As
filed with the Securities and Exchange Commission on May 17,
2021
Registration
No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
VYANT
BIO, INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
04-3462475 |
(State
or other jurisdiction of
incorporation
or organization)
|
|
(I.R.S.
Employer
Identification
No.)
|
2
Executive Campus
2370
State Route 70, Suite 310
Cherry
Hill, NJ 08002
(Address
of Principal Executive Offices) (Zip Code)
Vyant
Bio, Inc. 2021 Equity Incentive Plan
StemoniX,
Inc. 2015 Stock Option Plan
(Full
title of the plan)
John
A. Roberts
President
and Chief Executive Officer
Vyant
Bio, Inc.
2
Executive Campus
2370
State Route 70, Suite 310
Cherry
Hill, NJ 08002
(201)
479-8126
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Please send copies of all communications to:
Alan
Wovsaniker, Esq.
Lowenstein
Sandler LLP
One
Lowenstein Drive
Roseland,
New Jersey 07068
Tel:
973-597-2500
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 |
[X] |
|
Smaller
reporting company |
[X] |
|
|
|
|
|
|
|
|
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.
[ ]
CALCULATION
OF REGISTRATION FEE
Title
of Securities
To
Be Registered
|
|
Amount To Be Registered(1) |
|
|
Proposed
Maximum
Offering
Price
Per
Share
|
|
|
Proposed
Maximum
Aggregate Offering Price
|
|
|
Amount
of
Registration
Fee
|
|
Common Stock, par value
$0.0001 per share, reserved for issuance pursuant to the Vyant Bio,
Inc. 2021 Equity Incentive Plan |
|
|
4,500,000 |
|
|
$ |
2.98
|
(2) |
|
$ |
13,410,000
|
|
|
$ |
1,463.04
|
|
Common Stock, par value $0.0001 per
share, reserved for issuance pursuant to stock option awards
outstanding under the StemoniX, Inc. 2015 Stock Option Plan, as
amended |
|
|
891,780 |
|
|
$ |
1.46 |
(3) |
|
$ |
1,301,999
|
|
|
$ |
142.05
|
|
Total |
|
|
5,391,780
|
|
|
$ |
|
|
|
$ |
14,711,999
|
|
|
$ |
1,605.09
|
|
(1) |
This
Registration Statement on Form S-8 (the “Registration Statement”)
covers shares of Common Stock, par value $0.0001 per share (“Common
Stock”), of Vyant Bio, Inc. (the “Company” or the “Registrant”)
issuable pursuant to the Vyant Bio, Inc. 2021 Equity Incentive Plan
(the “2021 Plan”) and the StemoniX, Inc. 2015 Stock Option Plan
(the “2015 Plan” and, together with the 2021 Plan, the “Plans”)
and, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended (the “Securities Act”), any additional securities as may
become issuable pursuant to the adjustment provisions of the
Plans. |
|
|
(2) |
Pursuant
to Rule 457(c) and Rule 457(h) under the Securities Act, the
proposed maximum offering price per share and the proposed maximum
aggregate offering price are estimated for the purpose of
calculating the amount of the registration fee and are based on the
average of the high and low sales price on the NASDAQ Capital
Market on May 11, 2021. |
|
|
(3) |
Estimated
pursuant to Rule 457(h) and Rule 457(c) under the Securities Act,
solely for the purpose of computing the registration fee, based on
the weighted average exercise price of the stock options
outstanding under the 2015 Plan. |
EXPLANATORY
NOTE
On
March 30, 2021 (the “Effective Date”), Vyant Bio, Inc., formerly
known as Cancer Genetics, Inc. (the “Company” or the “Registrant”),
completed its business combination with StemoniX, Inc., a Minnesota
corporation (“StemoniX”), in accordance with the Agreement and Plan
of Merger and Reorganization, dated as of August 21, 2020, as
amended (the “Merger Agreement”) by and among the Company, StemoniX
and CGI Acquisition, Inc., a Minnesota corporation and wholly-owned
subsidiary of the Company (“Merger Sub”), pursuant to which Merger
Sub merged with and into StemoniX, with StemoniX surviving the
merger as a wholly-owned subsidiary of the Company (the
“Merger”).
As of
the Effective Date, pursuant to the Merger Agreement, the Company
assumed the StemoniX, Inc. 2015 Stock Option Plan (the “2015 Plan”)
and issued options (the “Replacement Options”) to purchase an
aggregate of 891,780 shares of common stock of the Registrant, par
value $0.0001 per share (the “Common Stock”), with a weighted
average exercise price of $1.46 per share, in exchange for StemoniX
options that were granted by StemoniX prior to the Merger pursuant
to the 2015 Plan. This Registration Statement relates to the
registration of 891,780 shares of Common Stock issuable upon
exercise of the Replacement Options under the 2015 Plan.
PART
I
Information
Required in the Section 10(a) Prospectus
Item
1. Plan Information.
The
information called for by Part I of Form S-8 is omitted from this
Registration Statement on Form S-8 (the “Registration Statement”)
and has been or will be sent or given to participating service
providers in accordance with Rule 428 of the Securities Act of
1933, as amended (the “Securities Act”), and the instructions to
Form S-8. 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 or as
prospectuses or prospectus supplements pursuant to Rule 424 under
the Securities Act.
Item
2. Registrant Information and Employee Plan Annual
Information.
Vyant
Bio, Inc. (the “Company”) will furnish without charge to each
person to whom the prospectus is delivered, upon the written or
oral request of such person, a copy of any and all of the documents
incorporated by reference into this Registration Statement pursuant
to Item 3 of Part II hereof, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference in
such documents that are incorporated), and the other documents
required to be delivered to eligible participants in the Plan
pursuant to Rule 428(b) under the Securities Act. Those documents
are incorporated by reference in the Section 10(a) prospectus.
Requests should be directed to:
2
Executive Campus
2370
State Route 70, Suite 310
Cherry
Hill, NJ 08002
Attention:
Chief Financial Officer
Telephone:
(201) 479-8126
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
pursuant to the Securities Act and the Securities Exchange Act of
1934, as amended (the “Exchange Act”), are
incorporated herein by reference:
|
(a) |
the
Company’s annual report on Form 10-K filed pursuant to Section
13(a) or 15(d) of the Exchange Act for the fiscal year ended
December 31, 2020, filed with the Commission on March 31,
2021; |
|
|
|
|
(b) |
the
Company’s quarterly report on Form 10-Q filed pursuant to Section
13(a) or 15(d) of the Exchange Act for the fiscal quarter ended
March 31, 2021, filed with the Commission on May 17,
2021;
|
|
(c) |
the
Company’s current reports on Form 8-K filed with the Commission on
January 7, 2021, January 28, 2021, February 1, 2021, February 8,
2021, February 16, 2021, February 26, 2021, March 16, 2021, March
25, 2021 and April 5, 2021 (other than any portions thereof deemed
furnished and not filed); and
|
|
(d) |
the
description of our common stock, par value $0.0001 per share,
contained in our Form 8-A filed on August 12, 2013, including any
amendment or report filed for the purpose of updating such
description. |
All
documents filed by the Company pursuant to Section 13(a), 13(c),
14, or 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. 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
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
We
are incorporated under the laws of the State of Delaware. Section
145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation’s board of directors to grant, indemnity to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities,
including reimbursement for expenses incurred, arising under the
Securities Act of 1933, as amended, or the Securities
Act.
Our
fourth amended and restated certificate of incorporation provides
for indemnification of our directors and executive officers to the
maximum extent permitted by the Delaware General Corporation Law,
and our amended and restated bylaws provide for indemnification of
our directors and executive officers to the maximum extent
permitted by the Delaware General Corporation Law.
In
addition, we have entered into indemnification agreements with each
of our current directors and executive officers. These agreements
will require us to indemnify these individuals to the fullest
extent permitted under Delaware law against liabilities that may
arise by reason of their service to us and to advance expenses
incurred as a result of any proceeding against them as to which
they could be indemnified. We also intend to enter into
indemnification agreements with our future directors and executive
officers.
Except
as set forth elsewhere in this prospectus, there is no pending
litigation or proceeding involving any of our directors or
executive officers as to which indemnification is required or
permitted, and we are not aware of any threatened litigation or
proceeding that may result in a claim for
indemnification.
We
have an insurance policy covering our officers and directors with
respect to certain liabilities, including liabilities arising under
the Securities Act.
Insofar
as indemnification for liabilities arising under the Securities
Act, may be permitted to directors, officers and controlling
persons of the Registrant, 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.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
For a
list of exhibits, see the Exhibit Index in this Registration
Statement, which is incorporated into this Item by
reference.
Item
9. Undertakings.
(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 Registration Fee” table in the effective
registration statement; and
(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 Paragraphs (a)(1)(i) and (a)(1)(ii) of this
section shall 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 section 15(d) of the Securities Exchange
Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by
reference in the 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 section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934)
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.
(c)
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 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 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 Act and will be governed by the final adjudication of such
issue.
EXHIBIT
INDEX
INDEX
TO EXHIBITS
Exhibit
No.
|
|
Description |
4.1 |
|
Fourth
Amended and Restated Certificate of Incorporation of Cancer
Genetics, Inc., filed as Exhibit 3.1 to Quarterly Report on Form
10-Q, filed with the Securities and Exchange Commission on May 15,
2013 and incorporated herein by reference. |
|
|
|
4.2 |
|
Amendment
to Certificate of Incorporation of the Company related to the Name
Change (incorporated herein by reference to Exhibit 3.1 to our
Current Report on Form 8-K filed with the SEC on April 5,
2021). |
|
|
|
4.3 |
|
Amended
and Restated Bylaws of Cancer Genetics, Inc., filed as Exhibit 3.4
to Form S-1/A filed on April 30, 2012 (File No. 333-178836) and
incorporated herein by reference. |
|
|
|
4.4 |
|
Specimen
Common Stock certificate of Cancer Genetics, Inc., filed as Exhibit
4.1 to Form S-1/A filed on May 16, 2012 (File No. 333-178836) and
incorporated herein by reference. |
|
|
|
5.1 |
|
Opinion
of Lowenstein Sandler LLP.* |
|
|
|
23.1 |
|
Consent
of Deloitte & Touche LLP, Independent Registered Public
Accounting Firm.* |
|
|
|
23.2 |
|
Consent
of Marcum 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).* |
|
|
|
99.1 |
|
Vyant
Bio, Inc. 2021 Equity Incentive Plan (incorporated herein by
reference to Exhibit 10.1 to our Current Report on Form 8-K filed
with the SEC on April 5, 2021). |
|
|
|
99.2 |
|
StemoniX,
Inc. 2015 Stock Option Plan, as amended.* |
|
|
|
*
Filed herewith. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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 Cherry Hill, New
Jersey, on May 17, 2021.
|
VYANT
BIO, INC. |
|
|
|
|
By: |
/s/
John A. Roberts |
|
|
John
A. Roberts |
|
|
President
and Chief Executive Officer |
POWER OF ATTORNEY AND
SIGNATURES
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John A. Roberts and Andrew
D. C. LaFrence and each of them, each with full power to act
without the other, his true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution,
for such person and in his name, place and stead, in any and all
capacities, to sign any amendments to this registration statement,
and to sign any registration statement for the same offering
covered by this registration statement, including post-effective
amendments or registration statements filed pursuant to Rule 462(b)
under the Securities Act of 1933, and to file the same, with all
exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and
confirming that each of said such attorneys-in-fact and agents or
his substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons on
behalf of the registrant in the capacities and on the dates
indicated.
Person |
|
Capacity |
|
Date |
|
|
|
|
|
/s/
John A. Roberts |
|
President,
Chief Executive Officer and Director |
|
May
17, 2021 |
John
A. Roberts |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Andrew D.C. LaFrence |
|
Chief
Financial Officer |
|
May
17, 2021 |
Andrew
D.C. LaFrence |
|
(Principal
Financial and Accounting Officer |
|
|
|
|
|
|
|
/s/
John Fletcher |
|
Chairman |
|
May
17, 2021 |
John
Fletcher |
|
|
|
|
|
|
|
|
|
/s/
Yung-Ping Yeh |
|
Chief
Innovation Officer and Director |
|
May
17, 2021 |
Yung-Ping
Yeh |
|
|
|
|
|
|
|
|
|
/s/
Marcus Boehm |
|
Director |
|
May
17, 2021 |
Marcus
Boehm |
|
|
|
|
|
|
|
|
|
/s/
Paul Hansen |
|
Director |
|
May
17, 2021 |
Paul
Hansen |
|
|
|
|
|
|
|
|
|
/s/
Geoffrey Harris |
|
Director |
|
May
17, 2021 |
Geoffrey
Harris |
|
|
|
|
|
|
|
|
|
/s/
Joanna Horobin |
|
Director |
|
May
17, 2021 |
Joanna
Horobin |
|
|
|
|
|
|
|
|
|
/s/
Howard McLeod |
|
Director |
|
May
17, 2021 |
Howard
McLeod |
|
|
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|
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