As
filed with the Securities and Exchange Commission on January 10, 2018
Registration
No. 333- _______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
VIVOS
INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
80-0138937 |
| (State
or Other Jurisdiction of |
|
(I.R.S.
Employer |
| Incorporation
or Organization) |
|
Identification
No.) |
719
Jadwin Avenue
Richland,
Washington 99352
(Address
of Principal Executive Offices)
2015
Omnibus Securities and Incentive Plan
(Full
title of the plan)
Michael
Korenko, Chief Executive Officer
Vivos
Inc.
719
Jadwin Avenue
Richland,
Washington 99352
(Name
and address of agent for service)
(509)
736-4000
(Telephone
number, including area code, of agent for service)
Copies
to:
Daniel
W. Rumsey, Esq.
Jessica
R. Sudweeks, Esq.
Disclosure
Law Group,
a
Professional Corporation
600
West Broadway, Suite 700
San
Diego, California 92101
Tel:
(619) 272-7050
Fax:
(619) 330-2101
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 [X] |
| |
Emerging
growth company [ ] |
(Do
not check if a smaller reporting 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 Section 7(a)(2)(B) of the Securities Act. [ ]
CALCULATION
OF REGISTRATION FEE
| Title
of Securities to be Registered | |
Amount
to
be
Registered
(1) | | |
Proposed
Maximum
Offering Price
per
Share | | |
Proposed
Maximum
Aggregate
Offering
Price | | |
Amount
of
Registration
Fee | |
| Common
Stock, $0.001 par value per share, issuable pursuant to the 2015 Omnibus Securities and Incentive Plan | |
| 23,826,100 | | |
$ | 0.05 | (2) | |
| $1,191,305 | (2) | |
$ | 148.32 | |
| (1) |
In
accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall also be deemed to
cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions. |
| |
|
| (2) |
Estimated
solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) and (h) under the Securities
Act of 1933, as amended. |
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Vivos
Inc. (the “Registrant”) files this Registration Statement on Form S-8 in connection with the Registrant’s
2015 Omnibus Securities and Incentive Plan (the “Plan”). The documents containing the information specified
in Part I of Form S-8 will be sent or given to each participant in the Plan as specified by Rule 428(b)(1) of the Securities Act
of 1933, as amended (the “Securities Act”). These documents and the documents incorporated by reference herein
pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act. Such documents are not filed as part of this Registration Statement in accordance with the Note to Part I
of the Form S-8 Registration Statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
| Item
3. |
Incorporation
of Documents by Reference |
The
following documents, which have been previously filed by the Registrant with the Securities and Exchange Commission (the “SEC”),
are hereby incorporated by reference in this Registration Statement:
| (a) |
The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as filed with the SEC on March
9, 2017; |
| |
|
| (b) |
The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2017, as filed with the SEC on May 15, 2017; |
| |
|
| (c) |
The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2017, as filed with the SEC on August 11,
2017; |
| |
|
| (d) |
The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017, as filed with the SEC on November
13, 2017; |
| |
|
| (e) |
The
Registrant’s Current Report on Form 8-K, as filed with the SEC on August 4, 2017; |
| |
|
| (f) |
The
Registrant’s Current Report on Form 8-K, as filed with the SEC on September 15, 2017; |
| |
|
| (g) |
The
Registrant’s Current Report on Form 8-K, as filed with the SEC on December 18, 2017; |
| |
|
| (h) |
The
Registrant’s Current Report on Form 8-K, as filed with the SEC on January 2, 2018; and |
| |
|
| (i) |
The
Registrant’s Current Report on Form 8-K, as filed with the SEC on January 9, 2018. |
Until
such time that a post-effective amendment to this Registration Statement has been filed which indicates that all securities offered
hereby have been sold or which deregisters all securities remaining unsold at the time of such amendment, all documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), shall be deemed to be incorporated by reference in this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained herein or 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 is also 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 |
Not
applicable.
| Item
6. |
Indemnification
of Directors and Officers |
The
Registrant’s Certificate of Incorporation, as amended (the “Certificate of Incorporation”) provides,
to the fullest extent permitted by Section 145 of the Delaware General Corporation Law, that the Registrant’s directors
or officers shall not be personally liable to either the Registrant or its shareholders for damages for breach of such director’s
or officer’s fiduciary duty. The effect of this provision of the Certificate of Incorporation is to eliminate the rights
of the Registrant and its shareholders (through shareholders’ derivative suits on behalf of the Registrant) to recover damages
against a director or officer for breach of the fiduciary duty of care as a director or officer (including breaches resulting
from negligent or grossly negligent behavior), except under certain situations defined by statute. The Registrant believes that
the indemnification provisions in the Certificate of Incorporation are necessary to attract and retain qualified persons as directors
and officers.
The
Registrant’s Bylaws also provide that its Board of Directors (the “Board”) may also authorize the indemnification
of our employees or agents, and to advance the reasonable expenses of such persons, to the same extent, following the same determinations,
and upon the same conditions as are required for the indemnification of, and advancement of, expenses to the Registrant’s
directors and officers. As of the date of this Registration Statement, the Board has not extended indemnification rights to persons
other than directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, employees or other
persons controlling the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in
the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
| Item
7. |
Exemption
from Registration Claimed |
Not
applicable.
(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; and
(ii)
To reflect in the prospectus any facts or events arising after the effective date of this 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; 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; and
(2)
That, 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; and
(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 this 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 SEC 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 Richland, State of Washington, on January 10, 2018.
| |
Vivos
Inc. |
| |
| |
By: |
/s/
Michael K. Korenko |
| |
Name: |
Michael
K. Korenko |
| |
Title: |
Chief
Executive Officer |
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 dates indicated.
| Signature |
|
Title(s) |
|
Date |
| |
|
|
|
|
| /s/
Michael K. Korenko |
|
Chief
Executive Officer |
|
January
10, 2018 |
| Michael
K. Korenko |
|
|
|
|
| |
|
|
|
|
| /s/
L. Bruce Jolliff |
|
Chief
Financial Officer |
|
January
10, 2018 |
| L.
Bruce Jolliff |
|
|
|
|
| |
|
|
|
|
| /s/
Carlton M. Cadwell |
|
Secretary
and Chairman of the Board of Directors |
|
January
10, 2018 |
| Carlton
M. Cadwell |
|
|
|
|
