As filed with the Securities and Exchange Commission on July 25, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KIROMIC BIOPHARMA, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 46-4762913 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
| 7707 Fannin, Suite 140, Houston, TX | 77054 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Kiromic BioPharma, Inc. 2021 Omnibus Equity Incentive Plan
(Full title of the plan)
Pietro Bersani, CPA
Chief Executive Officer
7707 Fannin, Suite 140
Houston, TX, 77054
(Name and address of agent for service)
(832) 968-4888
(Telephone number, including area code, of agent for service)
Copy to:
|
Andrew Strong, Esq. Hogan Lovells US LLP 609 Main Street, Suite 4200 Houston, TX 77002 Tel.: (713) 632-1400 |
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 Securities Exchange Act of 1934, as amended (the “Exchange Act”).
| Large accelerated filer | o | Accelerated filer | o |
| Non-accelerated filer | x | Smaller reporting company | x |
| Emerging growth company | x |
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 of 1933, as amended (the “Securities Act”). o
EXPLANATORY NOTE
Kiromic BioPharma, Inc. 2021 Omnibus Equity Incentive Plan
This Registration Statement on Form S-8 (“Registration Statement”) is being filed for the purpose of registering additional shares of common stock of Kiromic BioPharma, Inc. (the “Registrant”), par value $0.001 per share (“Common Stock”), in connection with the Registrant’s 2021 Omnibus Equity Incentive Plan (the “2021 Plan”), for which a Registration Statement on Form S-8 is effective. This Registration Statement on Form S-8 registers an additional 1,000,000 shares of Common Stock issuable pursuant to the 2021 Plan. The contents of the previous Registration Statement on Form S-8 filed by the Registrant with the Securities and Exchange Commission (the “Commission”) for the 2021 Plan on July 15, 2021 (File No. 333-257919), to the extent not otherwise amended or superseded by the contents hereof, are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents of the Registrant filed with the Commission are incorporated by reference in this Registration Statement as of their respective dates:
| (a) |
the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission on April 8, 2022; | |
| (b) | the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2022, filed with the Commission on May 13, 2022; | |
| (c) | the Registrant’s Current Reports on Form 8-K filed with the Commission on February 2, 2022, February 16, 2022, March 24,2022, May 3, 2022, May 11, 2022, and June 28, 2022; and |
| (d) | the description of the Registrant’s Common Stock contained in the registration statement on Form 8-A filed with the SEC on October 14, 2020, including any amendments or reports filed for the purpose of updating such description. |
All reports and other documents filed by the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act but 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 herein and to be part hereof from the date of filing of such reports and documents, except for the documents, or portions thereof, that are “furnished” rather than filed with the Commission.
For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded 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 superseded, to constitute a part of this Registration Statement.
| Item 8. | Exhibits. |
* Filed herewith.
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 Houston, State of Texas, on July 25, 2022.
| KIROMIC BIOPHARMA, INC. | ||
| By: | /s/ Pietro Bersani | |
| Name: Pietro Bersani Title: Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Pietro Bersani and Daniel Clark, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute, 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/ Pietro Bersani | Chief Executive Officer (principal executive officer) and Director | July 25, 2022 | ||
| Pietro Bersani | ||||
| /s/ Daniel Clark | Chief Financial Officer (principal financial and accounting officer) | July 25, 2022 | ||
| Daniel Clark | ||||
| /s/ Americo Cicchetti | Director | July 25, 2022 | ||
| Americo Cicchetti | ||||
| /s/ Michael Nagel | Director | July 25, 2022 | ||
| Michael Nagel | ||||
| /s/ Karen Reeves | Director | July 25, 2022 | ||
| Karen Reeves | ||||
| /s/ Frank Tirelli | Director | July 25, 2022 | ||
| Frank Tirelli |
Exhibit 5.1
 |
Hogan Lovells US LLP 609 Main Street, Suite 4200 Houston, TX 77002 T +1 713-632-1400 F +1 713-632-1401 www.hoganlovells.com |
July 25, 2022
Board of Directors
Kiromic BioPharma, Inc.
7707 Fannin, Suite 140
Houston, TX 77054
Ladies and Gentlemen:
We are acting as counsel to Kiromic BioPharma, Inc., a Delaware corporation (the “Company”), in connection with its registration statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the proposed offering of up to 1,000,000 shares of common stock, par value $0.001 per share (“Common Stock”) of the Company (the “Shares”), consisting of an additional 1,000,000 shares of Common Stock issuable pursuant to the Kiromic BioPharma, Inc. 2021 Omnibus Equity Incentive Plan (the “2021 Plan”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including pdfs). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, as amended. We express no opinion herein as to any other statutes, rules or regulations.
Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares pursuant to the terms of the 2021 Plan, and (iii) receipt by the Company of the consideration for the Shares specified in (x) the resolutions of the Board of Directors, or a duly authorized committee thereof, (y) under the 2021 Plan, and (z) the applicable award agreements, the Shares will be validly issued, fully paid, and nonassessable.
This opinion letter has been prepared for use in connection with the Registration Statement. We assume no obligation to advise of any changes in the foregoing subsequent to the effective date of the Registration Statement.
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Minneapolis Monterrey Moscow Munich New York Northern Virginia Paris Perth Philadelphia Rio de Janeiro Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Ulaanbaatar Warsaw Washington DC Associated offices: Budapest Jakarta Shanghai FTZ Zagreb. Business Service Centers: Johannesburg Louisville. Legal Service Center: Birmingham. For more information see www.hoganlovells.com
| Kiromic BioPharma, Inc. | - 2 - | July 25, 2022 |
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Act.
Very truly yours,
/s/ HOGAN LOVELLS US LLP
HOGAN LOVELLS US 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 April 8, 2022 relating to the financial statements of Kiromic BioPharma, Inc. appearing in the Annual Report on Form 10-K of Kiromic BioPharma, Inc. for the year ended December 31, 2021.
/s/ Deloitte & Touche LLP
Houston, Texas
July 25, 2022
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Kiromic Biopharma, 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 $0.001 per share | 457(c) and (h) | 1,000,000(2) | $.038(3) | $380,000(3) | 0.0000927 | $35.23 |
| Total Fees Previously Paid | — | |||||||
| Total Fee Offsets | — | |||||||
| Net Fee Due | $35.23 | |||||||
| (1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 shall also be deemed to cover such additional securities which become issuable by reason of any stock dividend, stock split, recapitalization or any other similar transactions.
|
| (2) | Consists of 1,000,000 shares of common stock of Kiromic BioPharma, Inc., par value $0.001 per share (“Common Stock”), available for issuance under the Kiromic BioPharma, Inc. 2021 Omnibus Equity Incentive Plan. |
| (3) | Estimated solely for the purpose of calculating the registration fee under Rule 457(c) and (h) of the Securities Act on the basis of the average of the high and low sales price per share of Common Stock on July 22, 2022, as reported on the Nasdaq Capital Market. |