As filed with the Securities and Exchange Commission
on August 16, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
CYTOSORBENTS CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction
of incorporation or organization) |
98-0373793
(I.R.S. Employer
Identification No.) |
305 College Road East
Princeton, New Jersey
(Address of principal executive offices) |
08540
(Zip Code) |
AMENDED
AND RESTATED CYTOSORBENTS CORPORATION 2014 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Phillip Chan,
MD
Chief Executive Officer
CytoSorbents Corporation
305 College Road East
Princeton, New Jersey 08540
(732) 329-8885 |
David C. Schwartz, Esq.
Morgan, Lewis & Bockius LLP
502 Carnegie Center
Princeton, New Jersey 08540
(609) 919-6600 |
(Name, address, telephone number,
including area code, of agent for service) |
(With copies to) |
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
|
|
Accelerated filer |
¨ |
| Non-accelerated filer |
x |
|
Smaller reporting company |
x |
| |
|
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. ¨
EXPLANATORY NOTE
The Registrant
is filing this Registration Statement on Form S-8 (this “Registration Statement”) for the purpose of registering 8,145,000
shares of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”), which may be issued by the
Registrant as more particularly described below.
Plan Shares
The Board of Directors of the Registrant approved an amendment (the
“Amendment”) to the Amended and Restated CytoSorbents Corporation 2014 Long-Term Incentive Plan, as amended and restated effective
April 12, 2019 (the “Plan”). The Amendment was subsequently approved by the Registrant’s stockholders at the Registrant’s
2024 Annual Meeting of Stockholders held on June 6, 2024. The Amendment increased the number of shares of Common Stock to be reserved
and authorized for issuance under the Plan by 7,500,000 shares to 20,900,000 shares of Common Stock.
Pursuant to General Instruction E to Form S-8, the contents of the
Registration Statements filed by the Registrant with the Securities and Exchange Commission (the “Commission”) (File Nos.
333-203244, 333-220630, and 333-233459), with respect to securities offered pursuant to the Amended and Restated CytoSorbents Corporation
2014 Long-Term Incentive Plan are hereby incorporated by reference to the extent not otherwise amended or superseded by the contents hereof.
Inducement Awards
On August
14, 2024, the Registrant entered into that certain Employment Agreement by and between the Registrant and the Chief Financial Officer
of the Registrant, Peter J. Mariani (the “Mariani Employment Agreement”), pursuant to which the Registrant issued to Mr. Mariani
(i) 295,000 shares of Common Stock of the Registrant, which may be issued pursuant to certain inducement nonstatutory stock option awards
made to Mr. Mariani in accordance with the provisions set forth in the Mariani Employment Agreement and the inducement grant exception
under NASDAQ Listing Rule 5635(c)(4) and (ii) 350,000 shares of Common Stock of the Registrant, which may be issued pursuant to the inducement
restricted stock unit award made to Mr. Mariani in accordance with the provisions set forth in the Mariani Employment Agreement and the
inducement grant exception under NASDAQ Listing Rule 5635(c)(4).
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the
Commission are hereby incorporated by reference in this Registration Statement:
| (3) | The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2024, filed with the Commission on May 9, 2024 and for the fiscal quarter ended on June 30, 2024, filed with the Commission on August 13, 2024; |
| (4) | The Registrant’s Current Reports on Form 8-K filed with the Commission on January
17, 2024, March
15, 2024, April
3, 2024, May
6, 2024, May
9, 2024, May
22, 2024, June
10, 2024, July
5, 2024, August
1, 2024, August
14, 2024, and August 16, 2024 (provided that any portions of such reports that are deemed furnished and not filed pursuant to
instructions to Form 8-K shall not be incorporated by reference into this Registration Statement); and |
To the extent that any information contained in
any Current Report on Form 8-K, or any exhibit thereto, was furnished to, rather than filed with, the Commission, such information or
exhibit is specifically not incorporated by reference.
In addition, all documents
that the Registrant files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the effective date of this
Registration Statement (except for any portions of the Registrant’s Current Reports on Form 8-K furnished pursuant to Item 2.02
or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission), but prior to the filing of a post-effective
amendment to this Registration Statement indicating that all securities offered hereby 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 such documents.
For purposes of this Registration
Statement, any document or statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such document or statement in such document. 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.
EXHIBIT INDEX
Exhibit
number |
|
Description |
| |
|
|
| 5.1 |
|
Opinion of Morgan, Lewis & Bockius
LLP, counsel for the Registrant, (filed herewith). |
| |
|
|
| 10.1 |
|
Employment Agreement by and between the Registrant and Peter Mariani (incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on August 16, 2024) |
| |
|
|
| 23.1 |
|
Consent of Morgan, Lewis & Bockius
LLP (included in Exhibit 5.1). |
| |
|
|
| 23.2 |
|
Consent of WithumSmith+Brown, PC, the
Registrant’s Independent Registered Public Accounting Firm (filed herewith). |
| |
|
|
| 24.1 |
|
Power of Attorney (included on signature page). |
| |
|
|
| 99.1 |
|
Restricted Stock Unit Award Agreement (Inducement Award), dated as of August 14, 2024, by and between the Registrant and Peter Mariani (incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on August 16, 2024) |
| |
|
|
| 99.2 |
|
Nonstatutory Option Award Agreement (Inducement Award), dated as of August 14, 2024, by and between the Registrant and Peter Mariani (incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on August 16, 2024) |
| |
|
|
| 99.3 |
|
Nonstatutory Option Award Agreement (Inducement Award), dated as of August 14, 2024, by and between the Registrant and Peter Mariani (incorporated by reference from Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on August 16, 2024) |
| |
|
|
| 107 |
|
Filing Fee Exhibit |
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 Princeton, New Jersey, August 16, 2024.
| |
CYTOSORBENTS
CORPORATION |
| |
|
| |
By: |
/s/
Dr. Phillip P. Chan |
| |
Name: |
Dr.
Phillip P. Chan |
| |
Title: |
Chief
Executive Officer |
POWER OF ATTORNEY
We, the undersigned officers
and directors of CytoSorbents Corporation, hereby severally constitute and appoint Phillip P. Chan and Peter J. Mariani, our true and
lawful attorneys, with full power to each of them singly, to sign for us and in our names in the capacities indicated below, the Registration
Statement on Form S-8 filed herewith and any and all subsequent amendments to said Registration Statement, and generally to do all such
things in our names and on our behalf in our capacities as officers and directors to enable CytoSorbents Corporation to comply with the
provisions of the Securities Act of 1933 as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and
all amendments thereto.
Pursuant to the requirements
of the Securities Act of 1933, as amended this Registration Statement has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| /s/
Michael G. Bator |
|
Chairman
of the Board of Directors |
|
August
16, 2024 |
| Michael
G. Bator |
|
|
|
|
| |
|
|
|
|
| /s/
Dr. Phillip P. Chan |
|
Chief
Executive Officer (Principal Executive Officer) and Director |
|
August
16, 2024 |
| Dr.
Philip P. Chan |
|
|
|
|
| |
|
|
|
|
| /s/
Peter J. Mariani |
|
Chief
Financial Officer (Principal Financial and Accounting Officer) |
|
August
16, 2024 |
| Peter
J. Mariani |
|
|
|
|
| |
|
|
|
|
| /s/
Alan D. Sobel |
|
Director |
|
August
16, 2024 |
| Alan
D. Sobel |
|
|
|
|
| |
|
|
|
|
| /s/
Edward R. Jones |
|
Director |
|
August
16, 2024 |
| Edward
R. Jones |
|
|
|
|
| |
|
|
|
|
| /s/
Jiny Kim |
|
Director |
|
August
16, 2024 |
| Jiny
Kim |
|
|
|
|
Exhibit
5.1
August 16, 2024
CytoSorbents Corporation
305 College Road East
Princeton, New Jersey 08540
Re: CytoSorbents Corporation Registration Statement on Form S-8
Filed on August 16, 2024
Ladies and Gentlemen:
We have acted
as counsel to CytoSorbents Corporation, a Delaware corporation (the “Company”), in connection with its filing of a Registration
Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”),
with the Securities and Exchange Commission (the “SEC”) on the date hereof. The Registration Statement relates to the registration
of 8,145,000 shares of common stock, $0.001 par value, of the Company (the “Common Stock”), which consists of: (i) 7,500,000
shares of Common Stock issuable under the Amended and Restated CytoSorbents Corporation 2014 Long-Term Incentive Plan (the “Plan”);
(ii) 295,000 shares of Common Stock issuable upon the vesting and exercise of certain nonstatutory option awards made to Peter J. Mariani
as an inducement material to him entering into employment with the Company (the “Option Award Agreements”), and (iii)
the vesting of 350,000 shares of Common Stock issuable pursuant to a restricted stock unit award made to Peter J. Mariani as an inducement
material to him entering into employment with the Company (the “RSU Agreement”).
In connection
with this opinion letter we have examined the Registration Statement and originals, or copies certified or otherwise identified to our
satisfaction, of (i) the Second Amended and Restated Certificate of Incorporation of the Company, as amended to date, (ii) the Amended
Restated Bylaws of the Company, as amended to date, (iii) certain resolutions of the Company’s Board of Directors relating
to the Registration Statement, (iv) the Plan, (v) the Mariani Nonstatutory Option Award Agreements, (vi) the Mariani RSU Agreement,
and (vii) such other documents, records and other instruments as we have deemed appropriate for purposes of the opinions 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. With respect to matters of fact relevant to our opinions as set forth below, we have relied upon certificates of officers of the
Company, representations made by the Company in documents examined by us, and representations of officers of the Company. We have also
obtained and relied upon such certificates and assurances from public officials as we have deemed necessary for the purposes of our opinions
set forth below.
Subject to the foregoing and the other matters set forth herein, we
are of the opinion, as of the date hereof, that the Common Stock has been duly authorized by the Company and, when issued by the Company
in accordance with the provisions of the Plan, the Option Award Agreements and the RSU Agreements, as applicable, will be validly issued,
fully paid, and non-assessable.
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 SEC thereunder.
The opinions expressed herein are limited to the federal laws of the
United States and the Delaware General Corporation Law.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
Exhibit
23.2
Consent
of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 14, 2024 (which includes an explanatory paragraph regarding the Company’s ability
to continue as a going concern), relating to the consolidated financial statements of Cytosorbents Corporation as of December 31, 2023
and 2022 appearing in the entity’s Annual Report on Form 10-K for the year ended December 31, 2023.
/s/ WithumSmith+Brown, PC
East Brunswick, New Jersey,
August 16, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form
S-8
(Form Type)
CytoSorbents Corporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities and Carry
Forward Securities
Table 1: Newly Registered Securities
Security
Type |
Security Class
Title |
Fee
Calculation
Rule |
Amount
Registered(1) |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price |
Fee Rate |
Amount of
Registration
Fee |
| Equity |
Common Stock, $0.001 par value per share |
Rule 457(c) and Rule 457(h) |
7,500,000(2) |
$0.89(3) |
$6,675,000 |
0.00014760 |
$985.23 |
| Equity |
Common Stock, $0.001 par value per share |
Rule 457(h) |
295,000(4) |
$0.90(5) |
$265,500 |
0.00014760 |
$39.19 |
| Equity |
Common Stock, $0.001 par value per share |
Rule 457(c) and Rule 457(h) |
350,000(6) |
$0.89(3) |
$311,500 |
0.00014760 |
$45.98 |
| Total Offering Amounts |
|
$7,252,00 |
|
$1,070.40 |
| Total Fee Offsets |
|
|
|
$0 |
| Net Fee Due |
|
|
|
$1,070.40 |
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement on Form S-8 (this “Registration Statement”) shall cover any additional shares of common stock,
$0.001 par value per share (“Common Stock”) of the Registrant that become issuable under the Plan (as defined below) and the
inducement stock option awards and inducement restricted stock unit award referenced in footnotes (4) and (6) below by reason of any stock
dividend, stock split, recapitalization or similar transaction effected without the Registrant’s receipt of consideration which
would increase the number of outstanding shares of Common Stock. |
| (2) | An aggregate of 20,900,000 shares of Common Stock of the Registrant may be offered or issued pursuant
to the Amended and Restated CytoSorbents Corporation 2014 Long-Term Incentive Plan, as amended and restated effective April 12, 2019 (the
“Plan”), 13,400,000 shares of which were previously registered on a Registration Statement on Form S-8, and 7,500,000 shares
of which are registered on this Registration Statement on Form S-8 (“Registration Statement”). |
| (3) | Estimated in accordance with Rule 457(c) and Rule 457(h) promulgated under the Securities Act solely for
the purpose of calculating the registration fee based on the average of the high and low prices of the Common Stock as reported on the
Nasdaq Global Select Market on August 13, 2024. |
| (4) | Represents the maximum number of shares of Common Stock issuable pursuant to the inducement stock option
awards made to the Chief Financial Officer of the Registrant, Peter J. Mariani, in accordance with the provisions set forth in that certain
Employment Agreement by and between the Registrant and Mr. Mariani, dated August 14, 2024 (the “Mariani Employment Agreement”),
and the inducement grant exception under NASDAQ Listing Rule 5635(c)(4). |
| (5) | Estimated in accordance with Rule 457(h) promulgated under the Securities Act solely for the purpose of
calculating the registration fee based upon the exercise price of the options outstanding under the inducement stock option awards to
Mr. Mariani. |
| (6) | Represents the maximum number of shares of Common Stock issuable pursuant to the inducement restricted
stock unit award made to Mr. Mariani in accordance with the Mariani Employment Agreement and the inducement grant exception under NASDAQ
Listing Rule 5635(c)(4). |
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