Nevada | | | 6282 | | | 88-0425691 |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) |
Sean M. Jones K&L Gates LLP 300 South Tryon St, Suite 1000 Charlotte, NC 28202 (704) 331-7406 | | | Robert F. Charron Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, NY 10105 (212) 370-1300 |
Large accelerated filer | | | ☐ | | | | | Accelerated filer | | | ☑ | | | ||
Non-accelerated filer | | | ☐ | | | | | Smaller reporting company | | | ☑ | | | ||
| | | | | | Emerging growth company | | | ☐ | | |
| | Per Share and Warrant(1) | | | Per Pre-Funded Warrant and Warrant(1) | | | Total | |
Public offering price | | | $ | | | $ | | | $ |
Underwriting discounts and commissions(2) | | | $ | | | $ | | | $ |
Proceeds, before expenses, to us(3) | | | $ | | | $ | | | $ |
(1) | The public offering price corresponds to (a) a public offering price per share of $ and a public offering price per warrant of $ and (b) a public offering price per pre-funded warrant of $ and a public offering price per warrant of $ . |
(2) | See “Underwriting” beginning on page 60 for additional information regarding underwriting compensation. |
(3) | The amount of proceeds, before expenses, to us does not give effect to any exercise of the pre-funded warrants or warrants. |
• | an emergency use authorization (“EUA”) from the U.S. Food and Drug Administration (the “FDA”) as well as 510(k) clearance from the FDA for the DPP SARS-CoV-2 Antigen test system; |
• | an EUA from the FDA for the DPP Respiratory Antigen Panel; and |
• | a Clinical Laboratory Improvement Amendment (“CLIA”) waiver from the FDA for the DPP HIV-Syphilis test system. |
Product | | | U.S. | | | International |
DPP COVID-19 IgM/IgG System | | | | | ✔ | |
DPP SARS-CoV-2 IgM/IgG System | | | | | ✔ | |
DPP SARS-CoV-2 Antigen | | | | | ✔ | |
DPP HIV 1/2 Assay | | | ✔ | | | ✔ |
DPP HIV-Syphilis System | | | ✔ | | | ✔ |
DPP Syphilis Screen & Confirm Assay | | | | | ✔ | |
DPP ZCD IgM/IgG System | | | | | ✔ | |
DPP Dengue NS1 Antigen System | | | | | ✔ | |
DPP Dengue IgM/IgG System | | | | | ✔ | |
DPP Zika IgM System | | | ✔ | | | ✔ |
DPP Zika IgM/IgG System | | | | | ✔ | |
DPP Chikungunya System | | | | | ✔ |
Product | | | U.S. | | | International |
DPP Ebola Antigen System | | | ✔ EUA | | | |
DPP Leishmaniasis Assay | | | | | ✔ | |
DPP Respiratory Antigen Panel | | | | | ✔ | |
DPP VetTB Assay | | | ✔ | | | |
HIV 1/2 STAT-PAK Assay | | | ✔ | | | ✔ |
Chagas STAT-PAK Assay | | | | | ✔ | |
SURE CHECK HIV 1/2 Assay | | | ✔ | | | ✔ |
SURE CHECK HIV Self-Test | | | | | ✔ |
• | Focus on higher margin business in growth markets, |
• | Lower manufacturing costs, |
• | Reduce infrastructure costs and |
• | Strategic review of non-core businesses and assets. |
• | The ongoing healthcare and economic impacts of COVID-19 on the global customer base for our non-COVID-19 products continue to negatively affect the timing and rate of recovery of our revenues from those products. |
• | Although we have entered into agreements to distribute third-party COVID-19 products in the United States, our ability to sell those products could be constrained because of staffing and supply chain limitations affecting the suppliers of those products. |
• | 3,692,739 shares issuable upon the exercise of options with a weighted-average exercise price of $2.20 per share; |
• | 1,740,012 shares underlying restricted and performance stock units; |
• | 129,627 shares reserved for future issuance under our 2019 Omnibus Incentive Plan; and |
• | 538,577 shares reserved for future issuance pursuant to inducement grants made outside of our equity incentive plans. |
• | no exercise or conversion of the outstanding securities described above; and |
• | no sale of pre-funded warrants in this offering and no exercise of the warrants in this offering. |
• | the negative impact on the market price of our common stock if a substantial number of shares of common stock are sold in the market following this offering; |
• | the lack of a public market for the pre-funded warrants or the warrants; |
• | the rights of the holders of pre-funded warrants and the warrants will not be the rights of a common stockholder until they acquire our common stock, except as set forth in the pre-funded warrants and the warrants; |
• | the warrants may not have any value; |
• | our broad discretion to determine how to use the funds raised in this offering; |
• | the volatility in the price of our common stock; |
• | the return on investment may be limited to the value of our common stock; |
• | our ability to meet the minimum bid price for continued listing on The Nasdaq Capital Market; and |
• | our lack of authorized shares to issue upon the exercise of all of the warrants offered hereunder. |
• | our dependence on the success of our DPP platform for our near term success; |
• | our ability to implement the transitions contemplated by our Strategic Planning Process; |
• | uncertainty and competition in the diagnostic testing market, particularly with respect to COVID-19; |
• | our ability to initiate and complete clinical trials necessary to support EUA, 510(k), PMA or de novo submissions; |
• | the effects of the ongoing or future SEC investigation or existing or future stockholder litigation; |
• | our allocation of a substantial portion of our resources to the development and production of our DPP SARS-CoV-2 Antigen system; |
• | impacts on our suppliers and employees due to the COVID-19 pandemic; |
• | the ability of our products to compete with the new or existing products of our competitors; |
• | the acceptance of our DPP platform in the market; |
• | the negative impact of healthcare industry consolidation on our future revenues and operating results; |
• | our ability to retain key employees and attract additional qualified personnel; |
• | third-party reimbursement policies; |
• | our ability to collect our outstanding accounts receivable; |
• | the continued funding of, and ability to participate in, large testing program in the United States; |
• | developments in diagnostic testing guidelines or recommendations; |
• | the effect of an increase in demand for our products on our available resources or customer relationships if we are unable to meet such demand; |
• | our ability to obtain government grant awards; and |
• | the vulnerability of our business to cyber-attacks. |
• | the COVID-19 Diagnostic Test Systems not gaining wide industry acceptance; |
• | the impact of COVID-19 mutations on the detection ability of our COVID-19 Diagnostic Test Systems; |
• | our ability to successfully introduce and market our products; |
• | timely receipt and implementation of additional customized manufacturing automation equipment; |
• | variability and unpredictability due to lengthy sales cycles for our products; |
• | our customers not adopting rapid point-of-care diagnostic testing; |
• | the concentration of our customers; |
• | our ability to successfully defend ourselves against product liability claims; and |
• | our products not performing properly. |
• | our liquidity limitations, including that we have concluded there is a substantial doubt about our ability to continue as a going concern; |
• | the ability of our review of strategic alternatives and financing strategy to result in a transaction satisfactory to our stockholders or any change at all; |
• | our pursuit of strategic alternatives or financing transactions’ consumption of time and attention of management and capital resources; |
• | our incurrence of losses in recent years and uncertainty about our future profitability; |
• | the fluctuation of our financial results; |
• | our compliance with the terms of the Credit Agreement; |
• | our ability to generate sufficient cash to service our debt; |
• | our ability to utilize our net operating loss carryforwards and certain other tax attributes; |
• | increased interest expenses due to changes in LIBOR; |
• | the negative impact of changes in foreign currency exchange rates on our operating results; and |
• | basing our estimates or judgments related to critical accounting policies on assumptions that can change or prove to be incorrect. |
• | our ability to protect our proprietary technology; and |
• | the effect of future intellectual property disputes on our ability to sell products or use certain technologies. |
• | our dependence on a limited number of third-party suppliers, including single source suppliers, for critical components and materials; |
• | the limitation on rights we receive from collaborations with strategic collaborators, and the exposure to risks outside of our control due to such collaborations; |
• | our ability to maintain existing distribution channels or develop new distribution channels; and |
• | our compliance with U.S. government contracts. |
• | the impact of changes in CLIA, FDA, ANVISA, and other regulators, on our products; |
• | our ability to receive and maintain necessary regulatory approvals for our products; |
• | the impact of governmental export controls on our ability to compete in international markets; |
• | our ability to comply with FDA and other regulatory requirements; |
• | our ability to respond to changes in regulatory requirements; |
• | the effect of FDA regulation of laboratory-developed tests and genetic testing on demand for our products; |
• | disruptions at the FDA and other government agencies could prevent new and modified products from being developed, cleared, approved, authorized or commercialized; |
• | ongoing changes in healthcare regulation; |
• | a reduction or elimination in the types of government awards that partially support some of our programs; |
• | compliance with privacy, security and breach notification regulations; |
• | our ability to manufacture products in accordance with applicable requirements; |
• | the effect of healthcare fraud and abuse laws on our business; and |
• | increased exposure to regulatory, cultural and other challenges due to international expansion. |
• | the limited liquidity of our common stock and the volatility of the price of our common stock; |
• | the effect of future issuances of common stock on the price of our common stock and our ability to raise funds in new equity offerings; |
• | the dilution of our current stockholders due to future equity offerings; |
• | management’s broad discretion as to the use of proceeds of the offering; and |
• | the depression of the market price of our common stock due to sale by existing stockholders, executive officers or directors. |
• | our ability to successfully generate the expected benefits of strategic transactions, if any; |
• | costs associated with compliance with public company regulations; and |
• | terrorist attacks or natural disasters. |
• | perceptions by members of the health care community, including physicians, about the safety and effectiveness of our products; |
• | limitation on use or warnings required by the FDA or other global regulators in our product labeling; |
• | the cost of our products relative to competing products; |
• | convenience and ease of administration; |
• | potential advantages of alternative diagnostic and treatment methods; |
• | availability of reimbursement for our products from government or other healthcare payors; |
• | effectiveness of marketing and distribution efforts by us and our licensees and distributors, if any; and |
• | the ability of our diagnostic solutions to address different variants. |
• | patent protection; |
• | scientific expertise; |
• | ability to develop and market products and processes; |
• | ability to obtain required regulatory approvals; |
• | access to adequate capital; and |
• | ability to attract and retain qualified personnel. |
• | third parties lose confidence in our ability to continue to operate in the ordinary course, which could impact our ability to execute on our business strategy; |
• | it may become more difficult for us to attract, retain or replace employees; |
• | employees could be distracted from performance of their duties; |
• | we could lose some or a significant portion of our liquidity, either due to stricter credit terms from vendors, or, in the event we undertake a Chapter 11 proceeding and conclude that we need to procure debtor-in-possession financing, an inability to obtain any needed debtor-in-possession financing or to provide adequate protection to certain secured lenders to permit us to access some or all of our cash; and |
• | our vendors and service providers could seek to renegotiate the terms of our arrangements, terminate their relationships with us or require financial assurances from us. |
• | We could reduce the level, or otherwise delay the timing, of the anticipated investments in our production capacity and other activities, which would likely curtail or delay the growth in our business |
• | We could raise additional funds through public or private financings, strategic relationships, or other arrangements, to the extent funding would be available to us on acceptable terms or at all. If we succeed in raising additional funds through the issuance of equity or convertible securities, then the issuance could result in substantial dilution to existing stockholders. Furthermore, the holders of these new securities or debt may have rights, preferences and privileges senior to those of the holders of our common stock. |
• | incur, assume or guarantee additional Indebtedness (as defined in the Credit Agreement); |
• | repurchase capital stock; |
• | make other restricted payments, including paying dividends and making investments; |
• | create liens; |
• | sell or otherwise dispose of assets, including capital stock of subsidiaries; |
• | enter into agreements that restrict dividends from subsidiaries; |
• | enter into mergers or consolidations; and |
• | enter into transactions with affiliates. |
• | on an actual basis; and |
• | on a pro forma basis to give effect to the sale of shares of common stock and accompanying warrants to purchase up to shares of common stock in this offering, at an assumed public offering price of $ per share and accompanying warrant, which was the last reported sale price of our common stock on The Nasdaq Capital Market on , 2022, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us, and assuming no exercise of the warrants being issued in this offering. |
| | As of June 30, 2022 | ||||
| | Actual | | | Pro Forma(1) | |
| | (in thousands, except share data) | ||||
Cash and cash equivalents | | | $22,837 | | | $ |
| | | | |||
Current portion of long-term debt | | | 3,000 | | | |
Finance lease liabilities | | | 74 | | | |
Long-term finance lease liabilities | | | 116 | | | |
Long-term debt, net | | | 16,127 | | | |
| | | | |||
Stockholders’ equity | | | | | ||
Preferred stock - 10,000,000 shares authorized; none outstanding | | | — | | | |
Common Stock, $0.01 par value per share; 100,000,000 shares authorized, actual and pro forma; 30,224,606 shares issued and outstanding at June 30, 2022 actual and shares issued and outstanding pro forma | | | 303 | | | |
Additional paid-in capital | | | 167,041 | | | |
Accumulated deficit | | | (146,747) | | | |
Treasury Stock, 48.057 shares at cost, at June 30, 2022, actual and pro forma | | | (207) | | | |
Accumulated other comprehensive loss | | | (486) | | | |
| | | | |||
Total stockholders’ equity | | | $19,905 | | | $ |
| | | | |||
Total liabilities and stockholders’ equity | | | $56,056 | | | $ |
(1) | Each $0.10 increase or decrease in the assumed public offering price per share of common stock and accompanying warrant of $ , which was the last reported sale price of our common stock on The Nasdaq Capital Market on , 2022, would increase (decrease) the pro forma amount of each of cash and cash equivalents, current portion of long-term debt, long-term debt, net and stockholders’ equity by $ million, assuming that the number of share of common stock and accompanying warrants offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. An increase (decrease) of 1,000,000 shares and accompanying warrants in the number of shares and accompanying warrants offered by us, as set forth on the cover page of this prospectus, would increase (decrease) the pro forma amount of each of cash and cash equivalents, current portion of long-term debt, long-term debt, net and stockholders’ equity by $ million, assuming no change in the assumed public offering price and after deducting estimated underwriting discounts and commissions and estimated expenses payable by us. |
• | 3,692,739 shares issuable upon the exercise of options with a weighted-average exercise price of $2.20 per share; |
• | 1,740,012 shares underlying restricted and performance stock units; |
• | 129,627 shares reserved for future issuance under our 2019 Omnibus Incentive Plan; and |
• | 538,577 shares reserved for future issuance pursuant to inducement grants made outside of our equity incentive plans. |
Assumed public offering price per share of common stock and accompanying warrants | | | | | $ | |
Net tangible book value per share as of June 30, 2022 | | | $0.66 | | ||
Pro Forma increase in net tangible book value per share attributable to investors purchasing in this offering | | | $ | | | |
| | | ||||
As adjusted net tangible book value per share as of June 30, 2022 after this offering | | | | | $ | |
| | | ||||
Dilution per share to new investors purchasing in this offering | | | | | $ |
• | 3,692,739 shares issuable upon the exercise of options with a weighted-average exercise price of $2.20 per share; |
• | 1,740,012 shares underlying restricted and performance stock units; |
• | 129,627 shares reserved for future issuance under our 2019 Omnibus Incentive Plan; and |
• | 538,577 shares reserved for future issuance pursuant to inducement grants made outside of our equity incentive plans. |
• | the fact of the common directorship, office or financial interest is known to the board of directors or a committee of the board and a majority of disinterested directors on the board (or the committee) authorize, approve or ratify the transaction; |
• | the fact of the common directorship, office or financial interest is known to the stockholders and disinterested stockholders holding a majority of the shares held by disinterested stockholders authorize, approve or ratify the transaction; |
• | the fact of the common directorship, office or financial interest is not known to the director or officer at the time the transaction is brought to the board for action; or |
• | the transaction was fair to us at the time it is authorized or approved. |
• | a bank, insurance company, or other financial institution; |
• | a tax-exempt entity, organization, or arrangement; |
• | a government or any agency, instrumentality, or controlled entity thereof; |
• | a real estate investment trust; |
• | an S corporation or other pass-through entity (or an investor in an S corporation or other pass-through entity); |
• | a regulated investment company; |
• | a “controlled foreign corporation” or a “passive foreign investment company”; |
• | a dealer or broker in stocks and securities, or currencies; |
• | a trader in securities that elects mark-to-market treatment or any other holder subject to mark-to-market treatment; |
• | a holder of our common stock, pre-funded warrants, or warrants that is liable for the alternative minimum tax; |
• | a holder of our common stock, pre-funded warrants, or warrants that holds such security in a tax-deferred account (such as an individual retirement account or a plan qualifying under Section 401(k) of the Code); |
• | a holder of our common stock, pre-funded warrants, or warrants that has a functional currency other than the U.S. dollar; |
• | a holder of our common stock, pre-funded warrants, or warrants that holds such security as part of a hedge, straddle, constructive sale, conversion or other integrated transaction; |
• | a holder of our common stock, pre-funded warrants, or warrants required to accelerate the recognition of any item of gross income with respect to such security, as a result of such income being recognized on an applicable financial statement; |
• | a holder of our common stock, pre-funded warrants, or warrants that is a U.S. expatriate or former citizen or long-term resident of the United States; |
• | a holder of our common stock, pre-funded warrants, or warrants that does not hold such security as a capital asset within the meaning of Section 1221 of the Code (generally, for investment purposes); |
• | a holder of our common stock, pre-funded warrants, or warrants whose security may constitute “qualified small business stock” under Section 1202 of the Code or “Section 1244 stock” for purposes of Section 1244 of the Code; or |
• | a holder of our common stock, pre-funded warrants, or warrants that acquired such security in a transaction subject to the gain rollover provisions of Section 1045 of the Code; |
• | the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business in the United States (and, if required by an applicable income tax treaty between the United States and such Non-U.S. Holder’s country of residence, the gain is attributable to a permanent establishment or fixed base maintained by the Non-U.S. Holder in the United States), in which case the Non-U.S. Holder will be taxed on a net income basis at the regular rates and in the manner applicable to U.S. persons, and if the Non-U.S. Holder is a corporation, an additional branch profits tax at a rate of 30%, or a lower rate as may be specified by an applicable income tax treaty, may also apply; |
• | the Non-U.S. Holder is a nonresident alien present in the United States for 183 days or more in the taxable year of the disposition and certain other requirements are met, in which case the Non-U.S. Holder will be subject to a 30% tax (or such lower rate as may be specified by an applicable income tax treaty between the United States and such holder’s country of residence) on the net gain derived from the disposition, which may be offset by certain U.S.-source capital losses of the Non-U.S. Holder, if any, provided that the Non-U.S. Holder has timely filed U.S. federal income tax returns reporting those losses; or |
• | we are, or have been, a “United States real property holding corporation,” or USRPHC, for U.S. federal income tax purposes during the five-year period preceding such disposition (or the Non-U.S. Holder’s holding period, if shorter). We do not believe that we are or have been a USRPHC and, even if we are or were a USRPHC, dispositions will not be subject to tax for a Non-U.S. Holder that has not held more than 5% of our common stock, actually or constructively, during the five-year period preceding such Non-U.S. Holder’s disposition (or the Non-U.S. Holder’s holding period, if shorter). Special rules may apply to the determination of the 5% threshold in the case of a holder of warrants. |
Underwriter | | | Number of Shares of Common Stock | | | Number of Pre-Funded Warrants | | | Number of Warrants |
Craig-Hallum Capital Group LLC | | | | | | |
| | Per Share and Warrant | | | Per Pre-Funded Warrant and Warrant | | | No Exercise | | | Full Exercise | |
Public offering price | | | $ | | | $ | | | $ | | | $ |
Underwriting discounts and commissions(1) | | | $ | | | $ | | | $ | | | $ |
Proceeds, before expenses, to us | | | $ | | | $ | | | $ | | | $ |
(1) | We have agreed to pay the underwriter an underwriting discount equal to 7.0% of the gross proceeds of this offering. |
• | our history and our prospects; |
• | the industry in which we operate; |
• | our past and present operating results; |
• | the previous experience of our executive officers; and |
• | the general condition of the securities markets at the time of this offering. |
• | our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 3, 2022; |
• | the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2021 from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 11, 2022; |
• | our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2022, filed with the SEC on May 5, 2022 and for the quarter ended June 30, 2022, filed with the SEC on August 5, 2022; and |
• | our Current Reports on Form 8-K filed with the SEC on January 6, 2022, February 14, 2022, April 7, 2022 and May 26, 2022. |
Item 13. | Other Expenses of Issuance and Distribution |
SEC registration fee | | | |
FINRA filing fee | | | |
Accounting fees and expenses | | | |
Legal fees and expenses | | | |
Printing expenses | | | |
Transfer agent fees and expenses | | | |
Miscellaneous | | | |
Total | | |
Item 14. | Indemnification of Directors and Officers |
Item 15. | Recent Sales of Unregistered Securities |
Item 16. | Exhibits and Financial Statements Schedules |
EXHIBIT NO. | | | DESCRIPTION |
| | Consent of Ernst & Young LLP | |
23.2+ | | | Consent of Ballard Spahr LLP (included in Exhibit 5.1) |
23.3+ | | | Consent of K&L Gates LLP (included in Exhibit 5.2) |
| | Powers of Attorney (included on the signature page) | |
| | Filing Fee Table |
† | Filed herewith. |
+ | Indicated to be filed by amendment. |
Item 17. | Undertakings. |
(a)(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 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. |
(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. |
(4) | The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that: |
(i) | for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and |
(ii) | for purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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) | 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. |
(d) | 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 SEC 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. |
| | CHEMBIO DIAGNOSTICS, INC. | ||||
| | | | |||
| | By: | | | /s/ Richard L. Eberly | |
| | | | Richard L. Eberly | ||
| | | | Chief Executive Officer and President |
Signature | | | Title | | | Date | |
| | | | | |||
/s/ Richard L. Eberly | | | Chief Executive Officer and President (Principal Executive Officer) | | | September 7, 2022 | |
Richard L. Eberly | | ||||||
| | | | | |||
/s/ Lawrence J. Steenvoorden | | | Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | | | September 7, 2022 | |
Lawrence J. Steenvoorden | | ||||||
| | | | ||||
/s/ David W.K. Acheson | | | Director | | | September 7, 2022 | |
David W.K. Acheson | | ||||||
| | | | | |||
/s/ David W. Bespalko | | | Director | | | September 7, 2022 | |
David W. Bespalko | | ||||||
| | | | | |||
/s/ Katherine A. Davis | | | Chair of the Board | | | September 7, 2022 | |
Katherine A. Davis | | ||||||
| | | | | |||
/s/ John G. Potthoff | | | Director | | | September 7, 2022 | |
John G. Potthoff | | ||||||
| |||||||
/s/ Leslie Teso-Lichtman | | | Director | | | September 7, 2022 | |
Leslie Teso-Lichtman | | |
(1)
|
Estimated solely for the purpose of calculating the registration fee pursuant Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”). Includes shares of common stock and warrants issuable upon exercise of the
underwriter’s over-allotment option.
|
(2)
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Pursuant to Rule 416(a) under the Securities Act, this registration statement shall also cover an indeterminate number of shares that may be issued and resold resulting from stock splits, stock dividends or similar transactions.
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(3)
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The proposed maximum aggregate offering price of the common stock will be reduced on a dollar-for-dollar basis based on the offering price of any pre-funded warrants issued in the offering, and the proposed maximum aggregate offering
price of the pre-funded warrants to be issued in the offering will be reduced on a dollar-for-dollar basis based on the offering price of any common stock issued in the offering. Accordingly, the proposed maximum aggregate offering price of
the common stock, warrants and pre-funded warrants (including the common stock issuable upon exercise of the pre-funded warrants), if any, is $23,000,000.
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(4)
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No fee pursuant to Rule 457(g) of the Securities Act.
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