GNPX Genprex Inc

 

As filed with the Securities and Exchange Commission on January 24, 2025

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER

THE SECURITIES ACT OF 1933

 

GENPREX, INC.

(Exact name of registrant as specified in its charter)

 

		Delaware		90-0772347
		(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

 

 

		3300 Bee Cave Road #650-227 Austin, Texas		78746
		(Address of Principal Executive Offices)		(Zip Code)

 

		Genprex, Inc. 2018 Equity Incentive Plan
		(Full title of the plan)

 

		Ryan M. Confer President, Chief Executive Officer, and Chief Financial Officer 3300 Bee Cave Road #650-227 Austin, TX 78746
		(Name and address of agent for service)

 

		(877) 774-4679
		(Telephone number, including area code, of agent for service)

 

Copies to:

 

Kate Basmagian, Esq. Lowenstein Sandler LLP 1251 Avenue of the Americas New York, New York 10020 Tel: (212) 262-6700

 

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

 

Large accelerated filer	☐		Accelerated filer	☐
Non-accelerated filer	☒		Smaller reporting company	☒
			Emerging growth company	☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

 

EXPLANATORY NOTE

 

Pursuant to General Instruction E of Form S-8, Genprex, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 (this “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) for the purpose of registering additional shares of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”), which consists of 543,032 additional shares of Common Stock issuable under the Registrant’s 2018 Equity Incentive Plan (the “2018 Plan”). The number of shares of Common Stock available for grant and issuance under the 2018 Plan is subject to an automatic annual increase on the first day of each fiscal year beginning in 2019 by an amount equal to the lesser of (i) 5% of the outstanding shares of Common Stock on such date or (ii) an amount determined by the Board of Directors (the “Evergreen Provision”). On January 1, 2025, the number of shares of Common Stock available for grant and issuance under the Plan increased by 543,032 shares and this Registration Statement registers such additional shares of Common Stock, which were available for grant and issuance under the Plan pursuant to the Evergreen Provision as of January 1, 2025. 

 

Pursuant to General Instruction E of Form S-8, the contents of the Registration Statements on Form S-8 of the Registrant filed with the Commission on April 2, 2020 (Registration No. 333-237543), on August 16, 2022 (Registration No. 333-266896), on February 17, 2023 (Registration No. 333-269865) and on April 17, 2024 (Registration No. 333-278758), including any amendments thereto or filings incorporated therein, are incorporated herein by this reference to the extent not replaced or changed hereby.

 

In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement. 

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

 

The following documents, which have been filed by the Registrant with the Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

 

	●	The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the Commission on April 1, 2024;
	●	The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2024, June 30, 2024, and September 30, 2024, filed with the Commission on May 15, 2024, August 9, 2024, and November 13, 2024, respectively;
	●	The Registrant’s Current Reports on Form 8-K filed with the Commission on January 5, 2024, January 31, 2024, February 2, 2024, February 5, 2024, February 26, 2024, March 6, 2024, March 20, 2024, May 9, 2024, June 24, 2024, August 13, 2024, September 4, 2024, September 26, 2024, October 15, 2024, October 24, 2024, November 5, 2024, November 19, 2024, November 20, 2024, December 16, 2024, January 13, 2025, and January 23, 2025 (in each case, other than any portions thereof deemed furnished and not filed);
	●	The Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on April 29, 2024; and
	●	The description of the Registrant’s Common Stock contained in its Registration Statement on Form 8-A (Registration No. 001-38244) filed with the Commission on October 13, 2017 pursuant to Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description, including Exhibit 4.20 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the Commission on April 1, 2024.

 

All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment, which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document, which also is deemed to be incorporated by reference herein, modifies or supersedes such statement.

 

 

Item 8.

Exhibits

 

Exhibit Number		Description of Exhibit
4.1		Amended and Restated Certificate of Incorporation of the Registrant, dated April 3, 2018, as amended by the Certificate of Amendment of the Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on January 31, 2024 (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the Commission on April 1, 2024).
4.2		Amended and Restated Bylaws of the Registrant, as amended by Amendment No. 1 adopted and approved by the Registrant’s Board of Directors on October 18, 2023 (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2023 filed with the Commission on November 14, 2023).
4.3		Form of Common Stock Certificate of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-219386), as amended, originally filed on July 21, 2017).
5.1*		Opinion of Lowenstein Sandler LLP.
23.1*		Consent of WithumSmith+Brown, PC, Independent Registered Public Accounting Firm.
23.2*		Consent of Daszkal Bolton LLP, Independent Registered Public Accounting Firm.
23.3*		Consent of Lowenstein Sandler LLP (included in Exhibit 5.1).
24.1*		Power of Attorney (included on the signature page to this Registration Statement on Form S-8).
99.1		Genprex, Inc. 2018 Equity Incentive Plan, dated April 3, 2018, including Forms of Award Agreements thereunder (incorporated by reference to Exhibit 10.3 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the Commission on April 1, 2024.
107*		Filing Fee Table.

 

* Filed herewith.

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Austin, State of Texas, on January 24, 2025.

 

GENPREX, INC.     By:  /s/ Ryan M. Confer Name:  Ryan M. Confer Title:    President, Chief Executive Officer and Chief Financial Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Ryan Confer as his true and lawful attorney-in-fact and agent with the full power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement, including any and all post-effective amendments, and to file such amendments thereto, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature	Title	Date
/s/ Ryan M. Confer Ryan M. Confer	President, Chief Executive Officer, Chief Financial Officer and Director (Principal Executive Officer and Principal Financial and Accounting Officer)	January 24, 2025
/s/ Brent M. Longnecker Brent M. Longnecker	Director	January 24, 2025
/s/ Jose Antonio Moreno Toscano Jose Antonio Moreno Toscano	Chairman of the Board	January 24, 2025
/s/ Will R. Wilson, Jr. Will R. Wilson, Jr.	Director	January 24, 2025

 

 

Exhibit 5.1

 

 

January 24, 2025

 

Genprex, Inc.

3300 Bee Cave Road #650-227

Austin, Texas 78746

 

Re: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel for Genprex, Inc., a Delaware corporation (the “Company”), in connection with the Company’s filing on the date hereof with the U.S. Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the registration of 543,032 additional shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable pursuant to the Genprex, Inc. 2018 Equity Incentive Plan (the “Plan”).

 

In connection with rendering this opinion, we have examined or are familiar with: (i) the Amended and Restated Certificate of Incorporation of the Company, as amended (the “Amended and Restated Certificate”); (ii) the Amended and Restated Bylaws of the Company, as amended; (iii) the Plan; (iv) the corporate proceedings with respect to the authorization of the Registration Statement; and (v) such other corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary or appropriate for purposes of this opinion.

 

In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies and the authenticity of the originals of such latter documents. As to any facts material to our opinion, we have, when relevant facts were not independently established, relied upon certificates or comparable documents of officers and representatives of the Company.

 

Based upon the foregoing, and subject to the qualifications stated herein, we are of the opinion that the Shares being registered pursuant to the Registration Statement, upon issuance and delivery in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable.

 

The opinion expressed herein is limited to the General Corporation Law of the State of Delaware (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing) and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction. We assume no obligation to advise you of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein.

 

We hereby consent to the filing of a copy of this letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder.

 

	Very truly yours,
	By:	/s/ Lowenstein Sandler LLP
		Lowenstein Sandler LLP

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

Genprex, Inc.

Austin, Texas

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Genprex, Inc. (the “Company”) of our report dated April 1, 2024 (which includes explanatory paragraphs relating to the (i) Company’s ability to continue as a going concern and (ii) revisions to the 2022 financial statements related to our audit of the adjustments to retrospectively apply the Company’s February 2, 2024 reverse stock split and our audit of 2022 tabular federal and state income tax information (disclosed in Note 8 – Income Taxes)), relating to the financial statements of the Company, which appear in the Company’s Annual Report on Form 10-K as of and for the year ended December 31, 2023 filed with the Securities and Exchange Commission on April 1, 2024. 

 

/s/ WithumSmith+Brown, PC

 

East Brunswick, New Jersey

January 24, 2025

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

Genprex, Inc.

Austin, Texas

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 31, 2023, with respect to the financial statements of Genprex, Inc. (the “Company”) as of December 31, 2022 and for the year then ended, which report is included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Securities and Exchange Commission on April 1, 2024. 

 

/s/ Daszkal Bolton LLP

 

Boca Raton, Florida

January 24, 2025

 

Exhibit 107

CALCULATION OF FILING FEE TABLE

 

Form S-8

(Form Type)

 

Genprex, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type	Title of Securities to be Registered	Fee Calculation Rule	Amount to be Registered (1)		Proposed Maximum Offering Price Per Share				Proposed Aggregate Offering Price				Fee Rate		Amount of Registration Fee
Equity	Common stock, $0.001 par value per share	Rule 457(c) and Rule 457(h)	543,032 (2)		$	0.6954	(3)		$	377,624.45	(3)		0.0001531		$	57.81
	Total Offering Amounts								$	377,624.45					$	57.81
	Total Fee Offsets (4)															-
	Net Fee Due														$	57.81

 

	(1)		Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the Registrant’s 2018 Equity Incentive Plan (the “2018 Plan”) and the Employee Stock Option Grant Notice and Stock Option Agreement referenced in footnote (4) below in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization, antidilution provisions, or other similar transactions.
	(2)		Represents an automatic annual increase on January 1, 2025 to the number of shares of the Registrant’s common stock reserved for issuance under the 2018 Plan, which annual increase is provided for in the 2018 Plan pursuant to the evergreen provision thereof.
	(3)		Estimated pursuant to Rule 457(c) and Rule 457(h) of the Securities Act solely for purposes of calculating the registration fee. The offering price per share and the aggregate offering price for shares reserved for future issuance under the 2018 Plan are based on the average of the high and the low price of the Registrant’s common stock as reported on the Nasdaq Capital Market on January 21, 2025, which date is within five business days prior to filing this Registration Statement.
	(4)		The Registrant does not have any fee offsets.

 

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