INDP Indaptus Therapeutics Inc

 

As filed with the Securities and Exchange Commission on August 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

 

Indaptus Therapeutics, Inc.

(Exact name of Registrant as specified in its charter)

 

Delaware		86-3158720
(State or other jurisdiction of incorporation or organization)		(IRS Employer Identification No.)
3 Columbus Circle 15th Floor New York, New York		10019
(Address of Principal Executive Offices)		(Zip Code)

 

Indaptus Therapeutics, Inc. 2021 Stock Incentive Plan

(Full title of the plan)

 

Jeffrey A. Meckler

Chief Executive Officer

Indaptus Therapeutics, Inc.

3 Columbus Circle

15th Floor

New York, New York 10019

(646) 427-2727

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

 

With copies to:

Peter N. Handrinos, Esq.

Latham & Watkins LLP

John Hancock Tower

200 Clarendon Street

Boston, MA 02116

(617) 948-6060

 

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. ☐

 

 

 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 2,500,000 shares of the Registrant’s common stock that are or may become available for issuance under the Indaptus Therapeutics, Inc. 2021 Equity Incentive Plan (the “Incentive Plan”), as amended and restated effective June 6, 2024. Registration Statements of the Registrant on Form S-8 relating to the Incentive Plan are effective.

 

INCORPORATION BY REFERENCE OF

CONTENTS OF REGISTRATION STATEMENTS ON FORM S-8

 

The contents of the Registration Statements on Form S-8 (File Nos. 333-259127 and 333-270828), including any amendments thereto, filed with the Securities and Exchange Commission (the “SEC”), relating to the Incentive Plan, are incorporated herein by reference.

 

Item 8.

Exhibits

 

Exhibit Number		Description
4.1		Amended and Restated Certificate of Incorporation of Indaptus Therapeutics, Inc., dated as of July 23, 2021 (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 23, 2021)
4.2		Amended and Restated Bylaws of Indaptus Therapeutics, Inc., dated as of January 22, 2024 (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on January 23, 2024)
4.3		Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Indaptus Therapeutics, Inc. dated August 3, 2021 (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on August 6, 2021)
5.1*		Opinion of Latham & Watkins LLP
23.1*		Consent of Haskell & White LLP, Independent Registered Public Accounting Firm
23.2*		Consent of Latham & Watkins LLP (included in Exhibit 5.1)
24.1*		Power of Attorney (included on signature page)
99.1		Indaptus Therapeutics, Inc. Amended and Restated 2021 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on June 7, 2024)
107.1*		Filing fee Table

 

*	Filed herewith.

 

 

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 New York, New York on August 12, 2024.

 

	INDAPTUS THERAPEUTICS, INC.
	By:	/s/ Jeffrey A. Meckler
	Name:	Jeffrey A. Meckler
	Title:	Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below hereby constitutes and appoints Jeffrey A. Meckler and Nir Sassi, or each of them singly, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this registration statement and any and all amendments, including post-effective amendments to this registration statement, and to file the same, with exhibits and schedules 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 or desirable to be done in connection therewith as fully to all intents and purposes as he 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, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Jeffrey A. Meckler		Chief Executive Officer and Director		August 12, 2024
Jeffrey A. Meckler		(principal executive officer)
/s/ Nir Sassi		Chief Financial Officer		August 12, 2024
Nir Sassi		(principal financial and accounting officer)
/s/ Michael J. Newman		Chief Scientific Officer and Director		August 12, 2024
Michael J. Newman, Ph.D.
/s/ Roger J. Pomerantz, M.D.		Chairman of the Board of Directors		August 12, 2024
Roger J. Pomerantz, M.D.
/s/ Mark J. Gilbert		Director		August 12, 2024
Mark J. Gilbert
/s/ William B. Hayes		Director		August 12, 2024
William B. Hayes
/s/ Hila Karah		Director		August 12, 2024
Hila Karah
/s/ Anthony J. Maddaluna		Director		August 12, 2024
Anthony J. Maddaluna
/s/ Robert E. Martell, M.D., Ph.D.		Director		August 12, 2024
Robert E. Martell, M.D., Ph.D.

 

 

 

Exhibit 5.1

 

200 Clarendon Street Boston, Massachusetts 02116 Tel: +1.617.948.6000 Fax: +1.617.948.6001 www.lw.com

 

	FIRM / AFFILIATE OFFICES
	Austin	Milan
	Beijing	Munich
	Boston	New York
	Brussels	Orange County
	Century City	Paris
	Chicago	Riyadh
August 12, 2024	Dubai	San Diego
	Düsseldorf	San Francisco
	Frankfurt	Seoul
	Hamburg	Silicon Valley
	Hong Kong	Singapore
	Houston	Tel Aviv
	London	Tokyo
	Los Angeles	Washington, D.C.
	Madrid

 

Indaptus Therapeutics, Inc.

3 Columbus Circle, 15^th Floor

New York, New York 10019

 

Re:

Registration Statement on Form S-8; 2,500,000 shares of Common Stock, par value $0.01 per share, of Indaptus Therapeutics, Inc.

 

To the addressee set forth above:

 

We have acted as special counsel to Indaptus Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing by the Company with the Securities and Exchange Commission of a registration statement on Form S–8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance of up to 2,500,000 shares of the Company’s common stock, par value $0.01 per share (the “Shares”), which may be issued pursuant to the Indaptus Therapeutics, Inc. 2021 Stock Incentive Plan (as amended and restated, the “2021 Plan”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the prospectus forming a part thereof, other than as expressly stated herein with respect to the issuance of the Shares.

 

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon the foregoing and upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein only as to the General Corporation Law of the State of Delaware, as amended (the “DGCL”), and we express no opinion with respect to any other laws.

 

 

 

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the recipients thereof, and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the 2021 Plan, assuming in each case that the individual grants or awards under the 2021 Plan are duly authorized by all necessary corporate action and duly granted or awarded and exercised in accordance with the requirements of law and the 2021 Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.

 

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.

 

	Sincerely,
	/s/ Latham & Watkins LLP

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Indaptus Therapeutics, Inc. (the “Company”) of our report dated March 13, 2024, relating to our audits of the Company’s consolidated financial statements as of December 31, 2023 and 2022, and for each of the years then ended, included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the U.S. Securities and Exchange Commission.

 

Our report dated March 13, 2024 contains an explanatory paragraph that states the Company has experienced recurring losses, negative cash flows from operations, and has limited capital resources. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.

 

/s/ HASKELL & WHITE LLP

 

Irvine, California

August 12, 2024

 

 

 

Exhibit 107.1

CALCULATION OF FILING FEE TABLE

 

FORM S-8

(Form Type)

 

INDAPTUS THERAPEUTICS, INC.

(Exact Name of Registrant as Specified in its Charter)

 

Table I: Newly Registered Securities

 

Plan		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
Amended and Restated 2021 Stock Incentive Plan		Equity		Common stock, par value $0.01 per share		Rule 457(c) and 457(h)			2,500,000	(2)		$	$1.69	(3)		$	4,225,000.00			$147.60 per million dollars		$	623.61
		Total Offering Amounts														$	4,225,000.00					$	623.61
		Total Fee Offsets																				$	—
		Net Fee Due																				$	623.61

 

(1)	In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued under the Indaptus Therapeutics, Inc. 2021 Stock Incentive Plan (as amended and restated, the “Incentive Plan”) to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2)	Consists of 2,500,000 shares of common stock, par value $0.01 per share (the “Common Stock”), of Indaptus Therapeutics, Inc. that are or may become available for issuance under the Incentive Plan pursuant to its terms.
(3)	Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act and based upon the average of the high and low prices of the Common Stock as reported on the Nasdaq Capital Market on August 6, 2024.

 

 

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