Securities Registration: Employee Benefit Plan (s-8)
September 06 2017 - 05:12PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on September 6, 2017.
Registration No. 333-XXXXX
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ZYNEX,
INC.
(Exact name of registrant as specified in its charter)
Nevada
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90-0275169
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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10000 Park Meadow Drive
Lone Tree, Colorado 80124
(303) 703-0496
(Address, including zip code, and telephone
number, including area code, of registrant's principal executive offices)
ZYNEX, INC. 2017
STOCK INCENTIVE PLAN AND
CERTAIN NON-PLAN STOCK OPTION AGREEMENTS
(1) (2)
(Full Title of Plan)
Thomas Sandgaard, Chief Executive Officer
10000 Park Meadow Drive
Lone Tree, Colorado 80124
(303) 703-0496
(Name, address and telephone number of
agent for service)
(Name, Address and Telephone number of Agent for Service)
Copies to:
Clifford L. Neuman P.C.
6800 N. 79
TH
Street, Suite 200
Niwot, Colorado 80503
(303) 449-2100 (Telephone)
(303) 449-1045 (Facsimile)
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.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if smaller reporting company)
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Smaller reporting company
x
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Emerging Growth Company
¨
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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.
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CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount to be
Registered
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Proposed
maximum
offering
price per share
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Proposed
maximum
aggregate
Offering price
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Amount of
Registration
fee
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Common Stock
$.001 Par Value
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5,000,000 shares
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(1)
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$
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1.38
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(3)
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$
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6,900,000
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$
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799.71
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Common Stock
$.001 par value
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1,081,000
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(2)
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$
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.329
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(3)
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$
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355,978
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$
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41.26
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Total
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6,081,000
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$
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7,255,978
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$
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840.97
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(1)
The total number of shares
of Common Stock, $.001 par value (the "Common Stock") currently reserved for issuance under the Zynex, Inc. 2017 Stock
Incentive Plan (the "Plan") is 5,000,000, all of which shares are being registered under the Securities Act of 1933 pursuant
to this Registration Statement.
(2)
In addition to the shares
issuable pursuant to the Plan, this Registration Statement registers an aggregate of 1,081,000 shares subject to issuance pursuant
to certain non-plan stock option agreements between the Company and certain of its officers, directors and employees as listed
on Exhibit 99.2 filed herewith.
The Registration Statement also covers
any additional shares of Common Stock that become issuable under the Plan by reason of any stock dividend, stock split, recapitalization
or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(3)
Inserted solely for the
purpose of calculating the registration fee pursuant to Rule 457. Pursuant to Rule 457(h)(1), the fee is calculated in part on
the basis of the average of the prices at which previously granted options may be exercised (276,857 shares at $0.1400 per share,
20,000 shares at $0.1480 per share, 100,000 shares at $0.1500 per share, 10,000 shares at $0.1750 per share, 10,000 shares at
$0.1800 per share, 75,000 shares at $0.2000 per share, 100,000 shares at $0.2098 per share, 25,000 shares at $0.2400 per share,
25,000 shares at $0.3280 per share, 10,000 shares at $0.3400 per share, 87,143 shares at $0.3500 per share, 142,000 shares at
$0.4340 per share, 100,000 shares at $0.5000 per share and 100,000 shares at $1.00 per share) and in part based on the average
of the high and low bid prices of the Company's shares on September 5, 2017 for the shares available under the 2017 Stock Incentive
Plan (5,000,000 shares). The price per share represents the number determined by dividing the aggregate exercise amount by the
number of shares to be acquired upon exercise.
(3)
Fee paid herewith.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
Item 1. Plan Information.
The documents containing the information
specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1). In accordance
with the rules and regulations of the Securities and Exchange Commission (the Commission") and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this registration statement on Form S-8 or as prospectuses
or prospectus supplements pursuant to Rule 424. Zynex, Inc. (the "Company") will maintain a file of such documents in
accordance with the provisions of Rule 428. Upon written or oral request to Zynex, Inc., 10000 Park Meadow Drive, Lone Tree, Colorado
80124 (telephone number (303) 703-4906) Attention Chief Financial Officer, the Company shall furnish, without charge, to employees,
the Commission or its staff a copy or copies of all of the documents included in such file.
Item 1(b). Securities to
be Offered
The total number of
shares of Common Stock, $.001 par value (the "Common Stock") currently reserved for issuance under the Zynex, Inc. 2017
Stock Incentive Plan (the "Plan") is 5,000,000, all of which shares the Company hereby registers pursuant to this Registration
Statement. In addition to the shares issuable pursuant to the Plan, this Registration Statement registers an aggregate of 1,081,000
shares subject to issuance pursuant to certain non-plan stock option agreements between the Company and certain of its current
and former employees, officers and directors as listed on Exhibit 99.2 filed herewith.
The Registration Statement
also covers any additional shares of Common Stock that become issuable under the Plan by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in
the number of the Registrant's outstanding shares of Common Stock.
Item 2. Registration
Information and Employee Plan Annual Information.
The documents containing
the information specified in this Item 2 will be sent or given to employees, officers, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and Exchange Commission (the Commission") and the
instructions to Form S-8, such documents are not being filed with the Commission either as part of this registration statement
on Form S-8 or as prospectuses or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by
Reference.
There are hereby incorporated
by reference in this Prospectus the following documents, all of which were previously filed by the Company with the Commission:
1.
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The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2016 as filed with the Commission on April 17, 2017.
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2.
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The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2017 as filed with the Commission on May 26, 2017.
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3.
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The Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2017 as filed with the Commission of August 14, 2017.
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4.
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The Company’s Current Reports on Form 8-K dated March 31, 2017 (filed May 16, 2017) May 26, 2017 (filed May 26, 2017), and June 5, 2017 (filed June 8, 2017).
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5.
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The description of securities to be registered contained in the Registration Statement filed with the Commission on the Company's Form 8-A under the Exchange Act.
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All documents filed
by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement which indicates
that all securities offered hereby have been sold or which registers all such securities then remaining unsold, shall be deemed
to be incorporated in this Registration Statement by reference and to be a part hereof from the date of filing of such documents.
Any statement contained
in this Registration Statement, in a supplement to this Registration Statement or in documents incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained
herein or in any document that is subsequently incorporated by reference herein modifies such statement. Any statement so modified
or superseded shall not be deemed, except as to be modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and
Counsel.
Not applicable.
Item 6. Indemnification of Directors
and Officers.
Nevada Revised Statutes provide that a
corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the
corporation, by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with the action, suit or proceeding if he acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Nevada Revised Statutes also provide that to the extent that
a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action,
suit or proceeding, or in defense of any claim, issue or matter therein, the corporation shall indemnify him against expenses,
including attorneys' fees, actually and reasonably incurred by him in connection with the defense.
The Company’s Articles of Incorporation authorize the
Company to indemnify its directors and officers to the fullest extent permitted under Nevada Revised Statutes. The Company’s
bylaws set forth the procedures that must be followed in order for directors and officers to receive indemnity payments.
The Articles of Incorporation of the Company,
eliminates the personal liability of a director to the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability for (i) any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) paying a
dividend or approving a stock repurchase in violation of Nevada law, or (iv) any transaction from which the director derived any
improper personal benefit.
Item 7. Exemption from Registration
Claimed.
Not
applicable.
Item 8. Exhibits.
Item 9. Undertakings.
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(a)
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The Company hereby undertakes:
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(1)
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To file, during any period in which offers of sales are being made, a post-effective amendment to this registration statement that includes any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.
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(b)
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The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be in the initial bona fide offering thereof.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or controlling persons of the Company, pursuant to the foregoing provisions, or otherwise, the Company has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act, and is, therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing Form
S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, this
6
th
day of September, 2017.
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Zynex, Inc.
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By:
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/s/ Thomas Sandgaard
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Thomas Sandgaard,
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Chief Executive Officer and President
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By:
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/s/ Daniel Moorhead
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Daniel Moorhead,
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Principal Financial Officer and Principal
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Accounting Officer
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POWER OF ATTORNEY
Each of the undersigned
officers and directors of Zynex, Inc., hereby constitutes and appoints Thomas Sandgaard, Chief Executive Officer of the Company,
and Daniel Moorhead, Chief Financial Officer of the Company, or either of them individually, his true and lawful attorney-in-fact
and agent, for him and in his name, place and stead, in any and all capacities, to sign his name to any and all amendments to this
Registration Statement on Form S-8, including post-effective amendments and other related documents, and to cause the same to be
filed with the Securities and Exchange Commission, granting unto said attorneys, or either of them individually, full power and
authority to do and perform any act and thing necessary and proper to be done in the premises, as fully to all intents and purposes
as the undersigned could do if personally present, and the undersigned for himself hereby ratifies and confirms all that said attorneys
shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this S-8 Registration Statement has been signed by the following persons (or by their duly authorized
attorney-in-fact) in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Thomas Sandgaard
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Chief Executive Officer, President, and
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Thomas Sandgaard
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Chairman of the Board of Directors
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September 6, 2017
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/s/ Daniel Moorhead
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Daniel Moorhead
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Chief Financial Officer
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September 6, 2017
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