NEPH Nephros Inc

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT

Under the Securities Act of 1933

 

NEPHROS, INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

Delaware		13-3971809
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification Number)

 

380 Lackawanna Place
South Orange, New Jersey 07079

(Address of Principal Executive Offices and Zip Code)

 

 

Nephros, Inc. 2024 Equity Incentive Plan

(Full Title of the Plan)

 

 

Judy Krandel Chief Financial Officer Nephros, Inc. 380 Lackawanna Place South Orange, New Jersey 07079 (201) 343-5202 (Name, Address and Telephone Number, Including Area Code, of Agent for Service)

Copies to: Christopher J. Melsha, Esq. Edward M. Peilen, Esq. Fredrikson & Byron, P.A. 60 South Sixth Street, Suite 1500 Minneapolis, MN 55402 Telephone: (612) 492-7000 Facsimile: (612) 492-7077

 

 

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	☒		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. ☐

 

 

 

PART I

 

The documents containing the information specified in Part I of Form S-8 are omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the instructions to Form S-8. Such documents will be delivered to the participants in the plan covered by this Registration Statement as required by Rule 428. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents, previously filed with the Securities and Exchange Commission (the “Commission”), are hereby incorporated by reference herein:

 

	●	the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, filed on March 15, 2024;
	●	the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed on May 9, 2024;
	●	the Registrant’s Current Report on Form 8-K filed on May 24, 2024;
	●	the Registrant’s definitive Proxy Statement on Schedule 14A filed on April 12, 2024; and
	●	the description of the Registrant’s common stock contained in its Registration Statement on Form 8-A filed on August 13, 2019, under the Exchange Act, including any amendment or report 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 (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all such securities then remaining unsold, shall be deemed incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.

 

Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof 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 145 of the Delaware General Corporation Law (the “DGCL”) permits a corporation, under specified circumstances, to indemnify its directors, officers, employees or agents against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason of the fact that they were or are directors, officers, employees or agents of the corporation, if such directors, officers, employees or agents acted in good faith and in a manner they 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 reason to believe their conduct was unlawful. In a derivative action, that is one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors, officers, employees or agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they will have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification will be made if such person will have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought will determine upon application that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.

 

 

Our Fourth Amended and Restated Certificate of Incorporation, as amended, provides for indemnification of our directors and officers of the registrant to the fullest extent permitted by the DGCL. Our Second Amended and Restated By-Laws provides that we will generally indemnify our directors, officers, employees or agents to the fullest extent permitted by law against all losses, claims, damages or similar events. We have obtained liability insurance for each director and officer for certain losses arising from claims or charges made against them while acting in their capacities as directors or officers of our company.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit No.		Description
5.1		Opinion of Fredrikson & Byron, P.A.
23.1		Consent of Baker Tilly US, LLP, Independent Registered Public Accounting Firm.
23.2		Consent of Fredrikson & Bryon, P.A. (included in Exhibit 5.1)
24.1		Power of Attorney (included on signature page hereof)
99.1		Nephros, Inc. 2024 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on May 24, 2024).
107		Filing Fee Table

 

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;
	(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 do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic 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 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, 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 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 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 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 final adjudication of such issue.

 

 

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 South Orange, State of New Jersey, on June 17, 2024.

 

	NEPHROS, INC.
	By:	/s/ Robert Banks
	Name:	Robert Banks
	Title:	President and Chief Executive Officer

 

POWER OF ATTORNEY

 

The undersigned directors and officers of Nephros, Inc. hereby severally constitute and appoint Robert Banks and Judy Krandel as attorneys-in-fact for the undersigned, each of them singly, with full and several power of substitution for, and in the name, place and stead of the undersigned, to sign and file with the Securities and Exchange Commission under the Securities Act, any and all amendments (including post-effective amendments) and exhibits to this registration statement on Form S-8 (or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act) and any and all applications and other documents to be filed with the Securities and Exchange Commission pertaining to the registration of the securities covered hereby, with full power and authority to do and perform any and all acts and things whatsoever requisite and necessary or desirable, hereby ratifying and confirming all that said attorneys-in-fact, or their 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 dates indicated.

 

Signature		Title		Date
/s/ Robert Banks		President, Chief Executive Officer and Director		June 17, 2024
Robert Banks		(Principal Executive Officer)
/s/ Judy Krandel		Chief Financial Officer		June 17, 2024
Judy Krandel		(Principal Financial and Accounting Officer)
/s/ Arthur H. Amron		Director		June 17, 2024
Arther H. Amron
/s/ Joseph Harris		Director		June 17, 2024
Joseph Harris
/s/ Alisa Lask		Director		June 17, 2024
Alisa Lask
/s/ Oliver Spandow		Director		June 17, 2024
Oliver Spandow

 

 

 

Exhibit 5.1

 

OPINION OF FREDRIKSON & BYRON, P.A.

 

FREDRIKSON & BYRON, P.A.

60 South Sixth Street, Suite 1500

Minneapolis, Minnesota 55402

Telephone: (612) 492-7000

Facsimile: (612) 492-7077

 

June 17, 2024

Nephros, Inc.

380 Lackawanna Place

South Orange, New Jersey 07079

 

Re:	Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We are acting as corporate counsel to Nephros, Inc. (the “Company”) in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), to register 2,616,875 shares (plus any additional shares as described in footnote (2) to the Calculation of Registration Fee table) of Common Stock, par value $0.001, of the Company, which we have been advised by the Company may be issued from time to time pursuant to the Company’s 2024 Equity Incentive Plan (the “Plan”). All such shares of Common Stock to be issued pursuant to the Plan are referred to herein as the “Shares.”

 

In acting as such counsel and for the purpose of rendering this opinion, we have reviewed copies of the following, as presented, and represented as being such, to us by the Company: (i) the Company’s Certificate of Incorporation; (ii) the Company’s Bylaws; (iii) certain corporate resolutions adopted by the Board of Directors and stockholders of the Company pertaining to the approval of the Plan; (iv) the Plan; and (v) the Registration Statement. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the original of all documents submitted to us as copies thereof.

 

Based on, and subject to, the foregoing and upon representations and information provided by the Company or its officers or directors or by public officials or their staffs, it is our opinion as of this date that, upon issuance and delivery of the Shares against receipt by the Company of the consideration for the Shares pursuant to the terms of the Plan, the Shares will be validly issued, fully paid and nonassessable.

 

This opinion is limited to the Delaware General Corporation Law. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission.

 

	Very truly yours,
	Fredrikson & Byron, P.A.
	By:	/s/ Christopher J. Melsha
		Christopher J. Melsha
		Vice President

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 15, 2024, relating to the consolidated financial statements of Nephros, Inc. as of and for the years ended December 31, 2023 and 2022, which appears in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023.

 

/s/ Baker Tilly US, LLP
Tewksbury, Massachusetts
June 17, 2024

 

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

Form S-8

(Form Type)

 

Nephros, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type		Security Class Title		Fee Calculation Rate (1)		Amount Registered (2)				Proposed Maximum Offering Price Per Share (3)				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration fee
Equity		Common Stock issuable under the Registrant’s 2024 Equity Incentive Plan		Other			2,616,875			$	2.16			$	5,652,450				0.00014760			$	834.31
Total Offering Amounts														$	5,652,450							$	834.31
Total Fee Offsets																							N/A
Net Fee Due																						$	834.31

 

(1)	Fee calculated in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, as amended (the “Securities Act”).
(2)	Pursuant to Rule 416 under the Securities Act, there is also being registered hereunder an indeterminate number of additional securities that may become issuable pursuant to antidilution provisions of the plans covered by this Registration Statement.
(3)	Estimated pursuant to Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee and based upon the average of the high and low prices of the Registrant’s Common Stock on June 12, 2024, as quoted on the Nasdaq Capital Market.

 

 

---