As filed with the Securities and Exchange Commission on April 3, 2018
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)
 
Delaware
 
26-2593535
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)
   
 
   
    ONE Copley Parkway, Suite 490 Morrisville, North Carolina
 
27560    
    (Address of Principal Executive Offices)
 
(Zip Code)    
 
Tenax Therapeutics, Inc. 2016 Stock Incentive Plan
(Full title of the Plan)
 
Michael B. Jebsen
Interim Chief Executive Officer 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.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
Wells Fargo Capital Center, Suite 2300
150 Fayetteville Street
Raleigh, North Carolina 27602
(919) 821-1220
 
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.
 
Large accelerated filer
 
☐
  
Accelerated filer
 
☐
 
Non-accelerated filer
 
☐   (Do not check if a smaller reporting company)
  
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. ☐
 

 
 
 
 CALCULATION OF REGISTRATION FEE
 
Title of securities to be registered
 
Amount to be Registered (1)
 
 
Proposed maximum offering price per share
 
 
Proposed maximum aggregate offering price
 
 
Amount of registration fee
 
Common Stock, par value $0.0001 per share
    150,000  
  $ 5.60 (2)
  $ 840,000 (2)
  $ 104.58  
 
 
 
 
(1)
This Registration Statement registers an aggregate of 150,000 shares of Common Stock, par value $0.0001 per share (the “Common Stock”), of Tenax Therapeutics, Inc., which shares 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.
 
(2)
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 March 29, 2018.
 
 
2
 
 
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 150,000 shares of common stock of the Registrant, par value $0.0001 per share (the “Common Stock”). On April 21, 2016, the Board of Directors of the Registrant approved, subject to stockholder approval, the Tenax Therapeutics, Inc. 2016 Stock Incentive Plan (the “Plan”). On June 16, 2016, the Plan was approved by the stockholders at the Registrant’s annual meeting of stockholders. The Plan as approved by the stockholders authorized the issuance of up to 3,000,000 shares; however, on February 23, 2018, the Registrant effected a 1-for-20 reverse stock split of the Registrant’s issued and outstanding Common Stock (the “Reverse Stock Split”). In connection with the Reverse Stock Split, the total number of shares then-authorized for issuance under the Plan decreased proportionately to reflect the Reverse Stock Split. The share totals contained in this Registration Statement reflect the Reverse Stock Split.
 
 
 
3
 
 
PART I
 
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
 
This Registration Statement on Form S-8 is being filed by the Registrant to register 150,000   shares of the Registrant’s Common Stock issuable under the Plan. As permitted by the rules of the Securities and Exchange Commission (the “Commission”), this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the Plan as required by Rule 428(b) under the Securities Act. Such documents are not being filed with the Commission as part of this Registration Statement or a prospectus or prospectus supplement pursuant to Rule 424.
 
 
 
4
 
 
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, 2017, filed with the Commission on April 2, 2018;
 
(b)
The Registrant’s Current Reports on Form 8-K filed with the Commission on February 15, 2018, February 23, 2018, and March 14, 2018; and
 
(c)
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, 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.
 
 
5
 
 
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 is or is threatened to be made a party by reason of such position, if such person shall have 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 proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided that, 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 shall have 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.
 
The Registrant’s Certificate of Incorporation and Bylaws provide that its directors and officers will be indemnified by the Registrant to the fullest extent authorized by 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 the Registrant’s directors will not be liable for monetary damages to it for breaches of their fiduciary duty as directors, unless they (i) violated their duty of loyalty to the Registrant or its 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.
 
The Registrant’s Bylaws also permit it to secure insurance on behalf of any officer, director or employee for any liability arising out of his or her actions, regardless of whether Delaware General Corporation Law would permit indemnification. The Registrant has purchased a policy of directors’ and officers’ liability insurance that insures its directors and officers.
 
In addition, the Registrant has also entered into an indemnification agreement with certain of its directors and officers. The indemnification agreements require the Registrant to indemnify and hold harmless and advance expenses to each indemnitee with regards to acts or omissions occurring prior to the time the indemnitee ceases to be an officer and/or director of the Registrant to the fullest extent provided under the Registrant’s Certificate of Incorporation in effect as of the date of the agreement or to such greater extent as provided in any amendment to the Registrant’s Certificate of Incorporation and to the fullest extent permitted by applicable law in effect as of the date of the agreement or to such greater extent as applicable law may subsequently permit. The rights provided in the indemnification agreements are in addition to the rights provided in the Registrant’s Certificate of Incorporation, Bylaws, and the Delaware General Corporation Law.
 
The limitations of liability and indemnification provisions in the Registrant’s Certificate of Incorporation and Bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit the Registrant and its stockholders. In addition, stockholders’ investment may be adversely affected to the extent the Registrant pays the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. The Registrant believes that these provisions, the insurance and the indemnification agreements are necessary to attract and retain talented and experienced directors and officers.
 
 
 
6
 
 
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to the Registrant’s directors, officers and controlling persons 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.
 
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:
 
Exhibit No.
 
Description
 
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).
 
 
 
 
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).
 
 
 
 
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).
 
 
 
 
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 ).
 
 
 
 
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).
 
 
 
 
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 ).
 
 
 
 
Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
 
 
 
 
Consent of Independent Registered Public Accounting Firm, Cherry Bekaert LLP.
 
 
 
 
Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. (Contained in Exhibit 5.1).
 
 
 
 
Power of Attorney (Contained on signature page).
 
 
 
 
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).
 
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;
 
 
7
 
 
(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) of this section 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 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 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 the final adjudication of such issue.
 
 
8
 
 
S IGNATURES
 
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 April 3, 2018 .
 
 
TENAX THERAPEUTICS, INC.
 
 
 
 
 
 
By:  
/s/ Michael B. Jebsen
 
 
 
Michael B. Jebsen
 
 
 
Interim Chief Executive Officer, President and Chief Financial Officer  
 
 
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.  
 
Name
 
Title
 
Date
 
 
 
 
 
/s/ Michael B. Jebsen
 
Interim Chief Executive Officer and Chief Financial Officer
 
April 3, 2018
Michael B. Jebsen
 
(Principal Executive, Financial and Accounting Officer)
 
 
 
 
 
 
 
/s/ Ronald R. Blanck, DO
 
Director
 
April 3, 2018
Ronald R. Blanck, DO
 
 
 
 
 
 
 
 
 
/s/ Gregory Pepin
 
Director
 
April 3, 2018
Gregory Pepin
 
 
 
 
 
 
 
 
 
/s/ James Mitchum
 
Director
 
April 3, 2018
James Mitchum
 
 
 
 
 
 
 
 
 
/s/ Chris A. Rallis
 
Director
 
April 3, 2018
Chris A. Rallis
 
 
 
 
 
 
 
 
 
/s/ Anthony DiTonno
 
Director
 
April 3, 2018
Anthony DiTonno
 
 
 
 
 
 
 
 
 
/s/ Gerald Proehl
 
Director
 
April 3, 2018
Gerald Proehl
 
 
 
 
 
 
 
 
 
 
 
 
9
Exhibit 5.1
 
Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan, L.L.P.
 
 
OFFICES
Wells Fargo Capitol Center
150 Fayetteville Street, Suite 2300
Raleigh, North Carolina 27601
_______
 
 
 
 
 
April 3, 2018
 
 
MAILING ADDRESS
P.O. Box 2611
Raleigh, North Carolina
27602-2611
  _______
TELEPHONE: (919) 821-1220
   FACSIMILE: (919) 821-6800
 
Tenax Therapeutics, Inc.
ONE Copley Parkway
Suite 490
Morrisville, North Carolina 27560
 
Re: 
Tenax Therapeutics, Inc. Registration Statement on Form S-8
 
Ladies and Gentlemen:
 
We have acted as counsel for Tenax Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the registration on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), of 150,000 shares (the “Shares”) of the common stock of the Company, par value $0.0001 per share, for issuance under the Company’s 2016 Stock Incentive Plan (the “Plan”).
 
This opinion letter 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 rendering the opinion set forth herein, we have examined the Certificate of Incorporation of the Company, as amended, the Bylaws of the Company, as amended and restated, the Proxy Statement for the Company’s 2016 Annual Meeting of Stockholders, the Plan, certified copies of resolutions of the board of directors of the Company and certain committees thereof, and such other documents, and considered such matters of law and fact as we, in our professional judgment, have deemed appropriate to render the opinion contained herein. In our examination, we have assumed the legal capacity of natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conforming to originals of all documents submitted to us as certified copies or photocopies, and the authenticity of originals of such latter documents. With respect to certain facts, we have considered it appropriate to rely upon certificates or other comparable documents of public officials and officers or other appropriate representatives of the Company without investigation or analysis of any underlying data contained therein.
 
 
 
Tenax Therapeutics, Inc.
April 3, 2018
Page 2
 
Based upon and subject to the foregoing and the further assumptions, limitations and qualifications hereinafter expressed, it is our opinion that the Shares have been duly authorized and, when issued and delivered against payment therefor in accordance with the Plan as described in the Registration Statement and upon either (a) the countersigning of the certificates representing the Shares by a duly authorized signatory of the registrar for the Company’s common stock, or (b) the book entry of the Shares by the transfer agent for the Company’s common stock, will be validly issued, fully paid and nonassessable.
 
The opinion expressed herein is limited to matters governed by the Delaware General Corporation Law, and no opinion is expressed herein as to the laws of any other jurisdiction. The opinion expressed herein does not extend to compliance with federal and state securities laws relating to the sale of the Shares.
 
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to all references to our firm in the Registration Statement and any amendment thereto. Such consent shall not be deemed to be an admission that our firm is within the category of persons whose consent is required under Section 7 of the Act or the regulations promulgated pursuant to the Act.
 
Our opinion expressed herein is as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof that may affect our opinion expressed herein.
 
 
 
 
 
 
Sincerely yours,
 
 
 
 
 
 
 
SMITH, ANDERSON, BLOUNT, DORSETT,
 
 
 
MITCHELL & JERNIGAN, L.L.P.
 
 
 
 
 
 
 
/s/ Smith, Anderson, Blount, Dorsett,
 
 
 
Mitchell & Jernigan, L.L.P.
 
 
 
 
 
 
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 2, 2018, relating to the consolidated financial statements of Tenax Therapeutics, Inc. (the “Company”), appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2017.
 
 
/s/ CHERRY BEKAERT LLP
 
 
Raleigh, North Carolina
April 3, 2018