As filed with the Securities and Exchange Commission on November 7, 2017
Registration No. 333-______

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_______________
ENDOLOGIX, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware
68-0328265
(State or other jurisdiction of
(I.R.S. Employer
incorporation or organization)
Identification Number)

2 Musick
Irvine, California 92618
(Address of Principal Executive Offices; Zip Code)
        
Endologix, Inc. 2017 Inducement Stock Incentive Plan
(Full Title of the Plan)

John McDermott
Chief Executive Officer
Endologix, Inc.
2 Musick
Irvine, California 92618
(949) 595-7200
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)

Copies to:
Lawrence B. Cohn
Michael L. Lawhead
Stradling Yocca Carlson & Rauth
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 þ
 
 
 
Accelerated filer o
Non-accelerated filer o
 
(Do not check if a smaller reporting company)

 
Smaller reporting company o
 
 
 
 
Emerging growth company o
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. 
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be
Registered
Amount to be Registered
 
Proposed Maximum Offering
Price Per Share
Proposed Maximum
Aggregate Offering Price
Amount of Registration Fee
Common Stock, par value $0.001 per share

2,000,000
(1)
$5.35(2)
$10,690,000(2)
$1,330.91

(1)
Consists of shares of common stock, par value $0.001 per share (“Common Stock”), of Endologix, Inc. (the “Registrant”), issuable upon the exercise of options or pursuant to the issuance of other stock-based awards which may hereafter be granted under the Endologix, Inc. 2017 Inducement Stock Incentive Plan (the “Plan”). The maximum number of shares which may be issued upon the exercise of options or pursuant to the issuance of other stock-based awards granted under the Plan is subject to adjustment in accordance with certain anti-dilution and other provisions of the Plan. Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement covers, in addition to the number of shares stated above, an indeterminate number of shares which may be subject to grant or otherwise issuable upon the operation of any such anti-dilution and other provisions of the Plan.

(2)
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 based on the average of the high and low sale prices per share of the Common Stock on The Nasdaq Global Select Market as of a date (October 31, 2017) within five business days prior to filing this registration statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given to the individuals who participate in the Endologix, Inc. 2017 Inducement Stock Incentive Plan in accordance with Rule 428(b)(1) under 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 “Commission”), either as part of this registration statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of 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 Endologix, Inc. (the “Registrant”) with the Commission, are incorporated by reference in this registration statement (excluding any portions of such documents that have been “furnished” but not “filed” for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)):.
•
the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed with the Commission on March 1, 2017, and the portions of the Registrant’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on May 1, 2017, incorporated by reference into the Registrant’s Annual Report on Form 10-K;

•
the description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A, filed with the Commission on June 18, 1996, including any amendment or report filed for the purpose of updating such description; and

•
all other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report on Form 10-K referred to above.


All documents that the Registrant subsequently files under 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 in this registration statement and to be a part hereof from the date of filing of such documents (excluding any portions of such documents that have been “furnished” but not “filed” for purposes of the Exchange Act). 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 applicable.
Item 5.      Interests of Named Experts and Counsel.
Not applicable.
Item 6.      Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware 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, employee 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 attorney’s 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 in 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, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses that 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 defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorney’s fees) actually and reasonably incurred by him or her in connection therewith.
The Registrant’s restated certificate of incorporation, as amended, limits, to the maximum extent permitted by Delaware law, the personal liability of directors for monetary damages for breach of their fiduciary duties as a director. The Registrant’s amended and restated bylaws provide that the Registrant shall indemnify its officers and directors and may indemnify its employees and other agents to the fullest extent permitted by Delaware law.
The Registrant’s directors and officers are covered by insurance policies indemnifying against certain liabilities, including certain liabilities arising under the Securities Act, which might be incurred by them in such capacities and against which they cannot be indemnified by the Registrant. The Registrant has entered into indemnification agreements with all of its executive officers and directors which provide indemnification under certain circumstances for acts and omissions in the course of their employment with the Registrant.
Item 7.      Exemption from Registration Claimed.
Not applicable.
Item 8.      Exhibits.
Exhibit Number
Exhibit
Amended and Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q, File No. 000-28440, filed on August 5, 2016).

Amended and Restated Bylaws, as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, File No. 000-28440, filed on December 14, 2010).

4.3
Specimen Certificate of Common Stock (incorporated by reference to Exhibit 4.1 to Amendment No. 2 to the Registrant’s Registration Statement on Form S-1, No. 333-04560, filed on June 10, 1996).


Updated Specimen Certificate of Common Stock effective as of May 22, 2014 (incorporated by reference to Exhibit 4.1.1 to the Registrant’s Annual Report on Form 10-K, File No. 000-28440, filed on March 2, 2015).

Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation.

Consent of KPMG LLP, Independent Registered Public Accounting Firm.

Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (contained in Exhibit 5.1).

Power of Attorney (included on the signature page to this registration statement).
Endologix, Inc. 2017 Inducement Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, File No. 171160540, filed on October 30, 2017).


+ Filed herewith









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 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) ; 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 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.
(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.
(b)    The undersigned Registrant hereby undertakes 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 section 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.
(c)    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 Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 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 the 7th day of November, 2017.
ENDOLOGIX, INC.
By: /s/ John McDermott     
John McDermott
Chief Executive Officer

POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints John McDermott and Vaseem Mahboob, 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 of Endologix, 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 date indicated.
Signature
Title
Date
 
 
 
/s/ John McDermott
John McDermott
Chief Executive Officer
(Principal Executive Officer)
November 7, 2017
 
 
 
/s/ Vaseem Mahboob
Vaseem Mahboob
Chief Financial Officer
(Principal Financial and Accounting Officer)
November 7, 2017
 
 
 
/s/ Thomas F. Zenty, III
Thomas F. Zenty, III
Director
November 7, 2017
 
 
 
/s/ Daniel Lemaitre
Daniel Lemaitre
Chairman of the Board
November 7, 2017
 
 
 
/s/ Guido J. Neels
Guido J. Neels
Director
November 7, 2017
 
 
 
/s/ Gregory D. Waller
Gregory Waller
Director
November 7, 2017
 
 
 
 /s/ Thomas C. Wilder, III
Thomas C. Wilder, III
Director
November 7, 2017
 
 
 
 /s/ Leslie V. Norwalk
Leslie V. Norwalk
Director
November 7, 2017
 
 
 
/s/ Christopher G. Chavez
Christopher G. Chavez
Director
November 7, 2017


Exhibit 5.1


 
Stradling Yocca Carlson & Rauth, P.C.
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660-6422
sycr.com
CALIFORNIA
NEWPORT BEACH
SACRAMENTO
SAN DIEGO
SAN FRANCISCO
SANTA BARBARA
SANTA MONICA
COLORADO
DENVER
NEVADA
RENO
WASHINGTON
SEATTLE
November 7, 2017
Endologix, Inc.
2 Musick
Irvine, California 92618     
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 Endologix, Inc., a Delaware corporation (the “ Company ”), of a Registration Statement on Form S-8 (the “ Registration Statement ”) with the Securities and Exchange Commission (the “ Commission ”) on November 7, 2017 covering the offering of up to 2,000,000 shares of the Company’s common stock, par value $0.001 per share (the “ Common Stock ”), pursuant to the Endologix, Inc. 2017 Inducement Stock Incentive Plan (the “ 2017 Plan ”). The shares of the Common Stock that may be issued pursuant to the 2017 Plan are 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 2017 Plan, 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 and any amendments thereto. 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, P.C.
                    
/s/ Stradling Yocca Carlson & Rauth, P.C.

Exhibit 23.1


    
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Endologix, Inc.:

We consent to the use of our reports with respect to the consolidated financial statements, the related consolidated financial statement schedule and the effectiveness of internal control over financial reporting, incorporated by reference herein.

Our report on the effectiveness of internal control over financial reporting contains an explanatory paragraph that states management of Endologix, Inc. excluded from its assessment of the effectiveness of internal control over financial reporting as of December 31, 2016, TriVascular Technologies, Inc.’s internal control over financial reporting. Our audit report also excludes an evaluation of the internal control over financial reporting of TriVascular Technologies, Inc.

/s/ KPMG LLP
Irvine, California
November 7, 2017