As
filed with the Securities and Exchange Commission on April 12, 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
RENOVORX,
INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
27-1448452 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
4546
El Camino Real, Suite B1
Los
Altos, California 94022
(Address
of principal executive offices, including zip code)
2021
Omnibus Equity Incentive Plan
(Full
title of the plan)
Shaun
R. Bagai
Chief
Executive Officer
RenovoRx,
Inc.
4546
El Camino Real, Suite B1
Los
Altos, California 94022
(650)
284-4433
(Name,
address and telephone number, including area code, of agent for service)
With
a copy to:
Barry
I. Grossman, Esq.
Lawrence
A. Rosenbloom, Esq.
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas
New
York, NY 10105
Phone:
(212) 370-1300
Fax:
(212) 370-7889
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 |
☒ |
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 ☐
REGISTRATION
OF ADDITIONAL SHARES
AND INCORPORATION OF PREVIOUS REGISTRATION StatementS by reference
Pursuant to General Instruction
E of Form S-8, RenovoRx, Inc., a Delaware corporation (the “Registrant”), is filing this registration statement on Form S-8
(the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register 320,807
additional shares of common stock, par value $0.0001 per share (the “Common Stock”), available for issuance under the RenovoRx,
Inc. 2021 Omnibus Equity Incentive Plan (the “2021 Plan”), pursuant to the evergreen provisions of the 2021 Plan providing
for an annual increase in the number of shares reserved for issuance under the 2021 Plan equal to the lesser of (i) three percent (3%)
of the number of shares of Common Stock outstanding on the final day of the immediately preceding calendar year and (ii) such lesser
number of shares of common stock as determined by the Registrant’s Board of Directors.
In accordance
with General Instruction E of Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registrant’s
prior registration statements on Form S-8 filed with the Commission on October 29, 2021 (Registration
No. 333-260573), March 30, 2022 (Registration No. 333-263972), March 31, 2023 (Registration No. 333-271044) and April 3, 2023
(Post Effective Amendment to Registration No. 333-271044), except to the extent supplemented, amended or superseded by the information
set forth herein. Additionally, in accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the
information specified by Part I of Form S-8 has been omitted from this Registration Statement.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
3. Incorporation of Documents by Reference.
The
following documents filed by the Registrant with the Securities and Exchange Commission (the “Commission”) pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in this Registration
Statement:
| 1. |
The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the Commission on April 1,
2024 (the “Annual Report”); |
| |
|
| 2. |
All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act, since the end of the fiscal year covered by the Annual
Report (other than the portions of these documents not deemed to be filed); and |
| |
|
| 3. |
The
description of the Registrant’s common stock contained in the Registration Statement on Form
8-A (File No. 001-40738) filed with the Commission on August 11, 2021, including any amendment or report filed for the purpose
of updating such description (including Exhibit 4.6 to the Registrant’s Annual Report on Form 10-K for the year ended December
31, 2021, filed with the Commission on March 30, 2022). |
All
documents subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act
on or after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or that deregisters all securities then remaining unsold under this Registration Statement, shall be
deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents;
provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the
Commission shall not be deemed incorporated by reference into this Registration Statement.
Any
statement contained herein or 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 earlier 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.
Item
6. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award,
indemnity to officers, directors, and other corporate agents, provided that the person acted in good faith and in a manner the person
reasonably believed to be in the corporation’s best interests, and, with respect to any criminal action, had no reasonable cause
to believe the person’s actions were unlawful. A similar standard is applicable in the case of derivative actions, except that
indemnification extends only to expenses, including attorneys’ fees, incurred in connection with the defense or settlement of such
action and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been
found liable to the corporation. The Delaware General Corporation Law further provides that the
indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled
under the corporation’s bylaws, any agreement, a vote of stockholders or otherwise.
The
Registrant’s Sixth Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and Amended
and Restated Bylaws (the “Bylaws”) provide for indemnification of directors and officers to the fullest extent permitted
by law, including payment of expenses in advance of resolution of any such matter.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director
of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for payments of unlawful
dividends or unlawful stock repurchases or redemptions or (4) for any transaction from which the director derived an improper personal
benefit. The Registrant’s Certificate of Incorporation provides that the Registrant’s directors shall not be personally liable
to it or its stockholders for monetary damages for breach of fiduciary duty as a director and that if the Delaware General Corporation
Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability
of the Registrant’s directors shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended.
Section
174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an
unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either
absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions
to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately
after such absent director receives notice of the unlawful acts.
Further,
as permitted by the Delaware General Corporation Law, the Registrant has entered into separate indemnification agreements with each of
its directors and officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation
Law. Each indemnification agreement provides, among other things, for indemnification to the fullest extent permitted by law and the
Certificate of Incorporation and Bylaws against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any
claim. The indemnification agreements provide for the advancement or payment of all expenses to the indemnitee and for reimbursement
to the Registrant if it is found that such indemnitee is not entitled to such indemnification under applicable law and the Certificate
of Incorporation and Bylaws.
The
Registrant has obtained and maintains standard policies of insurance under which coverage is provided (a) to its directors and officers
against loss(es) rising from claims made by reason of breach of duty or other wrongful act, and (b) to it with respect to payments that
it may make to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law. The coverage
provided by these policies may apply whether or not the Registrant would have the power to indemnify such person against such liability
under the provisions of the Delaware General Corporation Law.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the
Registrant under the foregoing provisions, 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.
See
the attached Exhibit Index on the page immediately preceding the signature pages hereto, which is incorporated herein by reference.
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;
(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) 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 herein, 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 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to 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 herein, 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.
EXHIBIT
INDEX
| Exhibit
Number |
|
Description |
| 3.1 |
|
Sixth Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the Commission on August 31, 2021) |
| 3.2 |
|
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 filed with the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission on March 30, 2022) |
| 4.1 |
|
Specimen Stock Certificate evidencing the Shares of Common Stock (incorporated by reference to Exhibit 4.4 to Amendment No. 4 to the Registration Statement on Form S-1 filed with the Commission on August 25, 2021) |
| 5.1* |
|
Opinion of Ellenoff Grossman & Schole LLP |
| 10.1 |
|
Amended and Restated 2021 Omnibus Equity Incentive Plan and Forms of Stock Option Grant Notice and Option Agreement (incorporated by reference to Exhibit 10.2 filed with the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission on March 30, 2022) |
| 23.1* |
|
Consent of Baker Tilly US, LLP, independent registered public accounting form |
| 23.2* |
|
Consent of Ellenoff Grossman & Schole LLP(included in Exhibit 5.1) |
| 24.1 |
|
Power of Attorney (included on signature page) |
| 107 |
|
Fee filing table |
*
Filed herewith
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 the City of Los Altos, State of California, on the 12th day of April, 2024.
| |
RENOVORX, INC. |
| |
|
|
| |
By: |
/s/ Shaun
R. Bagai |
| |
|
Shaun R. Bagai |
| |
|
Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Shaun R. Bagai and Ramtin
Agah, and each of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all capacities (including his or her capacity as a director and/or
officer of RenovoRx, Inc.) to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form
S-8 and any and all additional registration statements filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to
file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as they, he or
she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any of them, or their, his
or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed below by the following persons
in the capacities and on the dates indicated.
| SIGNATURE |
|
TITLE |
|
DATE |
| |
|
|
|
|
| /s/
Shaun R. Bagai |
|
Chief
Executive Officer and Director |
|
April
12, 2024 |
| Shaun
R. Bagai |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Ronald B. Kocak |
|
Vice
President, Controller and
Principal
Accounting Officer |
|
April
12, 2024 |
| Ronald
B. Kocak |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Ramtin Agah |
|
Director |
|
April
12, 2024 |
| Ramtin
Agah, M.D. |
|
|
|
|
| |
|
|
|
|
| /s/
Laurence J. Marton, M.D. |
|
Director |
|
April
12, 2024 |
| Laurence
J. Marton, M.D. |
|
|
|
|
| |
|
|
|
|
| /s/
Una S. Ryan |
|
Director |
|
April
12, 2024 |
| Una
S. Ryan, O.B.E., Ph.D., D.Sc. |
|
|
|
|
| |
|
|
|
|
| /s/
Kirsten Angela Macfarlane |
|
Director |
|
April
12, 2024 |
| Kirsten
Angela Macfarlane |
|
|
|
|
