As
filed with the Securities and Exchange Commission on July 26, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Sanara
MedTech Inc.
(Exact
name of registrant as specified in its charter)
Texas |
|
59-2219994 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
|
|
|
1200
Summit Ave., Suite 414
Fort
Worth, Texas
(Address
of Principal Executive Offices) |
|
76102
(Zip
Code) |
Sanara
MedTech Inc. 2024 Omnibus Long-Term Incentive Plan
(Full
title of the plan)
Michael
D. McNeil
Chief
Financial Officer
Sanara
MedTech Inc.
1200
Summit Ave., Suite 414
Fort
Worth, Texas 76102
(817)
529-2300
(Name,
address and telephone number, including area code, of agent for service)
Copies
to:
Matthew
L. Fry, Esq.
Haynes
and Boone, LLP
2801
N. Harwood Street, Suite 2300
Dallas,
Texas 75201
(214)
651-5000
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
|
Large
accelerated filer |
☐ |
|
Accelerated
filer |
☐ |
|
|
Non-accelerated
filer |
☒ |
|
Smaller
reporting company |
☒ |
|
|
|
|
|
Emerging
growth company |
☐ |
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 (this “Registration Statement”) is being filed to register shares of common stock of Sanara
MedTech Inc. (the “Company”) that may be issued to employees, consultants or outside directors of the Company or its subsidiaries
pursuant to future grants of equity-based awards under the Sanara MedTech Inc. 2024 Omnibus Long-Term Incentive Plan (the “2024
Plan”). The maximum number of shares of the Company’s common stock that may be delivered pursuant to awards granted under
the 2024 Plan is 1,000,000, subject to increase by any awards under the Sanara MedTech Inc. Restated 2014 Omnibus Long-Term Incentive
Plan (the “2014 LTIP”) (i) that are outstanding on or after June 12, 2024, and that, on or after such date, are forfeited,
expire or are canceled, and (ii) any shares subject to awards relating to common stock under the 2014 LTIP that are settled in cash on
or after June 12, 2024 (the “Prior LTIP Awards”). The 2024 Plan also provides that, to the extent an award under the 2024
Plan or a Prior LTIP Award is forfeited, expires or is canceled, in whole or in part, the shares subject to such forfeited, expired or
canceled award may again be awarded under the 2024 Plan.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
In
accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission (the “Commission”),
the information specified by Part I of Form S-8 has been omitted from this Registration Statement for offers of common stock pursuant
to the 2024 Plan. The documents containing this information will be sent or given to eligible participants as specified in Rule 428(b)(1)
of the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed by the Company with
the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the
Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part
II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. |
Incorporation
of Documents by Reference. |
The
following documents filed by the Company with the Commission are hereby incorporated into this Registration Statement by reference:
|
● |
the
Company’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the Commission on March 25, 2024; |
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|
|
● |
the
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the Commission on May 13, 2024; |
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|
● |
the
portions of the Company’s Definitive Proxy Statement on Schedule 14A filed with the Commission on April 15, 2024, that are
deemed “filed” with the Commission; |
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|
|
|
● |
the
Company’s Current Reports on Form 8-K filed with the Commission on March 22, 2024, April 5, 2024, April 18, 2024, May 13, 2024,
May 30, 2024, June 17, 2024 and June 18, 2024; and |
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|
|
|
● |
the
description of the Company’s securities contained in Exhibit 4.1 to the Company’s Annual Report on Form 10-K for the
year ended December 31, 2021, filed with the Commission on March 31, 2022, including all amendments and reports filed for the purpose
of updating such description. |
In
addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), subsequent to the date of this Registration Statement (other than any such documents or portions
thereof that are furnished, including under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, unless otherwise indicated therein,
including any exhibits included with such Items), 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, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing of such documents.
Any
statement contained in this Registration Statement 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 Registration Statement to the extent that a statement contained or incorporated
by reference herein or in any subsequently filed document which 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 superseded, to constitute
a part of this Registration Statement.
Notwithstanding
the foregoing, no information is incorporated by reference in this Registration Statement where such information under applicable forms
and regulations of the Commission is not deemed to be “filed” under Section 18 of the Exchange Act or otherwise subject to
the liabilities of that section, unless the report or filing containing such information indicates that the information therein is to
be considered “filed” under the Exchange Act or is to be incorporated by reference in 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. |
Section
8.101 of the Texas Business Organizations Code, as amended (the “TBOC”) provides that a corporation may indemnify any director
or officer who was, is or is threatened to be named as a defendant or respondent in a proceeding because he or she is or was a director
or officer, provided that the director or officer (i) conducted himself or herself in good faith, (ii) reasonably believed (a) in the
case of conduct in his or her official capacity, that his or her conduct was in the corporation’s best interests or (b) in all
other cases, that his or her conduct was not opposed to the corporation’s best interests and (iii) in the case of any criminal
proceeding, had no reasonable cause to believe his or her conduct was unlawful. Subject to certain exceptions, a director or officer
may not be indemnified if such person is found liable to the corporation or if such person is found liable on the basis that he or she
improperly received a personal benefit. Under Texas law, reasonable expenses incurred by a director or officer may be paid or reimbursed
by the corporation in advance of a final disposition of the proceeding after the corporation receives a written affirmation by the director
or officer of his good faith belief that he or she has met the standard of conduct necessary for indemnification and a written undertaking
by or on behalf of the director or officer to repay the amount if it is ultimately determined that the director or officer is not entitled
to indemnification by the corporation. Texas law requires a corporation to indemnify an officer or director against reasonable expenses
incurred in connection with a proceeding in which he or she is named a defendant or respondent because he or she is or was a director
or officer if he or she is wholly successful in the defense of the proceeding.
Texas
law also permits a corporation to purchase and maintain insurance or another arrangement on behalf of any person who is or was a director
or officer against any liability asserted against him or her and incurred by him or her in such a capacity or arising out of his or her
status as such a person, whether or not the corporation would have the power to indemnify him or her against that liability under Section
8.101 of the TBOC.
The
Company’s Amended and Restated Certificate of Formation and the Company’s Amended and Restated Bylaws provide that the Company
will, to the fullest extent permitted by the TBOC, indemnify each of its directors and officers against liabilities imposed upon them
(including reasonable amounts paid in settlement) and expenses incurred by them in connection with any claim made against them or any
action, suit or proceeding to which they may be a party by reason of their being or having been a director or officer of the Company
or having served in the same or other capacities for another entity at the request of the Company.
The
indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire
under any statute, provision of the Company’s Amended and Restated Certificate of Formation or the Company’s Amended and
Restated Bylaws, agreement, vote of shareholders or disinterested directors or otherwise.
The
Company believes that these provisions are necessary to attract and retain qualified persons as directors, officers and employees. The
Company also maintains directors’ and officers’ liability insurance.
Item
7. |
Exemption
from Registration Claimed. |
Not
applicable.
*
Filed herewith.
|
(a) |
The
undersigned registrant hereby undertakes: |
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee
Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement;
(iii)
To include 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;
provided,
however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2)
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.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or 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 therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant 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, the registrant 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 Securities Act of 1933 and will be governed
by the final adjudication of such issue.
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 Fort Worth, State of Texas, on July 26, 2024.
|
SANARA
MEDTECH INC. |
|
(Registrant) |
Date:
July 26, 2024 |
|
|
By: |
/s/
Michael D. McNeil |
|
|
Michael
D. McNeil |
|
|
Chief
Financial Officer |
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Ronald T. Nixon and Michael D. McNeil, severally, each with full power
to act alone and without the others, his or her true and lawful attorney-in-fact, with full power of substitution, and with the authority
to execute in the name of each such person, any and all amendments (including without limitation, post-effective amendments) to this
registration statement on Form S-8, and to file such registration statements with the Securities and Exchange Commission, together with
any exhibits thereto and other documents therewith, necessary or advisable to enable the registrant to comply with the Securities Act
of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, which amendments may
make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same deems appropriate.
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 date indicated.
Signature |
|
Title |
|
Date |
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|
|
/s/
Ronald T. Nixon |
|
Chief
Executive Officer (Principal Executive Officer) and Executive Chairman |
|
July
26, 2024 |
Ronald
T. Nixon |
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|
/s/
Michael D. McNeil |
|
Chief
Financial Officer (Principal Financial and Accounting Officer) |
|
July
26, 2024 |
Michael
D. McNeil |
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|
/s/
Robert A. DeSutter |
|
Director |
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July
26, 2024 |
Robert
A. DeSutter |
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|
/s/
Roszell Mack III |
|
Director |
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July
26, 2024 |
Roszell
Mack III |
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/s/
Eric D. Major |
|
Director |
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July
26, 2024 |
Eric
D. Major |
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|
/s/
Sara N. Ortwein |
|
Director |
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July
26, 2024 |
Sara
N. Ortwein |
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/s/
Ann Beal Salamone |
|
Director |
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July
26, 2024 |
Ann
Beal Salamone |
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/s/
James W. Stuckert |
|
Director |
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July
26, 2024 |
James
W. Stuckert |
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/s/
Eric D. Tanzberger |
|
Director |
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July
26, 2024 |
Eric
D. Tanzberger |
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Exhibit
5.1
July
26, 2024
Sanara
MedTech Inc.
1200
Summit Avenue, Suite 414
Fort
Worth, TX 76102
Re: |
Registration
Statement on Form S-8 of 1,500,000 Shares of Common Stock of Sanara MedTech Inc. |
Ladies
and Gentlemen:
We
have acted as counsel to Sanara MedTech Inc., a Texas corporation (the “Company”), in connection with the filing
with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended
(the “Act”), of a registration statement on Form S-8 (the “Registration Statement”)
by the Company relating to the registration of 1,500,000 shares (“Shares”) of the Company’s common stock,
$0.001 par value per share (the “Common Stock”), for issuance under the Sanara MedTech Inc. 2024 Omnibus Long-Term
Incentive Plan (the “2024 Plan”).
This
opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
For
purposes of the opinions we express below, we have examined originals, or copies certified or otherwise identified, of (i) the Amended
and Restated Certificate of Formation of the Company (the “Certificate of Formation”) and the Amended and Restated
Bylaws of the Company (the “Bylaws”), each as amended and/or restated as of the date hereof; (ii) certain resolutions
of the Board of Directors of the Company related to the filing of the Registration Statement, the adoption of the 2024 Plan, the authorization
and issuance of the Shares and related matters; (iii) the Registration Statement and all exhibits thereto; (iv) the 2024 Plan; (v) a
certificate executed by an officer of the Company, dated as of the date hereof; and (vi) such other records, documents and instruments
as we deemed relevant and necessary for purposes of the opinion stated herein.
As
to questions of fact material to the opinions expressed below, we have, without independent verification of their accuracy, relied to
the extent we deem reasonably appropriate upon the representations and warranties of the Company contained in such documents, records,
certificates, instruments or representations furnished or made available to us by the Company.
In
making the foregoing examination, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted
to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv)
that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v)
that all factual information on which we have relied was accurate and complete.
We
have not considered, and express no opinion herein as to, the laws of any state or jurisdiction other than the laws of the State of Texas.
We
have also assumed that, at the time of the issuance of the Shares: (i) the resolutions of the Board of Directors of the Company referred
to above will not have been modified or rescinded, (ii) the Company will receive consideration for the issuance of the Shares required
by the 2024 Plan and that is at least equal to the par value of the Common Stock, (iii) all requirements of the laws of the State of
Texas, the Certificate of Formation and the Bylaws will be complied with, and (iv) sufficient shares of Common Stock will be authorized
for issuance under the Certificate of Formation that have not otherwise been issued or reserved for issuance.
Based
on the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that that upon
the issuance of the Shares in accordance with the terms of the 2024 Plan, the Shares will be validly issued, fully paid and non-assessable.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to all references to us in the Registration
Statement. In giving this consent, we are not admitting that we are within the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Commission thereunder.
|
Very
truly yours, |
|
|
|
/s/
Haynes and Boone, LLP |
|
|
|
HAYNES
AND BOONE, LLP |
Haynes
and Boone, LLP |
2801
N. Harwood | Suite 2300 | Dallas, TX 75201
T:
214.651.5000 | haynesboone.com |
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We
hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Sanara MedTech Inc. of our report dated
March 25, 2024, relating to the consolidated financial statements of Sanara MedTech Inc. appearing in Sanara MedTech Inc.’s Annual
Report on Form 10-K for the year ended December 31, 2023.
/s/
WEAVER AND TIDWELL, L.L.P.
Austin,
Texas
July
26, 2024
Weaver
and Tidwell, L.L.P.
1601
South MoPac Expressway, Suite D250 | Austin, Texas 78746
Main:
512.609.1900
CPAs
AND ADVISORS | WEAVER.COM
Exhibit
107
Calculation
of Filing Fee Tables
FORM
S-8
(Form
Type)
Sanara
MedTech 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 per share | |
Rule 457(h) | |
| 1,500,000 | | |
$ | 29.57 | | |
$ | 44,355,000 | | |
$ | 0.00014760 | | |
$ | 6,546.80 | |
Total Offering Amounts | | |
| | | |
$ | 44,355,000 | | |
| | | |
$ | 6,546.80 | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
$ | 6,546.80 | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 0.00 | |
|
(1) |
The
Registration Statement on Form S-8 (the “Registration Statement”) to which this exhibit relates registers 1,500,000 shares
of common stock, par value $0.001 per share (“Common Stock”), of Sanara MedTech Inc. (the “Registrant”) issuable
under the Sanara MedTech Inc. 2024 Omnibus Long-Term Incentive Plan (the “2024 Plan”), including shares of Common Stock
that may become available for issuance under the 2024 Plan upon the forfeiture, expiration or cancellation of awards under the Sanara
MedTech Inc. Restated 2014 Omnibus Long-Term Incentive Plan or the 2024 Plan. See Explanatory Note. |
|
|
|
|
(2) |
Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the number of shares registered under
the Registration Statement also includes an indeterminable number of shares of Common Stock as may be issued in connection with stock
splits, stock dividends or similar transactions. |
|
|
|
|
(3) |
Estimated
solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under the Securities Act. The price
is calculated on the basis of the average of the high and low prices of the Common Stock on July 19, 2024, as reported on The Nasdaq
Capital Market. |
Table
2 - Fee Offset Claims and Sources
| |
Registrant or Filer Name | |
Form or Filing Type | |
File Number | |
Initial Filing Date | | |
Filing Date | | |
Fee Offset Claimed | | |
Security Type Associated with Fee Offset Claimed | |
Security Title Associated with Fee Offset Claimed | |
Unsold Securities Associated with Fee Offset Claimed | | |
Unsold Aggregate Offering Amount Associated with Fee Offset Claimed | | |
Fee Paid with Fee Offset Source | |
Rule 457(p) |
Fee Offset Claims (1) | |
Sanara MedTech Inc. | |
S-3 | |
333-251652 | |
| December 23, 2020 | | |
| — | | |
$ | 1,173.78 | (2) | |
Unallocated (Universal) Shelf | |
Unallocated (Universal) Shelf | |
| (1 | ) | |
$ | 121,434,266.51 | | |
| — | |
Fee Offset Sources (2) | |
Sanara MedTech Inc. | |
S-3 | |
333-251652 | |
| — | | |
| December 23, 2020 | | |
| — | | |
— | |
— | |
| — | | |
| — | | |
$ | 1,173.78 | |
(1) |
The
Registrant previously filed a Registration Statement on Form S-3 with the Securities and Exchange Commission (the “SEC”)
on December 23, 2020 (File No. 333-251652) (the “Prior Registration Statement”), which was declared effective on January
4, 2021, that registered an aggregate of $150,000,000 of an indeterminate amount of newly issued securities to be offered by the
Registrant from time to time, $121,434,266.51 of which remained unsold as of the date of filing of the Registration Statement (the
“Unsold Securities”). The Registrant hereby confirms that the offering of the Unsold Securities has been terminated. |
(2) |
The
Registrant expects to offset the registration fee due hereunder by an amount of fees that was previously paid with respect to the
Unsold Securities covered by the Prior Registration Statement pursuant to Rule 457(p) under the Securities Act. The Registrant previously
paid a registration fee of $16,365.00 in connection with the filing of the Prior Registration Statement, of which $13,248.48 relates
to the Unsold Securities. Subsequently, the Registrant offset the total registration fee of $1,173.78 due under a Registration Statement
on Form S-3 filed with the SEC on May 21, 2024 (File No. 333-279592) (the “Subsequent Registration Statement”), which
was declared effective on May 31, 2024, from the fees previously paid in connection with the Unsold Securities covered by the Prior
Registration Statement, leaving $12,074.70 available (the “Available Fees”) for future offset. Pursuant to Rule 457(p)
under the Securities Act, the Registrant hereby offsets the total registration fee due under the Registration Statement of $6,546.80
from the Available Fees, with $5,527.90 remaining to be applied to future filings. Accordingly, no additional registration fee is
being paid in connection with the filing of the Registration Statement. |
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