Securities Registration: Employee Benefit Plan (s-8)
02 Septembre 2021 - 10:32PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on September
2, 2021
Registration No. 333-_________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TENAX THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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26-2593535
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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ONE Copley Parkway, Suite 490
Morrisville, North Carolina
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27560
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(Address of Principal Executive Offices)
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(Zip Code)
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Tenax Therapeutics, Inc. 2016 Stock Incentive Plan
Plan for Employee Inducement Stock Option Grants
(Full title of the Plan)
Michael B. Jebsen
President and Chief Financial Officer
Tenax Therapeutics, Inc.
ONE Copley Parkway, Suite 490
Morrisville, North Carolina 27560
(919) 855-2100
(Name, address and telephone number, including area code, of agent
for service)
Copy to:
Margaret N. Rosenfeld, Esq.
K&L Gates LLP
4350 Lassiter at North Hills Avenue
Suite 300
Raleigh, North Carolina 27609
(919) 743-7351
Indicate by checkmark 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.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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.
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CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount to be
Registered
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Proposed maximum
offering
price per share
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Proposed maximum
aggregate offering
price
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Amount of
registration fee
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Common
Stock, par value $0.0001 per share
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750,000(1)
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$1.605(2)
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$1,203,750
(2)
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$131.33
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Common
Stock, par value $0.0001 per share
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350,000 (3)
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$1.605(2)
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$561,750 (2)
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$61.29
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(1)
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This Registration Statement registers 750,000 additional shares of
common stock, par value $0.0001 per share (“Common
Stock”), of Tenax Therapeutics, Inc. which are issuable under
the Tenax Therapeutics, Inc. 2016 Stock Incentive Plan. Pursuant to
Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement also
covers such additional shares of Common Stock as may be issued to
prevent dilution from stock splits, stock dividends and similar
transactions.
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(2)
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Pursuant to Rules 457(c) and 457(h)(1) under the Securities Act,
the proposed maximum offering price per share and the proposed
maximum aggregate offering price for the shares have been
calculated solely for the purpose of computing the registration fee
on the basis of the average of the high and low prices of the
Common Stock reported on the Nasdaq Capital Market on August 30,
2021.
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(3)
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This Registration Statement registers 350,000 shares of Common
Stock of Tenax Therapeutics, Inc. which are issuable under the Plan
for Employee Inducement Stock Option Grants. Pursuant to Rule
416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement also
covers such additional shares of Common Stock as may be issued to
prevent dilution from stock splits, stock dividends and similar
transactions.
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EXPLANATORY NOTE
Tenax
Therapeutics, Inc. (the “Registrant”) has filed this
Registration Statement to register under the Securities Act of
1933, as amended (the “Securities Act”), the offer and
sale of 750,000 additional shares of common stock of the
Registrant, par value $0.0001 per share (the “Common
Stock”), under the Tenax Therapeutics, Inc. 2016 Stock
Incentive Plan (the “2016 Plan”, and such shares
offered and sold under the 2016 Plan, the “2016 Plan
Shares”), pursuant to a vote in favor of such offer and sale
by the Shareholders of the Registrant on June 10, 2021, as filed
with the Securities and Exchange Commission (the
“Commission”) on
June 11,
2021. The 2016 Plan Shares are of the same class as
other securities issuable pursuant to the 2016 Plan for which the
Registrant’s Registration Statements on Form S-8
(Registration Nos. 333-224120 and
333-233571), filed with the Securities and Exchange Commission (the
“Commission”) on
April 3,
2018 and
August 30,
2019, respectively (the
“Prior Registration Statements”), remains effective.
The information contained in the Prior Registration Statements are
hereby incorporated by reference pursuant to General Instruction E
of Form S-8, except to the extent supplemented, amended or
superseded by the information set forth in this Registration
Statement.
The Registrant has additionally filed this
Registration Statement to register under the Securities Act the
offer and sale of 350,000 shares of Common Stock under the Plan for
Employee Inducement Stock
Option Grants (the “Inducement Plan”). On July 6, 2021,
as disclosed in the Registrant’s Current Report filed with
the Commission on
July 8,
2021, the Inducement Plan
was approved by the Compensation Committee of the Board of
Directors of the Registrant as a stock option plan solely for use
in making employee inducement stock option grants to new employees
in accordance with Nasdaq Listing Rule
5635(c)(4).
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
1. Plan
Information.
The
documents containing the information specified in this Item 1 will
be sent or given to participants as specified
by Rule 428(b)(1) under the Securities Act. In
accordance with the rules and regulations of the Securities and
Exchange Commission (the “Commission”) and the
instructions to Form S-8, such documents are not being
filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act.
Item
2. Registrant
Information and Employee Plan Annual Information.
The
documents containing the information specified in this Item 2 will
be sent or given to participants as specified by Rule
428(b)(1) under the Securities Act. In accordance with
the rules and regulations of the Commission and the instructions to
Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by
Reference.
The
following documents filed with the Commission are hereby
incorporated by reference in this Registration
Statement:
(a)
The
Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2020, filed with the Commission on
March 31,
2021, as amended by the Registrant’s Amendment No.
1 to Annual Report filed with the Commission on
April 16,
2021;
(b)
The information
specifically incorporated by reference into the Registrant’s
Annual Report on Form 10-K from the Registrant’s
Definitive Proxy Statement on Schedule 14A, filed
with the SEC on
April 30,
2021;
(c)
The
Registrant’s Quarterly Reports on Form 10-Q for the quarterly
period ended March 31, 2021, filed with the Commission on
May 17,
2021, and for the quarterly period ended June 30, 2021,
filed with the Commission on
August 16,
2021
(d)
The
Registrant’s Current Reports on Form 8-K filed with the
Commission on
January
19, 2021 (as amended by Form 8-K/A filed with the SEC on
March 30,
2021),
March 2,
2021,
April 7,
2021,
June 1,
2021,
June 11,
2021, and
July 8,
2021; and
(e)
The description of
the Registrant’s Common Stock contained in the
Registrant’s Registration Statement on Form 8-A filed with
the Commission on
January 11, 2010, as updated by the description of the
Registrant’s Common Stock included in Exhibit 4.2 to the
Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2020 filed with the Commission on
March 31, 2021, and any amendments or reports filed for the
purpose of updating such description.
In
addition, 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
securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents. However,
any documents or portions thereof, whether specifically listed
above or filed in the future, that are not deemed
“filed” with the Commission, including without
limitation any information furnished pursuant to Item 2.02 or 7.01
of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of
Form 8-K, shall not be deemed to be incorporated by reference in
this Registration Statement.
Any
statement in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded
for the purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this
Registration Statement.
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 provides that a
corporation has the power to indemnify a director, officer,
employee, or agent of the corporation and certain other persons
serving at the request of the corporation in related capacities
against amounts paid and expenses incurred in connection with an
action or proceeding to which he or she is or is threatened to be
made a party by reason of such position, if such person acted in
good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the corporation, and, in
any criminal proceeding, if such person had no reasonable cause to
believe his or her conduct was unlawful. In the case of actions
brought by or in the right of the corporation, no indemnification
shall be made with respect to any matter as to which such person
has been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Our
Certificate of Incorporation and Bylaws provide that our directors
and officers will be indemnified by us to the fullest extent
authorized by the Delaware General Corporation Law. In addition,
the Certificate of Incorporation provides, as permitted by Section
102(b)(7) of the Delaware General Corporation Law, that our
directors will not be liable for monetary damages to us for
breaches of their fiduciary duty as directors, unless they (i)
violated their duty of loyalty to us or our stockholders, (ii)
acted, or failed to act, in good faith, (iii) acted with
intentional misconduct, (iv) knowingly or intentionally violated
the law, (v) authorized unlawful payments of dividends, unlawful
stock purchases or unlawful redemptions, or (vi) derived an
improper personal benefit from their actions as
directors.
Our
Bylaws also permit us to secure insurance on behalf of any officer,
director, employee, or agent for any liability arising out of his
or her actions, regardless of whether Delaware General Corporation
Law would permit indemnification. We have purchased a policy of
directors’ and officers’ liability insurance that
insures our directors and officers.
In
addition, we have also entered into an indemnification agreement
with certain of our directors and officers. The indemnification
agreements require us to indemnify and hold harmless and advance
expenses to each indemnitee in respect of acts or omissions
occurring prior to the time the indemnitee ceases to be an officer
and/or director of the Company to the fullest extent permitted by
applicable law. The rights provided in the indemnification
agreements are in addition to the rights provided in our
Certificate of Incorporation, Bylaws, and the Delaware General
Corporation Law.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
following exhibits have been or are being filed herewith and are
numbered in accordance with Item 601 of Regulation
S-K:
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Exhibit No.
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Description
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Certificate
of Incorporation (incorporated by reference to Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K filed with the
Commission on June 30, 2008).
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Certificate
of Amendment of the Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K filed with the
Commission on November 13, 2009).
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Certificate
of Amendment of the Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K filed with the
Commission on May 15, 2013).
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Certificate
of Amendment of the Certificate of Incorporation (incorporated by reference to Exhibit 3.4 to the
Registrant’s Quarterly Report on Form 10-Q filed with the
Commission on December 15, 2014).
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Certificate
of Amendment of the Certificate of Incorporation (incorporated by
reference to Exhibit 3.5 to the Registrant’s Current Report
on Form 8-K filed with the Commission on February 23,
2018).
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Certificate
of Designation of Series A Convertible Preferred Stock
(incorporated by reference to Exhibit
4.1 to the Registrant’s Current Report on Form 8-K filed with
the Commission on December 11, 2018).
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Third
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the
Registrant’s Quarterly Report on Form 10-Q filed with the
Commission on September 9, 2015).
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Opinion of K&L Gates, LLP.*
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Consent of Independent Registered Public Accounting Firm, Cherry
Bekaert LLP.*
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Consent of K&L Gates, LLP (Contained in Exhibit
5.1).
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24.1
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Power of Attorney (Contained on signature page).
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Tenax Therapeutics, Inc. 2016 Stock Incentive Plan (incorporated by
reference to Exhibit 10.1 to the Registrant’s Quarterly
Report on Form 10-Q filed with the Commission on August 9,
2016).+
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Amendment No. 1 to Tenax Therapeutics, Inc. 2016 Stock Incentive
Plan (incorporated by reference to Exhibit 10.1 to the
Registrant’s Quarterly Report on Form 10-Q filed with the
Commission on August 14, 2019).+
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Amendment No. 2 to Tenax Therapeutics, Inc. 2016 Stock Incentive
Plan (incorporated by reference to Exhibit 10.1 to the
Registrant’s Quarterly Report on Form 10-Q filed with the
Commission on August 16, 2021)+
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Plan for Employee Inducement Stock Option Grants*+
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* Filed Herewith
+ Management contract or compensatory plan or
arrangement
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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 of 1933;
(ii)
to reflect in the prospectus any facts or events arising after the
effective date of this 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 a 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; and
(iii)
to include any material information with respect to the plan of
distribution not previously disclosed in this 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 registration statement is on Form S-8
(§
239.16b of this chapter),
and 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 Securities Exchange
Act of 1934 (15 U.S.C. 78m or 78o(d)) 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 of 1933, each
filing of the registrant’s annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this 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
of 1933 may be permitted to directors, officers and controlling
persons of the registrants, 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 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 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 the Town of Morrisville, State of North
Carolina, on September 2, 2021.
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TENAX THERAPEUTICS, INC.
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By:
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/s/
Michael B. Jebsen
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Michael B. Jebsen
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President and Chief Financial Officer
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KNOW
ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Michael B. Jebsen his true
and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and all
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 and about the premises, 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, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
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Name
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Title
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Date
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/s/
Christopher T.
Giordano
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Chief Executive Officer and Director
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September 2, 2021
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Christopher T. Giordano
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(Principal
Executive Officer)
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/s/
Michael B. Jebsen
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Chief Financial Officer
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September 2, 2021
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Michael B. Jebsen
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(Principal Financial Officer and Principal Accounting
Officer)
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/s/
Stuart Rich
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Chief Medical Officer and Director
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September 2, 2021
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Stuart Rich
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/s/
Michael Davidson
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Director
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September 2, 2021
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Michael Davidson
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/s/
Steven Boyd
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Director
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September 2, 2021
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Steven Boyd
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/s/
James Mitchum
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Director
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September 2, 2021
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James Mitchum
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/s/
June Almenoff
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Director
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September 2, 2021
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June Almenoff
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/s/
Gerald Proehl
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Director
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September 2, 2021
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Gerald Proehl
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/s/
Declan Doogan
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Director
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September 2, 2021
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Declan Doogan
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/s/
Keith Maher
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Director
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September 2, 2021
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Keith Maher
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