As filed with the Securities and Exchange Commission on May 31, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933
INTELLIGENT BIO SOLUTIONS INC.
(Exact name of registrant as specified in its charter)
| Delaware | 82-1512711 | |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) |
142 West, 57th Street, 11th Floor
New York, NY 10019
(Address of principal executive offices, including zip code)
Intelligent Bio Solutions Inc. 2019 Long Term Incentive Plan
(Full title of the plan)
Harry Simeonidis
President and Chief Executive Officer
142 West, 57th Street, 11th Floor
New York, NY 10019
(Name and address of agent for service)
(646) 828-8258
(Telephone number, including area code, of agent for service)
With a copy to:
Ralph V. De Martino, Esq.
Johnathan C. Duncan, Esq.
ArentFox Schiff LLP
901 K Street NW, Suite 700
Washington, DC 20001
Tel: (202) 724-6848
Fax: (202) 778-6460
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 ☒ | (Do not check if a smaller | Smaller reporting company ☒ |
| 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. ☐
EXPLANATORY NOTE
Intelligent Bio Solutions Inc. (the “Registrant”) has prepared this registration statement on Form S-8 (the “Registration Statement”) to register an additional 100,000 shares of the Registrant’s common stock, par value $0.01 per share (“Common Stock”), for issuance under the Intelligent Bio Solutions Inc. 2019 Long Term Incentive Plan (the “2019 Plan”).
On February 8, 2023, the stockholders of the Registrant approved an amendment to the 2019 Plan to increase the number of shares of Common Stock authorized for issuance thereunder from 25,000 shares to 75,000 shares; and on May 8, 2023, the stockholders of the Registrant approved an amendment to the 2019 Plan to increase the number of shares of Common Stock authorized for issuance thereunder from 75,000 shares to 125,000 shares. All share amounts in this Registration Statement have been adjusted to reflect the 1–for-20 reverse split of the Registrant’s Common Stock effected February 9, 2023.
Accordingly, pursuant to General Instruction E to Form S-8, the contents of the earlier registration statement on form S-8 relating to the 2019 Plan (Registration File No. 333-266571) (the “Prior Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) on August 5, 2023, are hereby incorporated herein by reference to the extent not superseded hereby.
This Registration Statement relates to securities of the same class as that to which the Prior Registration Statement relates.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration Statement the following documents and information previously filed with the Securities and Exchange Commission:
| ● | The Registrant’s Annual Report on Form 10-K for the year ended June 30, 2022 (filed on September 22, 2022), as amended on Form 10-K/A (filed on October 7, 2022) and Form 10-K/A (filed on March 6, 2023); | |
| ● | the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2022 (filed on November 14, 2022); | |
| ● | the Registrant’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2022 (filed on February 14, 2023); | |
| ● | the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023 (filed on May 11, 2023); | |
| ● | the Registrant’s Current Reports on Form 8-K and any amendments on Form 8-K/A filed on: May 17, 2023; May 12, 2023; April 18, 2023; March 10, 2023; March 2, 2023; March 2, 2023; February 16, 2023; February 9, 2023; January 27, 2023; December 22, 2022 (Items 1.01, 3.02, 3.03 and 5.03 only, and the exhibits in Item 9.01 incorporated thereby); December 21, 2022; December 8, 2022; October 27, 2022 (Items 5.02, 5.03 and 8.01 only, and the exhibits in Item 9.01 incorporated thereby); October 11, 2022 (Items 1.01, 2.01, 2.03, 3.02, 3.03, 5.02 and 5.03 only, and the exhibits in Item 9.01 incorporated thereby); September 30, 2022; September 15, 2022; and July 21, 2022; | |
| ● | the Registrant’s Definitive Proxy Statement on Schedule 14A filed on January 4, 2023; and | |
| ● | The description of the Registrant’s Common Stock contained in the Registrant’s registration statement Form 8-A filed with the Commission on December 22, 2020 (File No. 001-39825) and any amendments or reports filed for the purpose of updating such description. |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall also be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such documents.
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 herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits.
| * | Filed herewith. |
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 20% 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) do 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 that are incorporated by reference in this 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 Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication of such issue.
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 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 New York City, State of New York, on the 31 day of May, 2023.
| INTELLIGENT BIO SOLUTIONS INC. | ||
| (Registrant) | ||
| By: | /s/ Harry Simeonidis | |
| Harry Simeonidis | ||
| President and Chief Executive Officer | ||
Each person whose signature appears below appoints Stephen Boyages and Harry Simeonidis or either one of them, as such person’s true and lawful attorneys to execute in the name of each such person, and to file, any pre-effective or post-effective amendments to this Registration Statement that any of such attorneys shall deem necessary or advisable to enable the Registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission with respect thereto, in connection with this Registration Statement, which amendments may make such changes in such Registration Statement as any of the above-named attorneys deems appropriate, and to comply with the undertakings of the Registrant made in connection with this Registration Statement; and each of the undersigned hereby ratifies all that any of said attorneys shall do or cause to be done by virtue thereof.
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/ Harry Simeonidis | President and Chief Executive Officer | May 31, 2023 | ||
| Harry Simeonidis | (Principal Executive Officer) | |||
| /s/ Spiro Sakiris | Chief Financial Officer (Principal Financial Officer | May 31, 2023 | ||
| Spiro Sakiris | and Principal Accounting Officer) | |||
| /s/ Stephen Boyages | Chairman, Director | May 31, 2023 | ||
| Stephen Boyages | ||||
| /s/ Lawrence Fisher | Director | May 31, 2023 | ||
| Lawrence Fisher | ||||
| /s/ Jonathan Hurd | Director | May 31, 2023 | ||
| Jonathan Hurd | ||||
| /s/Jason Isenberg | Director | May 31, 2023 | ||
| Jason Isenberg | ||||
| /s/ David Jenkins | Director | May 31, 2023 | ||
| David Jenkins | ||||
| /s/ George Margelis | Director | May 31, 2023 | ||
| George Margelis | ||||
| /s/ Christopher Towers | Director | May 31, 2023 | ||
| Christopher Towers |
Exhibit 5.1
May 31, 2023
Intelligent Bio Solutions Inc.
420 Lexington Ave, Suite 300
New York, NY 10170
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to Intelligent Bio Solutions Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of the Company’s Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933 (the “Act”), registering a total of 100,000 shares of the Company’s common stock, par value $0.01 per share (the “Shares”), issuable pursuant to the Intelligent Bio Solutions Inc. 2019 Long Term Incentive Plan, as amended (the “Plan”).
In rendering this opinion, we have examined: (i) the Amended and Restated Certificate of Incorporation and Amended and Restated By-laws of the Company, each as amended to date; (ii) the Registration Statement; and (iii) such statutory provisions, certificates and other documents as we have deemed appropriate or necessary as a basis for the opinions hereinafter expressed. We have also examined such other documents and considered such legal matters as we have deemed necessary and relevant as the basis for the opinion set forth below. With respect to such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as reproduced or certified copies, and the authenticity of the originals of those latter documents.
Based upon the foregoing and in reliance thereon, it is our opinion that, as of the date hereof, the Shares to be issued under the Plan have been duly authorized by all necessary corporate action of the Company, and, upon the issuance and delivery of, and payment for, the Shares in the manner contemplated by the Plan and assuming the Company completes all actions and proceedings required on its part to be taken prior to the issuance and delivery of the Shares pursuant to the terms of the Plan, including, without limitation, collection of required payment for the Shares, if applicable, the Shares will be validly issued, fully paid and non-assessable.
This opinion is limited to the Federal law of the United States and the General Corporation Law of the State of Delaware, and we express no opinion as to the laws of any other jurisdiction. This opinion is rendered pursuant to Item 601(b)(5)(i) of Regulation S-K under the Act. The opinions expressed in this opinion letter are as of the date of this opinion letter only and as to laws covered hereby only as they are in effect on that date, and we assume no obligation to update or supplement such opinions to reflect any facts or circumstances that may come to our attention after that date or any changes in law that may occur or become effective after that date. The opinions herein are limited to the matters expressly set forth in this opinion letter, and no opinion or representation is given or may be inferred beyond the opinions expressly set forth in this opinion letter.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
| Very truly yours, | |
| /s/ ArentFox Schiff LLP |
Exhibit 23.1
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Intelligent Bio Solutions Inc.
New York, New York
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Intelligent Bio Solutions Inc. of our report dated September 21, 2022, relating to the consolidated financial statements which appears in the Form 10-K for the year ended June 30, 2022. Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.
/s/ BDO Audit Pty Ltd
Sydney, Australia
May 31, 2023
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Intelligent Bio Solutions 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 Share | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | |||||||||||||||||
| Equity | Common stock, par value $0.01 per share | Other(2) | 100,000 | $ | 2.72 | (2) | $ | 272,000 | (2) | $ | 0.00011020 | $ | 29.98 | |||||||||||
| Total Offering Amounts | $ | 272,000 | $ | 29.98 | ||||||||||||||||||||
| Total Fee Offsets | $ | 0.00 | ||||||||||||||||||||||
| Net Fee Due | $ | 29.98 | ||||||||||||||||||||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933 (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the Intelligent Bio Solutions Inc. 2019 Stock Incentive Plan, by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected that results in an increase to the number of outstanding shares of the Registrant’s common stock. |
| (2) | Estimated in accordance with Rule 457(c) and Rule 457(h) under the Securities Act, solely for the purpose of calculating the registration fee, based on the average of the $2.79 (high) and $2.65 (low) sales prices of the Registrant’s common stock as reported on The Nasdaq Global Market on May 25, 2023, which date is within five business days prior to the date of filing of this Registration Statement. |