INDEX
Exhibit
5.1
 |
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, New York 10112-0015
212.653.8700
main
212.653.8701
fax
www.sheppardmullin.com |
June
12, 2024
VIA
ELECTRONIC MAIL
Tharimmune,
Inc.
1200
Route 22 East, Suite 2000
Bridgewater,
NJ 08807
| |
Re:
Registration Statement on Form S-8 |
Ladies
and Gentlemen:
You
have requested our opinion with respect to certain matters in connection with the filing by Tharimmune, Inc., a Delaware corporation
(the “Company”), of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities
Act of 1933, as amended (the “Securities Act”), with the Securities and Exchange Commission, covering 159,733 additional
shares (the “Shares”) of common stock, par value $0.0001 per share (the “Common Stock”), reserved for future
issuance under the Tharimmune, Inc. Amended and Restated 2023 Omnibus Equity Incentive Plan (the “Plan”).
This
Opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
In
connection with this opinion, we have reviewed and relied upon the Registration Statement, the Company’s Certificate of Incorporation
as amended and in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws as in effect
on the date hereof (the “Bylaws” and together with the Certificate of Incorporation, the “Charter Documents”),
the proceedings taken by the Company with respect to the authorization and adoption of the Plan, resolutions adopted by the board of
directors of the Company, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a
basis for this opinion. With respect to the foregoing documents, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity to original of all documents submitted to us as certified or reproduced
copies. We have also assumed that the Shares will be uncertificated in accordance with Section 158 of the Delaware General Corporation
Law, and the transfer agent therefor will register the purchaser thereof as the registered owner of any uncertificated Shares on its
stock transfer books and records. We have further assumed that (a) shares of the Common Stock currently reserved for issuance under the
Plan will remain available for the issuance of the Shares, and (b) neither the Company’s Charter Documents nor any of the proceedings
relating to either the Plan or any of the award agreements relating to the Shares will be rescinded, amended or otherwise modified prior
to the issuance of the Shares. We have also obtained from public officials and officers of the Company certificates or comparable documents
as to certain factual matters and, insofar as this opinion is based on matters of fact, we have relied on such certificates and comparable
documents without independent investigation. We have made such other investigations as we have deemed relevant and necessary in connection
with the opinions hereinafter set forth.
On
the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred
to in the Plan and against proper payment and consideration thereof and pursuant to the agreements that accompany the Plan, will be legally
and validly issued, fully paid and nonassessable.
We
consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby
admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
We
express no opinion as to matters governed by any laws other than the Delaware General Corporation Law and reported decisions of the Delaware
courts interpreting such law.
This
opinion letter is rendered as of the date first written above, and we disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which 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 other matters relating to the Company, the Shares, the Plan, the award agreements related to the Shares or the Registration Statement.
| |
Respectfully
Submitted, |
| |
|
| |
/s/
Sheppard, Mullin, Richter & Hampton LLP |
| |
|
| |
SHEPPARD,
MULLIN, RICHTER & HAMPTON LLP |
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 23, 2024 (which report
includes an explanatory paragraph relating to the existence of substantial doubt about the Company’s ability to continue as a going
concern), with respect to the consolidated financial statements of Tharimmune, Inc. as of December 31, 2023 and for the year then ended,
included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023.
/s/
Rosenberg Rich Baker Berman P.A.
Somerset,
New Jersey
June
12, 2024
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated May 19, 2023 (which report includes
an explanatory paragraph relating to the existence of substantial doubt about the Company’s ability to continue as a going concern),
with respect to the consolidated financial statements, before the effects of the adjustments to retrospectively apply the reverse stock
split described in Note 2, of Tharimmune, Inc. (formerly Hillstream BioPharma, Inc.) (“Company”) as of and for the year ended
December 31, 2022, included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023.
/s/
Mayer Hoffman McCann P.C.
Los
Angeles, California
June
12, 2024
Exhibit
107
Calculation
of Filing Fee Tables
FORM
S-8
(Form
Type)
THARIMMUNE,
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 (1) | |
|
Proposed
Maximum Offering Price Per Share | | |
Maximum
Aggregate Offering Price | | |
Fee
Rate | | |
Amount of
Registration Fee | |
| Fees
to Be Paid | |
Equity | |
Common
Stock, par value $0.0001 per share | |
457(c)
and 457(h) | |
159,733 | (2) |
|
$ | 3.95 | (3) | |
$ | 630,945.35 | | |
$ | 0.00014760 | | |
$ | 93.13 | |
| Fees
Previously Paid | |
| |
| |
| |
| |
|
| | | |
| | | |
| | | |
| | |
| | |
Total
Offering Amounts | |
|
| | | |
| | | |
| | | |
$ | 93.13 | |
| | |
Total
Fees Previously Paid | |
|
| | | |
| | | |
| | | |
| - | |
| | |
Total
Fee Offsets | |
|
| | | |
| | | |
| | | |
| - | |
| | |
Net
Fee Due | |
|
| | | |
| | | |
| | | |
$ | 93.13 | |
(1)
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall
also cover any additional shares of common stock, par value $0.0001 per share (“Common Stock”), of Tharimmune, Inc. (the
“Registrant”) that become issuable under the Registrant’s Amended and Restated 2023 Omnibus Equity Incentive Plan (the
“Amended and Restated 2023 Plan”), by reason of any stock dividend, stock split, recapitalization or other similar transaction
that increases the number of the outstanding shares of the Registrant’s common stock. In addition, pursuant to Rule 416(c) under
the Securities Act, this Registration Statement shall also cover an indeterminate amount of interests to be offered or sold pursuant
to the employee benefit plan described herein.
(2)
Represents 159,733 additional shares of Common Stock available for issuance pursuant to the Amended and Restated 2023 Plan. Other shares
of Common Stock available for issuance under the 2023 Plan were previously registered on the registration statement on Form S-8 filed
with the Securities and Exchange Commission on November 2, 2023 (File No. 333-275272).
(3)
Estimated solely for purposes of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act, and based
on the average of the high and low sale price of the Registrant’s Common Stock, as quoted on The Nasdaq Capital Market on June
10, 2024, which date is within five business days prior to the filing of this Registration Statement.
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