As filed with the Securities and Exchange Commission on August 2, 2010
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 incorporation or organization) |
(I.R.S. Employer Identification No.) |
11 Studebaker, Irvine, CA 92618
(Address of principal executive offices)
(949) 595-7200
(Registrant’s telephone number, including area code)
2006 STOCK INCENTIVE PLAN
(Full Title of the plans)
|
John McDermott President and Chief Executive Officer Endologix, Inc. 11 Studebaker Irvine, CA 92618 (949) 595-7200 (Name, address and telephone number of agent for service) |
Copy to:
Michael A. Hedge, Esq. K&L Gates LLP 1900 Main Street Suite 600 Irvine, CA 92614 Telephone: (949) 253-0900 Facsimile: (949) 253-0902 |
|
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 definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
(Check one):
| Large accelerated filer | ¨ | Accelerated filer | x | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered |
Amount to be Registered (1) |
Proposed Maximum
Offering Price
|
Proposed
Aggregate
|
Amount of Registration Fee |
||||||||||
|
Common Stock, par value $0.001 per share |
1,700,000 shares | $4.70 | $7,990,000 | $ 570.00 | ||||||||||
| (1) | This Registration Statement also covers an indeterminate number of shares of Common Stock which may be issuable by reason of stock splits, stock dividends or similar transactions pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”). |
| (2) | Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(h)(1) under the Securities Act, on the basis of the price of securities of the same class, as determined in accordance with Rule 457(c) under the Securities Act, using the average of the high and low prices reported by the Nasdaq Global Market for our common stock on July 29, 2010, which was $4.70 per share. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement relates to the Endologix, Inc. (referred to herein as the “Company”) 2006 Stock Incentive Plan (the “2006 Plan”). This registration statement covers an increase of the authorized number of shares of the Company’s common stock purchasable under the 2006 Plan by 1,700,000 shares, which was approved by the Company’s board of directors on April 16, 2010 and subsequently approved by the Company’s stockholders at the Company’s Annual Meeting held on May 20, 2010.
| Item 3. | Incorporation of Documents by Reference. |
Pursuant to Instruction E to Form S-8, the contents of the Registrant’s Registration Statements on Form S-8 (Registration Nos. 333-136370 and 333-152774), which have been filed by the Registrant with the Securities and Exchange Commission, are incorporated herein by reference.
| Item 8. | Exhibits. |
See Exhibit Index below.
2
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 this 2nd day of August, 2010.
| ENDOLOGIX, INC. | ||
| By: |
/s/ J OHN M C D ERMOTT |
|
| John McDermott | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY
We, the undersigned directors and officers of Endologix, Inc., do hereby constitute and appoint John McDermott and Robert J. Krist, or either of them, our true and lawful attorneys and agents, to do any and all acts and things in our name and behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission, in connection with this registration statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names and in the capacities indicated below, any and all amendments (including post-effective amendments) to this registration statement, or any related registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended; and we do hereby ratify and confirm all that the said attorneys and agents, or either of them, shall 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.
|
Names |
Title |
Date |
||
|
/s/ J OHN M C D ERMOTT |
President and Chief Executive Officer
|
August 2, 2010 | ||
| John McDermott | ||||
|
/s/ R OBERT J. K RIST |
Chief Financial Officer and Secretary (Principal Financial and Accounting Officer) |
August 2, 2010 | ||
| Robert J. Krist | ||||
|
/s/ F RANKLIN D. B ROWN |
Chairman of the Board | August 2, 2010 | ||
| Franklin D. Brown | ||||
|
/s/ R ODERICK DE G REEF |
Director | August 2, 2010 | ||
| Roderick de Greef | ||||
|
/s/ G REGORY D. W ALLER |
Director | August 2, 2010 | ||
| Gregory D. Waller | ||||
|
/s/ T HOMAS C. W ILDER , III |
Director | August 2, 2010 | ||
| Thomas C. Wilder, III | ||||
|
/s/ J EFFREY F. O’D ONNELL |
Director | August 2, 2010 | ||
| Jeffrey F. O’Donnell | ||||
|
/s/ D ANIEL L EMAITRE |
Director | August 2, 2010 | ||
| Daniel Lemaitre | ||||
3
EXHIBIT INDEX
4
Exhibit 5.1
[K&L GATES LETTERHEAD]
July 30, 2010
Endologix, Inc.
11 Studebaker
Irvine, California 92618
Ladies and Gentlemen:
We have acted as your counsel in connection with the Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission under the Securities Act of 1933 (the “1933 Act”) for the registration of 1,700,000 shares (the “Shares”) of Common Stock, par value $0.001 per share, of Endologix, Inc., a Delaware corporation, reserved for issuance under the Endologix, Inc. 2006 Stock Incentive Plan, as amended (the “Plan”).
You have requested our opinion as to the matters set forth below in connection with the Registration Statement. For purposes of rendering that opinion, we have examined the Registration Statement, the Company’s Certificate of Incorporation, as amended, Bylaws, as amended, the Plan, and the corporate actions of the Company that provide for the adoption of the Plan, the reservation of the Shares for issuance by the Company thereunder, and we have made such other investigation as we have deemed appropriate. We have examined and relied upon certificates of public officials and, as to certain matters of fact that are material to our opinion, we have also relied on a certificate of an officer of the Company. In rendering our opinion, we also have made the assumptions that are customary in opinion letters of this kind. We have not verified any of those assumptions.
Our opinion set forth below is limited to the law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that the Shares are duly authorized for issuance by the Company and, when issued and paid for in accordance with the terms of the respective awards granted under and governed by the Plan and the Registration Statement, will be validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving our consent we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations thereunder.
| Yours truly, |
| /s/ K&L Gates LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 5, 2010 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Endologix, Inc’s Annual Report on Form 10-K for the year ended December 31, 2009.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Irvine, California
July 30, 2010