Securities Registration: Employee Benefit Plan (s-8)
April 15 2020 - 11:47AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on April 13, 2020
Registration
No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Co-Diagnostics,
Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Utah
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46-2609396
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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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Co-Diagnostics,
Inc.
2401
S. Foothill Drive
Salt
Lake City, Utah 84109
(Address
of Principal Executive Offices) (Zip Code)
Co-Diagnostics,
Inc. 2015 Long Term Incentive Plan
(Full
Title of the Plan)
Reed
L. Benson
Chief
Financial Officer
Co-Diagnostics,
Inc.
2401
S. Foothill Drive
Salt
Lake City, Utah 84109
(Name
and Address of Agent for Service)
(801)
438-1036
(Telephone
Number, Including Area Code, of Agent for Service)
Copy
to:
Peter
DiChiara, Esq.
Carmel,
Milazzo & Feil LLP
55
West 39th Street, 18th Floor, New York, NY 10018
646-838-1312
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 [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ]
(Do
not check if a smaller reporting company)
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Smaller
reporting company [X]
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Emerging
growth company [X]
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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 Securities Act. [ ]
CALCULATION
OF REGISTRATION FEE
Title of Securities To Be Registered
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Amount
To Be
Registered (1)
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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, par value $0.001 per share, reserved for issuance pursuant to options granted under Co-Diagnostics, Inc. 2015 Long-term Incentive Plan
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2,121,817
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(3)
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$
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8.829
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(2)
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$
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18,733,522.29
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$
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2,431.61
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Common Stock, par value $0.001 per share, reserved for issuance pursuant to Co-Diagnostics, Inc. 2015 Long-term Incentive Plan in connection with the options that may be granted.
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3,878,183
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(4)
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$
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8.829
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(2)
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$
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34,240,477.71
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$
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4,444.42
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6,000,000
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-
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52,974,000.00
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6,876.03
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(1)
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Pursuant
to Rule 416(a) of 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, par value $0.001 (the “Common Stock”),
that become issuable in respect of the securities identified in the above table under the Co-Diagnostics, Inc. 2015 Long Term
Incentive Plan (the “2015 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of
outstanding shares of Registrant’s Common Stock.
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(2)
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Estimated
in accordance with Rules 457(c) and 457(h) solely for the purpose of calculating the registration fee on the basis of $7.15
per share, which represents the average of the high and low prices of the Registrant’s Common Stock as reported on the
NASDAQ Stock Market on April 1, 2020, which date is within five business days prior to filing this Registration Statement.
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(3)
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Consists
of 2,121,817 shares of Registrant’s Common Stock reserved for issuance in connection with outstanding stock options
granted pursuant to Co-Diagnostics, Inc.2015 Long-term Incentive Plan.
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(4)
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Consists
of 3,878,183 of shares of Registrant’s Common Stock reserved for issuance in connection with stock options that are
not currently issued or vested pursuant to the Co-Diagnostics, Inc.2015 Long-term Incentive Plan.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with
the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory
note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to participants
in the Registrant’s plan covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents filed by the Registrant with the Commission are incorporated herein by reference:
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(1)
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The
Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019 filed with the Commission on March 30,
2020 pursuant to Section 13(a) of the Exchange Act;
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(2)
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All
other reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act (other than the reports, or
portions thereof, deemed to have been furnished and not filed with the Commission) since the end of the fiscal year covered
by the Annual Report referred to in (a) above; and
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(3)
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The
description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A
filed with the Commission on July 11, 2017 pursuant to Section 12(b) of the Exchange Act, including any subsequently filed
amendments and reports updating such description.
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All
documents filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or
after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement
indicating 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 part hereof from the date of filing such documents; provided,
however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the
Commission 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 herein or in any subsequently
filed document which also 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.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
The
Registrant’s Articles of Incorporation provide that to the fullest extent permitted by the Registrant’s bylaws (the
“Bylaws”) or the Utah Revised Business Corporation Act, as amended (the “Act”), or any other
applicable law, as either may be amended, a director shall have no liability to the Registrant or its shareholders for monetary
damages for conduct, any action taken, or any failure to take any action as a director. As permitted by the Act, directors will
not be personally liable to the Registrant or the Registrant’s shareholders for monetary damages for any action taken or
any failure to take action as a director except liability for (a) the amount of a financial benefit received by a director to
which he is not entitled; (b) an intentional infliction of harm on the Registrant or its shareholders; (c) an unlawful distribution
in violation of Section 16-10a-842 of the Act; or (d) an intentional violation of criminal law.
These
limitations of liability do not alter director liability under the federal securities laws and do not affect the availability
of equitable remedies, such as an injunction or rescission.
In
addition, the Bylaws provide that:
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the
Registrant will indemnify its directors to the fullest extent permitted by the Act, including advancing expenses in connection
with legal proceedings, subject to limited exceptions; and
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the
Registrant may, to the extent permitted by the Act, by action of its board of directors, agree to indemnify officers, employees
and other agents of the Registrant and may advance expenses to such persons.
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The
Registrant has entered into indemnification agreements with each of the Registrant’s executive officers and directors. These
agreements provide that, subject to limited exceptions and among other things, the Registrant will indemnify each of its executive
officers and directors to the fullest extent permitted by law and advance expenses to each indemnity in connection with any proceeding
in which a right to indemnification is available.
The
Registrant maintains general liability insurance that covers certain liabilities of its directors and officers arising out of
claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons
who control the Registrant, the Registrant has been informed that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
These
provisions may discourage shareholders from bringing a lawsuit against the Registrant’s directors for breach of their fiduciary
duty, or may have the practical effect in some cases of eliminating the Registrant’s shareholders’ ability to collect
monetary damages from its directors and officers. 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 the Registrant and
its shareholders. Furthermore, a shareholder’s investment may be adversely affected to the extent the Registrant pays the
costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
Item
7. Exemption From Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
Index to Exhibits immediately preceding the exhibits is incorporated herein by reference.
Item
9. Undertakings.
(a)
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The Registrant hereby undertakes:
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(i)
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To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(1)
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to
include any prospectus required by Section 10(a)(3) of the Securities Act;
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(2)
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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 a 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 Registration Fee” table in the effective Registration
Statement; and
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(3)
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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 paragraphs (a)(i)(1) and
(a)(i)(2) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the Registration Statement;
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(ii)
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That,
for the purpose of determining any liability under the Securities Act, 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; and
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(iii)
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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.
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(b)
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The
Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Registrant’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
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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(c)
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Insofar
as indemnification for liabilities arising under the Securities Act 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 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 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 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 Salt Lake City, State of Utah, on April 13, 2020.
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CO-DIAGNOSTICS, INC.
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By:
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/s/
Dwight H. Egan
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Dwight
H. Egan
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President
and Chief Executive Officer
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POWER
OF ATTORNEY AND SIGNATURES
We,
the undersigned officers and directors of Co-Diagnostics, Inc., hereby severally constitute and appoint Dwight H. Egan and Reed
L. Benson, and each of them singly, our true and lawful attorneys, with full power to them, and to each of them singly, to sign
for us and in our names in the capacities indicated below, any and all amendments to this Registration Statement, and all other
documents in connection therewith to be filed with the Securities and Exchange Commission, and generally to do all things in our
names and on our behalf in such capacities to enable the Registrant to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the Securities and Exchange Commission.
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
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Title(s)
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Date
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/s/
Dwight H. Egan
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President,
Chief Executive Officer and Chairman of the Board
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April
13, 2020
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Dwight
H. Egan
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(Principal
Executive Officer)
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/s/
Reed L. Benson
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Chief
Financial Officer and Secretary (Principal Financial and Accounting Officer)
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April
13, 2020
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Reed
L. Benson
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/s/
Eugene Durenard
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Director
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April
13, 2020
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Eugene
Durenard
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/s/
Edward L. Murphy
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Director
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April
13, 2020
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Edward
L. Murphy
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/s/
James Nelson
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Director
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April
13, 2020
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James
Nelson
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/s/
Richard S. Serbin
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Director
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April
13, 2020
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Richard
S. Serbin
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[Signature Page to Form S-8]
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INDEX
TO EXHIBITS
*
Filed herewith
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