As filed with the Securities and Exchange Commission on March 16, 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
CUE HEALTH INC.
(Exact name of Registrant as specified in its charter)
| Delaware | 27-1562193 | |||||||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | |||||||
Cue Health Inc.
4980 Carroll Canyon Rd.
Suite 100
San Diego, California 92121
(Address of principal executive offices, including zip code)
2021 Stock Incentive Plan
2021 Employee Stock Purchase Plan
(Full title of the plan)
Ayub Khattak
President and Chief Executive Officer
President and Chief Executive Officer
Cue Health Inc.
4980 Carroll Canyon Rd.
4980 Carroll Canyon Rd.
Suite 100
San Diego, CA 92121
(Name and address of agent for service)
(858) 412-8151
(Telephone number, including area code, of agent for service)
Copies to:
Mark B. Baudler Lianna Whittleton Wilson Sonsini Goodrich & Rosati, Professional Corporation 650 Page Mill Road Palo Alto, CA 94304 (650) 493-9300 | Erica Palsis General Counsel Cue Health Inc. 4980 Carroll Canyon Rd. Suite 100 San Diego, CA 92121 (858) 412-8151 | |||||||
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” or “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
REGISTRATION OF ADDITIONAL SECURITIES
This Registration Statement on Form S-8 (the “Registration Statement”) is being filed to register an additional 7,520,300 shares of common stock of Cue Health Inc. (the “Registrant”) to be issued pursuant to the Registrant’s 2021 Stock Incentive Plan (the “2021 Plan”) and an additional 1,504,060 shares of common stock of the Registrant to be issued pursuant to the Registrant’s 2021 Employee Stock Purchase Plan (the “2021 ESPP”) as a result of an evergreen provision in each of the 2021 Plan and 2021 ESPP providing that the total number of shares of common stock reserved for issuance under each of the 2021 Plan and 2021 ESPP will be automatically increased as of the first day of each fiscal year.
These additional shares of common stock are securities of the same class as other securities for which a previous Registration Statement on Form S-8 was filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on September 24, 2021 (File No. 333-259758) (the “Previous Registration Statement”). In accordance with General Instruction E of Form S-8, the contents of the Previous Registration Statement, including periodic reports filed after the Previous Registration Statement to maintain current information about the Registrant, are incorporated by reference into this Registration Statement.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:
(1) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March 16, 2023 (the “Annual Report”) pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(2) All other reports filed with the Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report (other than the portions of these documents not deemed to be filed); and
(3) The description of the Registrant’s common stock contained in the Company’s Registration Statement on Form 8-A (File No. 001-40824) filed with the Commission on September 20, 2021, pursuant to Section 12(b) of the Exchange Act, including any amendment or report 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 on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of 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 herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Wilson Sonsini Goodrich & Rosati, P.C. has opined as to the legality of the securities being offered by the Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law, or the DGCL, permits a corporation to eliminate the personal liability of its directors or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant’s amended and restated certificate of incorporation provides that no director shall be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the Court of Chancery or such other court shall deem proper.
The Registrant’s amended and restated certificate of incorporation provides that the Registrant will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Registrant), by reason of the fact that he or she is or was, or has agreed to become, a director or officer of the Registrant, or is or was serving, or has agreed to serve, at the request of the Registrant as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), liabilities, losses, judgments, fines (including excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974) and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Registrant, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.
The Registrant’s amended and restated certificate of incorporation also provides that the Registrant will indemnify any Indemnitee who was or is a party or threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Registrant to procure a judgment in the Registrant’s favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director or officer of the Registrant, or is or was serving, or has agreed to serve, at the request of the Registrant as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Registrant, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant, unless and only to the extent, that the Court of Chancery of Delaware or the court in which such action or suit was brought determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses (including attorney’s fees). Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the Registrant against all expenses (including attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If the Registrant does not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
In addition, the Registrant has entered into indemnification agreements with all of the Registrant’s executive officers and directors. In general, these agreements provide that the Registrant will indemnify the executive officer or director to the fullest extent permitted by law for claims arising in his or her capacity as an executive officer or director of the Registrant or in connection with his or her service at the request of the Registrant for another corporation or entity. The indemnification agreements also provide for procedures that will apply in the event that an executive officer or director makes a claim for indemnification and establish certain presumptions that are favorable to the executive officer or director.
The Registrant maintains a general liability insurance policy that covers certain liabilities of the Registrant’s directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number | Description | Form | File Number | Exhibit | Filing Date | |||||||||||||||
| Specimen Stock Certificate evidencing the shares of common stock | S-1 | 333-259250 | 4.1 | September 1, 2021 | ||||||||||||||||
| 2021 Stock Incentive Plan | S-1/A | 333-259250 | 10.5 | September 15, 2021 | ||||||||||||||||
| Form of Stock Option Agreement under the 2021 Stock Incentive Plan | S-1/A | 333-259250 | 10.6 | September 15, 2021 | ||||||||||||||||
| Form of Restricted Stock Unit Agreement for Non-Employee Directors under the 2021 Stock Incentive Plan | S-1/A | 333-259250 | 10.7 | September 15, 2021 | ||||||||||||||||
| Form of Restricted Stock Unit Agreement for Participants (other than Non-Employee Directors) under the 2021 Stock Incentive Plan | S-1/A | 333-259250 | 10.8 | September 15, 2021 | ||||||||||||||||
| 2021 Employee Stock Purchase Plan | S-1/A | 333-259250 | 10.9 | September 15, 2021 | ||||||||||||||||
5.1* | Opinion of Wilson Sonsini Goodrich & Rosati, P.C. | |||||||||||||||||||
23.1* | Consent of Independent Registered Public Accounting Firm. | |||||||||||||||||||
23.2* | Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1) | |||||||||||||||||||
| Power of Attorney (included in signature pages hereto). | ||||||||||||||||||||
| Filing Fee Table | ||||||||||||||||||||
* 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;
(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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(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 Exchange Act that are incorporated by reference in this Registration Statement.
(2) 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, 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 of 1933, 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 March 16, 2023.
| Cue Health Inc. | |||||||||||
| By: | /s/ Ayub Khattak | ||||||||||
| Name: | Ayub Khattak | ||||||||||
| Title: | Chief Executive Officer | ||||||||||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Ayub Khattak, Aasim Javed and Erica Palsis, and each of them, as such individual’s true and lawful attorney in fact and agent with full power of substitution, for such individual in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), 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, proxy 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 might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or the individual’s substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated:
| Signature | Title | Date | ||||||||||||
| /s/ Ayub Khattak | President, Chief Executive Officer, Director, Chairman of the Board (Principal Executive Officer) | March 16, 2023 | ||||||||||||
| Ayub Khattak | ||||||||||||||
| /s/ Aasim Javed | Chief Financial Officer (Principal Financial Officer) | March 16, 2023 | ||||||||||||
| Aasim Javed | ||||||||||||||
| /s/ Randall Pollard | Chief Accounting Officer and Controller (Principal Accounting Officer) | March 16, 2023 | ||||||||||||
| Randall Pollard | ||||||||||||||
| /s/ Chris Achar | Director | March 16, 2023 | ||||||||||||
| Chris Achar | ||||||||||||||
| /s/ Joanne Bradford | Director | March 16, 2023 | ||||||||||||
| Joanne Bradford | ||||||||||||||
| /s/ Carole Faig | Director | March 16, 2023 | ||||||||||||
| Carole Faig | ||||||||||||||
| /s/ Joshua Ghaim, Ph.D. | Director | March 16, 2023 | ||||||||||||
| Joshua Ghaim, Ph.D | ||||||||||||||
| /s/ Sachin Jain M.D. | Director | March 16, 2023 | ||||||||||||
| Sachin Jain M.D. | ||||||||||||||
| /s/ Maria Martinez | Director | March 16, 2023 | ||||||||||||
| Maria Martinez | ||||||||||||||
Exhibit 107.1
Calculation of Filing Fee Table
Form S-8
(Form Type)
Cue Health 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 | ||||||||||||||||
| Equity | Common stock, $0.00001 par value per share, reserved for issuance under the 2021 Stock Incentive Plan | Rule 457(c) and Rule 457(h) | 7,520,300 (2) | $1.9125 (3) | $14,382,573.75 | $110.20 per $1,000,000 | $1,584.96 | ||||||||||||||||
| Equity | Common stock, $0.00001 par value per share, reserved for issuance under the 2021 Employee Stock Purchase Plan | Rule 457(c) and Rule 457(h) | 1,504,060 (4) | $1.6256 (5) | $2,444,999.94 | $110.20 per $1,000,000 | $269.44 | ||||||||||||||||
| Total Offering Amounts | $16,827,573.69 | $1,854.40 | |||||||||||||||||||||
Total Fee Offsets(6) | - | ||||||||||||||||||||||
| Net Fee Due | $1,854.40 | ||||||||||||||||||||||
| (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 become issuable under each of the 2021 Stock Incentive Plan (the “2021 Plan”) and the 2021 Employee Stock Purchase Plan (the “2021 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock. | ||||
| (2) | Represents additional shares of common stock reserved for issuance as a result of an annual evergreen increase provided for in the 2021 Plan. | ||||
| (3) | Estimated in accordance with Rules 457(c) and 457(h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $1.9125 per share, which is the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Global Market on March 10, 2023. | ||||
| (4) | Represents additional shares of common stock reserved for issuance as a result of an annual evergreen increase provided for in the 2021 ESPP. | ||||
| (5) | Estimated in accordance with Rules 457(c) and 457(h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of 85% of $1.9125 per share, which is the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Global Market on March 10, 2023. Pursuant to the 2021 ESPP, the purchase price of the shares of common stock reserved for issuance thereunder will be 85% of the lesser of the closing price of the common stock on (i) the first business day of the applicable offering period and (ii) the last business day of the applicable offering period. | ||||
| (6) | The Registrant does not have any fee offsets. | ||||
Exhibit 5.1
 | Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304 o: 650.493.9300 f: 650.493.6811 | ||||
March 16, 2023
Cue Health Inc.
4980 Carroll Canyon Rd.
Suite 100
San Diego, CA 92121
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by Cue Health Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission on or about the date hereof, in connection with the registration of the offer and sale under the Securities Act of 1933, as amended, of an aggregate of 9,024,360 shares of common stock, par value $0.00001 per share (the “Shares”), consisting of (i) 7,520,300 shares of common stock reserved for issuance under the Company’s 2021 Stock Incentive Plan (the “2021 Plan”) and (ii) 1,504,060 shares of common stock reserved for issuance under the Company’s 2021 Employee Stock Purchase Plan (the “2021 ESPP”).
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in each of the 2021 Plan and 2021 ESPP and pursuant to the agreements that accompany each of the 2021 Plan and 2021 ESPP, will be legally and validly issued, fully paid, and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto.
Sincerely,
/s/ Wilson Sonsini Goodrich & Rosati, P.C.
| WILSON SONSINI GOODRICH & ROSATI | ||
Professional Corporation
AUSTIN BEIJING BOSTON BRUSSELS HONG KONG LONDON LOS ANGELES NEW YORK PALO ALTO
SAN DIEGO SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, DC WILMINGTON, DE
SAN DIEGO SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, DC WILMINGTON, DE
Consent of Independent Registered Public Accounting Firm
Cue Health Inc.
San Diego, California
We hereby consent to the incorporation by reference in this Registration Statement of our report dated March 16, 2023, relating to the consolidated financial statements of Cue Health Inc. (the “Company”), appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
| /s/ BDO USA, LLP | ||
| San Diego, California | ||
| March 16, 2023 | ||