Securities Registration: Employee Benefit Plan (s-8)
January 06 2021 - 4:09PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on January 6, 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
COHBAR,
INC.
(Exact
name of Registrant as specified in its charter)
Delaware
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26-1299952
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification Number)
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1455
Adams Drive, Suite 2050
Menlo
Park, CA 94025
(Address,
including zip code, of Registrant’s principal executive offices)
CohBar,
Inc. Employee Stock Purchase Plan
(Full
title of the plan)
Steven
Engle
Chief
Executive Officer
CohBar,
Inc.
1455
Adams Drive, Suite 2050
Menlo
Park, CA 94025
(415)
388-2222
(Name,
address and telephone number, including area code, of agent for service)
Please
send copies of all communications to:
Amanda
Rose, Esq.
Chelsea
Anderson, Esq.
Fenwick
& West LLP
1191
Second Avenue, Floor 10
Seattle,
WA 98101
(206)
389-4510
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
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☐
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Accelerated filer
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☐
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Non-accelerated
filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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. ☐
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(2)
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Proposed
Maximum
Aggregate
Offering Price(2)
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Amount of
Registration Fee
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Common Stock, par value $0.001 per share
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500,000
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$
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1.17
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$
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585,000
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$
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64.00
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(1)
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Pursuant to Rule 416(a) under 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 that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.
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(2)
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Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $1.38, the average of high and low prices of the Registrant’s common stock on The Nasdaq Capital Market on December 29, 2020, multiplied by 85%. The purchase price of a share for purchasers under the Registrant’s Employee Stock Purchase Plan is 85% of the fair market value of the Registrant’s common stock.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
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.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
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Incorporation
of Documents by Reference.
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The
following documents filed by the Registrant 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:
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(a)
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The
Registrant’s annual report on Form 10-K for the year ended December 31, 2019, as filed with the Commission on March
12, 2020, including information specifically incorporated into the Registrant’s Form 10-K from the Registrant’s
definitive proxy statement on Schedule 14A, as filed with the Commission on April 29, 2020;
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(b)
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The
Registrant’s quarterly reports on Form 10-Q for the quarters ended March 31, 2020, June 30, 2020 and September 30, 2020
as filed with the Commission on May 14, 2020, August 13, 2020 and November 16, 2020, respectively;
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(c)
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The
Registrant’s current reports on Form 8-K filed with the Commission on March 30, 2020, May 13, 2020, May 27, 2020, June 18, 2020, July 9, 2020, August 26, 2020 and December 22, 2020; and
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(c)
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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 SEC on December 13, 2017, including any amendments or reports filed for the purpose of updating such description.
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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 herein and to be a part hereof from the date
of the filing of 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
in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.
Item
4.
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Description
of Securities.
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Not
applicable.
Item
5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
Item
6.
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Indemnification
of Directors and Officers.
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As
permitted by the Delaware General Corporation Law, the Registrant’s certificate of incorporation eliminates the liability
of directors to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to
the extent otherwise required by the Delaware General Corporation Law.
The
Registrant’s bylaws provide for similar indemnity to directors and officers of the Registrant, and further provide that
the Registrant will indemnify any person who is or was made a party to any proceeding by reason of the fact that such person is
or was a director or officer of the Registrant against expenses, judgments, fines, penalties and amounts paid in settlement incurred
in connection therewith to the fullest extent authorized by the Delaware General Corporation Law.
The
Registrant’s bylaws authorize the Registrant’s board of directors to enter into indemnification contracts with each
of its officers and directors. The Registrant has entered into indemnification contracts with each of its directors and executive
officers. The indemnification contracts provide for the indemnification of directors and officers against all expenses, liability
and loss actually reasonably incurred to the fullest extent permitted by the Registrant’s certificate of incorporation,
bylaws and applicable law.
The
Registrant’s bylaws also authorize the Registrant to maintain insurance to protect any director or officer against any expense,
liability or loss, whether or not the Registrant would have the power to indemnify such person against such expense, liability
or loss under the Delaware General Corporation Law. The Registrant maintains such insurance.
See also the undertakings
set out in response to Item 9 hereof.
Item
7.
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Exemption
From Registration Claimed.
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Not
applicable.
The
following exhibits are 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;
(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 the 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 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table 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 paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the Registration Statement is on Form S-8 and 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.
(2)
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.
(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, 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.
C.
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 hereby, 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 Menlo Park, State of California, on this 6th day of January, 2021.
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COHBAR, INC.
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By:
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/s/ Jeffrey F. Biunno
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Jeffrey F. Biunno
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Principal Financial Officer
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POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Steven Engle
and Jeffrey F. Biunno, and each of them, as his true and lawful attorney-in-fact and agent with full power of substitution, for
him in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement
on Form S-8, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact 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 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
and on the date indicated.
Name
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Title
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Date
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/s/ Steven Engle
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Chief Executive Officer and Director
(Principal Executive Officer)
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January 6, 2021
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Steven Engle
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/s/ Jeffrey F. Biunno
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Chief Financial Officer, Treasurer and Secretary
(Principal Accounting Officer and
Principal Financial Officer)
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January 6, 2021
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Jeffrey F. Biunno
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/s/ Albion J. Fitzgerald
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Chairman of the Board of Directors
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January 6, 2021
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Albion J. Fitzgerald
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/s/ Jon Stern
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Director
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January 6, 2021
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Jon Stern
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/s/ Nir Barzilai
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Director
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January 6, 2021
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Nir Barzilai
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/s/ Pinchas Cohen
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Director
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January 6, 2021
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Pinchas Cohen
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/s/ Phyllis Gardner
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Director
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January 6, 2021
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Phyllis Gardner
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/s/ David Greenwood
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Director
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January 6, 2021
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David Greenwood
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/s/ Misha Petkevich
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Director
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January 6, 2021
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Misha Petkevich
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