As filed with the Securities and Exchange Commission on March 30, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COGNITION THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 13-4365359 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 2500
Westchester Ave. Purchase, NY |
10577 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
COGNITION THERAPEUTICS, INC. 2021 EQUITY INCENTIVE PLAN
(Full title of the plan)
Lisa Ricciardi
President and Chief Executive Officer
Cognition Therapeutics, Inc.
2500 Westchester Ave.
Purchase, NY 10577
(Name and address of agent for service)
(412) 481-2210
(Telephone number, including area code, of agent for service)
with a copy to:
Rachael M. Bushey
Joseph Walsh
Troutman Pepper Hamilton Sanders LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
(215) 981-4331
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 | x | Smaller reporting company | x |
| Emerging growth company | x |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This Registration Statement is being filed for the purpose of registering an additional 1,111,502 shares of common stock, par value $0.001 per share (“Common Stock”), of Cognition Therapeutics, Inc. (the “Registrant”) that were added to the shares authorized for issuance under the Cognition Therapeutics, Inc. 2021 Equity Incentive Plan (the “Plan”) for which a Registration Statement on Form S-8 relating to the Plan is effective.
The Registrant previously filed a Registration Statement on Form S-8 (File No. 333-260686) with the Securities and Exchange Commission (the “Commission”) on November 2, 2021 to register 3,069,918 shares of Common Stock, that were authorized for issuance under the Plan. Upon the effectiveness of this Registration Statement, an aggregate of 4,181,420 shares of Common Stock will be registered for issuance from time to time under the Plan. Pursuant to General Instruction E to Form S-8, the contents of the Registration Statement on Form S-8 (File No. 333-260686) filed with the Commission on November 2, 2021 are incorporated herein by reference except to the extent supplemented, amended or superseded by the information set forth herein. Only those items of Form S-8 containing new information not contained in the earlier Registration Statement are presented herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of the Registrant filed with the Commission are incorporated by reference in this Registration Statement as of their respective dates:
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered 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 of such documents; 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 herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement.
Item 8. Exhibits.
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 Purchase, State of New York, on the 30th of March, 2022.
| COGNITION THERAPEUTICS, INC. | ||
| By: |
/s/ Lisa Ricciardi | |
| Lisa Ricciardi | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Lisa Ricciardi and James M. O’Brien, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorney-in-fact, proxy, 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 or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities held on the dates indicated.
| Signature | Title | Date | ||
|
/s/ Lisa Ricciardi |
President, Chief Executive Officer and Director (Principal Executive Officer) |
March 30, 2022 | ||
| Lisa Ricciardi | ||||
|
/s/ James M. O’Brien |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
March 30, 2022 | ||
| James M. O’Brien | ||||
|
/s/ Jack A. Khattar |
Director | March 30, 2022 | ||
| Jack A. Khattar | ||||
|
/s/ Aaron Fletcher, Ph.D. |
Director | March 30, 2022 | ||
| Aaron Fletcher, Ph.D. | ||||
|
/s/ Brett P. Monia, Ph.D. |
Director | March 30, 2022 | ||
| Brett P. Monia, Ph.D. | ||||
|
/s/ Ellen B. Richstone |
Director | March 30, 2022 | ||
| Ellen B. Richstone | ||||
|
/s/ Peggy Wallace |
Director | March 30, 2022 | ||
| Peggy Wallace | ||||
Exhibit 5.1
|
Troutman Pepper Hamilton Sanders LLP 3000 Two Logan Square, Eighteenth and Arch Streets Philadelphia, PA 19103-2799 troutman.com |
 |
March 30, 2022
Cognition Therapeutics, Inc.
2500 Westchester Ave.
Purchase, NY 10577
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Cognition Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of its registration statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the proposed issuance of up to 1,111,502 shares of common stock, par value $0.001 per share, of the Company (the “Shares”) reserved for future issuance under the Cognition Therapeutics, Inc. 2021 Equity Incentive Plan (the “Plan”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus, other than as expressly stated herein with respect to the issuance of the Shares.
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including pdfs). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware (the “DGCL”), and we express no opinion with respect to any other laws.
Based upon, subject to and limited by the foregoing, we are of the opinion as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the recipients, and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the Plan, assuming in each case that the individual issuances, grants or awards under the Plan are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the Plan (and the agreements duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid, and nonassessable.
This opinion letter has been prepared for use in connection with the Registration Statement. We assume no obligation to advise you of any changes in the foregoing subsequent to the effective date of the Registration Statement.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Act.
| Very truly yours, | |
| /s/ Troutman Pepper Hamilton Sanders LLP | |
| Troutman Pepper Hamilton Sanders LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2021 Equity Incentive Plan of Cognition Therapeutics, Inc. of our report dated March 30, 2022, with respect to the consolidated financial statements of Cognition Therapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.
| /s/ Ernst & Young LLP |
Philadelphia, Pennsylvania
March 30, 2022
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Cognition Therapeutics, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(1) (2) | Proposed Maximum Offering Price Per Unit(3) | Maximum Aggregate Offering Price(3) | Fee Rate | Amount of Registration Fee | |||||||||||||||||
| Equity | Common Stock, par value $0.001 | 457(c) and 457(h) | 1,111,502 | $ | 2.90 | $ | 3,223,355.80 | 0.0000927 | $ | 298.81 | ||||||||||||||
| Total Offering Amounts | $ | 3,223,355.80 | 298.81 | |||||||||||||||||||||
| Total Fee Offsets (4) | — | |||||||||||||||||||||||
| Net Fee Due | $ | 298.81 | ||||||||||||||||||||||
| (1) | Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock, par value $0.001 per share (“Common Stock”) of Cognition Therapeutics, Inc. (the “Company”) that become issuable by reason of any future stock dividend, stock split, recapitalization or other similar transaction or to cover such additional shares as may hereinafter be offered or issued to prevent dilution resulting from stock splits, stock dividends, recapitalizations or certain other capital adjustments, effected without the receipt of consideration by the Company, which results in an increase in the number of the outstanding shares of Common Stock. |
| (2) | Represents 1,111,502 shares of Common Stock that were added to the shares authorized for issuance under the Cognition Therapeutics, Inc. 2021 Equity Incentive Plan (the “Plan”) on January 1, 2022 pursuant to an “evergreen” provision contained in the Plan. Pursuant to such provision in the Plan, the aggregate number of shares of Common Stock authorized to be awarded under the Plan will automatically increase on January 1 of each year, in an amount equal to the lesser of (A) 5 % of the shares issued and outstanding on the last day of the immediately preceding fiscal year and (B) such smaller number of shares as determined by the board of directors of the Company. |
| (3) | Estimated in accordance with Rule 457(c) and Rule 457(h) of the Securities Act. The price shown is based upon the average of the high and low prices reported for the common stock on the Nasdaq Global Market on March 28, 2022. |
| (4) |
The Registrant does not have any fee offsets. |