As filed with the Securities and Exchange Commission on May 3, 2019.
Registration No.  333-


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
APOLLO ENDOSURGERY, INC.
(Exact name of Registrant as specified in its charter)
 
Delaware
 
 
16-1630142
(State or other jurisdiction of
incorporation or organization)
 
 
(I.R.S. Employer
Identification No.)
1120 S. Capital of Texas Highway
Building 1, Suite #300
Austin, Texas 78746
(Address, including zip code, of principal executive offices)
(512) 279-5100
(Registrant’s telephone number, including area code)
Apollo Endosurgery, Inc.
2017 Equity Incentive Plan
(Full Title of the Plans)
Todd Newton
Chief Executive Officer
1120 S. Capital of Texas Highway
Building 1, Suite #300
Austin, Texas 78746
(512) 279-5100
(Name, address, including zip code and telephone number, including area code, of agent for service)
Copies to:
Mark B. Weeks
John T. McKenna
Josh Seidenfeld
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94304
(650) 843-5000
 

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 ¨
Accelerated filer ý
Non-accelerated filer ¨  
Smaller reporting company ý
Emerging growth company ¨
 
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 on following page)



CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
Amount to be Registered (1)
Proposed Maximum Offering Price per Share
Proposed Maximum Aggregate Offering Price
Amount of Registration Fee
Common Stock, $0.001 par value per share
875,980 (2)
$3.43 (3)
$3,004,611.40
$364.16

(1)
Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, (the “Securities Act”) this Registration Statement shall also cover any additional shares of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”) that become issuable under the Apollo Endosurgery, Inc. 2017 Equity Incentive Plan (the "2017 Plan") by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Registrant's Common Stock.
(2)
Represents 875,980 additional shares of Common Stock reserved for future issuance under the 2017 Plan by reason of the annual increase provisions of the 2017 Plan. The number of shares reserved for issuance under the 2017 Plan will automatically increase on January 1st each year by the lesser of (a) an amount equity to four percent (4%) of the total number of shares of Common Stock outstanding on December 31st of the preceding calendar year, and (b) a lesser number determined by the Registrant's board of directors.
(3)
Estimated in accordance with Rules 457(c) and (h) solely for the purpose of calculating the registration fee on the basis of $3.43 per share, the average of the high and low prices of the Common Stock as reported on The Nasdaq Global Market on April 26, 2019, a date that is within five business days prior to the date on which this Registration Statement is being filed.




EXPLANATORY NOTE
Apollo Endosurgery, Inc. (the “Company”) is filing this Registration Statement on Form S-8 for the purpose of registering an additional 875,980 shares of Common Stock under the Apollo Endosurgery, Inc. 2017 Equity Incentive Plan, which shares are in addition to the shares of Common Stock registered on the Company’s Registration Statements on Form S-8 filed on March 6, 2018 (File No. 333-233461) and June 15, 2017 (File No. 333-218773) (together, the “Prior Forms S-8”).
In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8. Pursuant to General Instruction E to Form S-8, the contents of the Prior Forms S-8 are incorporated herein by reference and made a part hereof.
PART II
ITEM 3. Incorporation of Certain Documents by Reference
Pursuant to General Instructions E to Form S-8, the contents of the Prior Form S-8 are incorporated by reference.
The following documents filed by the Company with the Securities and Exchange Commission (the “SEC”) are incorporated by reference into this Registration Statement:
(a) the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on March 18, 2019 (File No. 001-35706), as amended on May 3, 2019;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, filed with the SEC on May 2, 2019 (File No. 001-35706);
(c) the Company’s Current Report on Form 8-K (other than information furnished rather than filed) filed with the SEC on March 5, 2019, March 27, 2019 and April 4, 2019 (as amended on April 16, 2019) (File No. 001-35706);
(d) the description of the Company’s Common Stock, which is registered under Section 12 of the Exchange Act of 1934, as amended, (the "Exchange Act") in the registration statement on Form 8-A12B/A, filed with the SEC on October 31, 2012 (File No. 001-35706); and
(e) all other reports and documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement 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 herein and to be a part of this Registration Statement from the date of the filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.



ITEM 8. Exhibits
Exhibit No.
 
Exhibit Description
 
Schedule / Form
 
File Number
 
Exhibit
 
Filing Date
4.1
 
 
8-K
 
001-35706
 
3.1
 
June 13, 2017
4.2
 
 
8-K
 
001-35706
 
3.2
 
June 13, 2017
4.3
 
 
10-Q
 
001-35706
 
4.1
 
May 4, 2017
5.1*
 
 
 
 
 
 
 
 
 
23.1*
 
 
 
 
 
 
 
 
 
23.2*
 
Consent of Cooley LLP (included in Exhibit 5.1)
 
 
 
 
 
 
 
 
24.1*
 
Power of Attorney (included on the signature page of this Form S-8)
 
 
 
 
 
 
 
 
99.1
 
 
8-K
 
001-35706
 
10.1
 
June 13, 2017
99.2
 
 
8-K
 
001-35706
 
10.2
 
June 13, 2017
99.3
 
 
8-K
 
001-35706
 
10.3
 
June 13, 2017
 ____________

*Filed herewith.





Signatures
Pursuant to the requirements of the Securities Act, 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 Austin, State of Texas, on the 3rd day of May, 2019.

 
 
 
APOLLO ENDOSURGERY, INC.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
By:
/s/ Todd Newton
 
 
 
 
Name:
Todd Newton
 
 
 
 
Title:
Chief Executive Officer
 




Power of Attorney

Know All Persons By These Presents , that each person whose signature appears below constitutes and appoints Todd Newton and Stefanie Cavanaugh, as his or her true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
 
Title
 
Date
 
 
 
 
 
/s/ Todd Newton
 
Chief Executive Officer and Director
 
May 3, 2019
Todd Newton
 
(Principal Executive Officer)
 
 
 
 
 
 
 
/s/ Stefanie Cavanaugh
 
Chief Financial Officer, Treasurer and Secretary
 
May 3, 2019
Stefanie Cavanaugh
 
(Principal Financial Officer)
 
 
 
 
 
 
 
/s/ Chrissy Citzler-Carr
 
Controller
 
May 3, 2019
Chrissy Citzler-Carr
 
(Principal Accounting Officer)
 
 
 
 
 
 
 
/s/ Richard J. Meelia
 
Chairman of the Board
 
May 3, 2019
Richard J. Meelia
 
 
 
 
 
 
 
 
 
/s/ Rick Anderson
 
Director
 
May 3, 2019
Rick Anderson
 


 
 




Signature
 
Title
 
Date
 
 
 
 
 
/s/ Matthew S. Crawford
 
Director
 
May 3, 2019
Matthew S. Crawford
 
 
 
 
 
 
 
 
 
/s/ William D. McClellan, Jr.
 
Director
 
May 3, 2019
William D. McClellan, Jr.
 
 
 
 
 
 
 
 
 
/s/ R. Kent McGaughy, Jr.
 
Director
 
May 3, 2019
R. Kent McGaughy, Jr.
 
 
 
 
 
 
 
 
 
/s/ David C. Pacitti
 
Director
 
May 3, 2019
David C. Pacitti
 
 
 
 
 
 
 
 
 
/s/ Bruce Robertson, Ph.D.
 
Director
 
May 3, 2019
Bruce Robertson, Ph.D.
 
 
 
 
 
 
 
 
 
/s/ Julie Shimer, Ph.D.
 
Director
 
May 3, 2019
Julie Shimer, Ph.D.
 
 
 
 
 
 
 
 
 
/s/ John Barr
 
Director
 
May 3, 2019
John Barr
 
 
 
 




Exhibit 5.1 and 23.2

COOLEYLOGORED2015RGBA02.JPG     

May 3, 2019
Josh Seidenfeld
T: +1 650 843 5862
jseidenfeld@cooley.com
Apollo Endosurgery, Inc.
1120 S. Capital of Texas Highway
Building 1, Suite 300
Austin, Texas, 78746
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection with the filing by Apollo Endosurgery, Inc. (the “ Company ”) of a Registration Statement on Form S‑8 (the “ Registration Statement ”) with the Securities and Exchange Commission covering the offering of up to an aggregate of 875,980 shares of the Company’s Common Stock, $0.001 par value, (the “ Shares ”) pursuant to the Apollo Endosurgery, Inc. 2017 Equity Incentive Plan (the “ Plan ”).
In connection with this opinion, we have examined the Registration Statement and related prospectus, the Plan, your Certificate of Incorporation, as amended and restated, and Bylaws, as amended and restated, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought to independently verify such matters.
Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and related prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
Cooley LLP
By: /s/ Josh Seidenfeld
Josh Seidenfeld

Cooley LLP 3175 Hanover Street Palo Alto, CA 94304-1130
t: (650) 843-5000 f: (650) 849-7400 cooley.com





Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors
Apollo Endosurgery, Inc.:

We consent to the use of our reports dated March 18, 2019, with respect to the consolidated balance sheets of Apollo
Endosurgery, Inc. and subsidiaries as of December 31, 2018 and 2017, the related consolidated statements of
operations and comprehensive loss, changes in stockholders’ equity, and cash flows for each of the years then
ended, and the related notes, and the effectiveness of internal control over financial reporting as of December 31, 2018, incorporated by reference herein.

Our report dated March 18, 2019, on the effectiveness of internal control over financial reporting as of December
31, 2018, expresses our opinion that Apollo Endosurgery, Inc. did not maintain effective internal control over
financial reporting as of December 31, 2018 because of the effect of a material weakness on the achievement of the objectives of the control criteria and contains an explanatory paragraph that states the material weakness related to the transition in-house of the sales order to cash process (which includes revenue and accounts receivable) from a third-party service provider, where the Company’s risk assessment was not sufficient, and therefore ineffective, to ensure controls were designed and implemented to respond to the risks in the transition and sufficient resources were not available to implement the transition in the requisite timeframe. Additionally, the communication of objectives and responsibilities for internal controls related to the transition was insufficient, and therefore ineffective. As a result, we identified control deficiencies over the verification of sales orders including price change approvals, the approval of credit memos and the verification of the application of cash to individual customer account balances.


/s/ KPMG LLP

Austin, Texas
May 2, 2019