PROSPECTUS SUPPLEMENT
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Filed Pursuant to Rule 424(b)(5)
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(to Prospectus dated May 23, 2018)
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Registration No. 333-224951
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Tenax Therapeutics, Inc.
2,523,611 Shares of Common Stock
Pre-Funded Warrants to purchase up to 652,313 shares of Common
Stock
We are
offering 2,523,611 shares of our common stock, par value $0.0001
per share, to an institutional investor at a price of $1.02780
pursuant to this prospectus supplement and the accompanying
prospectus. In addition, we are also offering pursuant to this
prospectus supplement and the accompanying prospectus pre-funded
warrants to purchase up to 652,313 shares of our common stock. The
purchase price of each pre-funded warrant is $1.02770. The
pre-funded warrants will have an exercise price of $0.0001 per
share of common stock and will be immediately exercisable and may
be exercised at any time until exercised in full. This prospectus
supplement also relates to the offering of the shares of our common
stock issuable upon exercise of such pre-funded
warrants.
In a
concurrent private placement to the institutional investor, we are
issuing pre-funded warrants to purchase up to 4,607,692 shares of
common stock, at the same purchase price as the pre-funded warrants
offered hereby, and common stock warrants to purchase up to a total
of up to 7,783,616 shares of common stock. Each common stock
warrant will be exercisable at an exercise price of $0.903 per
share. These pre-funded warrants, the common stock warrants and the
shares of common stock issuable upon the exercise of the such
pre-funded warrants and common stock warrants are being offered
pursuant to the exemptions provided in Section 4(a)(2) under the
Securities Act of 1933, as amended, or the Securities Act, and Rule
506(b) promulgated thereunder, and they are not being offered
pursuant to this prospectus supplement and the accompanying
prospectus. The common stock warrants, the pre-funded warrants
offered hereby and the pre-funded warrants issued in the concurrent
private placement are not and will not be listed for trading on any
national securities exchange.
Our
common stock is listed on the Nasdaq Capital Market under the
symbol “TENX.” On July 2, 2020, the last reported sale
price of our common stock on the Nasdaq Capital Market was $0.903
per share.
We have
retained H.C. Wainwright & Co., LLC to act as our exclusive
placement agent in connection with the sale of securities offered
by this prospectus supplement and the accompanying prospectus. The
placement agent is not required to arrange for the sale of any
specific number of securities or dollar amount but will use its
reasonable best efforts to sell the securities offered by this
prospectus supplement and the accompanying prospectus. We have
agreed to pay the placement agent the placement agent fees set
forth in the table below, which assumes we sell all of the
securities we are offering.
Investing
in our securities involves a high degree of risk. See “Risk
Factors” beginning on page S-6 of this prospectus supplement
and the documents that are incorporated by reference into this
prospectus supplement.
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Offering
price
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$1.0278
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$1.0277
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$3,264,149
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Placement agent
fees (1)
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$0.0771
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$0.0771
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$244,816
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Proceeds, before
expenses, to us (2)
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$0.9507
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$0.9506
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$3,019,333
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(1)
We have also agreed
to pay the placement agent a management fee of 1.0% of the gross
proceeds of the offering, reimburse the placement agent for certain
of its expenses and to issue warrants to purchase shares of common
stock to the placement agent or its designees as described under
the “Plan of Distribution” on page S-12 of this
prospectus supplement.
(2)
The amount of the
offering proceeds to us presented in this table does not include
proceeds from the sale of the pre-funded warrants and common stock
warrants in the concurrent private placement or any exercise of
such warrants.
As of
July 6, 2020, the aggregate market value of our outstanding voting
and non-voting common equity held by non-affiliates was
$16,497,852, based on 10,095,758 shares of our common stock
outstanding, of which 10,059,666 shares were held by
non-affiliates, each measured as of June 2, 2020. During the 12
calendar months prior to and including the date of this prospectus
supplement (and including this offering), we have offered
securities with an aggregate market value of $5,099,871 pursuant to
General Instruction I.B.6 of Form S-3.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
Delivery of the
shares of common stock and pre-funded warrants will be made on or
about July 8, 2020, subject to the satisfaction of certain closing
conditions.
H.C. Wainwright & Co.
The
date of this prospectus supplement is July 6, 2020.
Prospectus Supplement
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ABOUT THIS PROSPECTUS
SUPPLEMENT
On May
15, 2018, we filed with the Securities and Exchange Commission, or
the SEC, a registration statement on Form S-3. That registration
statement was declared effective on May 23, 2018.
This
prospectus supplement describes the specific terms of the
securities we are offering and adds to, and updates information in,
the accompanying prospectus and the documents incorporated by
reference into it or this prospectus supplement. If there is a
conflict between the information contained in this prospectus
supplement and the information contained in any document
incorporated by reference into this prospectus supplement that was
filed with the SEC before the date of this prospectus supplement,
you should rely on the information in this prospectus supplement.
If any statement in one of these documents is inconsistent with a
statement in another document having a later date, the statement in
the document having the later date modifies or supersedes the
earlier statement.
Neither
the delivery of this prospectus supplement or the accompanying
prospectus, nor any sale made using this prospectus supplement or
the accompanying prospectus, implies that there has been no change
in our affairs or that information in this prospectus supplement or
the accompanying prospectus is correct as of any date after their
respective dates. You should assume that the information appearing
in this prospectus supplement, the accompanying prospectus, the
documents incorporated by reference into this prospectus supplement
and the accompanying prospectus, and in any free writing prospectus
that we may authorize for use in connection with this offering, is
accurate only as of the date of those respective documents. Our
business, financial condition, results of operations and prospects
may have changed since those dates.
You
should carefully read this prospectus supplement, the accompanying
prospectus, the documents incorporated by reference into this
prospectus supplement and the accompanying prospectus and any free
writing prospectus that we may authorize for use in connection with
this offering, in their entirety before making an investment
decision. You should also read and consider the information in the
documents to which we have referred you in the sections of this
prospectus supplement entitled “Where You Can Find More
Information” and “Incorporation of Certain Documents by
Reference.”
We are
offering to sell, and seeking offers to buy, securities only in
jurisdictions where offers and sales are permitted. The
distribution of this prospectus supplement and the accompanying
prospectus and the offering of our securities in certain
jurisdictions may be restricted by law. Persons outside the United
States who come into possession of this prospectus supplement or
the accompanying prospectus must inform themselves about, and
observe any restrictions relating to, the offering of our
securities and the distribution of this prospectus supplement and
the accompanying prospectus outside the United States. This
prospectus supplement and the accompanying prospectus do not
constitute, and may not be used in connection with, an offer to
sell, or a solicitation of an offer to buy, any securities offered
by this prospectus supplement and the accompanying prospectus by
any person in any jurisdiction in which it is unlawful for such
person to make such an offer or solicitation.
You
should rely only on the information contained in, or incorporated
by reference into, this prospectus supplement, the accompanying
prospectus and in any free writing prospectus that we may authorize
for use in connection with this offering. We have not authorized
any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you
should not rely on it.
We have
filed or incorporated by reference exhibits to the registration
statement of which this prospectus supplement and the accompanying
prospectus are a part. You should read the exhibits carefully for
provisions that may be important to you.
When we
refer to “Tenax Therapeutics,” “the
Company,” “we,” “our” and
“us” in this prospectus supplement and the accompanying
prospectus, we mean Tenax Therapeutics, Inc., a Delaware
corporation, unless otherwise specified. References to our
“common stock” refer to the common stock, par value
$0.0001 per share, of Tenax Therapeutics, Inc.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
Information
set forth in this prospectus supplement, the accompanying
prospectus and the information incorporated by reference herein and
therein may contain various “forward-looking
statements” within the meaning of Section 27A of the
Securities Act and Section 21E of the Securities Exchange Act
of 1934, as amended, or the Exchange Act. All information relative
to future markets for our products and trends in and anticipated
levels of revenue, gross margins and expenses, as well as other
statements containing words such as “believe,”
“project,” “may,” “will,”
“anticipate,” “target,” “plan,”
“estimate,” “expect” and
“intend” and other similar expressions constitute
forward-looking statements. These forward-looking statements are
subject to business, economic and other risks and uncertainties,
both known and unknown, and actual results may differ materially
from those contained in the forward-looking statements. Examples of
risks and uncertainties that could cause actual results to differ
materially from historical performance and any forward-looking
statements include, but are not limited to, the risks described
under the heading “Risk Factors” on page S-6 of this
prospectus supplement, in our most recent Annual Report on
Form 10-K and subsequent reports filed with the SEC. Given
these risks, uncertainties and other factors, you should not place
undue reliance on these forward-looking statements. Also, these
forward-looking statements represent our estimates and assumptions
only as of the date such forward-looking statements are made. You
should read carefully this prospectus supplement, the accompanying
prospectus, the information incorporated by reference herein and
therein and any related free writing prospectus that we have
authorized for use in connection with this offering, as described
under the heading “Where You Can Find Additional
Information,” completely and with the understanding that our
actual future results may be materially different from what we
expect. We hereby qualify all of our forward-looking statements by
these cautionary statements. Except as required by law, we assume
no obligation to update these forward-looking statements publicly
or to update the reasons actual results could differ materially
from those anticipated in these forward-looking statements, even if
new information becomes available in the future.
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PROSPECTUS SUPPLEMENT
SUMMARY
This summary is not complete and does not contain all of the
information you should consider before investing in the securities
offered by this prospectus supplement and the accompany prospectus.
You should read this summary together with the entire prospectus
supplement and the accompanying prospectus, including our financial
statements, the notes to those financial statements, and the other
documents identified under the headings “Where You Can Find
More Information” and “Incorporation of Certain
Documents by Reference” in this prospectus supplement before
making an investment decision. See the Risk Factors section of this
prospectus supplement on page S-6 for a discussion of the risks
involved in investing in our securities.
Tenax
Therapeutics, Inc.
Overview
We are
a specialty pharmaceutical company focused on identifying,
developing and commercializing products that address cardiovascular
and pulmonary diseases of high unmet medical need. On November 13,
2013, through our wholly owned subsidiary, Life Newco, Inc., or
Life Newco, we acquired a license granting Life Newco an exclusive,
sublicenseable right to develop and commercialize pharmaceutical
products containing levosimendan, 2.5 mg/ml concentrate for
solution for infusion / 5ml vial in the United States and
Canada.
Business Strategy
Our
principal business objective is to identify, develop, and
commercialize novel therapeutic products for disease indications
that represent significant areas of clinical need and commercial
opportunity. The key elements of our business strategy are outlined
below.
Efficiently conduct clinical development to
establish clinical proof of concept with our current product
candidate. Levosimendan represents novel therapeutic
modalities for the treatment of pulmonary hypertension and
other cardiovascular and pulmonary diseases of high unmet
medical need. We are conducting clinical development with the
intent to establish proof of concept in several important disease
areas where these therapeutics would be expected to have benefit.
Our focus is on conducting well-designed studies to establish a
robust foundation for subsequent development, partnership and
expansion into complementary areas.
Efficiently explore new high potential
therapeutic applications, leveraging third-party research
collaborations and our results from related areas. Our
product candidate has shown promise in multiple disease areas. We
are committed to exploring potential clinical indications where our
therapies may achieve best-in-class profile, and where we can
address significant unmet medical needs. In order to achieve this
goal, we have established collaborative research relationships with
investigators from research and clinical institutions and our
strategic partners. These collaborative relationships have enabled
us to cost effectively explore where our product candidates may
have therapeutic relevance, and how it may be utilized to advance
treatment over current clinical care. Additionally, we believe we
will be able to leverage clinical safety data and preclinical
results from some programs to support accelerated clinical
development efforts in other areas, saving substantial development
time and resources compared to traditional drug
development.
Continue to expand our intellectual property
portfolio. Our intellectual property is important to our
business and we take significant steps to protect its value. We
have ongoing research and development efforts, both through
internal activities and through collaborative research activities
with others, which aim to develop new intellectual property and
enable us to file patent applications that cover new applications
of our existing technologies or product candidates.
Enter into licensing or product
co-development arrangements. In addition to our internal
development efforts, an important part of our product development
strategy is to work with collaborators and partners to accelerate
product development, reduce our development costs, and broaden our
commercialization capabilities. We believe this strategy will help
us to develop a portfolio of high-quality product development
opportunities, enhance our clinical development and
commercialization capabilities, and increase our ability to
generate value from our proprietary technologies.
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Our Current Programs
Levosimendan Background
Levosimendan was
discovered and developed by Orion Corporation, a Finnish company,
or Orion. Levosimendan is a calcium sensitizer/K-ATP
activator developed for intravenous use in hospitalized
patients with acutely decompensated heart failure. It is currently
approved in over 60 countries for this indication and not available
in the United States or Canada. It is estimated that to date over
1.5 million patients have been treated worldwide with
levosimendan.
Levosimendan is a
novel, first in class calcium sensitizer/K-ATP activator.
The therapeutic effects of levosimendan are mediated
through:
● Increased cardiac
contractility by calcium sensitization of troponin C, resulting in
a positive inotropic effect which is not associated with
substantial increases in oxygen demand.
● Opening of
potassium channels in the vasculature smooth muscle, resulting in a
vasodilatory effect on all vascular beds.
● Opening of
mitochondrial potassium channels in cardiomyocytes, resulting in a
cardioprotective effect.
This
triple mechanism of action helps to preserve heart function during
cardiac surgery. Several studies have demonstrated that
levosimendan protects the heart and improves tissue perfusion while
minimizing tissue damage during cardiac surgery.
In
2013, we acquired certain assets of Phyxius Pharma, Inc., or
Phyxius, including its North American rights to develop and
commercialize levosimendan for any indication in the United States
and Canada. In the countries where levosimendan is marketed,
levosimendan is indicated for the short-term treatment of acutely
decompensated severe chronic heart failure in situations where
conventional therapy is not sufficient, and in cases where
inotropic support is considered appropriate. In acute
decompensated heart failure patients, levosimendan has been shown
to significantly improve patients’ symptoms as well as acute
hemodynamic measurements such as increased cardiac output, reduced
preload and reduced afterload.
The
European Society of Cardiology, or the ESC, recommends levosimendan
as a preferable agent over dobutamine to reverse the effect of beta
blockade if it is thought to be contributing to hypotension. The
ESC guidelines also state that levosimendan is not appropriate for
patients with systolic blood pressure less than 85mmHg or in
patients in cardiogenic shock unless it is used in combination with
other inotropes or vasopressors. Other unique properties of
levosimendan include sustained efficacy through the formation of a
long acting metabolite, lack of impairment of diastolic function,
and evidence of better compatibility with beta blockers than
dobutamine.
Levosimendan Development for Pulmonary Hypertension
Patients
We are
currently conducting a Phase 2 clinical trial of levosimendan in
North America for the treatment of patients with pulmonary
hypertension associated with heart failure with preserved ejection
fraction, or PH-HFpEF. PH-HFpEF is defined hemodynamically by
a pulmonary artery pressure, or mPAP, ≥25 mmHg, a pulmonary
capillary wedge pressure, or PCWP, >15 mmHg, and a diastolic
pressure gradient, or diastolic PAP – PCWP, >7mmHg.
Pulmonary hypertension in these patients initially develops from a
passive backward transmission of elevated filling pressures from
left-sided heart failure. These mechanical components of pulmonary
venous congestion may trigger pulmonary vasoconstriction, decreased
nitric oxide availability, increased endothelin expression,
desensitization to natriuretic peptide induced vasodilation, and
vascular remodeling. Finally, these changes often lead to
advanced pulmonary vascular disease, increased right ventricle, or
RV, afterload, and RV failure.
PH-HFpEF is a
common form of pulmonary hypertension with an estimated US
prevalence exceeding 1.5 million patients. Currently, no
pharmacologic therapies are approved for treatment of
PH-HFpEF. Despite the fact that many therapies have been
studied in PH-HFpEF patients, including therapies approved to treat
pulmonary arterial hypertension patients, no therapies have been
shown to be effective in treating PH-HFpEF patients.
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Published
pre-clinical and clinical studies indicate that levosimendan may
provide important benefits to patients with pulmonary hypertension.
Data from these published trials indicate that levosimendan may
reduce pulmonary vascular resistance and improve important
cardiovascular hemodynamics such as reduced pulmonary capillary
wedge pressure in patients with pulmonary hypertension. In
addition, several published studies provide evidence that
levosimendan may improve right ventricular dysfunction which is a
common comorbidity in patients with pulmonary hypertension. While
none of these studies have focused specifically on PH-HFpEF
patients, the general hemodynamic improvements in these published
studies of various types of pulmonary hypertension provide an
indication that levosimendan may be beneficial in PH-HFpEF
patients.
In
March 2018, we met with the United States Food and Drug
Administration, or FDA, to discuss development of levosimendan in
PH-HFpEF patients. The FDA agreed with our planned Phase 2 design,
patient entry criteria, and endpoints. It was agreed the study
could be conducted under the existing investigational new drug
application with no additional nonclinical studies required to
support full development. The FDA recognized there were no approved
drug therapies to treat PH-HFpEF patients and acknowledged this
provided an opportunity for a limited Phase 3 clinical program.
This topic will be discussed further at the End-of-Phase 2 Meeting
following completion of the Phase 2 study in PH-HFpEF patients,
which is known as the HELP Study – Hemodynamic Evaluation of Levosimendan in PH-HFpEF. We initiated the first of our
expected 10-12 HELP Study clinical sites in November 2018 and the
first of 36 patients was enrolled in the HELP Study in March 2019.
Enrollment in the HELP Study was completed in March 2020. The
primary endpoint of the HELP Study is based on change in PCWP vs
baseline compared to placebo. The HELP Study utilizes a
double-blind randomized design following five weekly infusions of
levosimendan.
On June
2, 2020, we announced preliminary, top-line data from the study.
The primary efficacy analysis, pulmonary capillary wedge pressure
(PCWP) during exercise did not demonstrate a statistically
significant reduction from baseline. Levosimendan did demonstrate a
statistically significant reduction in PCWP compared to baseline
(p=<0.0017) and placebo (p=<0.0475) when the measurements at
rest, with legs up and on exercise were combined. Levosimendan also
demonstrated a statistically significant improvement in 6-minute
walk distance (6MWD) as compared to placebo
(p=0.0329).
Hemodynamic Results
Hemodynamic
measurements were made at rest (supine), after leg raise on a
supine bicycle (a test of rapid increase in ventricular filling)
and during exercise (25 watts for 3 minutes or until the patient
tired). Levosimendan demonstrated a statistically significant
reduction in PCWP compared to baseline (p=<0.0017) and placebo
(p=<0.0475) when the measurements at rest, with legs up and on
exercise were combined. While there was no significant change in
PCWP during exercise, patients receiving levosimendan had
reductions from baseline at Week 6 in PCWP, pulmonary artery
pressure (PAP), and right atrial pressure (RAP) that were
significant when patients were “at rest” and/or with
their “legs raised” (p<0.05).
Clinical Results (6 Minute Walk Distance)
The
clinical efficacy was confirmed by a statistically significant
improvement in 6-minute walk distance of 29 meters. (p=0.0329). The
6-minute walk distance was a secondary endpoint in the trial and is
a validated and accepted endpoint used in many pulmonary
hypertension registration trials. Levosimendan was given in
once-weekly home infusions for 6 weeks.
Safety
The
incidence of AEs or SAEs between the control and treated groups
were similar. In addition, there were no arrhythmias observed,
atrial or ventricular, when comparing baseline electrocardiographic
monitoring with 72-hour monitoring after 5 weeks of
treatment.
The
company plans to present the full study results at future medical
meetings and will submit a full manuscript of the trial results to
a peer-reviewed journal.
Intellectual Property
We
rely on a combination of patent applications, patents, trade
secrets, proprietary know-how, trademarks, and contractual
provisions to protect our proprietary rights. We believe that to
have a competitive advantage, we must develop and maintain the
proprietary aspects of our technologies. Currently, we require our
officers, employees, consultants, contractors, manufacturers,
outside scientific collaborators and sponsored researchers, and
other advisors to execute confidentiality agreements in connection
with their employment, consulting, or advisory relationships with
us, where appropriate. We also require our employees, consultants,
and advisors who we expect to work on our products to agree to
disclose and assign to us all inventions conceived during the
workday, developed using our property, or which relate to our
business.
To
date, we own or in-license the rights to six U.S. and foreign
patents. In addition, we have one U.S. patent application pending
related to a product candidate and proprietary process, method and
technology. Our issued and in-licensed patents, as well as our
pending patents, expire between 2023 and 2038.
We
have:
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one U.S. patent
(8,404,752), one Australian Patent (209,271,530) and one European
patent (EPO9798325.8) held jointly with Virginia Commonwealth
University Intellectual Property Foundation for the treatment of
traumatic brain injury;
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one Israeli patent
(215516) and numerous patent applications, including one U.S.
patent application, for the formulation of perfluorocarbon emulsion
with an average remaining life of approximately 13 years;
and
●
two U.S. patents
(6,730,673 and 6,943,164) for the intravenous formulation of
levosimendan as in-licensed patent rights for our development and
commercialization of levosimendan in the United States and
Canada.
Our
patent and patent applications include claims covering all various
uses of levosimendan, our lead product candidate currently under
development, as well as the manufacturing and use of our
perfluorocarbon emulsion formulation. We have filed a patent
application for a subcutaneous formulation of levosimendan that we
have developed in collaboration with a formulation development
partner. In addition, we have filed a provisional patent
application for the use of levosimendan in the treatment of
PH-HFpEF patients based on several discoveries that have emerged
from the HELP Study. The HELP Study is the first and only trial to
evaluate the use of levosimendan to treat PH-HFpEF patients, a
patient population where all previously tested therapies have
failed to show effectiveness.
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The
U.S. trademark registration for Simdax® is owned by Orion
and is licensed to us for sales and marketing purposes for any
pharmaceutical products containing levosimendan that are
commercialized in the United States and Canada.
Recent
Developments
As of
July 6, 2020, we believe that our existing cash and cash
equivalents, along with our investment in marketable securities,
and excluding any proceeds from this offering, will be sufficient
to fund our projected operating requirements through the fourth
quarter of 2020. We will need substantial additional capital in the
future in order to complete the development and commercialization
of levosimendan and to fund the development and commercialization
of other future product candidates. Until we can generate a
sufficient amount of product revenue, if ever, we expect to finance
future cash needs through public or private equity offerings, debt
financings or corporate collaboration and licensing arrangements.
Such funding may not be available on favorable terms, if at all. In
the event we are unable to obtain additional capital, we may delay
or reduce the scope of our current research and development
programs and other expenses.
Corporate
Information
Tenax
Therapeutics was originally formed as a New Jersey corporation in
1967 under the name Rudmer, David & Associates, Inc., and
subsequently changed its name to Synthetic Blood International,
Inc. Effective June 30, 2008, we changed the domiciliary state of
the corporation to Delaware and changed the company name to Oxygen
Biotherapeutics, Inc. On September 19, 2014, we changed the company
name to Tenax Therapeutics, Inc.
Our
principal executive offices are located at ONE Copley Parkway,
Suite 490, Morrisville, North Carolina 27560, and our telephone
number is (919) 855-2100.
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Issuer
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Tenax
Therapeutics, Inc.
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Common
stock offered by us
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2,523,611
shares of common stock
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Offering
price
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$1.02780
per share
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Pre-funded
warrants offered by us
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Pre-funded
warrants to purchase up to 652,313 shares of our common stock. The
purchase price of each pre-funded warrant is $1.02770. Each
pre-funded warrant will have an exercise price of $0.0001 per
share, will be immediately exercisable and may be exercised at any
time until exercised in full. Pre-funded warrants are being offered
in lieu of shares of our common stock. The pre-funded warrants are
not and will not be listed for trading on any national securities
exchange. There is no established public trading market for the
pre-funded warrants, and we do not expect a market to
develop.
This
prospectus supplement also relates to the offering of the shares of
common stock issuable upon exercise of the pre-funded
warrants.
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Common
stock outstanding after this offering (1)
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12,619,369
shares.
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Concurrent
private placement of pre-funded warrants and common stock
warrants
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In a
concurrent private placement, we are issuing pre-funded warrants to
purchase up to 4,607,692 shares of common stock, at the same
purchase price and upon substantially the same terms as the
pre-funded warrants offered hereby, and common stock warrants to
purchase up to a total of up to 7,783,616 shares of common stock.
Each common stock warrant will be exercisable for one share of
common stock at an exercise price of $0.903 per share, will be
immediately exercisable and will expire five and one-half years
from the initial exercise date. These pre-funded warrants, the
common stock warrants and the shares of common stock issuable upon
the exercise of such pre-funded warrants and common stock warrants
are being offered pursuant to the exemptions provided in Section
4(a)(2) under the Securities Act and Rule 506(b) promulgated
thereunder, and they are not being offered pursuant to this
prospectus supplement and the accompanying prospectus. Each
purchaser will be an “accredited investor” as such term
is defined in Rule 501(a) under the Securities Act. These
pre-funded warrants and the common stock warrants are not and will
not be listed for trading on any national securities exchange.
There is no established public trading market for these pre-funded
warrants or the common stock warrants, and we do not expect a
market to develop.
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Use of
proceeds
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We
estimate that the net proceeds to us from this offering will be
approximately $2.66 million. We currently intend to use the net
proceeds of this offering to further our clinical trials of
levosimendan, for research and development and for general
corporate purposes, including working capital and potential
acquisitions. See “Use of Proceeds.”
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The
Nasdaq Capital Market symbol
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Our
common stock is listed on the Nasdaq Capital Market under the
symbol “TENX.”
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Risk
factors
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Investing
in our securities involves a high degree of risk. Please read the
information under the heading “Risk Factors” beginning
on page S-6 of this prospectus supplement and the other information
included or incorporated by reference in this prospectus supplement
and the accompanying prospectus for a discussion of factors to
consider before deciding to purchase our securities.
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(1)
The number of
shares of our common stock that will be outstanding immediately
after this offering is based on 10,095,758 shares outstanding as of
July 6, 2020 and excludes:
●
12,274,492 shares
of common stock issuable upon the exercise of outstanding warrants
with a weighted average exercise price of $1.7565 per
share;
●
450,201 shares of
common stock issuable upon the exercise of outstanding options with
a weighted average exercise price of $7.62 per share;
●
357,500 shares of
common stock reserved for future grants and awards under our 2016
Stock Incentive Plan; and
●
210 additional
shares of common stock issuable upon conversion of Series A
Preferred Stock.
In
addition to the above, the number of shares outstanding after this
offering, as used throughout this prospectus supplement, unless
otherwise indicated, excludes 13,938,737 shares of our common stock
issuable upon the exercise of the pre-funded warrants offered
hereby, the pre-funded warrants and common stock warrants issued
pursuant to the concurrent private placement, the warrants issued
to the placement agent described in this prospectus supplement and
the warrants issued to a previous placement agent as described
under the heading "Plan of Distribution."
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Investing in our securities involves a high degree of risk. Before
investing in our securities, you should carefully consider the
risks, uncertainties and assumptions described below, discussed
under the heading “Risk Factors” included in our most
recent Annual Report on
Form 10-K for
the year ended December 31, 2019 and our subsequently filed
Quarterly Report on
Form 10-Q,
which is incorporated by reference into this prospectus supplement,
together with all of the other information contained in this
prospectus supplement and the accompanying prospectus or
incorporated by reference in this prospectus supplement and the
accompanying prospectus. Our business, financial condition, results
of operations and future growth prospects could be materially and
adversely affected by any of these risks. In these circumstances,
the market price of our common stock could decline, and you may
lose all or part of your investment.
Risks Related to this Offering
Our use of the offering proceeds may not yield a favorable return
on your investment.
We
currently intend to use the net proceeds of this offering to
further our clinical trials of levosimendan, for research and
development and for general corporate purposes, including working
capital and potential acquisitions. Our management has broad
discretion over how these proceeds are used and could spend the
proceeds in ways with which you may not agree. Pending the use of
the proceeds in this offering, we intend to invest them. However,
the proceeds may not be invested in a manner that yields a
favorable or any return. The failure of our management to use such
funds effectively could have a material adverse effect on
our business, results of operations and financial
condition.
There is no public market for the pre-funded warrants being offered
in this offering.
There
is no established public trading market for the pre-funded warrants
being offered in this offering, and we do not expect a market to
develop. In addition, we do not intend to apply to list the
pre-funded warrants on any securities exchange or nationally
recognized trading system, including The Nasdaq Stock Market.
Without an active market, the liquidity of the pre-funded warrants
will be limited.
Holders of pre-funded warrants purchased in this offering will have
no rights as common stockholders until such holders exercise their
pre-funded warrants and acquire shares of our common
stock.
Until
holders of the pre-funded warrants being offered in this offering
acquire shares of our common stock upon exercise of the pre-funded
warrants, such holders will have no rights with respect to the
shares of our common stock underlying the pre-funded warrants. Upon
exercise of the pre-funded warrants, the holders will be entitled
to exercise the rights of a common stockholder only as to matters
for which the record date occurs after the exercise
date.
We
estimate that the net proceeds from this offering will be
approximately $2.66 million, after deducting the placement agent
fees and estimated offering expenses payable by us and excluding
any proceeds from the sale of the pre-funded warrants and common
stock warrants in the concurrent private placement and the exercise
of such warrants and the warrants issued to the placement
agent.
We
currently intend to use the net proceeds of this offering to
further our clinical trials of levosimendan, for research and
development and for general corporate purposes, including working
capital and potential acquisitions. We currently do not have any
arrangements or agreements for any acquisitions. We cannot
precisely estimate the allocation of the net proceeds from this
offering. Accordingly, our management will have broad discretion in
the application of the net proceeds of this offering. Pending the
use of net proceeds, we intend to invest these net proceeds in
short- and intermediate-term, interest-bearing obligations,
investment-grade instruments, demand deposits, certificates of
deposit or direct or guaranteed obligations of the U.S.
government.
In
addition, our existing resources, together with the proceeds from
this offering, will not be adequate to permit us to complete such
clinical development or fund our operations over the longer term.
We will need to secure significant additional resources to complete
such development and to support our continued
operations.
DESCRIPTION OF SECURITIES
Common Stock
The
material terms of our common stock are described under the heading
“Description of Capital Stock ‒ Common Stock” in
the accompanying prospectus.
Pre-Funded Warrants
The
following is a summary of the material terms of the pre-funded
warrants that are being offered by this prospectus supplement and
the accompanying prospectus. This summary is subject to and
qualified in its entirety by the form of pre-funded warrants, which
has been provided to the investors in this offering and which will
be filed with the SEC as an exhibit to a Current Report on Form 8-K
in connection with this offering and incorporated by reference into
the registration statement of which this prospectus supplement and
the accompanying prospectus form a part. Prospective investors
should carefully review the terms of the form of warrant for a
complete description of the terms and conditions of the pre-funded
warrants.
Duration and Exercise Price. The pre-funded warrants offered
hereby will have an exercise price of $0.0001 per share. The
pre-funded warrants will be immediately exercisable and may be
exercised at any time after their original issuance until such
pre-funded warrants are exercised in full. The exercise prices and
numbers of shares of common stock issuable upon exercise are
subject to appropriate adjustment in the event of stock dividends,
stock splits, reorganizations or similar events affecting our
common stock. Pre-funded warrants will be issued in certificated
form only.
Exercisability. The pre-funded warrants will be
exercisable, at the option of each holder, in whole or in part, by
delivering to us a duly executed notice of exercise accompanied by
payment in full for the number of shares of our common stock
purchased upon such exercise (except in the case of a cashless
exercise as discussed below). A holder (together with its
affiliates) may not exercise any portion of such holder’s
warrants to the extent that the holder would own more than 19.99%
of our outstanding common stock immediately after exercise
(referred to as the beneficial ownership limitation), except that
upon at least 61 days’ prior notice from the holder to us,
the holder may increase or decrease its beneficial ownership
limitation, provided that in no event such beneficial ownership
limitation exceeds 19.99% of the number of shares of our common
stock outstanding immediately after giving effect to the exercise,
as such percentage ownership is determined in accordance with the
terms of the pre-funded warrants.
Cashless Exercise. In lieu of making the cash payment
otherwise contemplated to be made to us upon exercise of a
pre-funded warrant in payment of the aggregate exercise price, the
holder may elect instead to receive upon such exercise (either in
whole or in part) the net number of shares of common stock
determined according to a formula set forth in the pre-funded
warrants.
Fundamental Transactions. In the event of any fundamental
transaction, as described in the pre-funded warrants and
generally including any merger with or into another entity, sale of
all or substantially all of our assets, tender offer or exchange
offer, or reclassification of our common stock, then upon any
subsequent exercise of a pre-funded warrant, the holder
will have the right to receive as alternative consideration, for
each share of our common stock that would have been issuable upon
such exercise immediately prior to the occurrence of such
fundamental transaction, the number of shares of common stock of
the successor or acquiring corporation or of our company, if it is
the surviving corporation, and any additional consideration
receivable as a result of such fundamental transaction by a holder
of the number of shares of our common stock for which
the pre-funded warrant is exercisable immediately prior
to such event.
Transferability. In accordance with its terms and subject to
applicable laws, a pre-funded warrant may be transferred
at the option of the holder upon surrender of
the pre-funded warrant to us together with the
appropriate instruments of transfer.
Fractional Shares. No fractional shares of common stock will
be issued upon the exercise of the pre-funded warrants.
Rather, the number of shares of common stock to be issued will, at
our election, either be rounded up to the next whole share or we
will pay a cash adjustment in respect of such final fraction in an
amount equal to such fraction multiplied by the exercise
price.
Trading Market. There is no established trading market for
the pre-funded warrants, and we do not expect a market to
develop. We do not intend to apply for a listing of the pre-funded
warrants on any securities exchange or other nationally recognized
trading system. Without an active trading market, the liquidity of
the pre-funded warrants will be limited.
Rights as a Stockholder. Except as otherwise provided in
the pre-funded warrants or by virtue of the
holders’ ownership of shares of our common stock, the holders
of pre-funded warrants do not have the rights or
privileges of holders of our common stock, including any voting
rights, until such pre-funded warrant holders exercise
their warrants.
Waivers and Amendments. No term of
the pre-funded warrants may be amended or waived without
the written consent of the holder of pre-funded warrants holding at
least a majority of the then outstanding pre-funded warrants (based
on underlying warrant shares).
Pursuant
to a letter agreement dated as of July 5, 2020, we have engaged
H.C. Wainwright & Co., LLC to act as our exclusive placement
agent in connection with this offering pursuant to this prospectus
supplement and the accompanying prospectus. Under the terms of the
letter agreement, the placement agent has agreed to be our
exclusive placement agent, on a reasonable best efforts basis, in
connection with the issuance and sale by us of our securities in
this takedown from our shelf registration statement. The terms of
this offering were subject to market conditions and negotiations
between us, the placement agent and prospective investors. The
letter agreement does not give rise to any commitment by the
placement agent to purchase any of our securities, and the
placement agent will have no authority to bind us by virtue of the
letter agreement. Further, the placement agent does not guarantee
that it will be able to raise new capital in any prospective
offering. The placement agent may engage sub-agents or selected
dealers to assist with the offering.
The
placement agent proposes to arrange for the sale of the securities
we are offering pursuant to this prospectus supplement and the
accompanying prospectus to one or more investors through securities
purchase agreements directly between the purchasers and
us.
We
expect to deliver the shares of our common stock and pre-funded
warrants being offered pursuant to this prospectus supplement on or
about July 8, 2020.
We have
agreed to pay the placement agent a cash fee equal to 7.5% of the
gross proceeds of this offering and a management fee equal to 1.0%
of the gross proceeds of this offering. We will also pay the
placement agent $35,000 for non-accountable expenses, up to $40,000
for fees and expenses of legal counsel and other out-of-pocket
expenses and $12,900 for clearing fees related to the offering and
the concurrent private placement on an aggregated basis. We
estimate the total expenses payable by us for this offering will be
approximately $605,300, which amount includes, among other things,
the placement agent’s fees and reimbursable expenses. In
addition, we have agreed to issue to the placement agent or its
designees warrants to purchase up to 7.5% of the aggregate number
of shares of common stock (or common stock equivalents) sold in
this offering, or warrants to purchase up to 238,194 shares of
common stock. The placement agent warrants will have substantially
the same terms as the common stock warrants issued to the investors
in this offering, except that the placement agent warrants will
have an exercise price equal to $1.2848, or 125% of the offering
price per share, and will be exercisable for five years from the
effective date of this offering. Pursuant to FINRA Rule 5110(g)(1),
the placement agent warrants and any shares issued upon exercise of
the placement agent warrants shall not be sold, transferred,
assigned, pledged, or hypothecated, or be the subject of any
hedging, short sale, derivative, put or call transaction that would
result in the effective economic disposition of the securities by
any person for a period of 180 days immediately following the date
of effectiveness or commencement of sales of this offering, except
the transfer ofany security (i) by operation of law or by reason of
our reorganization; (ii) to any FINRA member firm participating in
the offering and the officers or partners thereof, if all
securities so transferred remain subject to the lock-up restriction
set forthabove for the remainder of the time period; (iii) if the
aggregate amount of our securities held by the placement agent or
related persons do not exceed 1% of the securities being offered;
(iv) that is beneficially owned on a pro-rata basis by all equity
owners of an investment fund, provided that no participating member
manages or otherwise directs investments by the fund and the
participating members in the aggregate do not own more than 10% of
the equity in the fund; or (v) the exercise or conversion of any
security, if all securities remain subject to the lock-up
restriction set forth above for the remainder of the time
period.
We have
granted the placement agent an eight-month right of first refusal
to act as our sole underwriter or placement agent for any further
capital raising transactions undertaken by us. We have also granted
the placement agent a tail cash fee equal to 7.5% of the gross
proceeds and warrants to purchase shares of common stock equal to
7.5% of the aggregate number of shares of common stock (or common
stock equivalents) sold in any offering, within 12 months following
the termination of the letter agreement, to investors whom the
placement agent contacted or introduced to us during the term of
the letter agreement.
We have
agreed to indemnify the placement agent and specified other persons
against certain liabilities relating to or arising out of the
placement agent’s activities under the letter agreement and
to contribute to payments that the placement agent may be required
to make in respect of such liabilities.
Pursuant to an engagement letter
with a previous placement agent that was terminated on September 5,
2019, we agreed to pay the previous placement agent a tail fee
consisting of (i) a cash fee equal to 8.0% of the total gross
proceeds of the offering and the concurrent private placement and
(ii) warrants to purchase the number of shares of common stock that
is equivalent to 4.0% of the number of shares of common stock and
pre-funded warrants issued in the offering and the concurrent
private placement.
The
placement agent may be deemed to be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act, and any
commissions received by it and any profit realized on the resale of
the securities sold by it while acting as principal might be deemed
to be underwriting discounts or commissions under the Securities
Act. As an underwriter, the placement agent would be required to
comply with the requirements of the Securities Act and the Exchange
Act, including, without limitation, Rule 415(a)(4) under the
Securities Act and Rule 10b-5 and Regulation M under the Exchange
Act. These rules and regulations may limit the timing of purchases
and sales of shares of common stock and warrants by the placement
agent acting as principal. Under these rules and regulations, the
placement agent:
●
may not engage in
any stabilization activity in connection with our securities;
and
●
may not bid for or
purchase any of our securities or attempt to induce any person to
purchase any of our securities, other than as permitted under the
Exchange Act, until it has completed its participation in the
distribution.
From
time to time, the placement agent may provide in the future various
advisory, investment and commercial banking and other services to
us in the ordinary course of business, for which it has received
and may continue to receive customary fees and commissions.
However, except as disclosed in this prospectus, we have no present
arrangements with the placement agent for any further
services.
Our
common stock trades on the Nasdaq Capital Market under the symbol
“TENX.”
CONCURRENT PRIVATE PLACEMENT OF
PRE-FUNDED WARRANTS AND COMMON STOCK WARRANTS
In a
concurrent private placement, we are issuing pre-funded warrants to
purchase up to 4,607,692 shares of common stock, at the same
purchase price and upon substantially the same terms as the
pre-funded warrants offered hereby, and common stock warrants to
purchase up to a total of up to 7,783,616 shares of common stock.
Each common stock warrant will be exercisable for one share of
common stock at an exercise price of $0.903 per share, will be
immediately exercisable and will expire five and one-half years
from the initial exercise date. These pre-funded warrants, the
common stock warrants and the shares of common stock issuable upon
the exercise of such pre-funded warrants and common stock warrants
are being offered pursuant to the exemptions provided in Section
4(a)(2) under the Securities Act and Rule 506(b) promulgated
thereunder, and they are not being offered pursuant to this
prospectus supplement and the accompanying prospectus. Accordingly,
the investors may exercise the common stock warrants and sell the
shares of common stock issuable upon the exercise of such warrants
only pursuant to an effective registration statement under the
Securities Act covering the resale of those shares, an exemption
under Rule 144 under the Securities Act or another applicable
exemption under the Securities Act.
All
purchasers are required to be “accredited investors” as
such term is defined in Rule 501(a) under the Securities
Act.
As part
of the concurrent private placement, we have agreed to register for
resale the shares of common stock issuable upon exercise of the
pre-funded warrants and common stock warrants sold in the
concurrent private placement.
WHERE YOU CAN FIND MORE
INFORMATION
We file
annual reports, quarterly reports, current reports and proxy and
information statements and other information with the SEC. Copies
of reports and other information from us are available on the
SEC’s website at http://www.sec.gov. Such filings are also
available at our website at http://www.tenaxthera.com. Our website
and the information contained therein or connected thereto are not
part of this prospectus supplement or the accompanying
prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC
allows us to “incorporate by reference” in this
prospectus the information we file with the SEC, which means that
we can disclose important information to you by referring you to
those documents. The following documents filed with the SEC are
hereby incorporated by reference in this prospectus:
●
our Annual Report
on Form 10-K for the fiscal year ended
December 31,
2019, filed with the SEC on March 30, 2020;
●
our Quarterly
Report on Form 10-Q for the quarter ended
March 31,
2020,
filed with the SEC on May 15, 2020;
●
our Current Reports
on Form 8-K filed with the SEC on
January 13,
2020,
March 13,
2020,
April 29,
2020,
May 6, 2020,
June 2, 2020,
June 2, 2020
and
June 18,
2020;
●
our Definitive
Proxy Statement on Schedule 14A, filed with the SEC on
April 29,
2020;
and
●
the description of
our common stock contained in our Registration Statement on Form
8-A filed with the SEC on
January 11,
2010, and any amendments or reports filed for the
purpose of updating such description.
In
addition, all documents we subsequently file pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
termination of this offering shall be deemed to be incorporated by
reference in this prospectus supplement and the accompanying
prospectus and to be a part hereof from the date of filing of such
documents. However, any documents or portions thereof,
whether specifically listed above or filed in the future, that are
not deemed “filed” with the SEC, including without
limitation any information furnished pursuant to Item 2.02 or 7.01
of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of
Form 8-K, shall not be deemed to be incorporated by reference in
this prospectus.
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 prospectus supplement
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 statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a
part of this prospectus supplement.
We will
furnish without charge to you, upon written or oral request, a copy
of any or all of the documents incorporated by reference herein,
other than exhibits to such documents that are not specifically
incorporated by reference. All requests should be sent to the
attention of Nancy Hecox, Vice President of Legal Affairs and
General Counsel, Tenax Therapeutics, Inc., ONE Copley Parkway,
Suite 490, Morrisville, North Carolina 27560 or made via telephone
at (919) 855-2100.
Copies
of the documents incorporated by reference may also be found on our
website at http://www.tenaxthera.com.
K&L
Gates LLP has passed upon the validity of the securities offered by
this prospectus supplement on behalf of the Company. Ellenoff
Grossman & Schole LLP, is counsel to the placement agent in
connection with this offering.
The
consolidated financial statements of Tenax Therapeutics, Inc. as of
December 31, 2019 and 2018, and for each of the years in the
two-year period ended December 31, 2019, included in our Annual
Report on Form 10-K, have been incorporated by reference herein in
reliance upon the report of Cherry Bekaert LLP, independent
registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing.
$75,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
________________________________
PROSPECTUS
________________________________
From
time to time, we may offer and sell the following securities with
an aggregate offering price of up to $75,000,000 in amounts, at
prices and on terms described in one or more supplements to this
prospectus: (i) shares of common stock, (ii) shares of preferred
stock, (iii) debt securities, (iv) warrants, and (v) units
consisting of any combination of the foregoing types of
securities.
This
prospectus describes some of the general terms that may apply to an
offering of the securities. The specific terms and any other
information relating to a specific offering will be set forth in a
post-effective amendment to the registration statement of which
this prospectus is a part or in a supplement to this prospectus, or
may be set forth in one or more documents incorporated by reference
into this prospectus. We may also authorize one or more free
writing prospectuses to be provided to you in connection with a
specific offering. You should read carefully this prospectus, the
applicable prospectus supplement and any related free writing
prospectuses that we have authorized for use in connection with a
specific offering, as well as any documents incorporated by
reference in this prospectus and the applicable prospectus
supplement, before you invest.
This
prospectus may not be used to offer and sell securities without a
prospectus supplement.
We may
offer and sell the securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on a
continuous or delayed basis. If any agents or underwriters are
involved in the sale of any of the securities offered by this
prospectus, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, will be
set forth, or will be calculable from the information set forth, in
the applicable prospectus supplement. The supplements to this
prospectus will provide the specific terms of the plan of
distribution. The net proceeds we expect to receive from sales by
us will be set forth in the applicable prospectus
supplement.
Our
common stock is traded on the Nasdaq Capital Market and is quoted
under the symbol TENX. On May 10, 2018, the last reported sale
price of our common stock was $6.12 per share.
As of
May 10, 2018, the aggregate market value of our outstanding common
stock held by non-affiliates, or the public float, was
approximately $11,173,516, which was calculated based on 1,417,598
shares of our outstanding common stock held by non-affiliates and
on a price of $7.79 per share, the last reported sale price for our
common stock on April 4, 2018. Pursuant to General Instruction
I.B.6 of Form S-3, in no event will we sell securities in a public
primary offering with a value exceeding one-third of our public
float in any 12-month period unless our public float subsequently
rises to $75.0 million or more. We have not offered any securities
pursuant to General Instruction I.B.6 of Form S-3 during the 12
calendar months prior to and including the date of this
prospectus.
Investing
in our securities involves a high degree of risk. You should review
carefully the risks and uncertainties described under the heading
“Risk Factors” on page 2 and those contained in the
applicable prospectus supplement and in any related free writing
prospectuses that we have authorized for use in connection with a
specific offering and in our Securities and Exchange Commission
filings that are incorporated by reference into this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The
date of this prospectus is May 23, 2018.
Prospectus
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This
prospectus is part of a shelf registration statement that we filed
with the U.S. Securities and Exchange Commission, or SEC, using a
“shelf” registration process. By using a shelf
registration statement, we may sell any combination of the
securities referred to herein from time to time and in one or more
offerings as described herein up to a maximum aggregate offering
price of $75,000,000. Each time that we sell securities, we will
provide a prospectus supplement to this prospectus that contains
specific information about the securities being offered and the
specific terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. If
there is any inconsistency between the information in this
prospectus and any prospectus supplement, you should rely on the
prospectus supplement. Before purchasing any securities, you should
carefully read both this prospectus and any prospectus supplement,
together with the additional information described under the
heading “Where You Can Find More
Information.”
You
should rely only on the information contained or incorporated by
reference in this prospectus and in any prospectus supplement. We
have not authorized any dealer, salesman or other person to give
any information or to make any representation other than those
contained or incorporated by reference in this prospectus and the
accompanying supplement to this prospectus. We will not make an
offer to sell these securities in any jurisdiction where the offer
or sale is not permitted. You should assume that the information
appearing in this prospectus and the prospectus supplement to this
prospectus is accurate as of the date on its respective cover, and
that any information incorporated by reference is accurate only as
of the date of the document incorporated by reference, unless we
indicate otherwise. Our business, financial condition, results of
operations and prospects may have changed since those
dates.
When we
refer to “Tenax Therapeutics,” “the
Company,” “we,” “our” and
“us” in this prospectus, we mean Tenax Therapeutics,
Inc., a Delaware corporation, and its subsidiary, unless otherwise
specified. References to our “common stock” refer to
the common stock, par value $0.0001 per share, of Tenax
Therapeutics, Inc.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
Information set
forth in this prospectus and the information it incorporates by
reference may contain various “forward-looking
statements” within the meaning of Section 27A of the
Securities and Section 21E of the Securities Exchange Act of
1934, as amended, or the Exchange Act. All information relative to
future markets for our products and trends in and anticipated
levels of revenue, gross margins and expenses, as well as other
statements containing words such as “believe,”
“project,” “may,” “will,”
“anticipate,” “target,” “plan,”
“estimate,” “expect” and
“intend” and other similar expressions constitute
forward-looking statements. These forward-looking statements are
subject to business, economic and other risks and uncertainties,
both known and unknown, and actual results may differ materially
from those contained in the forward-looking statements. Examples of
risks and uncertainties that could cause actual results to differ
materially from historical performance and any forward-looking
statements include, but are not limited to, the risks described
under the heading “Risk Factors” on page 2 of this
prospectus, in our most recent Annual Report on Form 10-K, our
most recent Quarterly Report on Form 10-Q, as well as any
subsequent filings with the SEC. Given these risks, uncertainties
and other factors, you should not place undue reliance on these
forward-looking statements. Also, these forward-looking statements
represent our estimates and assumptions only as of the date such
forward-looking statements are made. You should read carefully this
prospectus, any applicable prospectus supplement and any related
free writing prospectuses that we have authorized for use in
connection with this offering, together with the information
incorporated herein or therein by reference as described under the
heading “Where You Can Find More Information,”
completely and with the understanding that our actual future
results may be materially different from what we expect. We hereby
qualify all of our forward-looking statements by these cautionary
statements. Except as required by law, we assume no obligation to
update these forward-looking statements publicly or to update the
reasons actual results could differ materially from those
anticipated in these forward-looking statements, even if new
information becomes available in the future.
ABOUT TENAX THERAPEUTICS, INC.
Tenax
Therapeutics is a specialty pharmaceutical company focused on
identifying, developing and commercializing products for the
critical care market. On November 13, 2013, through our wholly
owned subsidiary, Life Newco, Inc., or Life Newco, we acquired a
license granting Life Newco an exclusive, sublicenseable right to
develop and commercialize pharmaceutical products containing
levosimendan, 2.5 mg/ml concentrate for solution for infusion / 5ml
vial in the United States and Canada.
Our
principal executive offices are located at ONE Copley Parkway,
Suite 490, Morrisville, North Carolina 27560, and our telephone
number is (919) 855-2100. Our Internet address is
http://www.tenaxthera.com. The information on our website is not
incorporated by reference into this prospectus, and you should not
consider it part of this prospectus.
Tenax
Therapeutics was originally formed as a New Jersey corporation in
1967 under the name Rudmer, David & Associates, Inc., and
subsequently changed its name to Synthetic Blood International,
Inc. Effective June 30, 2008, we changed the domiciliary state of
the corporation to Delaware and changed the company name to Oxygen
Biotherapeutics, Inc. On September 19, 2014, we changed the company
name to Tenax Therapeutics, Inc.
An
investment in any securities offered pursuant to this prospectus
and any applicable prospectus supplement is speculative and
involves a high degree of risk. You should carefully consider the
risk factors incorporated by reference to our most recent Annual
Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q,
and all other information contained or incorporated by reference
into this prospectus, as updated by our subsequent filings under
the Exchange Act, and the risk factors and other information
contained in any applicable prospectus supplement before acquiring
any of such securities. If any of the risks actually occur, our
business, results of operations, financial condition and cash flows
could be materially adversely affected, the trading price of our
common stock could decline significantly, and you might lose all or
part of your investment. You should also refer to our financial
statements and the notes to those statements, which are
incorporated by reference in this prospectus. For more information,
see “Where You Can Find More Information.”
Except
as described in any applicable prospectus supplement or in any free
writing prospectuses we have authorized for use in connection with
a specific offering, we currently intend to use the net proceeds
from the sale of the securities offered by us hereunder, if any,
for working capital and general corporate purposes, including,
among other things, research and development expenses and capital
expenditures, repayment of any indebtedness outstanding,
acquisitions and other business opportunities.
The
amounts and timing of our use of the net proceeds from this
offering will depend on a number of factors, such as the timing and
progress of our research and development efforts, the timing and
progress of any partnering and commercialization efforts,
technological advances and the competitive environment for our
products. As of the date of this prospectus, we cannot specify with
certainty all of the particular uses for the net proceeds to us
from the sale of the securities offered by us hereunder. As a
result, our management will have broad discretion to allocate the
net proceeds, if any, we receive in connection with securities
offered pursuant to this prospectus for any purpose. Pending
application of the net proceeds as described above, we may
initially invest the net proceeds in short-term, investment-grade,
interest-bearing securities.
RATIO OF EARNINGS TO FIXED
CHARGES
Any
time debt securities or preferred stock are offered pursuant to
this prospectus, we will provide a table setting forth our ratio of
earnings to fixed charges, or combined fixed charges and preference
dividends to earnings, if applicable, on a historical basis in the
applicable prospectus supplement, if required.
DESCRIPTION OF CAPITAL STOCK
This
section describes the general terms of our capital stock. The
following description is based upon our Certificate of
Incorporation, as amended, which we will refer to hereafter as our
Certificate of Incorporation, our Amended and Restated Bylaws,
which we will refer to hereafter as our Bylaws, and applicable
provisions of law. We have summarized certain portions of the
Certificate of Incorporation and Bylaws below. The summary is not
complete. The Certificate of Incorporation and Bylaws are
incorporated by reference as exhibits to the registration statement
of which this prospectus forms a part. You should read the
Certificate of Incorporation and Bylaws for the provisions that are
important to you.
Our
authorized capital stock consists of 400,000,000 shares of common
stock, $0.0001 par value per share, and 10,000,000 shares of
preferred stock in one or more series, $0.0001 par value per
share.
Common Stock
As of
May 10, 2018, there were 1,453,676 shares of our common stock
outstanding held of record by 1,351 stockholders. In addition,
there are outstanding options, warrants and rights to acquire up to
an additional 312,517 shares of common stock.
Holders
of the common stock are entitled to one vote per share on all
matters submitted to the stockholders for a vote. There are no
cumulative voting rights in the election of directors. The shares
of common stock are entitled to receive such dividends as may be
declared and paid by our board of directors out of funds legally
available therefor and to share, ratably, in the net assets, if
any, of Tenax Therapeutics upon liquidation. The stockholders have
no preemptive rights to purchase any shares of our capital
stock.
The
transfer agent for the common stock is Issuer Direct Corporation,
Morrisville, NC. Our common stock is traded on the Nasdaq Capital
Market and is quoted under the symbol TENX.
Preferred Stock
Under
the terms of our Certificate of Incorporation, our board of
directors is authorized to provide for the issuance of shares of
preferred stock in one or more series without stockholder approval.
Our board of directors has the discretion to determine the rights,
preferences, privileges and restrictions, including voting rights,
dividend rights, conversion rights, redemption privileges and
liquidation preferences, of each series of preferred stock. The
preferred stock may have voting or conversion rights that could
have the effect of restricting dividends on our common stock,
diluting the voting power of our shares of common stock, impairing
the rights of our common stock in the event of our dissolution,
liquidation or winding-up or otherwise adversely affect the rights
of holders of our common stock. The holders of preferred stock are
not entitled to vote at or receive notice of any meeting of
stockholders, except as otherwise provided in the rights and
restrictions attached to the shares by our board of
directors.
We will
fix the rights, preferences, privileges, qualifications and
restrictions of the preferred stock of each series that we sell
under this prospectus and any applicable prospectus supplements in
the certificate of designation relating to that series. We will
incorporate by reference into the registration statement of which
this prospectus is a part the form of any certificate of
designation that describes the terms of the series of preferred
stock we are offering before the issuance of the related series of
preferred stock. We urge you to read the prospectus supplements
(and any related free writing prospectus that we may authorize to
be provided to you) related to the series of preferred stock being
offered, as well as the complete certificate of designation that
contains the terms of the applicable series of preferred
stock.
Anti-Takeover Effects of Delaware Law and Our Certificate of
Incorporation and Bylaws
Certificate of Incorporation and Bylaws;
Indemnification
The
following provisions will make it more difficult for our existing
stockholders to replace our board of directors as well as for
another party to obtain control of the Company by replacing our
board of directors. Since our board of directors has the power to
retain and discharge our officers, these provisions could also make
it more difficult for existing stockholders or another party to
effect a change in management or could otherwise impede the success
of any attempt to change the control of the Company.
These
provisions are intended to enhance the likelihood of continued
stability in the composition of our board of directors and its
policies and to discourage certain types of transactions that may
involve an actual or threatened acquisition of the Company. These
provisions are also designed to reduce our vulnerability to an
unsolicited acquisition proposal and to discourage certain tactics
that may be used in proxy fights. However, these provisions could
have the effect of discouraging others from making tender offers
for our shares and may have the effect of deterring hostile
takeovers or delaying changes in control of the Company or
management. As a consequence, these provisions also may inhibit
fluctuations in the market price of our stock that could result
from actual or rumored takeover attempts.
No Cumulative Voting. Because our
stockholders do not have cumulative voting rights, our stockholders
holding a majority of the voting power of our shares of common
stock outstanding will be able to elect all of our
directors.
Special Meetings of Stockholders. Our
Bylaws provide that special meetings of stockholders may be called
only by the Chairman, President or by a majority of our board of
directors, or by a person designated by our board of directors.
Stockholders are not permitted to call a special meeting of
stockholders or to require that the Chairman, the President or our
board of directors request the calling of a special meeting of
stockholders.
Advance Notice Requirement. Stockholder
proposals to be brought before an annual meeting of our
stockholders must comply with advance notice procedures. These
advance notice procedures require timely notice and apply in
several situations, including stockholder proposals relating to the
nomination of persons for election to our board of directors.
Generally, to be timely, notice must be received at our principal
executive offices not less than 120 days nor more than 150 days
prior to the first anniversary of the previous year’s annual
meeting of stockholders.
Blank Check Preferred Stock. Our board
of directors is authorized by our Certificate of Incorporation to
issue, without further stockholder action, up to 10,000,000 shares
of designated preferred stock with rights and preferences,
including voting rights, designated by our board of directors. The
existence of the authorized but unissued shares of preferred stock
enables our board of directors to render more difficult or to
discourage an attempt to obtain control of the Company by means of
a merger, tender offer, proxy contest or otherwise.
Limitation of Liability and Indemnification of
Officers and Directors. Pursuant to the Certificate of
Incorporation and under Delaware law, directors and executive
officers are not liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty, except liability in
connection with a breach of duty of loyalty, acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law, dividend payments or stock repurchases illegal
under Delaware law, or any transaction in which a director has
derived an improper personal benefit.
Our
Certificate of Incorporation and Bylaws also provide that we will
indemnify our directors and officers to the fullest extent
permitted by law against liabilities and expenses incurred in
connection with litigation in which such person may be involved by
reason of the fact that such person was our director or officer if
such person acted in good faith or in a manner reasonably believed
to be in or not opposed to our best interests. To the extent that a
director or officer has been successful in defense of any
proceeding, our Bylaws provide that he shall be indemnified against
reasonable expenses incurred in connection therewith.
The
limitations of liability and indemnification provisions in our
Certificate of Incorporation and Bylaws may discourage stockholders
from bringing a lawsuit against directors for breach of their
fiduciary duty. These provisions may also have the effect of
reducing the likelihood of derivative litigation against directors
and officers, even though such an action, if successful, might
otherwise benefit our stockholders and us. In addition, your
investment may be adversely affected to the extent we pay the costs
of settlement and damage awards against directors and officers
pursuant to these indemnification provisions.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been
advised that, in the opinion of the SEC, such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable.
There
is currently no pending material litigation or proceeding involving
any of our directors, officers or employees for which
indemnification is sought.
Exclusive Forum. Our Bylaws provides
that, unless we consent in writing to the selection of an
alternative forum, any North Carolina state court that has
jurisdiction or the Court of Chancery of the State of Delaware will
be the sole and exclusive forum for: (i) any derivative action or
proceeding brought on behalf of us; (ii) any action asserting a
claim of breach of a fiduciary duty owed by any of our directors,
officers or other employees to us or our stockholders; (iii) any
action asserting a claim against us arising pursuant to any
provision of the Delaware General Corporation Law; or (iv) any
action asserting a claim against us governed by the internal
affairs doctrine. The enforceability of similar choice of forum
provisions in other companies’ organizational documents has
been challenged in legal proceedings, and it is possible that, in
connection with any action, a court could find the choice of forum
provisions contained in our Bylaws to be inapplicable or
unenforceable in such action.
Section 203 of the Delaware General Corporation Law
We are
subject to Section 203 of the General Corporation Law of the State
of Delaware, which prohibits persons deemed to be “interested
stockholders” from engaging in a “business
combination” with a publicly held Delaware corporation for
three years following the date these persons become interested
stockholders unless the business combination is, or the transaction
in which the person became an interested stockholder was, approved
in a prescribed manner or another prescribed exception applies.
Generally, an “interested stockholder” is a person who,
together with affiliates and associates, owns, or within three
years prior to the determination of interested stockholder status
did own, 15% or more of a corporation’s voting stock.
Generally, a “business combination” includes a merger,
asset or stock sale, or other transaction resulting in a financial
benefit to the interested stockholder. The existence of this
provision may have an anti-takeover effect with respect to
transactions not approved in advance by our board of
directors.
DESCRIPTION OF DEBT SECURITIES
The
following description, together with the additional information we
include in any applicable prospectus supplement and any related
free writing prospectus that we may authorize to be provided to
you, summarizes certain general terms and provisions of the debt
securities that we may offer under this prospectus. When we offer
to sell a particular series of debt securities, we will describe
the specific terms of the series in a supplement to this
prospectus. We will also indicate in the supplement to what extent
the general terms and provisions described in this prospectus apply
to a particular series of debt securities.
The
following summary of material provisions of the debt securities and
the indenture is subject to, and qualified in its entirety by
reference to, all of the provisions of the indenture applicable to
a particular series of debt securities. We urge you to read the
applicable prospectus supplements and any related free writing
prospectuses related to the debt securities that we may offer under
this prospectus, as well as the complete indenture that contains
the terms of the debt securities.
We may
issue debt securities either separately, or together with, or upon
the conversion or exercise of or in exchange for, other securities
described in this prospectus. Debt securities may be our senior,
senior subordinated or subordinated obligations and, unless
otherwise specified in a supplement to this prospectus, the debt
securities will be our direct, unsecured obligations and may be
issued in one or more series.
The
debt securities will be issued under an indenture between us and a
trustee, named in the prospectus supplement. We have summarized
select portions of the indenture below. The summary is not
complete. The form of the indenture has been filed as an exhibit to
the registration statement of which this prospectus is a part and
you should read the indenture for provisions that may be important
to you. Capitalized terms used in the summary and not defined
herein have the meanings specified in the indenture. Unless the
context requires otherwise, whenever we refer to the indenture, we
also are referring to any supplemental indentures that specify the
terms of a particular series of debt securities. Any supplemental
indentures and forms of debt securities containing the terms of the
debt securities being offered will be filed as exhibits to the
registration statement of which this prospectus is a part or will
be incorporated by reference from reports that we file with the
SEC.
As used
in this section only, “Tenax,” “we,”
“our” or “us” refer to Tenax Therapeutics,
Inc. excluding our subsidiary, unless expressly stated or the
context otherwise requires.
General
The
terms of each series of debt securities will be established by or
pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in a resolution of our board of
directors, in an officer’s certificate or by a supplemental
indenture. The particular terms of each series of debt securities
will be described in a prospectus supplement relating to such
series (including any pricing supplement or term
sheet).
The
indenture does not limit the amount of debt securities that we can
issue, and such debt securities may be in one or more series with
the same or various maturities, at par, at a premium, or at a
discount. We will set forth in a prospectus supplement (including
any pricing supplement or term sheet) relating to any series of
debt securities being offered, the aggregate principal amount and
the following terms of the debt securities, if
applicable:
●
the title and
ranking of the debt securities (including the terms of any
subordination provisions);
●
the price or prices
(expressed as a percentage of the principal amount) at which we
will sell the debt securities;
●
any limit on the
aggregate principal amount of the debt securities;
●
the date or dates
on which the principal of the securities of the series is
payable;
●
the rate or rates
(which may be fixed or variable) per annum or the method used to
determine the rate or rates (including any commodity, commodity
index, stock exchange index or financial index) at which the debt
securities will bear interest, the date or dates from which
interest will accrue, the date or dates on which interest will
commence and be payable and any regular record date for the
interest payable on any interest payment date;
●
the place or places
where principal of, and interest, if any, on the debt securities
will be payable (and the method of such payment), where the
securities of such series may be surrendered for registration of
transfer or exchange, and where notices and demands to us in
respect of the debt securities may be delivered;
●
the period or
periods within which, the price or prices at which and the terms
and conditions upon which we may redeem the debt
securities;
●
any obligation we
have to redeem or purchase the debt securities pursuant to any
sinking fund or analogous provisions or at the option of a holder
of debt securities and the period or periods within which, the
price or prices at which and the terms and conditions upon which
securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
●
the dates on which
and the price or prices at which we will repurchase debt securities
at the option of the holders of debt securities and other detailed
terms and provisions of these repurchase obligations;
●
the denominations
in which the debt securities will be issued, if other than
denominations of $1,000 and any integral multiple
thereof;
●
whether the debt
securities will be issued in the form of certificated debt
securities or global debt securities;
●
the portion of
principal amount of the debt securities payable upon declaration of
acceleration of the maturity date, if other than the principal
amount;
●
the currency of
denomination of the debt securities, which may be United States
Dollars or any foreign currency, and if such currency of
denomination is a composite currency, the agency or organization,
if any, responsible for overseeing such composite
currency;
●
the designation of
the currency, currencies or currency units in which payment of
principal of, and premium and interest on, the debt securities will
be made;
●
if payments of
principal of, or premium or interest on, the debt securities will
be made in one or more currencies or currency units other than that
or those in which the debt securities are denominated, the manner
in which the exchange rate with respect to these payments will be
determined;
●
the manner in which
the amounts of payment of principal of, and premium, if any, or
interest on the debt securities will be determined, if these
amounts may be determined by reference to an index based on a
currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;
●
any provisions
relating to any security provided for the debt
securities;
●
any addition to,
deletion of or change in the Events of Default described in this
prospectus or in the indenture with respect to the debt securities
and any change in the acceleration provisions described in this
prospectus or in the indenture with respect to the debt
securities;
●
any addition to,
deletion of or change in the covenants described in this prospectus
or in the indenture with respect to the debt
securities;
●
any depositaries,
interest rate calculation agents, exchange rate calculation agents
or other agents with respect to the debt securities;
●
the provisions, if
any, relating to conversion or exchange of any debt securities of
such series, including if applicable, the conversion or exchange
price and period, provisions as to whether conversion or exchange
will be mandatory, the events requiring an adjustment of the
conversion or exchange price and provisions affecting conversion or
exchange; and
●
any other terms of
the debt securities, which may supplement, modify or delete any
provision of the indenture as it applies to that series, including
any terms that may be required under applicable law or regulations
or advisable in connection with the marketing of the
securities.
We may
issue debt securities that provide for an amount less than their
stated principal amount to be due and payable upon declaration of
acceleration of their maturity pursuant to the terms of the
indenture. We will provide you with information on the federal
income tax considerations and other special considerations
applicable to any of these debt securities in the applicable
prospectus supplement.
If we
denominate the purchase price of any of the debt securities in a
foreign currency or currencies or a foreign currency unit or units,
or if the principal of, and any premium and interest on, any series
of debt securities is payable in a foreign currency or currencies
or a foreign currency unit or units, we will provide you with
information on the restrictions, elections, general tax
considerations, specific terms and other information with respect
to that issue of debt securities and such foreign currency or
currencies or foreign currency unit or units in the applicable
prospectus supplement.
Form, Exchange and Transfer
We may
issue debt securities of each series only in fully registered form
without coupons and, unless we otherwise specify in the applicable
prospectus supplement, in denominations of $1,000 and any integral
multiple thereof. The indenture will provide that we may issue debt
securities of a series in temporary or permanent global form and as
book-entry securities that will be deposited with, or on behalf of,
The Depository Trust Company or another depositary named by us and
identified in a prospectus supplement with respect to that series,
which we refer to herein as the “depositary.” See
“Book-Entry Securities” below for a further description
of the terms relating to any book-entry securities.
At the
option of the holder, subject to the terms of the indenture and the
limitations applicable to global securities described below or in
the applicable prospectus supplement, the holder of the debt
securities of any series can exchange the debt securities for other
debt securities of the same series, in any authorized denomination
and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to
global securities set forth below or in the applicable prospectus
supplement, holders of the debt securities may present the debt
securities for exchange or for registration of transfer, duly
endorsed or with the form of transfer endorsed thereon duly
executed if so required by us or the security registrar, at the
office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided
in the debt securities that the holder presents for transfer or
exchange, we will make no service charge for any registration of
transfer or exchange, but we may require payment of any taxes or
other governmental charges.
We will
name in the applicable prospectus supplement the security
registrar, and any transfer agent in addition to the security
registrar, that we initially designate for any debt securities. We
may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be
required to maintain a transfer agent in each place of payment for
the debt securities of each series.
If we
elect to redeem the debt securities of any series, we will not be
required to:
●
issue, register the
transfer of, or exchange any debt securities of any series being
redeemed in part during a period beginning at the opening of
business 15 days before the day of mailing of a notice of
redemption of any debt securities that may be selected for
redemption and ending at the close of business on the day of the
mailing; or
●
register the
transfer of or exchange any debt securities so selected for
redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part.
Book-Entry Securities
The
following description of book-entry securities will apply to any
series of debt securities issued in whole or in part in the form of
one or more global securities, except as otherwise described in a
related prospectus supplement.
Book-entry
securities of like tenor and having the same date will be
represented by one or more global securities deposited with and
registered in the name of a depositary that is a clearing agent
registered under the Exchange Act. Beneficial interests in
book-entry securities will be limited to institutions that have
accounts with the depositary, or “participants,” or
persons that may hold interests through participants.
Ownership of
beneficial interests by participants will only be evidenced by, and
the transfer of that ownership interest will only be effected
through, records maintained by the depositary. Ownership of
beneficial interests by persons that hold through participants will
only be evidenced by, and the transfer of that ownership interest
within such participant will only be effected through, records
maintained by the participants. The laws of some jurisdictions
require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in a global
security.
Payment
of principal of and any premium and interest on book-entry
securities represented by a global security registered in the name
of or held by a depositary will be made to the depositary, as the
registered owner of the global security. Neither we, the trustee
nor any agent of ours or the trustee will have any responsibility
or liability for any aspect of the depositary’s records or
any participant’s records relating to or payments made on
account of beneficial ownership interests in a global security or
for maintaining, supervising or reviewing any of the
depositary’s records or any participant’s records
relating to the beneficial ownership interests. Payments by
participants to owners of beneficial interests in a global security
held through such participants will be governed by the
depositary’s procedures, as is now the case with securities
held for the accounts of customers registered in “street
name,” and will be the sole responsibility of such
participants.
A
global security representing a book-entry security is exchangeable
for definitive debt securities in registered form, of like tenor
and of an equal aggregate principal amount registered in the name
of, or is transferable in whole or in part to, a person other than
the depositary for that global security, only if (i) the depositary
notifies us that it is unwilling or unable to continue as
depositary for that global security or the depositary ceases to be
a clearing agency registered under the Exchange Act, (ii) there
shall have occurred and be continuing an event of default with
respect to the debt securities of that series or (iii) other
circumstances exist that have been specified in the terms of the
debt securities of that series. Any global security that is
exchangeable pursuant to the preceding sentence shall be registered
in the name or names of such person or persons as the depositary
shall instruct the trustee. It is expected that such instructions
may be based upon directions received by the depositary from its
participants with respect to ownership of beneficial interests in
such global security.
Except
as provided above, owners of beneficial interests in a global
security will not be entitled to receive physical delivery of debt
securities in definitive form and will not be considered the
holders thereof for any purpose under the indenture, and no global
security shall be exchangeable, except for a security registered in
the name of the depositary. This means each person owning a
beneficial interest in such global security must rely on the
procedures of the depositary and, if such person is not a
participant, on the procedures of the participant through which
such person owns its interest, to exercise any rights of a holder
under the indenture. We understand that under existing industry
practices, if we request any action of holders or an owner of a
beneficial interest in such global security desires to give or take
any action that a holder is entitled to give or take under the
indenture, the depositary would authorize the participants holding
the relevant beneficial interests to give or take such action, and
such participants would authorize beneficial owners owning through
such participant to give or take such action or would otherwise act
upon the instructions of beneficial owners owning through
them.
Covenants
We will
set forth in the applicable prospectus supplement any restrictive
covenants applicable to any issue of debt securities.
No Protection in the Event of a Change of Control
Unless
we state otherwise in the applicable prospectus supplement, the
debt securities will not contain any provisions which may afford
holders of the debt securities protection in the event we have a
change in control or in the event of a highly leveraged transaction
(whether or not such transaction results in a change in control)
which could adversely affect holders of debt
securities.
Consolidation, Merger and Sale of Assets
We may
not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all of our properties and assets to any
person (a “successor person”) unless:
●
we are the
surviving corporation or the successor person (if other than Tenax)
is a corporation organized and validly existing under the laws of
any U.S. domestic jurisdiction and expressly assumes our
obligations on the debt securities and under the indenture;
and
●
immediately after
giving effect to the transaction, no Default or Event of Default,
shall have occurred and be continuing.
Notwithstanding
the above, any of our subsidiaries may consolidate with, merge into
or transfer all or part of its properties to us.
Events of Default
“Event of
Default” means with respect to any series of debt securities,
any of the following:
●
default in the
payment of any interest upon any debt security of that series when
it becomes due and payable, and continuance of such default for a
period of 90 days (unless the entire amount of the payment is
deposited by us with the trustee or with a paying agent prior to
the expiration of the 90-day period);
●
default in the
payment of principal of any security of that series at its
maturity;
●
default in the
performance or breach of any other covenant or warranty by us in
the indenture (other than a covenant or warranty that has been
included in the indenture solely for the benefit of a series of
debt securities other than that series), which default continues
uncured for a period of 90 days after we receive written notice
from the trustee or Tenax and the trustee receive written notice
from the holders of not less than 25% in principal amount of the
outstanding debt securities of that series as provided in the
indenture;
●
certain voluntary
or involuntary events of bankruptcy, insolvency or reorganization
of Tenax;
●
any other Event of
Default provided with respect to debt securities of that series
that is described in any applicable prospectus
supplement.
No
Event of Default with respect to a particular series of debt
securities (except as to certain events of bankruptcy, insolvency
or reorganization) necessarily constitutes an Event of Default with
respect to any other series of debt securities. The occurrence of
certain Events of Default or an acceleration under the indenture
may constitute an event of default under certain indebtedness of
ours outstanding from time to time.
If an
Event of Default with respect to debt securities of any series at
the time outstanding occurs and is continuing, then the trustee or
the holders of not less than 25% in principal amount of the
outstanding debt securities of that series may, by a notice in
writing to us (and to the trustee if given by the holders), declare
to be due and payable immediately the principal of (or, if the debt
securities of that series are discount securities, that portion of
the principal amount as may be specified in the terms of that
series) and accrued and unpaid interest, if any, on all debt
securities of that series. In the case of an Event of Default
resulting from certain events of bankruptcy, insolvency or
reorganization, the principal (or such specified amount) of and
accrued and unpaid interest, if any, on all outstanding debt
securities will become and be immediately due and payable without
any declaration or other act on the part of the trustee or any
holder of outstanding debt securities. At any time after a
declaration of acceleration with respect to debt securities of any
series has been made, but before a judgment or decree for payment
of the money due has been obtained by the trustee, the holders of a
majority in principal amount of the outstanding debt securities of
that series may rescind and annul the acceleration if all Events of
Default, other than the non-payment of accelerated principal and
interest, if any, with respect to debt securities of that series,
have been cured or waived as provided in the indenture. We refer
you to the prospectus supplement relating to any series of debt
securities that are discount securities for the particular
provisions relating to acceleration of a portion of the principal
amount of such discount securities upon the occurrence of an Event
of Default.
The
indenture provides that the trustee may refuse to perform any duty
or exercise any of its rights or powers under the indenture unless
the trustee receives indemnity satisfactory to it against any cost,
liability or expense which might be incurred by it in performing
such duty or exercising such right or power. Subject to certain
rights of the trustee, the holders of a majority in principal
amount of the outstanding debt securities of any series will have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee or exercising
any trust or power conferred on the trustee with respect to the
debt securities of that series.
No
holder of any debt security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to
the indenture or for the appointment of a receiver or trustee, or
for any remedy under the indenture, unless:
●
that holder has
previously given to the trustee written notice of a continuing
Event of Default with respect to debt securities of that series;
and
●
the holders of not
less than 25% in principal amount of the outstanding debt
securities of that series have made written request, and offered
indemnity or security satisfactory to the trustee, to the trustee
to institute the proceeding as trustee, and the trustee has not
received from the holders of not less than a majority in principal
amount of the outstanding debt securities of that series a
direction inconsistent with that request and has failed to
institute the proceeding within 60 days.
Notwithstanding any
other provision in the indenture, the holder of any debt security
will have an absolute and unconditional right to receive payment of
the principal of, and premium and any interest on, that debt
security on or after the due dates expressed in that debt security
and to institute suit for the enforcement of payment.
The
indenture requires us, within 120 days after the end of our fiscal
year, to furnish to the trustee a statement as to compliance with
the indenture. If a Default or Event of Default occurs and is
continuing with respect to the securities of any series and if it
is known to a responsible officer of the trustee, the trustee shall
mail to each holder of the securities of that series notice of a
Default or Event of Default within 90 days after it occurs or, if
later, after a responsible officer of the trustee has knowledge of
such Default or Event of Default. The indenture provides that the
trustee may withhold notice to the holders of debt securities of
any series of any Default or Event of Default (except in payment on
any debt securities of that series) with respect to debt securities
of that series if the trustee determines in good faith that
withholding notice is in the interest of the holders of those debt
securities.
Modification and Waiver
We and
the trustee may modify, amend or supplement the indenture or the
debt securities of any series without the consent of any holder of
any debt security:
●
to cure any
ambiguity, defect or inconsistency;
●
to comply with
covenants in the indenture described above under the heading
“Consolidation, Merger and Sale of
Assets”;
●
to provide for
uncertificated securities in addition to or in place of
certificated securities;
●
to add guarantees
with respect to debt securities of any series or secure debt
securities of any series;
●
to surrender any of
our rights or powers under the indenture;
●
to add covenants or
events of default for the benefit of the holders of debt securities
of any series;
●
to comply with the
applicable procedures of the applicable depositary;
●
to make any change
that does not adversely affect the rights of any holder of debt
securities;
●
to provide for the
issuance of and establish the form and terms and conditions of debt
securities of any series as permitted by the
indenture;
●
to effect the
appointment of a successor trustee with respect to the debt
securities of any series and to add to or change any of the
provisions of the indenture to provide for or facilitate
administration by more than one trustee; or
●
to comply with
requirements of the SEC in order to effect or maintain the
qualification of the indenture under the Trust Indenture Act of
1939, as amended.
We may
also modify and amend the indenture with the consent of the holders
of at least a majority in principal amount of the outstanding debt
securities of each series affected by the modifications or
amendments. We may not make any modification or amendment without
the consent of the holders of each affected debt security then
outstanding if that amendment will:
●
reduce the amount
of debt securities whose holders must consent to an amendment,
supplement or waiver;
●
reduce the rate of
or extend the time for payment of interest (including default
interest) on any debt security;
●
reduce the
principal of or premium on or change the fixed maturity of any debt
security or reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous obligation with
respect to any series of debt securities;
●
reduce the
principal amount of discount securities payable upon acceleration
of maturity;
●
waive a default in
the payment of the principal of, or premium or interest on, any
debt security (except a rescission of acceleration of the debt
securities of any series by the holders of at least a majority in
aggregate principal amount of the then outstanding debt securities
of that series and a waiver of the payment default that resulted
from such acceleration);
●
make the principal
of or premium or interest on any debt security payable in currency
other than that stated in the debt security;
●
make any change to
certain provisions of the indenture relating to, among other
things, the right of holders of debt securities to receive payment
of the principal of, and premium and interest on, those debt
securities and to institute suit for the enforcement of any such
payment and to waivers or amendments; or
●
waive a redemption
payment with respect to any debt security.
Except
for certain specified provisions, the holders of at least a
majority in principal amount of the outstanding debt securities of
any series may on behalf of the holders of all debt securities of
that series waive our compliance with provisions of the indenture.
The holders of a majority in principal amount of the outstanding
debt securities of any series may on behalf of the holders of all
the debt securities of such series waive any past default under the
indenture with respect to that series and its consequences, except
a default in the payment of the principal of, premium or any
interest on any debt security of that series; provided, however,
that the holders of a majority in principal amount of the
outstanding debt securities of any series may rescind an
acceleration and its consequences, including any related payment
default that resulted from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance
The
indenture provides that, unless otherwise provided by the terms of
the applicable series of debt securities, we may be discharged from
any and all obligations in respect of the debt securities of any
series (subject to certain exceptions). We will be so discharged
upon the irrevocable deposit with the trustee, in trust, of money
and/or U.S. government obligations or, in the case of debt
securities denominated in a single currency other than U.S.
Dollars, government obligations of the government that issued or
caused to be issued such currency, that, through the payment of
interest and principal in accordance with their terms, will provide
money or U.S. government obligations in an amount sufficient in the
opinion of a nationally recognized firm of independent public
accountants or investment bank to pay and discharge each
installment of principal, premium and interest on and any mandatory
sinking fund payments in respect of the debt securities of that
series on the stated maturity of those payments in accordance with
the terms of the indenture and those debt securities.
This
discharge may occur only if, among other things, we have delivered
to the trustee an opinion of counsel stating that we have received
from, or there has been published by, the U.S. Internal Revenue
Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable U.S. federal income tax
law, in either case to the effect that, and based thereon such
opinion shall confirm that, the holders of the debt securities of
that series will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the deposit, defeasance
and discharge and will be subject to U.S. federal income tax on the
same amounts and in the same manner and at the same times as would
have been the case if the deposit, defeasance and discharge had not
occurred.
Defeasance of Certain Covenants
The
indenture provides that, unless otherwise provided by the terms of
the applicable series of debt securities, upon compliance with
certain conditions:
●
we may omit to
comply with the covenant described under the heading
“Consolidation, Merger and Sale of Assets” and certain
other covenants set forth in the indenture, as well as any
additional covenants which may be set forth in any applicable
prospectus supplement; and
●
any omission to
comply with those covenants will not constitute a Default or an
Event of Default with respect to the debt securities of that series
(“covenant defeasance”).
The
conditions include:
●
depositing with the
trustee money and/or U.S. government obligations or, in the case of
debt securities denominated in a single currency other than U.S.
Dollars, government obligations of the government that issued or
caused to be issued such currency, that, through the payment of
interest and principal in accordance with their terms, will provide
money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants or investment
bank to pay and discharge each installment of principal of, premium
and interest on and any mandatory sinking fund payments in respect
of the debt securities of that series on the stated maturity of
those payments in accordance with the terms of the indenture and
those debt securities; and
●
delivering to the
trustee an opinion of counsel to the effect that we have received
from, or there has been published by, the U.S. Internal Revenue
Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable U.S. federal income tax
law, in either case to the effect that, and based thereon such
opinion shall confirm that, the holders of the debt securities of
that series will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the deposit and related
covenant defeasance and will be subject to U.S. federal income tax
on the same amounts and in the same manner and at the same times as
would have been the case if the deposit and related covenant
defeasance had not occurred.
No Personal Liability of Directors, Officers, Employees or
Stockholders
None of
our past, present or future directors, officers, employees or
stockholders, as such, will have any liability for any of our
obligations under the debt securities or the indenture or for any
claim based on, or in respect or by reason of, such obligations or
their creation. By accepting a debt security, each holder waives
and releases all such liability. This waiver and release is part of
the consideration for the issue of the debt securities. However,
this waiver and release may not be effective to waive liabilities
under U.S. federal securities laws, and it is the view of the SEC
that such a waiver is against public policy.
Governing Law
The
indenture and the debt securities, including any claim or
controversy arising out of or relating to the indenture or the
securities, will be governed by the laws of the State of New
York.
The
indenture will provide that we, the trustee and the holders of the
debt securities (by their acceptance of the debt securities)
irrevocably waive, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding
arising out of or relating to the indenture, the debt securities or
the transactions contemplated thereby.
The
indenture will provide that any legal suit, action or proceeding
arising out of or based upon the indenture or the transactions
contemplated thereby may be instituted in the federal courts of the
United States of America located in the City of New York or the
courts of the State of New York in each case located in the City of
New York, and we, the trustee and the holder of the debt securities
(by their acceptance of the debt securities) irrevocably submit to
the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The indenture will further provide that
service of any process, summons, notice or document by mail (to the
extent allowed under any applicable statute or rule of court) to
such party’s address set forth in the indenture will be
effective service of process for any suit, action or other
proceeding brought in any such court. The indenture will further
provide that we, the trustee and the holders of the debt securities
(by their acceptance of the debt securities) irrevocably and
unconditionally waive any objection to the laying of venue of any
suit, action or other proceeding in the courts specified above and
irrevocably and unconditionally waive and agree not to plead or
claim any such suit, action or other proceeding has been brought in
an inconvenient forum.
This
description summarizes only the terms of any warrants that we may
offer under this prospectus and related warrant agreements and
certificates. You should refer to the warrant agreement, including
the form of warrant certificate representing the warrants, relating
to the specific warrants being offered for complete terms, which
will be described and included in an accompanying prospectus
supplement. Such warrant agreement, together with the warrant
certificate, will be filed with the SEC in connection with the
offering of the specific warrants.
We may
issue warrants for the purchase of shares of our common stock or
preferred stock, or of debt securities. We may issue warrants
independently or together with other securities, and the warrants
may be attached to or separate from any offered
securities.
We will
evidence each series of warrants by warrant certificates that we
will issue under a separate warrant agreement. We may enter into
the warrant agreement with a warrant agent and, if so, we will
indicate the name and address of the warrant agent in the
applicable prospectus supplement relating to the particular series
of warrants.
The
particular terms of any issue of warrants will be described in the
prospectus supplement relating to the series. Those terms may
include:
●
the title of such
warrants;
●
the aggregate
number of such warrants;
●
the price or prices
at which such warrants will be issued;
●
the currency or
currencies (including composite currencies) in which the price of
such warrants may be payable;
●
the terms of the
securities issuable upon exercise of such warrants and the
procedures and conditions relating to the exercise of such
warrants;
●
the price at which
the securities issuable upon exercise of such warrants may be
acquired;
●
the dates on which
the right to exercise such warrants will commence and
expire;
●
any provisions for
adjustment of the number or amount of securities receivable upon
exercise of the warrants or the exercise price of the
warrants;
●
if applicable, the
minimum or maximum amount of such warrants that may be exercised at
any one time;
●
if applicable, the
designation and terms of the securities with which such warrants
are issued and the number of such warrants issued with each such
security or principal amount of such security;
●
if applicable, the
date on and after which such warrants and the related securities
will be separately transferable;
●
information with
respect to book-entry procedures, if any; and
●
any other terms of
such warrants, including terms, procedures and limitations relating
to the exchange or exercise of such warrants.
The
prospectus supplement relating to any warrants to purchase equity
securities may also include, if applicable, a discussion of certain
U.S. federal income tax and ERISA considerations. Until any
warrants to purchase debt securities are exercised, the holder of
the warrants will not have any rights of holders of the debt
securities that can be purchased upon exercise, including any
rights to receive payments of principal, premium or interest on the
underlying debt securities or to enforce covenants in the
applicable indenture. Until any warrants to purchase common stock
or preferred stock are exercised, the holders of the warrants will
not be entitled to vote, consent, receive dividends or payments
upon any liquidation, dissolution or winding up on the common stock
or preferred stock, if any, receive notice as stockholders with
respect to any meeting of stockholders for the election of our
directors or any other matter or exercise any rights as
stockholders of the Company. A holder of warrant certificates may
exchange them for new warrant certificates of different
denominations, present them for registration of transfer and
exercise them at the corporate trust office of the warrant agent or
any other office indicated in any applicable prospectus
supplement.
Exercise of Warrants. Each warrant will
entitle the holder thereof to purchase the principal amount of debt
securities or the number of shares of common stock or preferred
stock at the exercise price as will in each case be set forth in,
or be determinable as set forth in, the applicable prospectus
supplement. Warrants may be exercised at any time up to the close
of business on the expiration date set forth in the applicable
prospectus supplement. After the close of business on the
expiration date, unexercised warrants will become void. Warrants
may be exercised as set forth in the applicable prospectus
supplement relating to the warrants offered thereby. Upon receipt
of payment and the warrant certificate properly completed and duly
executed at the corporate trust office of the warrant agent or any
other office indicated in the applicable prospectus supplement, we
will, as soon as practicable, forward the purchased securities. If
less than all of the warrants represented by the warrant
certificate are exercised, a new warrant certificate will be issued
for the remaining warrants.
Enforceability of Rights of Holders of
Warrants. Each warrant agent will act solely as our agent
under the applicable warrant agreement and will not assume any
obligation or relationship of agency or trust with any holder of
any warrant. A single bank or trust company may act as warrant
agent for more than one issue of warrants. A warrant agent will
have no duty or responsibility in case of any default by us under
the applicable warrant agreement or warrant, including any duty or
responsibility to initiate any proceedings at law or otherwise, or
to make any demand upon us. Any holder of a warrant may, without
the consent of the related warrant agent or the holder of any other
warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, that
holder’s warrant(s).
We may
issue units consisting of any combination of the other types of
securities offered under this prospectus in one or more series. We
may evidence each series of units by unit certificates that we will
issue under a separate agreement. We may enter into unit agreements
with a unit agent. Each unit agent will be a bank or trust company
that we select. We will indicate the name and address of the unit
agent in the applicable prospectus supplement relating to a
particular series of units.
The
following description, together with the additional information
included in any applicable prospectus supplement, summarizes the
general features of the units that we may offer under this
prospectus. We urge you to read the prospectus supplements (and any
related free writing prospectus that we may authorize to be
provided to you) related to the series of units being offered, as
well as the complete unit agreements that contain the terms of the
units. Specific unit agreements will contain additional important
terms and provisions and we will file as an exhibit to the
registration statement of which this prospectus is a part, or will
incorporate by reference from another report that we file with the
SEC, the form of each unit agreement relating to units offered
under this prospectus.
If we
offer any units, certain terms of that series of units will be
described in the applicable prospectus supplement, including,
without limitation, the following, as applicable:
●
the title of the
series of units;
●
identification and
description of the separate constituent securities comprising the
units;
●
the price or prices
at which the units will be issued;
●
the date, if any,
on and after which the constituent securities comprising the units
will be separately transferable;
●
a discussion of
certain U.S. federal income tax considerations applicable to the
units; and
●
any other terms of
the units and their constituent securities.
We may
sell the securities from time to time pursuant to underwritten
public offerings, negotiated transactions, block trades or a
combination of these methods or through underwriters or dealers,
through agents and/or directly to one or more purchasers. The
securities may be distributed from time to time in one or more
transactions:
●
at a fixed price or
prices, which may be changed;
●
at market prices
prevailing at the time of sale;
●
at prices related
to such prevailing market prices;
●
at negotiated
prices; or
●
at varying prices
determined at the time of sale.
Each
time that we sell securities covered by this prospectus, we will
provide a prospectus supplement or supplements that will describe
the method of distribution and set forth the terms and conditions
of the offering of such securities, including the offering price of
the securities and the proceeds to us.
Offers
to purchase the securities being offered by this prospectus may be
solicited directly. Agents may also be designated to solicit offers
to purchase the securities from time to time. Any agent involved in
the offer or sale of our securities will be identified in a
prospectus supplement.
If a
dealer is utilized in the sale of the securities being offered by
this prospectus, the securities will be sold to the dealer, as
principal. The dealer may then resell the securities to the public
at varying prices to be determined by the dealer at the time of
resale.
If an
underwriter is utilized in the sale of the securities being offered
by this prospectus, an underwriting agreement will be executed with
the underwriter at the time of sale and the name of any underwriter
will be provided in the prospectus supplement that the underwriter
will use to make resales of the securities to the public. In
connection with the sale of the securities, we or the purchasers of
securities for whom the underwriter may act as agent, may
compensate the underwriter in the form of underwriting discounts or
commissions. The underwriter may sell the securities to or through
dealers, and those dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for which they may act as agent.
Unless otherwise indicated in a prospectus supplement, an agent
will be acting on a best efforts basis and a dealer will purchase
securities as a principal, and may then resell the securities at
varying prices to be determined by the dealer.
Any
compensation paid to underwriters, dealers or agents in connection
with the offering of the securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers
will be provided in the applicable prospectus supplement.
Underwriters, dealers and agents participating in the distribution
of the securities may be deemed to be underwriters within the
meaning of the Securities Act, and any discounts and commissions
received by them and any profit realized by them on resale of the
securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify
underwriters, dealers and agents against civil liabilities,
including liabilities under the Securities Act, or to contribute to
payments they may be required to make in respect thereof and to
reimburse those persons for certain expenses.
Any
common stock will be listed on the Nasdaq Capital Market, but any
other securities may or may not be listed on a national securities
exchange. To facilitate the offering of securities, certain persons
participating in the offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the
securities. This may include over-allotments or short sales of the
securities, which involve the sale by persons participating in the
offering of more securities than were sold to them. In these
circumstances, these persons would cover such over-allotments or
short positions by making purchases in the open market or by
exercising their over-allotment option, if any. In addition, these
persons may stabilize or maintain the price of the securities by
bidding for or purchasing securities in the open market or by
imposing penalty bids, whereby selling concessions allowed to
dealers participating in the offering may be reclaimed if
securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a
level above that which might otherwise prevail in the open market.
These transactions may be discontinued at any time.
We may
engage in at the market offerings into an existing trading market
in accordance with Rule 415(a)(4) under the Securities Act. In
addition, we may enter into derivative transactions with third
parties, or sell securities not covered by this prospectus to third
parties in privately negotiated transactions. If any applicable
prospectus supplement so indicates, in connection with those
derivatives, the third parties may sell securities covered by this
prospectus and the applicable prospectus supplement, including in
short sale transactions. If so, the third party may use securities
pledged by us or borrowed from us or others to settle those sales
or to close out any related open borrowings of stock, and may use
securities received from us in settlement of those derivatives to
close out any related open borrowings of stock. The third party in
such sale transactions will be an underwriter and, if not
identified in this prospectus, will be named in the applicable
prospectus supplement (or a post-effective amendment). In addition,
we may otherwise loan or pledge securities to a financial
institution or other third party that in turn may sell the
securities short using this prospectus and an applicable prospectus
supplement. Such financial institution or other third party may
transfer its economic short position to investors in our securities
or in connection with a concurrent offering of other
securities.
The
specific terms of any lock-up provisions in respect of any given
offering will be described in the applicable prospectus
supplement.
In
compliance with the guidelines of the Financial Industry Regulatory
Authority, Inc., or FINRA, the maximum consideration or discount to
be received by any FINRA member or independent broker dealer may
not exceed 8% of the aggregate proceeds of the
offering.
The
underwriters, dealers and agents may engage in transactions with
us, or perform services for us, in the ordinary course of business
for which they receive compensation.
Pursuant to General
Instruction I.B.6 of Form S-3, in no event will we sell securities
in a public primary offering with a value exceeding one-third of
our public float in any 12-month period so long as our public float
remains below $75.0 million.
WHERE YOU CAN FIND MORE
INFORMATION
We file
annual reports, quarterly reports, current reports, and proxy and
information statements and other information with the SEC. You may
read and copy materials that we have filed with the SEC at the SEC
public reference room at 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Copies of reports and
other information from us are available on the SEC’s website
at http://www.sec.gov. Such filings are also available at our
website at http://www.tenaxthera.com. Website materials are not a
part of this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC
allows us to “incorporate by reference” in this
prospectus the information we file with the SEC, which means that
we can disclose important information to you by referring you to
those documents. The following documents filed with the SEC are
hereby incorporated by reference in this prospectus:
●
Our Annual Report
on Form 10-K for the year ended December 31, 2017, filed with the
SEC on April 2, 2018;
●
Our Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2018,
filed with the SEC on May 15, 2018;
●
Our Current Reports
on Form 8-K filed with the SEC on February 15, 2018, February 23,
2018, and March 14, 2018; and
●
The description of
our Common Stock contained in our Registration Statement on Form
8-A filed with the SEC on January 11, 2010, and any amendments or
reports filed for the purpose of updating such
description.
In
addition, all documents subsequently filed by Tenax Therapeutics
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, including 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 and also between
the date of the registration statement that contains this
prospectus and prior to effectiveness of such registration
statement, shall be deemed to be incorporated by reference in this
prospectus and to be a part hereof from the date of filing of such
documents. However, any documents or portions thereof,
whether specifically listed above or filed in the future, that are
not deemed “filed” with the SEC, including without
limitation any information furnished pursuant to Item 2.02 or 7.01
of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of
Form 8-K, shall not be deemed to be incorporated by reference in
this prospectus.
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 prospectus 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 statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a
part of this prospectus.
We will
furnish without charge to you, upon written or oral request, a copy
of any or all of the documents incorporated by reference herein,
other than exhibits to such documents that are not specifically
incorporated by reference therein. All requests should be sent to
the attention of Nancy Hecox, Vice President of Legal Affairs and
General Counsel, Tenax Therapeutics, Inc., ONE Copley Parkway,
Suite 490, Morrisville, North Carolina 27560 or made via telephone
at (919) 855-2100.
Copies
of the documents incorporated by reference may also be found on our
website at http://www.tenaxthera.com.
The
validity of our securities issuable hereunder and certain other
legal matters will be passed upon for us by Smith, Anderson,
Blount, Dorsett, Mitchell & Jernigan, L.L.P, Raleigh, North
Carolina.
The
consolidated financial statements of Tenax Therapeutics, Inc. as of
December 31, 2017 and 2016, and for each of the years in the
two-year period ended December 31, 2017, included in our Annual
Report on Form 10-K, have been incorporated by reference herein in
reliance upon the report of Cherry Bekaert LLP, independent
registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing.
2,523,611 Shares of Common Stock
Pre-Funded Warrants to purchase up to 652,313 Shares of Common
Stock
________________________________
PROSPECTUS SUPPLEMENT
________________________________
H.C. Wainwright & Co.
July 6, 2020
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