As filed with the Securities and Exchange Commission on April 8, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIOCEPT, INC.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 80-0943522 | |
| (State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
9955 Mesa Rim Road
San Diego, CA 92121
(Address of Principal Executive Offices)
Biocept, Inc. Amended and Restated 2013 Equity Incentive Plan
(Full Title of the Plan)
Samuel D. Riccitelli
Interim President and Chief Executive Officer
Biocept, Inc.
9955 Mesa Rim Road
San Diego, CA 92121
(Name and Address of Agent for Service)
(858) 320-8200
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Charles J. Bair
Asa M. Henin
Cooley LLP
4401 Eastgate Mall
San Diego, CA 92121
(858) 550-6000
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 | ☒ | Smaller reporting company | ☒ | |||
| 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. ☐
INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENTS ON FORM S-8
This registration statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which a registration statement of the Registrant on Form S-8 relating to the same benefit plan is effective. The Registrant previously registered shares of its common stock for issuance under the Biocept, Inc. Amended and Restated 2013 Equity Incentive Plan, as amended, under Registration Statements on Form S-8 filed with the Securities and Exchange Commission on March 31, 2014 (No. 333-194930), March 11, 2015 (No. 333-202656), August 13, 2015 (No. 333-206347), August 5, 2016 (No. 333-212960), May 15, 2017 (No. 333-218018), September 10, 2018 (No. 333-227267), October 19, 2018 (No. 333-227900), August 15, 2019 (No. 333-233285), December 23, 2020 (333-251676) and November 16, 2021 (333-261093). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of those Registration Statements.
Item 8. Exhibits
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 the City of San Diego, State of California, on April 8, 2022.
| BIOCEPT, INC. | ||
| By: | /s/ Samuel D. Riccitelli | |
| Samuel D. Riccitelli | ||
| Interim President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Samuel D. Riccitelli and Antonino Morales, and each of them, as his true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him and in his name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their or his substitute or substitutes, may lawfully 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 in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Samuel D. Riccitelli Samuel D. Riccitelli |
Interim Chief Executive Officer, President, Chair and Director (Principal Executive Officer) |
April 8, 2022 | ||
| /s/ Antonino Morales Antonino Morales |
Interim Chief Financial Officer and Director (Principal Financial Officer and Principal Accounting Officer) |
April 8, 2022 | ||
| /s/ M. Faye Wilson M. Faye Wilson |
Director | April 8, 2022 | ||
| /s/ David F. Hale David F. Hale |
Director | April 8, 2022 | ||
| /s/ Marsha A. Chandler Marsha A. Chandler |
Director | April 8, 2022 | ||
| /s/ Bruce E. Gerhardt Bruce E. Gerhardt |
Director | April 8, 2022 | ||
| /s/ Ivor Royston Ivor Royston |
Director | April 8, 2022 | ||
| /s/ Linda Rubinstein Linda Rubinstein |
Director | April 8, 2022 | ||
Exhibit 5.1
Charles J. Bair
+1 858 550 6142
cbair@cooley.com
April 8, 2022
Biocept, Inc.
9955 Mesa Rim Road
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion, as counsel to Biocept, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission, covering the offering of up to 1,500,000 shares (the “Shares”) of the Company’s Common Stock, par value $0.0001 per share, issuable as inducement awards pursuant to the Company’s Amended and Restated 2013 Equity Incentive Plan, as amended (the “Plan”).
In connection with this opinion, we have examined and relied upon the Registration Statement and related prospectus, the Plan, the Company’s Amended and Restated Certificate of Incorporation, as amended, and Amended and Restated Bylaws, as amended, each as currently in effect, and the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness of such documents. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in accordance with the Plan, the Registration Statement and related prospectus, will be validly issued, fully paid and nonassessable (except as to Shares issued pursuant to certain deferred payment arrangements under the Plan, which will be fully paid and nonassessable when such deferred payments are made in full).
COOLEY LLP 4401 EASTGATE MALL SAN DIEGO, CA 921211
T: (858) 550-6000 F: (858) 550-6420 COOLEY.COM
Biocept, Inc.
April 8, 2022
Page Two
We consent to the filing of this opinion as an exhibit to the Registration Statement.
| Sincerely, | ||
| Cooley LLP | ||
| By: | /s/ Charles J. Bair | |
| Charles J. Bair | ||
COOLEY LLP 4401 EASTGATE MALL SAN DIEGO, CA 92121
T: (858) 550-6000 F: (858) 550-6420 COOLEY.COM
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated April 5, 2022, with respect to the financial statements of Biocept, Inc., as of December 31, 2021 and 2020 and for each of the two years in the period ended December 31, 2021.
/s/ Mayer Hoffman McCann P.C.
San Diego, California
April 8, 2022
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Biocept, Inc.
(Exact name of Registrant as Specified in its Charter)
| Table 1 – Newly Registered Securities | ||||||||||||||||
| Security Type
|
Security Class Title
|
Fee Calculation Rule
|
Amount Registered(1)
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
| |||||||||
| Fees to be Paid
|
Equity
|
Amended and Restated 2013 Equity Incentive Plan
Common Stock, $0.0001 par value per share
|
457(h)(2) |
1,203,690(3) |
$2.35 |
$2,828,672 |
.0000927 |
$263 | ||||||||
| Fees to be Paid
|
Equity
|
Amended and Restated 2013 Equity Incentive Plan
Common Stock, $0.0001 par value per share
|
457(c) and 457(h)(4) |
296,310(5) |
$2.09 |
$619,288 |
.0000927 |
$58 | ||||||||
| Total Offering Amounts
|
– |
$3,447,960 |
– |
– | ||||||||||||
| Total Fee Offsets
|
– |
– |
– |
– | ||||||||||||
| Net Fee Due
|
– |
– |
– |
$321 | ||||||||||||
| (1) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the Registrant’s common stock that may become issuable under the Biocept, Inc. Amended and Restated 2013 Equity Incentive Plan, as amended (the “2013 Plan”), by reason of any stock dividend, stock split, recapitalization or other similar transaction. |
| (2) | This estimate is made pursuant to Rule 457(h)(1) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based upon the weighted-average exercise price for the Registrant’s common stock subject to these outstanding stock options. |
| (3) | Represents shares reserved for issuance upon the exercise of outstanding stock options, which options were granted from the 1,500,000 shares of the Registrant’s common stock added to the 2013 Plan, which shares are reserved for issuance exclusively for the grant of stock awards to employees of the Registrant who have not previously been one of the Registrant’s employees or directors, except following a bona fide period of non-employment, as an inducement material to the individual’s entering into employment with the Registrant within the meaning of Rule 5635(c)(4) of the Nasdaq Listing Rules. |
| (4) | This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based upon the average of the high and low prices of the Registrant’s common stock on April 7, 2022, as reported on the Nasdaq Capital Market. |
| (5) | Represents additional shares of the Registrant’s common stock available for future issuance under the 2013 Plan pursuant to a 1,500,000 share increase in the number of shares of the Registrant’s common stock that are reserved for issuance exclusively for the grant of stock awards to employees of the Registrant who have not previously been one of the Registrant’s employees or directors, except following a bona fide period of non-employment, as an inducement material to the individual’s entering into employment with the Registrant within the meaning of Rule 5635(c)(4) of the Nasdaq Listing Rules. |