Form S-8 - Securities to be offered to employees in employee benefit plans

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

Under

THE SECURITIES ACT OF 1933

BIOMERICA, INC.

(Exact name of Registrant as specified in its charter)

Delaware		95-2645573
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

17571 Von Karman Avenue, Irvine, California		92614
(Address of principal executive offices)		(Zip Code)

BIOMERICA, INC.
2023 STOCK INCENTIVE PLAN

(Full title of the plan)

Zackary Irani

Chief Executive Officer

Biomerica, Inc.

17571 Von Karman Avenue

Irvine, California 92614

(Name and address of agent for service)

(949) 645-2111

(Telephone number, including area code, of agent for service)

Copy to:

Christopher D. Ivey, Esq.

Stradling Yocca Carlson & Rauth LLP

660 Newport Center Drive, Suite 1600

Newport Beach, California 92660

(949) 725-4000

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”) is being filed by Biomerica, Inc., a Delaware corporation (the “Registrant” or “Company”) to register 1,200,000 shares of the Registrant’s common stock, par value $0.08 per share (the “Common Stock”), to be issued under the 2023 Stock Incentive Plan (the Plan”) that was duly adopted and approved by the Registrant’s stockholders on December 7, 2023.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the Plan covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents, which have been filed by the Registrant with the Securities and Exchange Commission (the “Commission”) are hereby incorporated by reference herein, and shall be deemed to be a part of, this Registration Statement:

	●	The Registrant’s Annual Report on Form 10-K for the fiscal year ended May 31, 2024, filed with the Commission on August 28, 2024 (the “Annual Report”);

	●	The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended August 31, 2024, filed with the Commission on October 15, 2024;

	●	The Registrant’s Current Report on Form 8-K filed with the Commission on November 6, 2024 (only those portions deemed filed and not furnished); and

	●	The description of the Registrant’s Common Stock contained in Exhibit 4.2 to the Annual Report, and any other amendment or report filed for the purpose of updating such description.

All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as amended, after the date of this Registration Statement and 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 in this Registration Statement and to be a part of it from the respective dates of filing such documents; except as to any portion of any future annual, quarterly or current report or other document, or any portion thereof, that is deemed furnished and not deemed filed under such provisions. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document, which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any 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 required to be filed with this Registration Statement.

Item 5. Interests of Named Experts and Counsel.

Not Applicable.

Item 6. Indemnification of Directors and Officers.

Section 102 of the General Corporation Law of the State of Delaware (the “DGCL”) permits a corporation to eliminate the personal liability of directors or officers of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director or officer breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, obtained an improper personal benefit, or where the director authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law.

Subsection (a) of Section 145 of the DGCL empowers a corporation to indemnify any person who was or is a party or who is 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 corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.

Subsection (b) of Section 145 of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of 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 the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Section 145 of the DGCL further provides that, to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators. Section 145 also empowers the corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.

The Company’s First Amended and Restated Certificate of Incorporation (the “Charter”) provides that, to the fullest extent permitted by the DGCL, no director of the Registrant shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary duty as a director. The effect of this provision as permitted by Section 102 of the DGCL, is to eliminate the Company’s rights and those of its stockholders (through stockholders’ derivative suits on behalf of the Company) to recover damages against a director for breach of the fiduciary duties as a director (including breaches resulting from negligent or grossly negligent behavior), except under certain situations defined by statute.

In addition, as permitted by Section 145 of the DGCL, the Company’s Amended and Restated Bylaws (the “Bylaws”) provide that the Company is required to indemnify its directors and officers and persons serving in these capacities in other business enterprises (including, for example, the Company’s subsidiaries) at the Company’s request, to the fullest extent permitted by the DGCL, including in those circumstances in which indemnification would otherwise be discretionary. The Company’s Bylaws also provide that the Company may indemnify its employees and agents in circumstances where indemnification is not required by law. The rights conferred in the Bylaws are not exclusive, and the Company is authorized to enter into indemnification agreements with its directors, executive officers and employees. The Company may not retroactively amend its Bylaws in a way that reduces the protections of its directors, officers and employees who benefit from such provisions.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, or otherwise, the Company have been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.

Item 7. Exemption from Registration Claimed.

Not Applicable.

Item 8. Exhibits.

A list of exhibits filed with this Registration Statement is set forth in the Exhibit Index hereto and is incorporated herein by reference.

Item 9. Undertakings.

(a) The 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 20 change in the maximum aggregate offering price set forth in Exhibit 107 (Filing Fee Table) to 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;

Provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the Registration Statement is on Form S-8, and 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. 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.

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 Irvine, State of California, on November 25, 2024.

	BIOMERICA, INC.

	By:	/s/ Zackary Irani
		Zackary Irani
		Chief Executive Officer

POWER OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints Zackary Irani and Gary Lu and each them, individually, as his or her attorneys-in-fact, with full power and authority, including full power of substitution, for the undersigned to sign, in any and all capacities, any amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission and to do any and all acts and things for and in name of the undersigned which such attorneys-in-fact, or any of them, individually, may deem necessary or advisable to enable Biomerica, Inc. to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission, in connection with this Registration Statement, and does hereby ratify and confirm all that any of said attorneys-in-fact, or any of their substitutes, may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the respective capacities and on the dates indicated below.

Name	Title	Date

/s/ Zackary S. Irani	Chief Executive Officer and Director	November 25, 2024
Zackary S. Irani	(Principal Executive Officer)

/s/ Gary Lu, CPA	Chief Financial Officer	November 25, 2024
Gary Lu	(Principal Financial and Accounting Officer)

/s/ Allen Barbieri	Director, Vice Chairman and Secretary	November 25, 2024
Allen Barbieri

/s/ David Moatazedi	Director	November 25, 2024
David Moatazedi

/s/ Jane Emerson, M.D., Ph. D.	Director	November 25, 2024
Jane Emerson, M.D., Ph. D

/s/ Catherine Coste, CPA	Director	November 25, 2024
Catherine Coste, CPA

EXHIBIT INDEX

Exhibit No.		Description of Exhibit
4.1		Biomerica, Inc. 2023 Stock Incentive Plan (incorporated herein by reference to Exhibit A to the Registrant’s Definitive Proxy Statement filed with the Commission on September 27, 2023).

5.1		Opinion of Stradling Yocca Carlson & Rauth LLP±

23.1		Consent of Haskell and White LLP ±

23.2		Consent of Stradling Yocca Carlson & Rauth LLP (included in Exhibit 5.1)±

24.1		Power of Attorney (included on the signature page of this registration statement)±

107		Filing Fee Table±

± Filed herewith.

Exhibit 5.1

November 25, 2024

Biomerica, Inc.

17571 Von Karman Avenue

Irvine, CA 92614

Re: Securities Registered under Registration Statement on Form S-8

Ladies and Gentlemen:

You have requested our opinion with respect to certain matters in connection with the filing by Biomerica, Inc., a Delaware corporation (the “Company”), of a Registration Statement on Form S-8 (as may be amended or supplemented, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) on covering the offering of up to 1,200,000 shares of the Company’s common stock, par value $0.08 per share (the “Common Stock”) pursuant to the Biomerica, Inc. 2023 Stock Incentive Plan (the “2023 Plan”). The shares of Common Stock that may be issued pursuant to the 2023 Plan are collectively referred to herein as the “Shares.”

In connection with the preparation of this opinion, we have examined such documents and considered such questions of law as we have deemed necessary or appropriate. We have assumed the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof and the genuineness of all signatures. As to questions of fact material to our opinion, we have relied upon the certificates of certain officers of the Company.

Based on the foregoing, we are of the opinion that the Shares, when issued and sold in accordance with the terms of the 2023 Plan, and the related agreements, will be validly issued, fully paid and non-assessable.

We render this opinion only with respect to the General Corporation Law of the State of Delaware, and we express no opinion herein concerning the application or effect of the laws of any other jurisdiction.

We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement, and to the reference to our firm in the Registration Statement. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations thereunder.

This opinion is intended solely for use in connection with the issuance and sale of the Shares pursuant to the Registration Statement and is not to be relied upon for any other purpose or delivered to or relied upon by any other person without our prior written consent. This opinion is rendered as of the date hereof and based solely on our understanding of facts in existence as of such date after the examination described in this opinion. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein.

	Very truly yours,

	Stradling Yocca Carlson & Rauth LLP

	/s/ Stradling Yocca Carlson & Rauth LLP

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Biomerica, Inc. (the “Company”) of our report dated August 28, 2024, relating to our audits of the Company’s consolidated financial statements as of May 31, 2024 and 2023, and for each of the years then ended, which report includes an explanatory paragraph expressing substantial doubt regarding the Company’s ability to continue as a going concern, included in the Annual Report on Form 10-K of Biomerica, Inc. for the fiscal year ended May 31, 2024.

/s/ HASKELL & WHITE LLP
HASKELL & WHITE LLP

Irvine, California

November 25, 2024

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

Biomerica, 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 Share			Maximum Aggregate Offering Price			Fee Rate		Amount of Registration Fee
Equity	Common Stock, par value $0.08 per share	457(c) and (h)		1,200,000	⁽²⁾	$	0.33	⁽³⁾	$	391,920	⁽³⁾		0.0001531	$	60.00
Total Offering Amounts									$	391,920			—	$	60.00
Total Fee Offsets										—			—		—
Net Fee Due										—			—	$	60.00

(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, par value $0.08 per share (the “Common Stock”), that become issuable under the 2023 Stock Incentive Plan (the “Plan*”), by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock.

(2)	Represents shares of Common Stock authorized for issuance under the Plan that was duly adopted and approved by the Registrant’s stockholders on December 7, 2023.

(3)	Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price with respect to the shares are calculated based on $0.33 per share, the average of the high ($0.34) and low ($0.31) prices of the Common Stock, as reported on the Nasdaq Capital Market on November 22, 2024 which is a date within five business days prior to the filing of this Registration Statement.