As filed with the Securities and Exchange Commission
on September 26, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SENESTECH, INC.
(Exact name of registrant as specified in its charter)
|
Delaware |
|
20-2079805 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
23460 N. 19th Avenue, Suite 110
Phoenix, Arizona 85027
(Address of Principal Executive Offices) (Zip Code)
SENESTECH, INC.
2018 EQUITY INCENTIVE PLAN, AS AMENDED
(Full Title of the Plan)
Thomas C. Chesterman
Executive Vice President, Chief Financial Officer,
Treasurer and Secretary
SenesTech, Inc.
23460 N. 19th Avenue, Suite 110
Phoenix, Arizona 85027
(928) 779-4143
(Name, Address, and Telephone Number, Including
Area Code, of Agent for Service)
Copy to:
Brian H. Blaney, Esq.
Katherine A. Beck, Esq.
Stephanie T. Graffious, Esq.
Greenberg Traurig, LLP
2375 E. Camelback Road, Suite 800
Phoenix, Arizona 85016
(602) 445-8000
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 |
☐ |
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Non-accelerated filer ☒ |
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Smaller reporting company ☒ |
| Accelerated filer |
☐ |
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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
We are filing this Registration
Statement with the Securities and Exchange Commission (the “Commission”) to register an aggregate of 500,000 additional
shares (the “Additional Shares”) of our common stock, par value $0.001 per share (“Common Stock”),
available for issuance under our 2018 Equity Incentive Plan, as amended (the “Plan”). The Additional Shares are being
registered in addition to our Common Stock previously registered for issuance under the Plan pursuant to our Registration Statements on
Form S-8 filed with the Commission on June 19, 2018 (Registration No. 333-225710), August 14, 2020 (Registration No. 333-246258), August
16, 2021 (Registration No. 333-258851), and February 10, 2023 (Registration No. 333-269686) (such prior registration statements on Form
S-8, the “Prior Registration Statements”).
This Registration Statement
relates to securities of the same class as those registered under the Prior Registration Statements and is being filed in accordance with
General Instruction E to Form S-8 regarding the registration of additional securities. Pursuant to such instruction, the contents of the
Prior Registration Statement are hereby incorporated by reference and made part of this Registration Statement, except to the extent supplemented,
superseded or modified by the specific information set forth below or the specific exhibits attached hereto.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents,
which we have filed with the Commission, are incorporated by reference in this Registration Statement:
| (a) | Annual Report on Form
10-K for the year ended December 31, 2022, as filed with the Commission on March 17, 2023; |
| (b) | Quarterly Report on Form
10-Q for the quarter ended March 31, 2023, as filed with the Commission on May 11 2023; |
| (c) | Quarterly Report on Form
10-Q for the quarter ended June 30, 2023, as filed with the Commission on August 11, 2023; |
| (e) | Current Reports on Form 8-K as filed with the Commission on
January 5, 2023, February
16, 2023, April 12,
2023, April 24, 2023, June
27, 2023, August 21, 2023,
August 22, 2023, and August
28, 2023, but only to the extent that the items therein are specifically stated to be “filed” rather than “furnished”
for the purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”); and |
| (f) | The description of our Common Stock contained in the Registration
Statement on Form 8-A (File No. 001-37941)
as filed with the Commission on November 7, 2016, as updated by the description of our registered securities contained in Exhibit
4.1 to the Annual Report on Form 10-K/A for the year ended December 31, 2019, as filed with the Commission on April 21, 2020, including
any amendment or report filed for the purpose of updating such description. |
In addition, all documents
subsequently filed with the Commission by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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; except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished
under Item 2.02 or 7.01 of Form 8-K 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 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 furnished
under Item 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
You should rely only on the
information provided or incorporated by reference in this Registration Statement or any related prospectus. We have not authorized anyone
to provide you with different information. You should not assume that the information in this Registration Statement or any related prospectus
is accurate as of any date other than the date on the front of the document.
Item 8. Exhibits.
| * | Incorporated by reference. |
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 Phoenix, state of Arizona, on September 26, 2023.
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SENESTECH, INC. |
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By: |
/s/ Joel L. Fruendt |
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|
Joel L. Fruendt |
| |
|
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below constitutes and appoints Joel L. Fruendt and Thomas C. Chesterman, and each of
them, as his or her true and lawful attorney-in-fact and agents, 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 to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, 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, as
fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or 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 has been signed by the following persons in the capacities and on the dates
indicated.
| Signature |
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Title |
|
Date |
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| /s/ Joel L. Fruendt |
|
President, Chief Executive Officer and Director |
|
September 26, 2023 |
| Joel L. Fruendt |
|
(Principal Executive Officer) |
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| /s/ Thomas C. Chesterman |
|
Executive Vice President, Chief Financial |
|
September 26, 2023 |
| Thomas C. Chesterman |
|
Officer, Treasurer and Secretary
(Principal Financial and Accounting Officer) |
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| /s/ Jamie Bechtel |
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Chair of the Board |
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September 26, 2023 |
| Jamie Bechtel |
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| /s/ Delphine François Chiavarini |
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Director |
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September 26, 2023 |
| Delphine François Chiavarini |
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| /s/ Phil Grandinetti III |
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Director |
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September 26, 2023 |
| Phil Grandinetti III |
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| /s/ Jake Leach |
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Director |
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September 26, 2023 |
| Jake Leach |
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| /s/ Matthew K. Szot |
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Director |
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September 26, 2023 |
| Matthew K. Szot |
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II-2
Exhibit 5.1
September 26, 2023
SenesTech, Inc.
23460 N. 19th Avenue, Suite 100
Phoenix, Arizona 85027
| Re: | Registration Statement on Form S-8 |
| | SenesTech, Inc. |
Ladies and Gentlemen:
As legal counsel to SenesTech,
Inc., a Delaware corporation (the “Company”), we have assisted in the preparation of the Company’s Registration
Statement on Form S-8 (the “Registration Statement”), to be filed with the Securities and Exchange Commission on or
about September 26, 2023, in connection with the registration under the Securities Act of 1933, as amended, of 500,000 additional
shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), issuable pursuant to the Company’s
2018 Equity Incentive Plan, as amended (the “Plan”). Such additional shares of Common Stock issuable pursuant to the
Plan are referred to as the “Shares.” The facts, as we understand them, are set forth in the Registration Statement.
With respect to the opinion
set forth below, we have examined originals, certified copies, or copies otherwise identified to our satisfaction as being true copies,
only of the following:
| A. | The Amended and Restated Certificate of Incorporation of
the Company, as amended; |
| B. | The Amended and Restated Bylaws of the Company, as amended; |
| C. | Various resolutions of the Board of Directors of the Company
adopting the Plan and authorizing the issuance of the Shares; |
| E. | The Registration Statement. |
Subject to the assumptions
that (i) the documents and signatures examined by us are genuine and authentic, and (ii) the persons executing the documents examined
by us have the legal capacity to execute such documents, and subject to the further limitations and qualifications set forth below, based
solely upon our review of items A through E above, it is our opinion that the Shares will be validly issued, fully paid, and nonassessable
when issued and sold in accordance with the terms of the Plan.
We express no opinion as to
the applicability or effect of any laws, orders, or judgments of any state or other jurisdiction other than federal securities laws and
the substantive laws of the state of Delaware, including judicial interpretations of such laws. Further, our opinion is based solely upon
existing laws, rules, and regulations, and we undertake no obligation to advise you of any changes that may be brought to our attention
after the date hereof.
We hereby expressly consent
to any reference to our firm in the Registration Statement, inclusion of this Opinion as an exhibit to the Registration Statement, and
to the filing of this Opinion with any other appropriate governmental agency.
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Very truly yours, |
| |
|
| |
/s/ Greenberg Traurig, LLP |
Greenberg Traurig, LLP | Attorneys at Law
2375 East Camelback Road | Suite 800 | Phoenix, Arizona 85016 | T +1
602.445.8000 | F +1 602.445.8100
www.gtlaw.com
Exhibit 23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the inclusion in this Registration Statement on Form S-8 of our report dated March 17, 2023, of SenesTech Inc. relating
to the audit of the financial statements for the period ending December 31, 2022 and 2021 and the reference to our firm under the caption
“Experts” in the Registration Statement.
| /s/ M&K CPAS, PLLC |
|
| www.mkacpas.com |
|
| Houston, Texas |
|
September
26, 2023
Exhibit 107
Calculation
of Filing Fee Tables
Form
S-8
(Form Type)
SenesTech,
Inc.
(Exact Name
of Registrant as Specified in its Charter)
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, par value $0.001 per share | |
457(c) and
457(h) | |
| 500,000 | (2) | |
$ | 0.44 | (3) | |
$ | 220,000.00 | (3) | |
| 0.00011020 | | |
$ | 24.24 | |
| Total Offering Amounts | | |
| | | |
$ | 220,000.00 | | |
| | | |
$ | 24.24 | |
| Total Fee Offsets | | |
| | | |
| | | |
| | | |
| — | |
| Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 24.24 | |
| (1) | Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement shall also cover any additional shares of SenesTech, Inc. (the “Registrant”) common
stock, par value $0.001 per share (“Common Stock”), that may become issuable by reason of any stock dividend, stock split,
recapitalization, or any other similar transaction that results in an increase in the number of outstanding shares of Common Stock of
the Registrant. |
| (2) | Represents shares of Common Stock authorized for issuance under the SenesTech, Inc. 2018 Equity Incentive
Plan, as amended. |
| (3) | Pursuant to Rule 457(c) and 457(h) 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 high and low prices of the Registrant’s Common Stock as reported by the Nasdaq Stock Market LLC
on September 25, 2023. |
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