S-8

As filed with the Securities and Exchange Commission on March 30, 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

POLARITYTE, INC.

(Exact Name of Registrant as Specified in Its Charter)

Delaware	06-1529524
(State or Other Jurisdiction of	(I.R.S. Employer
Incorporation or Organization)	Identification Number)

1960 S. 4250 West, Salt Lake City, UT 84104

(Address of Principal Executive Offices, Including Zip Code)

POLARITYTE, INC. 2020 STOCK OPTION AND INCENTIVE PLAN

(Full Title of the Plan)

Mark E. Lehman

Chief Legal Officer

PolarityTE, Inc.

1960 S. 4250 West, Salt Lake City, UT 84104

(385) 489-6535

(Name, address, including zip code, and telephone number, including area code, of agent for service)

With a copy to:

Laura I. Bushnell

King & Spalding LLP

601 South California Avenue, Suite 100

Palo Alto, CA 94304

(650) 422-6713

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. (Check one):

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. [  ]

CALCULATION OF REGISTRATION FEE

Title of Securities to be Registered	Amount to be registered (1)	Proposed maximum aggregate offering price per share (2)		Proposed maximum aggregate offering price (2)		Amount of Registration Fee
Common stock, par value $0.001 per share	2,191,917 shares	$	1.165	$	2,553,583	$	279

(1)

PolarityTE, Inc. (the “Registrant” or the “Company”) is registering an additional 2,191,917 shares of its common stock, par value $0.001 per share (“common stock”), issuable under the PolarityTE, Inc. 2020 Stock Option and Incentive Plan (the “2020 Plan”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional shares of the Registrant’s common stock that become issuable under the 2020 Plan due to any stock dividend, stock split, recapitalization or other similar transaction that increases the number of the outstanding shares of the Registrant’s common stock. Pursuant to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described herein.

(2)

Estimated in accordance with paragraphs (c) and (h) of Rule 457 under the Securities Act solely for purposes of calculating the registration fee, on the basis of the average of the high and low sale prices for the Registrant’s common stock as reported on The NASDAQ Capital Market on March 24, 2021, which is within five business days prior to filing.

EXPLANATORY NOTE

Pursuant to General Instruction E of Form S-8, this Registration Statement on Form S-8 is being filed in order to register an additional 2,191,917 shares of the Company’s common stock under the 2020 Plan, for which previously filed Registration Statements on Form S-8 are effective. The contents of the Registration Statement on Form S-8 (Registration No. 333-237189) filed by the Company on March 16, 2020, and the Registration Statement on Form S-8 (Registration No. 333-251795) filed by the Company on December 29, 2020 are incorporated by reference into this Registration Statement, including all attachments and exhibits thereto, except to the extent supplemented, amended or superseded by the information set forth or incorporated herein.

ii

PART I

INFORMATION REQUIRED IN THE 10(a) PROSPECTUS

The documents containing the information required by Part I of Form S-8 will be delivered to participants in the 2020 Plan pursuant to Rule 428(b) of the Securities Act. Consistent with the instructions of Part I of Form S-8, these documents will not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus as required by Section 10(a) of the Securities Act.

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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE

The following documents previously filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

● our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the Commission on March 30, 2021;

● our Current Reports on Form 8-K filed with the Commission on January 11, 2021, January 14, 2021, January 26, 2021, January 27, 2021, and February 3, 2021; and

● the description of our common stock contained in Exhibit 4.13 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the Commission on March 30, 2021.

All documents subsequently filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment that indicates all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing, excluding any portion of any report or document that is not deemed filed under such provisions.

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 other subsequently filed document, which also is or 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. Under no circumstances will any information filed under items 2.02 or 7.01 of Form 8-K be deemed to be incorporated by reference unless such Form 8-K expressly provides to the contrary.

II-1

ITEM 8. EXHIBITS

Exhibit Number	Description of Exhibit
4.1	Restated Certificate of Incorporation of PolarityTE, Inc. (incorporated herein by reference to Exhibit 3.01 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on September 15, 2014)
4.2	Restated Bylaws of PolarityTE, Inc. (incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Commission on June 17, 2005)
4.3	Certificate of Amendment to Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to our Form 8-K filed with the Commission on July 29, 2016)
4.4	Certificate of Amendment to Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to our Form 8-K filed with the Commission on January 10, 2017)
4.5	Certificate of Amendment to Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to our Form 8-K filed with the Commission on April 7, 2017)
4.6	Certificate of Elimination to Restated Certificate of Incorporation eliminating the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock in the Corporation’s Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to our Form 8-K filed with the Commission on March 7, 2018)
4.7	Amendment No. 1 to Restated Bylaws dated January 11, 2019, Changing Fiscal Year (incorporated herein by reference to Exhibit 3.13 to the Company’s Form 10-K filed with the Commission on January 14, 2019)
5.1	Opinion of King & Spalding LLP with respect to the legality of the securities being registered*
23.1	Consent of EisnerAmper LLP*
23.2	Consent of King & Spalding LLP (contained in their opinion filed as Exhibit 5.1)*
24.1	Powers of Attorney (see page II-3 of this Registration Statement)*

* Filed herewith

II-2

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 the City of Salt Lake, State of Utah, on March 30, 2021.

PolarityTE, Inc.
By:	/s/ David Seaburg
Name:	David Seaburg
Title:	Chief Executive Officer

KNOW ALL BY THESE PRESENT, that each person whose signature appears below hereby severally constitutes and appoints each of David Seaburg and Richard Hague, and each of them singly, as such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any or all amendments (including, without limitation, post-effective amendments) to this registration statement (or any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto each 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 such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, 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 on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
/s/ David Seaburg	Chief Executive Officer	March 29, 2021
David Seaburg	(Principal Executive Officer)
/s/ Jacob Patterson	Interim Chief Financial Officer	March 29, 2021
Jacob Patterson	(Principal Financial and Accounting Officer)
/s/ Peter Cohen	Director	March 29, 2021
Peter Cohen
/s/ Jessica Shen	Director	March 29, 2021
Jessica Shen
/s/ Minnie Baylor-Henry	Director	March 29, 2021
Minnie Baylor-Henry
/s/ Willie C. Bogan	Director	March 29, 2021
Willie C. Bogan
/s/ Jeff Dyer	Director	March 29, 2021
Jeff Dyer
/s/ Chris Nolet	Director	March 29, 2021
Chris Nolet

II-3

EX-5.1

Exhibit 5.1

King & Spalding LLP 601 South California Avenue Suite 100 Palo Alto, CA 94304 Tel: +1 650 422 6700 www.kslaw.com

March 30, 2021

PolarityTE, Inc.

1960 S. 4250 West

Salt Lake City, Utah, 84104

Ladies and Gentlemen:

We have acted as counsel to PolarityTE, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the issuance of up to 2,191,917 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share, to be issued pursuant to the terms of the PolarityTE, Inc. 2020 Stock Option and Incentive Plan (the “Plan”).

In so acting, we have examined and relied upon the accuracy of original, certified, conformed or photographic copies of such records, agreements, certificates and other documents as we have deemed necessary or appropriate to enable us to render the opinions set forth below. In all such examinations, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all documents submitted to us as certified, conformed or photographic copies and, as to certificates of public officials, we have assumed the same to have been properly given and to be accurate. As to matters of fact material to this opinion, we have relied, without independent verification, upon statements and representations of representatives of the Company and public officials.

Based upon the foregoing, and subject to the additional assumptions, qualifications and limitations set forth below, we are of the opinion that, when the Shares are issued pursuant to the Plan, or upon the exercise of options, stock appreciation rights or other stock-based awards granted under the Plan, as the case may be, such Shares will be validly issued, fully paid and non-assessable.

This opinion is limited in all respects to the federal laws of the United States of America and the Delaware General Corporation Law, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect that such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.

PolarityTE, Inc.

March 30, 2021

Page 2

This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur, which could affect the opinions contained herein. This opinion is being rendered for the benefit of the Company in connection with the matters addressed herein.

We consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the references to us in such Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

Very truly yours,

/s/ King & Spalding LLP

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement of PolarityTE, Inc. on Form S-8 to be filed on or about March 30, 2021 of our report dated March 30, 2021, on our audits of the consolidated financial statements as of December 31, 2020 and 2019 and for each of the years then ended, which report was included in the Annual Report on Form 10-K filed March 30, 2021.

/s/ EisnerAmper LLP

EISNERAMPER LLP

Iselin, NJ

March 30, 2021