As filed with the Securities and Exchange
Commission on September 25, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
Registration
Statement Under the Securities Act of 1933
Ekso Bionics
Holdings, Inc.
(Exact name of registrant as specified in
its charter)
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Nevada
(State or other jurisdiction of incorporation
or
organization)
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99-0367049
(I.R.S. Employer Identification No.)
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1414
Harbour Way, Suite 1201
Richmond,
California
(Address of Principal Executive Offices)
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94804
(Zip
Code)
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Amended
and Restated 2014 Equity Incentive Plan
(Full Title of the Plan)
Nathan Harding, CEO
Ekso Bionics Holdings, Inc.
1414 Harbour Way, Suite 1201
Richmond, CA 94804
(510) 984-1761
(Name, address and telephone number, including
area code, of agent for service)
Copy to:
Michelle L. Basil, Esq.
Nutter, McClennen & Fish, LLP
155 Seaport Boulevard
Boston, MA 02210
(617) 439-2000
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.
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Large Accelerated Filer
o
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Accelerated Filer
o
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Non-Accelerated Filer
þ
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Smaller Reporting Company
o
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Calculation
of Registration Fee
Title of securities to be
registered
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Amount to be
registered
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Proposed
maximum offering
price per share
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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 $0.001 per share
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11,590,000
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(1)
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$
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1.38
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(2)
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$
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15,994,200
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(2)
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$
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1,858.53
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(1)
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The registrant is
filing this Registration Statement to register the issuance of an additional 11,590,000 shares of Common Stock that may be issued
under the registrant’s Amended and Restated 2014 Equity Incentive Plan (the “Plan”), which shares are in addition
to 14,410,000 shares of Common Stock previously registered pursuant to a Registration Statement on Form S-8 (Registration No.
333-198357) and filed with the Securities and Exchange Commission.
This registration statement also covers an indeterminate
number of shares that may become issuable under the Plan as a result of a stock dividend, stock split, or other recapitalization
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(2)
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Estimated solely for the purpose of calculating the registration
fee pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as amended, based on the price at which options may
be exercised and where such price is not known, the average of the high and low sale prices as of September 21, 2015, which was
$1.38.
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EXPLANATORY
NOTE; INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION
STATEMENT ON FORM S-8 (NO. 333-198357)
This Registration Statement registers
additional securities of the same class as other securities for which a registration statement filed on Form S-8 relating
to Ekso Bionics Holdings, Inc.’s 2014 Equity Incentive Plan (the “Plan”) is already effective. Pursuant to Instruction
E to Form S-8, we incorporate by reference into this Registration Statement the contents of the registration statement that we
filed on Form S-8 (File No. 333-198357) with the Securities and Exchange Commission on August 25, 2014 in its entirety and
including exhibits thereto, relating to the registration of 14,410,000 shares of our Common Stock, par value $0.001 per share,
authorized for issuance under the Plan. This Registration Statement provides for the registration of an additional
11,590,000
shares of Common Stock to be issued under the Plan. These
11,590,000
shares represent an increase in the number of shares of Common Stock reserved for
issuance under the Plan, which increase was approved by the stockholders on June 10, 2015 at the 2015 Annual Meeting of Stockholders
of Ekso Bionics Holdings, Inc.
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 Annual Report on Form 10-K filed on March 19, 2015)
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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 Amended and Restated 2014 Equity Incentive Plan
(incorporated by reference from Appendix A to Registrant’s Proxy Statement on Schedule 14 filed on May 11, 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.
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 Richmond, State of California, on September 25, 2015.
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EKSO BIONICS HOLDINGS, INC.
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By:
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/s/ Nathan Harding
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Nathan Harding
Chief Executive Officer
(principal executive officer)
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By:
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/s/ Max Scheder-Bieschin
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Max Scheder-Bieschin
Chief Financial Officer (principal financial and accounting
officer)
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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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September 25, 2015
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Steven Sherman
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/s/ Nathan Harding
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Director and Chief Executive Officer
(principal executive officer)
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September 25, 2015
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Nathan Harding
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/s/ Daniel Boren
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Director
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September 25, 2015
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Daniel Boren
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/s/ Marilyn Hamilton
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Director
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September 25, 2015
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Marilyn Hamilton
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/s/ Jack Peurach
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Director
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September 25, 2015
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Jack Peurach
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/s/ Stanley Stern
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Director
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September 25, 2015
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Stanley Stern
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/s/ Amy Wendell
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Director
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September 25, 2015
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Amy Wendell
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/s/ Max Scheder-Bieschin
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Chief Financial Officer (principal financial and accounting officer)
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September 25, 2015
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Max Scheder-Bieschin
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Exhibit 5.1
September 25, 2015
114211-6
Ekso Bionics Holdings, Inc.
1414 Harbour Way South, Suite 1201
Richmond, CA 94804
Ladies and Gentlemen:
We have acted
as counsel to Ekso Bionics Holdings, Inc., a Nevada corporation (the “
Company
”), in connection with the preparation
and filing of a Registration Statement on Form S-8 (the “
Registration Statement
”) under the Securities Act of
1933, as amended (the “
Securities Act
”), relating to up to 11,590,000 shares (the “
Shares
”)
of the Company’s common stock, par value $0.001 per share, that may be issued under the Company’s Amended and Restated
2014 Equity Incentive Plan (the “
Plan
”).
We have examined
such documents and made such other investigation as we have deemed appropriate to render the opinion set forth below. As to matters
of fact material to our opinion, we have relied, without independent verification, on certificates and other inquiries of officers
of the Company. We have also relied on certificates of public officials.
The opinion expressed
below is limited to the general corporate law of the state of Nevada, the applicable provisions of the Nevada Constitution, and
reported judicial decisions interpreting these laws.
Based upon the
foregoing, we are of the opinion that the Shares have been duly authorized and, when issued, delivered, and paid for in accordance
with the Plan, the Registration Statement and the related Prospectus, will be validly issued, fully paid and nonassessable.
This opinion letter
shall be interpreted in accordance with the Legal Opinion Principles issued by the Committee on Legal Opinions of the American
Bar Association’s Business Law Section as published in 53 Bus. Law. 831 (May 1998).
We hereby consent
to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name in the prospectus constituting
a part thereof. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required
by Section 7 of the Securities Act.
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Very truly yours,
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/s/ Nutter, McClennen & Fish, LLP
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Nutter, McClennen & Fish, LLP
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EMA/MLB/MKK
Nutter
McClennen & Fish
LLP
n
Attorneys at Law
Seaport West
n
155 Seaport Blvd.
n
Boston, MA 02210-2604
n
617-439-2000
n
Fax: 617-310-9000
n
www.nutter.com