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As filed with the
Securities and Exchange Commission on November 4, 2014 Registration No.
333-
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SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CYTOSORBENTS CORPORATION
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(Exact name of registrant as specified in
its charter)
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Nevada
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98-0373793
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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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7 Deer Park Drive, Suite K
Monmouth Junction, New Jersey 08852
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(Address of Principal Executive Offices)
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2006 Long-Term Incentive Plan, as Amended
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(Full title of the plan)
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Phillip Chan, MD
President and Chief Executive Officer
CytoSorbents Corporation
7 Deer Park Drive, Suite K
Monmouth Junction, New Jersey 08852
(732) 329-8885
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(Name, address, including zip code,
and telephone number, including area code, of agent for service)
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Copies of all communications, including all communications sent to the agent for service, should be sent to:
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David C. Schwartz, Esq.
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DLA Piper LLP (US)
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51 John F. Kennedy Parkway, Suite 120
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Short Hills, New Jersey 07078
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(973) 520-2550
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer”, “accelerated filer”, and “smaller reporting company” in Rule 12b-2 of the Exchange Act:
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
x
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(Do not check if a smaller reporting company)
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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 (1)
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Proposed maximum offering price per share (2)
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Proposed maximum aggregate offering price (3)
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Amount of registration fee
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Common Stock, par value $0.001 per share
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20,000,000
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$0.24
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$4,800,000
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$558.00
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(1)
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The Company approved an additional 20,000,000 shares of common stock were authorized for issuance under the CytoSorbents
Corporation 2006 Long-Term Incentive Plan, as amended, in accordance with the provisions of the plan on January 16, 2008. This
Registration Statement covers such additional 20,000,000 shares of common stock.
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(2)
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Pursuant to Rule 416 of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional
shares of common stock which become issuable under the CytoSorbents Corporation 2006 Long-Term Incentive Plan by reason of any
stock split, stock dividend, recapitalization, combination of shares, exchange of shares, spin-off transaction or other change
affecting the outstanding Common Stock as a class without the Company’s receipt of consideration, or should the value of
outstanding shares of Common Stock be substantially reduced as a result of a spin-off transaction or an extraordinary dividend
or distribution, or should there occur any merger, consolidation or other reorganization.
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(3)
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Estimated solely for the purposes of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities
Act of 1933, as amended, and based upon the average of the reported high and low sales prices per share of the common stock of
CytoSorbents Corporation, on October 30, 2014, as reported by the OTC Bulletin Board.
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PART I - INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in
documents to be given to the recipient of the securities registered hereby in accordance with Rule 428(b)(1) under the Securities
Act of 1933, as amended.
PART II - INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
CytoSorbents Corporation (the “Registrant” or “CytoSorbents”)
hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities
and Exchange Commission (the “Commission”):
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(a)
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013 (Commission File No. 000-51038),
filed on March 31, 2014, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), in which there is set forth the audited financial statements for the Registrant’s fiscal year ended December
31, 2013;
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(b)
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The Registrant’s Quarterly report on Form 10-Q for the three months ended March 31, 2014 filed on May 14, 2014, and six
months ended June 30, 2013 filed on August 12, 2014;
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(c)
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The Registrant’s Current Reports on Form 8-K, filed on January 7, 2014, March 12, 2014, and October 14, 2014 (except
Item 2.02); and
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(d)
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The description of our common stock contained in the Registration Statement on Form 8-A12G filed with the Securities and Exchange
Commission on November 22, 2004.
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All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers 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 of such documents. Unless expressly incorporated into this Registration Statement, a report furnished
on Form 8-K under the Exchange Act shall not be incorporated by reference into 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 for purposes
of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also
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 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Our Articles of Incorporation, as amended, provide that no director
or officer shall be personally liable to our company or any of its stockholders for damages for breach of fiduciary duty as a director
or officer, provided that the liability of a director or officer will not be limited or eliminated for: (i) acts or omissions which
involve intentional misconduct, fraud or a knowing violation of law; or (ii) the payment of distributions in violation of the Nevada
Revised Statutes (“NRS”) 78.300, as amended.
Our Bylaws, as amended, provide that we have the power to indemnify,
to the greatest allowable extent not prohibited under the General Corporate Law of Nevada; provided, however, that the company
may modify the extent of such indemnification by individual contracts with its directors and officers; and provided, further, that
the company shall not be required to indemnify any director or officer in connection with any proceeding (or part thereof) initiated
by such person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the
Board of Directors, (iii) such indemnification is provided by the company, in its sole discretion, pursuant to the powers vested
in the company under the Nevada General Corporation Law or (iv) such indemnification is required be made under Section 43(d) of
the Bylaws, as amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
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Exhibit Number
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Item
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Exhibit 5.1
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Legal Opinion of DLA Piper LLP (US) (filed herewith).
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Exhibit 10.1
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Amendment to CytoSorbents Corporation 2006 Long-Term Incentive Plan (filed herewith).
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Exhibit 23.1
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Consent of WithumSmith+Brown, PC (filed herewith).
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Exhibit 23.2
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Consent of DLA Piper LLP (US) (included in Exhibit 5.1).
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Exhibit 24.1
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Power of Attorney (included on signature page).
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Item 9. Undertakings.
A. The undersigned
Registrant hereby undertakes:
(i) To file,
during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(a) To include
any prospectus required by Section 10(a)(3) of the Securities Act;
(b) 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 this
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 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(c) 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 this Registration Statement;
provided, however,
that paragraphs (i)(a) and (i)(b) of this section do not apply if the Registration Statement is on Form S-8 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 Exchange Act that are incorporated by reference in
this Registration Statement.
(ii) 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.
(iii) 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 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 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, 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 Monmouth Junction, New Jersey, on November 4, 2014.
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CYTOSORBENTS CORPORATION
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By:
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/s/ Phillip Chan
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Phillip Chan, MD
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Chief Executive Officer
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POWER OF ATTORNEY
Pursuant to the requirements of the Securities
Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities
and on the dates indicated.
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Name
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Capacity
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Date
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/s/
Phillip Chan
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Chief Executive Officer (Principal Executive
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November 4, 2014
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Phillip Chan, MD
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Officer) and Director
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/s/
Kathleen P. Bloch
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Chief Financial Officer
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November 4, 2014
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Kathleen P. Bloch
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(Principal Financial and Accounting Officer)
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/s/
Al Kraus
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Chairman of the Board
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November 4, 2014
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Al Kraus
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/s/
Edward R. Jones
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Director
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November 4, 2014
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Edward R. Jones
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/s/
James Gunton
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Director
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November 4, 2014
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James Gunton
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EXHIBIT INDEX
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Exhibit Number
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Item
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Exhibit 5.1
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Legal Opinion of DLA Piper LLP (US) (filed herewith).
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Exhibit 10.1
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Amendment to CytoSorbents Corporation 2006 Long-Term Incentive Plan (filed herewith).
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Exhibit 23.1
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Consent of WithumSmith+Brown, PC (filed herewith).
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Exhibit 23.2
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Consent of DLA Piper LLP (US) (included in Exhibit 5.1).
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Exhibit 24.1
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Power of Attorney (included on signature page).
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Exhibit 5.1
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DLA Piper LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07078
www.dlapiper.com
T: 973-520-2550
F: 973-520-2551
Attorneys Responsible for Short Hills Office:
Andrew P. Gilbert
Michael E. Helmer
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November 4, 2014
CytoSorbents Corporation
7 Deer Park Drive, Suite K
Monmouth Junction, New Jersey 08852
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Re:
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CytoSorbents Corporation – Registration Statement on Form S-8
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Dear Ladies and Gentlemen:
We have acted as counsel to CytoSorbents
Corporation, a Nevada corporation (the “Company”), in connection with the preparation of a Registration Statement on
Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”). The Registration
Statement relates to the registration of 20,000,000 shares of the Company’s common stock, par value $0.001 per share (the
“Shares”), issuable under the Company’s 2006 Long-Term Incentive Plan, as amended (the “2006 Long-Term
Incentive Plan”).
In connection with this opinion letter,
we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of
the Articles of Incorporation, as amended, and Bylaws, as amended, of the Company and such other documents, records and other instruments
as we have deemed appropriate for purposes of the opinion set forth herein.
We have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity
with the originals of all documents submitted to us as certified, facsimile or photostatic copies and the authenticity of the originals
of all documents submitted to us as copies.
Based upon the foregoing, we are of the
opinion that the Shares have been duly authorized by the Company and, when issued and sold by the Company and delivered by the
Company against receipt of the purchase price therefor, in the manner contemplated by the Company’s 2006 Long-Term Incentive
Plan will be validly issued, fully paid and non-assessable.
We express no opinion concerning
any law other than the laws of the State of Nevada. We are not admitted in the State of Nevada and as to matters of Nevada
law, we have based our opinion solely upon our examination of such laws and the rules and regulations of the
authorities administering such laws, all as reported in standard, unofficial compilations.
We hereby consent to the use of this opinion
as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are acting within the category
of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ DLA Piper LLP (US)
Exhibit 10.1
CYTOSORBENTS
CORPORATION
Amendment
No.1 to 2006 Long-Term Incentive Plan
October 20, 2014
RECITALS
A. In 2006, the Board
of Directors (the “
Board
”) of CytoSorbents Corporation, a Nevada corporation (the “
Company
”),
adopted the Company’s 2006 Long-Term Incentive Plan (the “
Plan
”).
B. During administration
of the Plan, the Board approved, but did not formally document, certain amendments to the Plan which have otherwise been publicly
disclosed (the “
Prior Amendments
”).
C. On October 20, 2014,
the Board approved the formal documentation of the Prior Amendments in this Amendment No. 1 to the Plan.
AMENDMENT
1.
Section
ii(j)
of the plan is hereby deleted in its entirety and replaced with the following:
““Fair
Market Value” means (a) if the Common Stock is listed on an established stock exchange or exchanges or the NASDAQ National
Market, the closing price per share on the last trading day immediately preceding such date on the principal exchange on which
it is traded or as reported by NASDAQ; or (b) if the Common Stock is not then listed on an exchange or the NASDAQ National Market,
but is quoted on the NASDAQ Capital Market, the NASD OTC bulletin board or the National Quotation Bureau pink sheets, (i) the average
of the closing bid and asked prices per share for the Common Stock as quoted by the NASD or the National Quotation Bureau, as the
case may be, on the last trading day immediately preceding such date, or (ii) by using any other reasonable method as determined
by the Administrator or the Board; or (c) if the Common Stock is not then listed on an exchange or the NASDAQ National Market,
or quoted by NASD or the National Quotation Bureau, an amount to be determined in good faith by resolution of the Committee (whose
determination shall be conclusive), based on the best information available to it.”
2.
The
second sentence of
Section V(a)
of the Plan is hereby deleted in its entirety and replaced with the following:
“Subject
to adjustment in accordance with the provisions of Section X, and Sections V(b) and (c) below, the total number of shares of Common
Stock available for grants of Awards shall not exceed 60,000,000.”
3.
Section
vi(a)
of the plan is hereby deleted in its entirety and replaced with the following:
“
Stock
Option
. A right to buy a specified number of shares of Common Stock at a fixed exercise price equal to the Fair Market Value
during a specified time, as the Committee may determine.”
4.
Section
ix of the plan is hereby deleted in its entirety and replaced with the following:
“
Termination,
Modification and Amendments
(a) The Plan may from time to time
be terminated, modified or amended by the affirmative vote of the holders of a majority of the outstanding shares of the capital
stock of the Company present or represented and entitled to vote at a duly held stockholders meeting.
(b) Notwithstanding the provisions
of Section IX(a) above, the Board may at any time terminate the Plan or from time to time make such modifications or amendments
of the Plan as it may deem advisable.”
5.
Except
as set forth in this amendment, the plan shall be unaffected hereby and shall remain in full force and effect.
In
Witness Whereof
, the undersigned has caused this Amendment to be executed as of the date first set forth above.
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By:
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/s/ Phillip P. Chan
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Name:
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Dr. Phillip P. Chan
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Title:
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President and
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Chief Executive Officer
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[Signature
Page to 2006 Long-Term Incentive Plan Amendment No. 1]
