As filed with the Securities and Exchange Commission on March 7, 2024
    REGISTRATION NO. 333 -
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
    
FORM S-8
REGISTRATION STATEMENT
under the
SECURITIES ACT OF 1933
    
DERMTECH, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware84-2870849
(State or Other Jurisdiction
(I.R.S. Employer
of Incorporation or Organization)
Identification No.)

12340 El Camino Real
San Diego, CA 92130
(Address, Including Zip Code, of Principal Executive Offices)

DermTech, Inc. 2020 Equity Incentive Plan
DermTech, Inc. 2020 Employee Stock Purchase Plan
(Full Title of the Plan)
Kevin Sun
Chief Financial Officer
DermTech, Inc.
12340 El Camino Real
San Diego, CA 92130
(858) 450-4222
(Name, Address and Telephone Number, Including
Area Code, of Agent For Service)
    
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 definition of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated fileroAccelerated filero
Non-accelerated filerxSmaller reporting companyx
Emerging growth companyo
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 registers (i) an aggregate of 1,726,233 shares of common stock, par value $0.0001 per share (“Common Stock”) of DermTech, Inc. (the “Registrant”) reserved for issuance under the DermTech, Inc. 2020 Equity Incentive Plan (the “Awards Plan”), representing an increase in the number of shares reserved under the Awards Plan effective January 1, 2024 by operation of the Awards Plan’s “evergreen” provision, and (ii) an aggregate of 300,000 additional shares of Common Stock reserved under the DermTech, Inc. 2020 Employee Stock Purchase Plan (the “Purchase Plan”), representing an increase in the number of shares reserved under the Purchase Plan effective January 1, 2024 by operation of the Purchase Plan’s “evergreen” provision. Solely with respect to the Common Stock reserved for issuance under the Awards Plan and under the Purchase Plan, this Registration Statement registers additional securities of the same class as other securities for which registration statements filed on Form S-8 of the Registrant relating to an employee benefit plan is effective (File Nos. 333-270265, 333-263484, 333-239232, and 333-256464). The information contained in the Registrant’s registration statements on Form S‑8 (File Nos. 333-270265, 333-263484, 333‑239232, and 333-256464) is hereby incorporated by reference pursuant to General Instruction E of Form S-8.


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”) are incorporated herein by reference:
•our Annual Report on Form 10-K for the year ended December 31, 2023 filed with the Commission on February 29, 2024;

•our Current Report on Form 8-K filed with the Commission on January 31, 2024 (except for the information furnished under Items 2.02 or 7.01 and the exhibits thereto); and

•the description of our common stock contained in Exhibit 4.12 of our Annual Report on Form 10-K for the year ended December 31, 2023 filed with the Commission on February 29, 2024;, and any amendment or report filed with the Commission for the purpose of updating such description.

All reports and other documents filed by the Registrant with the Commission after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby 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 hereof from the respective dates of filing of such reports and documents, (the “Incorporated Documents”).

Any statement contained herein or in any Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed Incorporated Document 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.
None.

Item 6. Indemnification of Directors and Officers.
Registrant’s existing certificate of incorporation, as amended to date, or the Amended and Restated Certificate of Incorporation, provides that the Registrant shall indemnify its directors and officers, provided that they have acted in good faith and in a manner which they reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful.
This indemnity shall not extend to a suit by or in the right of the Registrant in which any director or officer has been adjudged to be liable to the Registrant, unless and to the extent that the court making such adjudication determines that the director or officer in question is fairly and reasonably entitled to indemnity for expenses that the court deems proper.
The Registrant shall not indemnify any director or officer in respect of a proceeding initiated by such director or officer unless such proceeding was authorized by the Registrant’s board of directors.
Any indemnification of its directors or officers by the Registrant is conditioned on the director or officer in question notifying the Registrant in writing as soon as possible of any proceeding for which indemnity will or could be sought, unless the Registrant has confirmed to the director or officer that it is aware of such proceeding. The Registrant may elect to participate in or assume the defense of any such proceeding at its own expense. The


Registrant shall not be required to indemnify for any amounts paid in settlement without its written consent, which consent will not be unreasonably withheld.
Any indemnified director or officer will have the right to advancement of expenses upon the Registrant’s receipt of written notice therefor and an undertaking by or on behalf of any such director or officer to repay all amounts advanced if it shall ultimately be judicially determined that such person is not entitled to be indemnified.
The Registrant shall not indemnify any director or officer to the extent such director or officer is reimbursed from the proceeds of insurance. In the event the Registrant makes any indemnification payments and the director or officer in question is subsequently reimbursed from the proceeds of insurance, such director or officer shall promptly refund the Registrant to the extent of such insurance reimbursement.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”), may be permitted to our directors, officers and controlling persons pursuant to the foregoing, or otherwise, we have 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 us of expenses incurred or paid by a director, officer or controlling person of ours 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, we will, unless in the opinion of our 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.

Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as a part of or incorporated by reference into this Registration Statement:


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, represents 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% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective Registration Statement.
(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 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 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.
(h)    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
The Registrant. 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 San Diego, California on March 7, 2024.
DERMTECH, INC.
By: /s/ Kevin Sun    
    Name: Kevin Sun
    Title: Chief Financial Officer
Each person whose signature appears below constitutes and appoints Bret Christensen and Kevin Sun, and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of DermTech, Inc., and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to the attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the attorneys-in-fact and agents or any of each of them or their 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 dates indicated.

SignatureTitleDate
/s/ Bret Christensen
Bret Christensen
Chief Executive Officer and Director
(Principal Executive Officer)
March 7, 2024
/s/ Kevin Sun
Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
March 7, 2024
Kevin Sun
/s/ Mark Capone
Mark Capone
DirectorMarch 7, 2024
/s/ Cynthia Collins
Cynthia CollinsDirectorMarch 7, 2024
/s/ Nathalie Gerschtein Keraudy
Nathalie Gerschtein KeraudyDirectorMarch 7, 2024
/s/ Kirk Malloy
Kirk MalloyDirectorMarch 7, 2024
/s/ Matthew Posard
Matthew Posard
DirectorMarch 7, 2024
/s/ Herm Rosenman
Herm RosenmanDirectorMarch 7, 2024


Exhibit 107

Calculation of Filing Fee Table
Form S-8
(Form Type)
DermTech, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security TypeSecurity Class TitleFee Calculation RuleAmount Registered(1)
Proposed Maximum
Offering Price Per Unit(4)
Maximum Aggregate
Offering Price (4)
Fee RateAmount of Registration Fee
Equity
 Common Stock, par value $0.0001 per share
457(c)
and
457(h)
1,726,233 shares (2)
$0.89$1,536,3470.0001476$226.76
Equity
 Common Stock, par value $0.0001 per share
457(c)
and
457(h)
300,000 shares (3)$0.89$267,0000.0001476$39.41
Total Offering Amounts$1,803,347$266.17
Total Fees Previously Paid—
Total Fee Offsets—
Net Fee Due$266.17

(1)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares of common stock, par value $0.0001 per share (“Common Stock”), of DermTech, Inc. (the “Registrant”), which may be subject to grant or otherwise issuable after the operation of any anti-dilution and other provisions of the Registrant’s 2020 Equity Incentive Plan (the “Awards Plan”) and The Registrants’ 2020 Employee Stock Purchase Plan (the “Purchase Plan”).

(2)Represents additional shares of Common Stock available for issuance under the Awards Plan by operation of Award Plan’s “evergreen” provision.

(3)Represents additional shares of Common Stock available for issuance under the Purchase Plan by operation of Purchase Plan’s “evergreen” provision.

(4)This calculation is made solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(c) and (h) under the Securities Act as follows: the fee is calculated on the basis of the average of the high and low sale prices per share of the Common Stock on the Nasdaq Capital Market as of a date (March 4, 2024) within five business days prior to filing this Registration Statement.



Exhibit 5.1


image_2.jpg
3580 Carmel Mountain Road
Suite 300
San Diego, CA 92130
858 314 1500
Mintz.com



March 7, 2024

DermTech, Inc.
12340 El Camino Real
San Diego, CA 92130

Ladies and Gentlemen:

We have acted as legal counsel to DermTech, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-8 (the “Registration Statement”), pursuant to which the Company is registering the issuance under the Securities Act of 1933, as amended (the “Securities Act”), of 2,026,233 shares (the “Shares”) of the Company’s common stock, $0.0001 par value per share, in accordance with the terms of the Company’s 2020 Equity Incentive Plan (the “Awards Plan”) and the Company’s 2020 Employee Stock Purchase Plan (the “Purchase Plan” and together with the Awards Plan, the “Plans”). This opinion is being rendered in connection with the filing of the Registration Statement with the Commission.

In connection with this opinion, we have examined the Company’s Amended and Restated Certificate of Incorporation and Bylaws, each as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company’s officers as we have deemed relevant; and the Registration Statement and the exhibits thereto.

In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such copies, and the truth and correctness of any representations and warranties contained therein. In addition, we have assumed that the Company will receive any required consideration in accordance with the terms of the Plans.

Our opinion expressed herein is limited to the General Corporation Law of the State of Delaware and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction.

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.

Based upon the foregoing, we are of the opinion that the Shares, when issued and delivered in accordance with the terms of the Plans will be validly issued, fully paid and non-assessable.

We understand that you wish to file this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K


promulgated under the Securities Act, and we hereby consent thereto. 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 or the rules and regulations of the Commission promulgated thereunder.

Very truly yours,

/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


Exhibit 23.1
Consent of Independent Registered Public Accounting Firm

We consent to the use of our report dated February 29, 2024, with respect to the consolidated financial statements of DermTech, Inc., incorporated herein by reference.
/s/ KPMG LLP
San Diego, California
March 7, 2024

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