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-TERM INCENTIVE 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
null
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