Registration
No. -___________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CODA
OCTOPUS GROUP, INC.
(Name
of
Small Business Issuer in its Charter)
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Delaware
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3812
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34-200-8348
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(State
or other jurisdiction of
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(Primary
Standard Industrial
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(I.R.S.
Employer
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incorporation
or organization)
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Classification
Code Number)
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Identification
No.)
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2008
INCENTIVE STOCK OPTION PLAN
2008
STOCK PURCHASE PLAN
(Full
title of Plan)
Jason
Reid
President
and Chief Executive Officer
164
West, 25th Street,
6th Floor
New
York 10001
(212)
924 3442
(Name,
address and telephone number of agent for service)
Copies
to:
Marc
J.
Ross, Esq.
Louis
A.
Brilleman, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway
New
York,
New York 10006
Tel:
(212) 930-9700
Fax:
(212) 930-9725
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Title
of Each Class of Securities to be Registered
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Amount
To Be Registered
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Proposed
Maximum
Offering
Price
Per
Share (3)
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Common
Stock, par value
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$0.001
(1)
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2,500,000
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$
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0.27
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$
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675,000
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$
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26.53
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Common
Stock, par value
$0.001
(2)
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5,000,000
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$
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0.27
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$
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1,350,000
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$
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53.06
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Total
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7,500,000
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$
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2,025,000
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$
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79.59
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_______________________
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(1)
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Issuable
pursuant to the 2008 Incentive Stock Option
Plan.
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(2)
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Issuable
pursuant to the 2008 Stock Purchase
Plan.
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(3)
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Estimated
solely for purposes of calculating the registration fee in accordance
with
Rule 457(c) under the Securities Act of 1933, using the average of
the
high and low price on the OTC Bulletin Board on August 26, 2008,
which was
$0.27 per share.
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PART
I
The
documents containing the information specified in Item 1 will be sent or given
to participants in the Plan as specified by Rule 428(b)(1) of the Securities
Act
of 1933, as amended (the "Securities Act"). Such documents are not required
to
be and are not filed with the Securities and Exchange Commission (the "SEC")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
Upon
written or oral request, any of the documents incorporated by reference in
Item
3 of Part II of this Registration Statement (which documents are incorporated
by
reference in this Section 10(a) Prospectus), other documents required to be
delivered to eligible employees, non-employee directors and consultants,
pursuant to Rule 428(b) are available without charge by contacting:
Jason
Reid
President
and Chief Executive Officer
164
West,
25th Street, 6th Floor
New
York
10001
(212)
924
3442
PART
II.
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
The
Registrant hereby incorporates by reference into this Registration Statement
the
documents listed below. In addition, all documents subsequently filed pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(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 into this Registration Statement and to be a part hereof from the
date
of filing of such documents:
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Reference
is made to Registrant's Annual Report on Form 10-KSB for the year
ended
October 31, 2007, as filed with the SEC on February 26, 2008, which
is
hereby incorporated by reference.
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Reference
is made to Registrant's Quarterly Report on Form 10-Q for the quarter
ended January 31, 2008, as filed with the SEC on March 21, 2008,
which is
hereby incorporated by reference.
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Reference
is made to Registrant's Quarterly Report on Form 10-Q for the quarter
ended April 30, 2008, as filed with the SEC on June 16, 2008, which
is
hereby incorporated by reference.
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Reference
is made to Registrant's Current Report on Form 8-K, as filed with
the SEC
on July 11, 2008, which is hereby incorporated by reference.
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Not
Applicable.
The
validity of the shares of common stock offered hereby will be passed upon for
the Registrant by Sichenzia Ross Friedman Ference LLP, 1065 Avenue of Americas,
21st
Fl., New
York, NY 10018. Marc Ross, a member of Sichenzia Ross Friedman Ference LLP,
will
receive up to 35,000 shares of common stock under this registration statement
to
be issued as compensation for legal services to be performed on behalf of the
Registrant.
Section
145 (“Section 145”) of the Delaware General Corporation Law, as amended (the
“DGCL”), permits indemnification of directors, officers, agents and controlling
persons of a corporation under certain conditions and subject to certain
limitations. Section 145 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, suit or proceeding whether civil, criminal, administrative
or
investigative, by reason of the fact that he or she is or was a director,
officer or agent of the corporation or another enterprise if serving at the
request of the corporation. Depending on the character of the proceeding, a
corporation may indemnify against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding if the person indemnified
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, with respect to
any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. In the case of an action by or in the right of the
corporation, no indemnification may 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 the
court in which such action or suit was brought shall determine that despite
the
adjudication of liability such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper. Section 145
further provides that to the extent a present or former director or officer
of a
corporation has been successful in the defense of any action, suit or proceeding
referred to above or in the 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.
Our
Amended and Restated Certificate of Incorporation, as amended (the “Charter”),
provides that no current or former director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary damages
for
breach of fiduciary duty as a director, except for liability: (a) for any breach
of the director’s duty of loyalty to the Registrant or its stockholders; (b) for
acts or omissions not in good faith or which involve intentional misconduct
or a
knowing violation of law; (c) under Section 174 of the DGCL; or (d) for any
transaction from which the director derived any improper personal benefit.
The
Registrant’s Charter also authorizes the Registrant, to the fullest extent
permitted by applicable law, to provide indemnification of, and advanced
expenses to, the Registrant’s agents and any other persons to which the DGCL
permits.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
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 Securities and Exchange 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.
Item
7. Exemption from Registration Claimed.
Not
Applicable.
Item
8. Exhibits.
| Exhibit |
Description |
| 5.1 |
Opinion of Sichenzia Ross Friedman
Ference
LLP |
| 10.1 |
2008 Incentive Stock Option Plan |
| 10.2 |
2008 Stock Purchase Plan |
| 23.1 |
Consent of Sichenzia Ross Friedman
Ference
LLP is included in Exhibit 5.1 |
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23.2
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Consent of RBSM
LLP
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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
of 1933;
(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 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table 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 (1)(i), (1)(ii) and (1)(iii) do not apply if
the
Registration Statement is on Form S-3 and 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
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
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.
(4) That,
for purposes of determining any liability under the Securities Act of 1933,
each
filing of the registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to
any
purchaser:
(A) Each
prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed prospectus
was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in
the
registration statement as of the earlier of the date such form of prospectus
is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering
thereof. Provided,
however,
that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(6)
That,
for the purpose of determining liability of a Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities,
each
undersigned Registrant undertakes that in a primary offering of securities
of an
undersigned Registrant pursuant to this registration statement, regardless
of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of an undersigned Registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of
an
undersigned Registrant or used or referred to by an undersigned Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about an undersigned Registrant or its securities provided
by or on behalf of an undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by an undersigned
Registrant to the purchaser.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
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 Securities and Exchange 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 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 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 New York, on
this August 29, 2008.
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CODA
OCTOPUS GROUP, INC.
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By:
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/s/
Jason
Lee Reid
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Jason
Lee Reid
Chief
Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Jason Lee Reid his true and lawful attorney-in-fact
and
agent, with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and any
subsequent registration statements pursuant to Rule 462 of the Securities Act
of
1933 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 and agent full power and authority to do and perform
each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that attorney-in-fact or his
substitute or substitutes, 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.
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Signature
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Title
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Date
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| /s/ |
Jason
Lee Reid
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Director
and Chief Executive Officer
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August
29, 2008
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(Principal
Executive Officer)
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| /s/ |
Jody
Frank
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Chief
Financial Officer
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August
29, 2008
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(Principal
Financial and Accounting Officer)
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| /s/
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Paul
Nussbaum
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Chairman
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August
29, 2008
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Rodney
Peacock
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Director
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/s/
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Frank
Moore
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Director
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August
29, 2008
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Faith
Griffin
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Director
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