Eightco Holdings Inc.
01/26/2024 | Press release | Archived content
Registration statement under Securities Act of 1933 to be offered to employees pursuant to certain plans - Form S-8
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EIGHTCO HOLDINGS INC.
(Exact name of registrant as specified in its charter)
| Delaware | 87-2755739 | |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
|
909 New Brunswick Ave. Phillipsburg, NJ |
08865 | |
| (Address of Principal Executive Offices) | (Zip Code) |
EIGHTCO HOLDINGS INC.
2022 LONG-TERMINCENTIVE PLAN
(Full title of the plan)
Brian McFadden
Chief Executive Officer
Eightco Holdings Inc.
909 New Brunswick Ave.
Phillipsburg, NJ 08865
(Name and address of agent for service)
(888) 765-8933
(Telephone number, including area code, of agent for service)
Please send copies of all communications to:
Rick A. Werner, Esq.
Alla Digilova,Esq.
Haynes and Boone, LLP
30 Rockefeller Plaza, 26th Floor
New York, New York 10112
(212) 659-7300
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. ☐
EXPLANATORY NOTE
This Registration Statement on Form S-8 (this "Registration Statement") of Eightco Holdings Inc. (the "Company" or "Registrant") is being filed for the purpose of registering an additional 1,290,939 shares of common stock of the Company, par value $0.001 (the "Common Stock"), reserved for issuance under the Company's 2022 Long-Term Incentive Plan (the "2022 Plan"). Upon the effectiveness of this Registration Statement, an aggregate of 1,782,939 shares of Common Stock will be registered for issuance from time to time under the 2022 Plan.
Pursuant to General Instruction E. to Form S-8, the Registrant incorporates by reference into this Registration Statement the contents of its registration statement, including all exhibits filed therewith or incorporated therein by reference, filed on Form S-8 on June 6, 2023 (File No. 333-272465).
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended ("Exchange Act"), are hereby incorporated by reference in this Registration Statement:
| ● | Our Annual Report on Form 10-K for the annual period ended December 31, 2022, filed with the Commission on April 17, 2023; |
| ● | Our Quarterly Reports on Form 10-Q for the quarterly period ended September 30, 2023, filed with the Commission on November 14, 2023, for the quarterly period ended June 30, 2023, filed with the Commission on August 11, 2023, and for the quarterly period ended March 31, 2023, filed with the Commission on May 16, 2023; |
| ● | Our Current Reports on Form 8-K filed on the following dates: January 2, 2024, December 28, 2023, December 5, 2023, October 24, 2023, October 24, 2023, October 19, 2023, October 5, 2023, August 25, 2023, August 25, 2023, August 22, 2023, June 27, 2023, June 5, 2023, May 10, 2023, April 19, 2023, April 17, 2023, April 4, 2023, March 16, 2023, March 16, 2023, January 20, 2023, and January 6, 2023; and |
| ● | The description of our capital stock in our Form 10-12B filed with the Commission on November 8, 2021, and any amendment or report filed with the Commission for the purpose of updating the description. |
All reports and other documents subsequently filed by the Company 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 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 of this Registration Statement from the date of the filing of such reports and documents. Any such information so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
Notwithstanding the foregoing, we are not incorporating by reference information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits, nor any other document or information deemed to have been furnished and not filed in accordance with Commission rules.
Item 8. Exhibits.
The exhibits required by Item 601 of Regulation S-K, and an index thereto, are attached and incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 as amended (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 Phillipsburg, New Jersey, on this 26th day of January 2024.
| EIGHTCO HOLDINGS INC. | ||
| By: | /s/ Brian McFadden | |
| Brian McFadden | ||
|
Chief Executive Officer (Principal Executive Officer) |
||
POWER OF ATTORNEY
The undersigned director(s) and officer(s) of the Registrant hereby constitute and appoint Brian McFadden with full power to act and with full power of substitution and re-substitution, our true and lawful attorneys-in-fact with full power to execute in our name and behalf in the capacities indicated below any and all amendments (including post-effective amendments and amendments thereto) to this registration statement under the Securities Act and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission and hereby ratify and confirm each and every act and thing that such attorneys-in-fact, or any them, or their substitutes, shall lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Brian McFadden | Chief Executive Officer and President | January 26, 2024 | ||
| Brian McFadden | (Principal Executive Officer) | |||
| /s/ Kevin O'Donnell | Chairman | January 26, 2024 | ||
| Kevin J. O'Donnell | ||||
| /s/ Mary Ann Halford | Director | January 26, 2024 | ||
| Mary Ann Halford | ||||
| /s/ Frank Jennings | Director | January 26, 2024 | ||
| Frank Jennings | ||||
| /s/ Louis Foreman | Director | January 26, 2024 | ||
| Louis Foreman |
EXHIBIT INDEX
Exhibit 5.1
January 26, 2024
Eightco Holdings Inc.
909 New Brunswick Ave.
Phillipsburg, New Jersey 08865
Re: Eightco Holdings Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Eightco Holdings Inc., a Delaware corporation (the "Company"), with respect to certain legal matters in connection with the preparation of the Company's Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), filed with the Securities and Exchange Commission on the date hereof. The Registration Statement relates to the registration of an additional 1,290,939 shares (the "Shares") of the Company's common stock, $0.001 par value per share (the "Common Stock"), for issuance pursuant to the Eightco Holdings Inc. 2022 Long-Term Incentive Plan (the "Incentive Plan").
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have not considered and express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware.
In rendering the opinion set forth herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Certificate of Incorporation of the Company and By-Laws of the Company, each as amended to date; (ii) certain resolutions of the board of directors of the Company related to the filing of the Registration Statement, the approval of the Incentive Plan and related matters; (iii) the Incentive Plan; (iv) the Registration Statement and all exhibits thereto; (v) a certificate executed by an officer of the Company, dated as of the date hereof; and (vi) such other records, documents and instruments as we considered appropriate for purposes of the opinion stated herein.
In making the foregoing examinations, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents submitted to us as certified, conformed or photostatic copies thereof and the authenticity of the originals of such latter documents. As to all questions of fact material to the opinion stated herein, we have, without independent third-party verification of their accuracy, relied in part, to the extent we deemed reasonably necessary or appropriate, upon the representations and warranties of the Company contained in such documents, records, certificates, instruments or representations furnished or made available to us by the Company.
| Haynes and Boone, LLP |
2323 Victory Avenue | Suite 700 | Dallas, TX 75219 T: 214.651.5000 | haynesboone.com |
In rendering the opinion set forth below, we have assumed that, at the time of the issuance of the Shares, (i) the resolutions of the board of directors of the Company referred to above will not have been modified or rescinded; (ii) there will not have occurred any change in the law affecting the authorization, execution, delivery, validity or fully paid status of the Common Stock; (iii) the Company will receive consideration for the issuance of the Shares as required by the Incentive Plan and that is at least equal to the par value of the Common Stock; and (iv) the individual issuances, grants or awards under the Incentive Plan will be duly authorized by all necessary corporate action of the Company and duly issued, granted or awarded in accordance with the requirements of the Incentive Plan.
Based on the foregoing, and subject to the assumptions, qualifications, limitations, and exceptions set forth herein, we are of the opinion that upon the issuance of the Shares in accordance with the terms of the Incentive Plan, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to all references to us in the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder. This opinion is given as of the date hereof and we assume no obligation to update or supplement such opinion after the date hereof to reflect any facts or circumstances that may thereafter come to our attention or any changes that may thereafter occur.
| Very truly yours, | |
| /s/ Haynes and Boone, LLP | |
| Haynes and Boone, LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation of our report dated April 17, 2023, relating to the consolidated financial statements of Eightco Holdings Inc. as of December 31, 2022 and 2021 and for each of the two years in the period ended December 31, 2022 included in this registration statement on Form S-8.
/s/ Morison Cogen LLP
Blue Bell, Pennsylvania
January 26, 2024
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Eightco Holdings 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 Aggregate Offering Price Per Share |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
|||||||||||||||
| Equity | Common Stock, $0.001 par value per share | Other (3) | 1,290,939 (2) | $ | 0.457 | (3) | $ | 589,959.12 | (3) | $ | 0.00014760 | $ | 87.08 | (3) | ||||||||
| Total Offering Amounts | $ | 589,959.12 | $ | 87.08 | ||||||||||||||||||
| Total Fee Offsets | - | |||||||||||||||||||||
| Net Fee Due | $ | 87.08 | ||||||||||||||||||||
| (1) | Pursuant to Rule 416(a) under the Securities Act, this Registration Statement shall also cover any additional shares of the Registrant's Common Stock that become issuable under the 2022 Plan, by reason of any stock dividend, stock split, recapitalization or any similar transaction effected without the receipt of consideration that results in an increase in the number of the registrant's outstanding shares of Common Stock. |
| (2) | Consists of 1,290,939 additional shares of Common Stock reserved for issuance under the 2022 Plan. |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and 457(h) promulgated under the Securities Act, based on the average of the high and low prices of the Registrant's Common Stock as reported on the Nasdaq Capital Market on January 19, 2024, the date of which is within five business days prior to filing this Registration Statement. |
Table 2: Fee Offset Claims and Sources
|
Registrant or Filer Name |
Form or Filing Type |
File Number |
Initial Filing Date |
Filing Date |
Fee Offset Claimed |
Security Type Associated with Fee Offset Claimed |
Security Title Associated with Fee Offset Claimed |
Unsold Securities Associated with Fee Offset Claimed |
Unsold Aggregate Offering Amount Associated with Fee Offset Claimed |
Fee Paid with Fee Offset Source |
||||||||||||
| Rule 457(p) | ||||||||||||||||||||||
| Fee Offset Claims | ||||||||||||||||||||||
| Fee Offset Sources | ||||||||||||||||||||||
The Registrant is not relying on Rule 457(p) under the Securities Act to offset any of the filing fee due with respect to the Registration Statement to which this exhibit relates, so no information is provided under this Table 2.