As filed with the Securities and
Exchange Commission on August 30,
2019
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
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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
(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. ☐
CALCULATION OF REGISTRATION FEE
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Title of securities 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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600,000(1)
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$1.22(2)
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$732,000(2)
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$88.72
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(1)
This
Registration Statement registers an aggregate of 600,000 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 August 28, 2019.
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 600,000 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 “Plan”). The additional shares are
of the same class as other securities issuable pursuant to the Plan
for which the Registrant’s Registration Statement on Form S-8
(Registration No. 333-224120), filed
with the Securities and Exchange Commission (the
“Commission”) on April 3, 2018
(the “Prior Registration
Statement”), remains effective. The information contained in
the Prior Registration Statement is 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.
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, 2018, filed with the Commission on
April 1, 2019;
(b)
The
Registrant’s Quarterly Reports on Form 10-Q for the periods
ended March 31, 2019 and June 30, 2019, filed with the Commission
on
May 15, 2019 and
August 14, 2019, respectively;
(c)
The
Registrant’s Current Report on Form 8-K filed with the
Commission on
June 14, 2019; and
(d)
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
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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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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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 August 30, 2019.
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TENAX THERAPEUTICS, INC.
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Date: August 30,
2019
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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/
Anthony DiTonno
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Chief Executive Officer and Director
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August 30, 2019
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Anthony DiTonno
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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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August 30, 2019
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Michael B. Jebsen
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(Principal Financial Officer and Principal Accounting
Officer)
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/s/
Ronald R. Blanck
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Director
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August 30, 2019
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Ronald R. Blanck, DO
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/s/
Gregory Pepin
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Director
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August 30, 2019
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Gregory Pepin
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/s/
James Mitchum
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Director
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August 30, 2019
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James Mitchum
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/s/
Chris A. Rallis
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Director
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August 30, 2019
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Chris A. Rallis
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/s/
Gerald Proehl
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Director
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August 30, 2019
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Gerald Proehl
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August
30, 2019
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Tenax
Therapeutics, Inc.
One
Copely Parkway
Suite
490
Morrisville,
North Carolina 27560
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Re:
Tenax Therapeutics, Inc. Registration Statement on Form
S-8
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Ladies
and Gentlemen:
We have
acted as counsel to Tenax Therapeutics, Inc., a Delaware
corporation (the “Company”), in connection with the
Registration Statement on Form S-8 (the “Registration
Statement”) filed on the date hereof with the Securities and
Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (the “Securities Act”), and the
rules and regulations promulgated thereunder for the registration
of 600,000 additional shares (the “Shares”) of Common Stock,
par value $0.0001 per share (the “Common Stock”), of the
Company, issuable pursuant to the Tenax Therapeutics, Inc. 2016
Stock Incentive Plan, as amended (the
“Plan”).
You
have requested our opinion as to the matters set forth below in
connection with the issuance of the Shares. For purposes of
rendering that opinion, we have examined (i) the Registration
Statement, (ii) the Company’s Certificate of Incorporation,
(iii) its Bylaws, (iv) the corporate action of the Company’s
Board of Directors which authorizes the registration of the Shares
on the Registration Statement and (v) the Plan, and we also have
made such investigation of law as we have deemed appropriate. We
have examined and relied upon certificates of public officials and
such other documents and instruments as we have deemed necessary or
advisable for the purpose of rendering our opinion. For the
purposes of this opinion letter, we have made assumptions that are
customary in opinion letters of this kind, including the
assumptions that each document submitted to us is accurate and
complete, that each such document that is an original is authentic,
that each such document that is a copy conforms to an authentic
original, that all signatures on each such document are genuine and
that the Company is and shall remain at all times a corporation
duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. We have further assumed the legal
capacity of natural persons, and we have assumed that each party to
the documents we have examined or relied on has the legal capacity
or authority and has satisfied all legal requirements that are
applicable to that party to the extent necessary to make such
documents enforceable against that party. We have not verified any
of those assumptions.
In
rendering our opinion below, we also have assumed that: (a) the
Company will have sufficient authorized and unissued shares of
Common Stock at the time of each issuance of a Share under the
Plan; (b) the Shares will be evidenced by appropriate certificates,
duly executed and delivered or by the book entry of the Shares by
the transfer agent for the Company’s Common Stock; (c) the
issuance of each Share will be duly noted in the Company’s
stock ledger upon its issuance; (d) the Plan constitutes the valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms; (e) the Company will receive
consideration for each Share at least equal to the par value of
such share of Common Stock and in the amount required by the Plan
(or the award agreement issued thereunder); and (f) prior to the
issuance of any Shares under the Plan, the Company’s Board of
Directors will duly authorize each award granted under the Plan
pursuant to an award agreement and in accordance with the Delaware
General Corporation Law (the “DGCL”) and the Plan. Our
opinion is subject to the effects of general principles of equity,
whether considered in a proceeding at law or in
equity.
Our
opinion set forth below is limited to the DGCL and reported
judicial decisions interpreting the DGCL.
Based
upon and subject to the foregoing, it is our opinion that the
Shares are duly authorized for issuance by the Company pursuant to,
and on the terms set forth in, the Plan and, when, and if, issued
pursuant to the terms of the Plan and the applicable award
agreement will be validly issued, fully paid, and
non-assessable.
We
hereby consent to the filing of this opinion letter with the SEC as
Exhibit 5.1 to the Registration Statement. In giving this consent,
we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the SEC promulgated
thereunder.
Very
truly yours,
/s/
K&L Gates LLP
K&L
Gates LLP
