S-8 1 dp82802_s-8.htm FORM S-8

 

As filed with the Securities and Exchange Commission on November 17, 2017

Registration No. 333-        

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933

 

InflaRx N.V.

(Exact Name of Registrant as specified in its charter)

The Netherlands   N/A
(State or other jurisdiction of
incorporation or organization)		   (I.R.S. Employer
Identification No.)
 

Winzerlaer Str. 2
07745 Jena, Germany

(+49) 3641 508180

  
(Address including zip code of Principal Executive Offices)
 

InflaRx N.V. Long-Term Incentive Plan

InflaRx Stock Option Plan 2016

InflaRx Options Issued Pursuant To The Series B Financing Arrangement

   (Full title of the plans)  
 
 

Cogency Global Inc.

10 East 40th Street, 10th Floor

New York, New York 10016, USA

+1 (800) 221-0102

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

Copies to:

  
 

Sophia Hudson

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY 10017

  

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer o Accelerated filer o
Non-accelerated filer x (Do not check if a smaller reporting company) Smaller reporting company o

 

 

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(4)
Common Shares, par value €0.12 each, reserved for issuance pursuant to the InflaRx N.V. Long-Term Incentive Plan 2,341,097 $15.00 $35,116,455 (2) $4,372.00
Common Shares, par value €0.12 each, reserved for issuance with respect to options outstanding under the InflaRx Stock Option Plan 2016 1,239,252 $9.19 (3) $11,392,631 $1,418.38
Common Shares, par value €0.12 each, reserved for issuance with respect to options outstanding under the Series B financing arrangement 533,820 $0.002 (3) $1,237.39 $0.15
         
(1)This Registration Statement on Form S-8 (this “Registration Statement”) covers common shares, each with a nominal value of €0.12 per share (“Common Shares”), of InflaRx N.V. (the “Registrant”) issuable pursuant to the plans set forth in this table (collectively, the “Plans”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional Common Shares that become issuable under the Plans by reason of any share dividend, share split or other similar transaction.

 

(2)Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act on the basis of the average of the high and low prices reported for a Common Share on the NASDAQ Global Select Market on November 16, 2017.

 

(3)Estimated pursuant to Rule 457(h) under the Securities Act, solely for the purpose of computing the registration fee, based on the weighted average exercise price of the options and an exchange rate on November 16, 2017 of approximately €1.00 to U.S.$1.1771.

 

(4)Rounded up to the nearest penny in U.S. dollars.

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information specified in Item 1 and Item 2 of Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the U.S. Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents are incorporated herein by reference:

 

(a) The Registrant’s Registration Statement on Form F-1, Amendment No. 3, filed with the Commission on October 31, 2017 (Registration No. 333-220962), which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed.

 

(b) The Registrant’s prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act, relating to the Registrant’s Registration Statement on Form F-1, as amended (Registration No. 333-220962).

 

(c) The description of the Registrant’s share capital which is contained in the Registrant’s Registration Statement Form 8-A filed with the Commission on November 7, 2017 (Registration No. 001-38283), including any amendments or supplements thereto.

 

In addition, all documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, including any Reports of Foreign Private Issuers on Form 6-K submitted during such period (or portion thereof) that is identified in such form as being incorporated by reference into this Registration Statement, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents. The Registrant is not incorporating by reference any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed” with the Commission.

 

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 incorporated or 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.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

The Registrant’s current and future directors (and such other officer or employee as designated by the board of directors) have the benefit of indemnification provisions in the Registrant’s Articles of Association. These provisions give the indemnified persons the right to recover from the Registrant amounts, including but not limited to litigation expenses, and any damages they are ordered to pay, in relation to acts or omissions in the performance

 

 

 

of their duties. However, there is no entitlement to indemnification for acts or omissions which are considered to constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to such indemnified person. In addition, the Registrant has entered into agreements with the Registrant’s directors and executive officers to indemnify them against expenses and liabilities to the fullest extent permitted by law. These agreements also provide, subject to certain exceptions, for indemnification for related expenses including, among others, attorneys’ fees, judgments, penalties, fines and settlement amounts incurred by any of these individuals in any action or proceeding. In addition to such indemnification, the Registrant provides the Registrant’s directors and officers with directors’ and officers’ liability insurance.

 

Insofar as indemnification of liabilities arising under the Securities Act may be permitted to directors or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed 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.

 

Exhibit Number

  
4.1 InflaRx N.V. Articles of Association, dated November 7, 2017 (incorporated herein by reference to Exhibit 3.2 to Post-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form F-1, filed on November 9, 2017 (Registration No. 333-220962))
4.2 Registration Right Agreement (incorporated herein by reference to Exhibit 4.2 to Post-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form F-1, filed on November 9, 2017 (Registration No. 333-220962))
5 Opinion of NautaDutilh N.V., Dutch counsel of the Registrant, as to the validity of the common shares (filed herewith)
23.1 Consent of NautaDutilh N.V., Dutch counsel of the Registrant (included in Exhibit 5)
23.2 Consent of KPMG AG Wirtschaftsprüfungsgesellschaft (filed herewith)
23.3 Consent of KPMG AG Wirtschaftsprüfungsgesellschaft (filed herewith)
24 Powers of Attorney (included in the signature pages hereto)
99 InflaRx N.V. Long-Term Incentive Plan (filed herewith)

 

 

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 this 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 this 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 percent 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 Plans not previously disclosed in this Registration Statement or any material change to such information in this 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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this 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 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 this 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 of liabilities arising under the Securities Act may be permitted to directors or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed 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.

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Registration Statement and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jena, Germany on this 17th day of November, 2017.

 

  InflaRx N.V.  
     
     
  By: /s/ Niels Riedemann  
  Name: Niels Riedemann  
  Title: Chief Executive Officer  
       
     
  By: /s/ Arnd Christ  
  Name: Arnd Christ  
  Title: Chief Financial Officer  
       
       

  

 

                       Cogency Global Inc.
(Authorized Representative in the United States)		  
     
       
  By: /s/ Colleen A. De Vries  
  Name: Colleen A. De Vries  
  Title: SVP on behalf of Cogency Global Inc.  

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Niels Riedemann and Arnd Christ as his or her true and lawful attorneys-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, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any and all additional registration statements 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 U.S. Securities and Exchange Commission, granting unto said attorneys-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitutes 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.

 

Signature   Title Date
       
/s/ Niels Riedemann   Chief Executive Officer and Director November 17, 2017
Niels Riedemann   (Principal Executive Officer)  
       
/s/ Arnd Christ   Chief Financial Officer November 17, 2017
Arnd Christ    (Principal Financial and Accounting Officer)  
       
/s/ Nicolas Fulpius   Chairman and Director November 17, 2017
Nicolas Fulpius      
       
/s/ Renfeng Guo   Director November 17, 2017
Renfeng Guo      
       
/s/ Katrin Uschmann   Director November 17, 2017
Katrin Uschmann      
       

/s/ Lina Ma 

   Director November 17, 2017
Lina Ma      
       

/s/ Mark Kuebler 

   Director November 17, 2017
Mark Kuebler