Form S-8 POS - Securities to be offered to employees in employee benefit plans, post-effective amendments
03 Novembre 2023 - 9:45PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on November 3, 2023
Commission
File No. 333-275073
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
bioAffinity
Technologies, Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
46-5211056 |
(State or other jurisdiction of
incorporation
or organization) |
|
(I.R.S. Employer
Identification No.) |
22211
W. Interstate 10, Suite 1206,
San
Antonio, Texas |
|
78257 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
bioAffinity
Technologies, Inc.
Amended
and Restated 2014 Equity Incentive Plan
(Full
title of the plan)
Maria
Zannes
President
and Chief Executive Officer
22211
W Interstate 10
Suite
1206
San
Antonio, Texas 78257
(210)
698-5334
(Name
and address of agent for service)
(Telephone
number, including area code, of agent for service)
With
copies to:
Leslie
Marlow, Esq.
Melissa
Palat Murawsky, Esq.
Blank
Rome LLP
1271
Avenue of the Americas
New
York, New York 10020
(212)
885-5358
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
bioAffinity
Technologies, Inc. (the “Company”) hereby amends its original Registration Statement on Form S-8 (File No. 333-275073)
filed with the Securities and Exchange Commission (the “Commission”) on October 18, 2023 (the “Original Filing”)
solely for the purpose of updating the exhibit index to include Exhibit 23.3 and to file Exhibit 23.3. Exhibit 23.3 is the consent of
WithumSmith+Brown, PC related to the financial statements of Village Oaks Pathology Services, P.A.
d/b/a Precision Pathology Services at December 31, 2022, and for the year ended December 31, 2022 (the “Auditor’s Consent”).
The Auditor’s Consent was inadvertently omitted from the Original Filing. This filing is being made solely to update the
exhibit index and provide the Auditor’s Consent and does not update, amend, or modify any other information, statement or disclosure
contained in or filed with the Original Filing.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
8. Exhibits.
The
following exhibits are filed as part of this Registration Statement or, where so indicated have been previously filed and are incorporated
herein by reference.
3.1 |
Certificate of Incorporation of the Registrant as filed with the Delaware Secretary of State on March 26, 2014 (incorporated by reference to Exhibit 3.1 of the Registrant’s Form S-1 (File No. 333-274608), as filed with the Commission on September 20, 2023). |
|
|
3.2 |
Amended and Restated Bylaws of Registrant (Incorporated by reference as Exhibit 3.6 to the Registrant’s Form S-1/A (File No. 333-264463) filed with the SEC on June 16, 2022) |
|
|
3.3 |
Certificate of Amendment to the Certificate of Incorporation of Registrant, as filed with the Delaware Secretary of State on May 31, 2016 (incorporated by reference to Exhibit 3.3 of the Registrant’s Form S-1 (File No. 333-274608), as filed with the Commission on September 20, 2023). |
|
|
3.4 |
Certificate of Designation of Series A Convertible Preferred Stock of the Registrant filed with the Delaware Secretary of State on July 13, 2017 (Incorporated by reference as Exhibit 3.4 to the Registrant’s Form S-1/A (File No. 333-264463) filed with the SEC on May 25, 2022) |
|
|
3.5 |
Certificate of Amendment to the Certificate of Incorporation of Registrant, as filed with the Delaware Secretary of State on November 29, 2021(incorporated by reference to Exhibit 3.5 of the Registrant’s Form S-1 (File No. 333-274608), as filed with the Commission on September 20, 2023). |
|
|
3.6 |
Certificate of Amendment to the Certificate of Incorporation of Registrant, as filed with the Delaware Secretary of State on June 23, 2022 (Incorporated by reference as Exhibit 3.2 to the Registrant’s Form S-1/A (File No. 333-264463) filed with the SEC on May 25, 2022) |
|
|
3.7 |
Certificate of Amendment to the Certificate of Incorporation of Registrant, as filed with the Delaware Secretary of State on June 6, 2023 (Incorporated by reference as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-41463) filed with the SEC on June 7, 2023) |
|
|
4.1 |
bioAffinity Technologies, Inc. Amended and Restated 2014 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K, as filed with the Commission on June 7, 2023). |
|
|
5.1* |
Opinion of Blank Rome LLP. |
|
|
23.1* |
Consent of WithumSmith+Brown, PC. |
|
|
23.2* |
Consent of Blank Rome LLP (included in Exhibi 5.1). |
|
|
23.3 |
Consent of WithumSmith+Brown, PC., independent registered public accounting firm for Village Oaks Pathology Services, P.A. |
|
|
24.1* |
Power of Attorney (included on the signature page to the Original Filing). |
|
|
107.1* |
Filing Fee Table |
*Previously
filed with Original Filing.
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 Post-Effective Amendment to the Original Filing to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of San Antonio, Texas, on November 3, 2023.
|
bioAffinity
Technologies, Inc. |
|
|
|
|
By: |
/s/
Maria Zannes |
|
|
Maria
Zannes |
|
|
President
and Chief Executive Officer |
Pursuant
to the requirements of the Securities Act, this Post-Effective Amendment to the Original Filing has been signed by the following persons
in the capacities and on the dates indicated.
Signature |
|
Title(s) |
|
Date |
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|
|
|
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/s/
Maria Zannes
|
|
President
and Chief Executive Officer |
|
November
3, 2023 |
Maria
Zannes |
|
(Principal Executive Officer) and Director |
|
|
|
|
|
|
|
* |
|
Chief
Financial Officer
|
|
November
3, 2023 |
Michael
Dougherty |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
* |
|
Director |
|
November
3, 2023 |
Steven
Girgenti |
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* |
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Director |
|
November
3, 2023 |
Robert
A. Anderson |
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* |
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Director |
|
November
3, 2023 |
Stuart
Diamond |
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* |
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Director |
|
November
3, 2023 |
Peter
S. Knight |
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* |
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Director |
|
November
3, 2023 |
Mohsin
Y. Meghji |
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*
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Director |
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November
3, 2023 |
Gary
Rubin |
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* |
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Director |
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November
3, 2023 |
Roby
Joyce, MD |
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*By: |
/s/
Maria Zannes |
|
|
Maria
Zannes
Attorney-in-Fact |
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Exhibit
23.3
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the incorporation by reference into this Registration Statement on Form S-8 of our report dated September 19, 2023,
relating to the financial statements of Village Oaks Pathology Services, P.A. (the “Company”), as of and for the years ended
December 31, 2022 and 2021, which included an explanatory paragraph related to substantial doubt about the Company’s ability to
continue as a going concern.
/s/
WithumSmith+Brown, PC
New
York, New York
November
3, 2023
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