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United States securities and exchange commission logo
June 5, 2020
Neil A. Goldman
Executive Vice President and Chief Financial Officer
Chembio Diagnostics, Inc.
555 Wireless Blvd.
Hauppauge, NY 11788
Re: Chembio
Diagnostics, Inc.
Preliminary Proxy
Statement on Schedule 14A
Filed May 29, 2020
File No. 001-355569
Dear Mr. Goldman:
We have conducted a
targeted review of your filing and have the following comment.
Please respond to this comment within ten business days by
providing the requested
information or advise us as soon as possible when you will respond. If
you do not believe our
comments apply to your facts and circumstances, please tell us why in
your response.
After reviewing your
response to this comment, we may have additional comments.
Preliminary Proxy Statement on Schedule 14A filed June 2, 2020
Comparison of Stockholder Rights Before and After the Reincorporation
Forum Selection, page 37
1. We note the disclosure
on page 37 of the forum selection provision in your proposed
Delaware Articles of
Incorporation, and the associated provision in the Tenth paragraph of
your Articles. The
forum selection provision identifies the Court of Chancery of the State
of Delaware as the
exclusive forum for all "internal corporate claims," generally, unless
the Court of Chancery
has no jurisdiction, in which case jurisdiction shifts to the U.S.
District Court for the
District of Delaware, and if it lacks jurisdiction, to the Superior
Court of the State of
Delaware. We note you expressly provide that federal district courts
are the exclusive forum
for claims arising under the Securities Act. You do not, however,
state which court or
courts have jurisdiction over Exchange Act claims. In that regard, we
note that Section 27 of
the Exchange Act creates exclusive federal jurisdiction over all
suits brought to
enforce any duty or liability created by the Exchange Act or the rules or
regulations thereunder,
and Section 22 of the Securities Act creates concurrent jurisdiction
for federal and state
courts over all suits brought to enforce any duty or liability crated by
Neil A. Goldman
Chembio Diagnostics, Inc.
June 5, 2020
Page 2
the Securities Act or the rules or regulations thereunder. If this
provision applies to
Exchange Act claims, revise to disclose there is uncertainty as to
whether a court would
enforce such provision. If this provision does not apply to actions
arising under the
Exchange Act, please ensure that the exclusive forum provision in the
governing
documents states this clearly, or tell us how you will inform
investors in future filings that
the provision does not apply to any actions arising under the Exchange
Act. Finally,
revise to clarify that the implications of this provision being
located in your Articles of
Incorporation, which requires the affirmative vote of the holders of
two-thirds of your
outstanding shares to amend, as opposed to the bylaws, which could be
amended by the
Board of Directors.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please contact Abby Adams at (202) 551-6902 or Celeste Murphy at (202)
551-3257 with
any questions.
FirstName LastNameNeil A. Goldman Sincerely,
Comapany NameChembio Diagnostics, Inc.
Division of
Corporation Finance
June 5, 2020 Page 2 Office of Life
Sciences
FirstName LastName