(Name, address and telephone number, including
area code, of agent for service)
Michelle L. Basil, Esq.
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the
definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act.
Part II
Information Required in Registration
Statement
Item 3. Incorporation
of Documents by Reference
The
following documents are hereby incorporated by reference in this Registration Statement:
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(a)
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The prospectus filed by Ekso Bionics Holdings, Inc. (the “Registrant”) pursuant to Rule 424(b) filed with the Securities
and Exchange Commission (the "Commission") on June 24, 2014, which contains audited consolidated financial statements
for the most recent fiscal year for which such statements have been filed.
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(b)
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The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended December 31, 2013, March 31, 2014 and
June 30, 2014, filed on February 19, 2014, May 13, 2014 and August 8, 2014, respectively, and the Registrant's Current Reports
on Form 8-K and amendments thereto, filed on January 23, 2014, January 28, 2014, January 31, 2014, February 7, 2014, March
31, 2014, May 8, 2014 and August 7, 2014
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(c)
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The description of the Registrant's Common Stock contained in its Registration Statement on Form S-1, filed with the Commission
on May 7, 2014, including any amendments or reports filed for the purpose of updating that description.
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All
documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof
and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which
deregisters the securities covered hereby then remaining unsold shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective dates on which such documents are filed.
Item 6. Indemnification of Directors and Officers
Nevada Revised Statutes (NRS) Sections
78.7502 and 78.751 allow a corporation to indemnify its directors, officers, employees and agents. The person entitled
to indemnification must have conducted himself in good faith, and must reasonably believe that his conduct was in, or not opposed
to, the Registrant’s best interests. In a criminal action, the director, officer, employee or agent must not have
had reasonable cause to believe that his conduct was unlawful.
Under NRS Section 78.751, advances for
expenses may be made by agreement if the director or officer affirms in writing that he or she has met the standards for indemnification
and will personally repay the expenses if it is determined that such officer or director did not meet those standards.
The Registrant’s By-Laws state that
the Registrant shall indemnify every (i) present or former director, officer, employee or agent of the Registrant and (ii) any
person who served at the Registrant’s request as a director, officer, member, manager, partner, trustee, fiduciary, employee
or agent of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise
(each an “Indemnitee”).
The Registrant’s By-Laws provide
that the Registrant shall indemnify an Indemnitee against expenses, including attorneys’ fees and disbursements, and costs
(and in connection with a proceeding other than a proceeding by or in the right of the Registrant, judgments, fines and amounts
paid in settlement) actually and reasonably incurred by such person in connection with any proceeding in which such Indemnitee
was, is or is threatened to be named as defendant or respondent, or in which he was or is a witness without being named a defendant
or respondent, by reason, in whole or in part, of his serving or having served, or having been nominated or designated to serve,
if it is determined that the Indemnitee (a) conducted himself in good faith and in a manner which such Indemnitee reasonably believed
to be in or not opposed to the Registrant’s best interests, or with respect to any criminal proceeding, had no reasonable
cause to believe that his conduct was unlawful or (b) is not liable pursuant to NRS Section 78.138; provided, however, that in
the event that an Indemnitee is found liable to the Registrant, the Registrant will have no obligation to indemnify such Indemnitee
unless, and only to the extent that the court in which such action or suit was brought or other court of competent jurisdiction
determines that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses and costs as a court of competent jurisdiction or such other court shall deem proper. The By-Laws provide that the termination
of any proceeding by judgment, order, settlement or conviction, or on a plea of nolo contendere or its equivalent, is not of itself
determinative that the Indemnitee did not meet the requirements set forth in clauses (a) or (b) above. An Indemnitee shall be deemed
to have been found liable in respect of any claim, issue or matter only after the Indemnitee shall have been so adjudged by a court
of competent jurisdiction after exhaustion of all appeals therefrom.
Officers and directors of the Registrant
are covered by insurance that, with certain exceptions and within certain limitations, indemnifies them against losses and liabilities
arising from any alleged "wrongful act," including any alleged error or misstatement, misleading statement, wrongful
act or omission, neglect or breach of duty, in their capacities as such. In addition, the Registrant has entered into Indemnification
Agreement with each of its directors and executive officers pursuant to which the Registrant has contractually agreed to indemnify
such director or officer on substantially the same terms as set forth in the By-Laws.
Item 8. Exhibits
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Exhibit No.
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Description
of Exhibit
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4.1
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Articles of Incorporation of the Registrant
(incorporated by reference from the Registrant’s Registration Statement on Form S-1 filed on May 8, 2012)
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4.2
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Certificate of Amendment of Articles of Incorporation of the Registrant
(incorporated by reference from the Registrant’s Current Report on Form 8-K filed on January 23, 2014)
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5.1*
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Opinion of Nutter, McClennen & Fish, LLP.
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23.1*
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Consent of Nutter, McClennen & Fish, LLP (included in Exhibit 5.1).
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23.2*
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Consent of OUM & CO LLP.
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24.1*
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Power of Attorney (included in the signature page to this Registration Statement).
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99.1
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The Registrant’s 2014 Equity Incentive Plan
(incorporated by reference from the Registrant’s Current Report on Form 8-K filed on January 23, 2014)
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99.2
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Form of Director Option Agreement under 2014 Equity Incentive Plan
(incorporated by reference from the Registrant’s Current Report on Form 8-K filed on January 23, 2014)
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99.3
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Form of Employee Option Agreement under 2014 Equity Incentive Plan
(incorporated by reference from the Registrant’s Current Report on Form 8-K filed on January 23, 2014)
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*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;
(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 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 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 (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 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.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below hereby constitutes and appoints Nathan Harding and Max Scheder-Bieschin, or either one
of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person
and in his or her name, place and stead, in any and all capacities, to sign any or all further amendments or supplements (including
post-effective amendments filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended) to this registration statement
and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said
attorney-in-fact and agent or either one of them 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 as to all intents and purposes as she might or could do in person,
hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or any of them, or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated.
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Signatures
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Title
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Date
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/s/ Steven Sherman
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Director and Chairman of the Board
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August 25, 2014
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Steven Sherman
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/s/ Nathan Harding
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Director and Chief Executive Officer
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August 25, 2014
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Nathan Harding
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(principal executive officer)
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/s/ Daniel Boren
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Director
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August 25, 2014
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Daniel Boren
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/s/ Marilyn Hamilton
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Director
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August 25, 2014
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Marilyn Hamilton
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/s/ Jack Peurach
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Director
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August 25, 2014
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Jack Peurach
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/s/ Max Scheder-Bieschin
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Chief Financial Officer
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August 25, 2014
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Max Scheder-Bieschin
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(principal financial and accounting officer)
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