As filed with the Securities and Exchange Commission on July 1, 2015

 

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   26-1299952
(State or other jurisdiction of
incorporation or organization) 		  (I.R.S. Employer
Identification Number)

 

1455 Adams Drive, Suite 2050

Menlo Park, CA 94025

(415) 388-2222

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

Amended and Restated 2011 Equity Incentive Plan

(Full title of the plans)

 

Jon Stern

Chief Executive Officer

CohBar, Inc.

1455 Adams Drive, Suite 2050

Menlo Park, CA 94025

(415) 388-2222

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Please send copies of all communications to:

 

Peter B. Cancelmo

Garvey Schubert Barer

1191 Second Avenue, 18th Floor

Seattle, WA 98101

(206) 816-1332

 

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company (as defined in Rule 12b-2 of the Exchange Act):

             
Large Accelerated Filer   ¨   Accelerated Filer   ¨
       
Non-accelerated Filer   ¨   (Do not check if a smaller reporting company)   Smaller Reporting Company   x

 

 

 

CALCULATION OF REGISTRATION FEE

 
Title of Each Class of
Securities to be Registered 		 

Amount
to be

Registered (1)

 

Proposed
Maximum

Offering Price

Per Unit

 

Proposed
Maximum

Aggregate
Offering Price

 

Amount of

Registration Fee

Common Stock, par value $0.001 per share                
- Issuable upon exercise of outstanding options under the Amended and Restated 2011 Equity Incentive Plan   2,609,811   $0.52 (2)   $1,357,102   $158
- To be issued under the Amended and Restated 2011 Equity Incentive Plan   3,843,258   $1.00 (3)   $3,843,258   $447
Total   6,453,069       $5,200,360   $605
(1) 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.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $0.52 per share, the weighted-average exercise price of outstanding stock option awards under the Amended and Restated 2011 Equity Incentive Plan as of June 30, 2015.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $1.00, the average of high and low prices of the Registrant’s common stock on the OTCQX Market on June 26, 2015 .
 
 

 

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 in accordance with Rule 428 of 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.

 

 
 

 

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 pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

 

  (a) The Registrant’s annual report on Form 10-K for the year ended December 31, 2014, as filed with the Commission on March 31, 2015, 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, 2015; and

 

  (b) The description of the Registrant’s common stock contained in the Registrant’s registration statement on Form 8-A (File No. 000-55334) filed on January 8, 2015 under Section 12(g) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.

 

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. 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 contain a provision that limits the liability of the Registrant’s directors for monetary damages to the fullest extent permitted by the Delaware General Corporate Law. Consequently, the Registrant’s directors will not be personally liable to the Registrant or its shareholders for monetary damages for conduct as directors, except for liability for:

 

  •   intentional misconduct by a director;

 

  •   knowing violation of law by a director; or

  

  •   actions for which the director has been adjudged to be liable to the Registrant, with certain exceptions.

 

The Registrant’s bylaws provide that the Registrant will indemnify and hold harmless any person who is or was a party or is threatened to be made a party to any action, suit or proceeding by reason of the fact that he or she is or was one of the Registrant’s directors or officers or is or was serving at the Registrant’s request as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. The Registrant’s bylaws provide that the Registrant may indemnify any person who is or was a party or is threatened to be made a party to any action, suit or proceeding by reason of the fact that he or she is or was one of the Registrant’s employees or agents or is or was serving at the Registrant’s request as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The Registrant’s bylaws also provide that the Registrant must advance expenses incurred by or on behalf of a director or officer in advance of the final disposition of any action or proceeding, subject to very limited exceptions.

 

 
 


The Registrant has entered into indemnification agreements with each director and executive officer that may be broader than the specific indemnification provisions contained in the Delaware General Corporate Law. These indemnification agreements may require the Registrant, among other things, to indemnify directors and executive officers against liabilities that may arise by reason of their status or service. These indemnification agreements may also require the Registrant to advance all expenses incurred by the directors and executive officers in investigating or defending any such action, suit or proceeding.

 

See also the undertakings set out in response to Item 9 hereof.

 

Item 7. Exemption From Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

The following exhibits are filed herewith:

 

                         

Exhibit
Number

     

Incorporated by Reference

 

Filed
Herewith

 

 

Exhibit Description

 

Form

 

 

File No.

 

 

Exhibit

 

 

Filing Date

 

 
             
  3.1   Third Amended and Restated Articles of Incorporation of the Registrant.   S-1   333-200033   3.2   12/16/2014    
             
  3.2   Amended and Restated Bylaws of the Registrant.   S-1   333-200033   3.4   12/16/2014    
             
  5.1   Opinion of Garvey Schubert Barer.                   X
             
23.1   Consent of independent registered public accounting firm.                   X
             
23.2   Consent of Garvey Schubert Barer (contained in Exhibit 5.1).                   X
             
24.1   Power of Attorney (included on the signature page to this Registration Statement).                   X
             
99.1   Amended and Restated 2011 Equity Incentive Plan.   S-1   333-200033   10.3   12/16/2014    
             
99.2   Form of Option Agreement under the 2011 Equity Incentive Plan.   S-1   333-200033   10.2   11/7/2014    
             

 

 
 

 

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;

 

(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 1 st day of July, 2015.

 

       
  COHBAR, INC.
     
  By:  

/s/ Jon Stern

      Jon Stern
      Principal Executive Officer

 

 
 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS , that each person whose signature appears below hereby constitutes and appoints Albion Fitzgerald, Jon Stern 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   Title   Date
         
Principal Executive Officer:        
         
/s/    Jon Stern   Principal Executive Officer and Director   July 1, 2015
Jon Stern        
         
Principal Financial Officer and        
Principal Accounting Officer:        
         
/s/    Jeffrey F. Biunno   Principal Financial Officer, Principal Accounting Officer   July 1, 2015
Jeffrey F. Biunno        
         
Additional Directors:        
         
/s/    Albion J. Fitzgerald   Chairman of the Board of Directors   July 1, 2015
Albion J. Fitzgerald        
         
/s/    Nir Barzilai   Director   July 1, 2015
Nir Barzilai        
         
/s/    Pinchas Cohen   Director   July 1, 2015
Pinchas Cohen        
         
  Director  
Marc E. Goldberg        

 

 
 

 

EXHIBIT INDEX

 

 

                         

Exhibit
Number

     

Incorporated by Reference

 

Filed
Herewith

 

Exhibit Description

 

Form

 

File No.

 

Exhibit

 

Filing Date

 
             
  3.1   Third Amended and Restated Articles of Incorporation of the Registrant.   S-1   333-200033   3.2   12/16/2014    
             
  3.2   Amended and Restated Bylaws of the Registrant.   S-1   333-200033   3.4   12/16/2014    
             
  5.1   Opinion of Garvey Schubert Barer.                   X
             
23.1   Consent of independent registered public accounting firm.                   X
             
23.2   Consent of Garvey Schubert Barer (contained in Exhibit 5.1).                   X
             
24.1   Power of Attorney (included on the signature page to this Registration Statement).                   X
             
99.1   Amended and Restated 2011 Equity Incentive Plan.   S-1   333-200033   10.3   12/16/2014    
             
99.2   Form of Option Agreement under the 2011 Equity Incentive Plan.   S-1   333-200033   10.2   11/7/2014    
             

 

 

Exhibit 5.1

 

 

 

 

 

 

July 1, 2015

 

CohBar, Inc.

1455 Adams Dr., Suite 2050

Menlo Park, CA 94025

 

Ladies and Gentlemen:

 

We have acted as counsel to CohBar, Inc., a Delaware corporation (the “ Company ”), in connection with the filing on the date hereof of a registration statement on Form S-8 (the “ Registration Statement ”). The Registration Statement relates to the registration under the Securities Act of 1933, as amended (the “ Securities Act ”), of 6,453,069 shares of the Company’s common stock, par value $0.001 (the “ Shares ”), issuable under the Company’s Amended and Restated 2011 Equity Incentive Plan (the “ 2011 Plan ”).

 

We have reviewed those documents, corporate records, and other instruments as we have deemed necessary for the purpose of rendering our opinion herein. As to matters of fact which have not been independently established, we have relied upon representations of officers of the Company.

 

Based on the foregoing, it is our opinion that each Share, when issued and sold pursuant to the terms of the 2011 Plan and its accompanying agreements will be duly authorized, legally issued, fully paid and non-assessable when a certificate representing such Share shall have been duly executed, countersigned and registered and duly delivered to the purchaser thereof against payment of any agreed consideration as determined in accordance with the terms of the 2011 Plan and any accompanying agreement.

 

This opinion is dated as of the date hereof.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name wherever appearing in the Registration Statement and any amendments thereto.

 

Sincerely,

 

/s/ Garvey Schubert Barer

 

GARVEY SCHUBERT BARER

A partnership of professional corporations

 

 

Exhibit 23.1

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of CohBar, Inc. on Form S-8 of our report dated March 31, 2015, with respect to our audits of the financial statements of CohBar, Inc. as of December 31, 2014 and 2013 and for the years ended December 31, 2014 and 2013 appearing in the Annual Report on Form 10-K of CohBar, Inc. for the year ended December 31, 2014.

 

/s/ Marcum llp

 

Marcum llp

New York, NY

July 1, 2015