As filed with the Securities and Exchange Commission on April 30, 2020.
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)
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Delaware
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16-1630142
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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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.
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Large accelerated filer ¨
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Accelerated filer ¨
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Non-accelerated filer ý
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Smaller reporting company ý
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Emerging growth company ¨
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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
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Title of Securities to be Registered
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Amount to be Registered (1)
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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, $0.001 par value per share
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838,078 (2)
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$2.08 (3)
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$1,743,202.24
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$226.27
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(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 the Registrant’s Common Stock.
(2)Represents 838,078 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 equal 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 $2.08 per share, the average of the high and low prices of the Common Stock as reported on The Nasdaq Global Market on April 27, 2020, a date that is within five business days prior to the date on which this Registration Statement is being filed.
EXPLANATORY NOTE
In accordance with the instructional note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission (the “SEC”), 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 Forms S-8 are incorporated by reference.
The following documents filed by the Company with the SEC are incorporated by reference into this Registration Statement:
(b)the Company’s Current Reports on Form 8-K filed with the SEC on March 5, 2020 and April 20, 2020 (excluding Item 7.01 thereto) (File No. 001-35706);
(d)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
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Exhibit No.
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Exhibit Description
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Schedule / Form
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File Number
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Exhibit
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Filing Date
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4.1
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8-K
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001-35706
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3.1
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June 13, 2017
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4.2
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8-K
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001-35706
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3.2
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June 13, 2017
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4.3
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10-Q
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001-35706
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4.1
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May 4, 2017
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5.1*
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23.1*
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23.2*
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24.1*
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99.1
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8-K
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001-35706
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10.1
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June 13, 2017
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99.2
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8-K
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001-35706
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10.2
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June 13, 2017
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99.3
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8-K
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001-35706
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10.3
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June 13, 2017
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____________
*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 30th day of April, 2020.
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APOLLO ENDOSURGERY, INC.
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By:
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/s/ Todd Newton
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Name:
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Todd Newton
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Title:
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Chief Executive Officer
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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.
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Signature
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Title
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Date
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/s/ Todd Newton
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Chief Executive Officer and Director
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April 30, 2020
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Todd Newton
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(Principal Executive Officer)
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/s/ Stefanie Cavanaugh
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Chief Financial Officer, Treasurer and Secretary
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April 30, 2020
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Stefanie Cavanaugh
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(Principal Financial Officer)
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/s/ Chrissy Citzler-Carr
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Controller
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April 30, 2020
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Chrissy Citzler-Carr
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(Principal Accounting Officer)
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/s/ John Barr
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Chairman of the Board
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April 30, 2020
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John Barr
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/s/ Rick Anderson
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Director
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April 30, 2020
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Rick Anderson
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/s/ Matthew S. Crawford
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Director
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April 30, 2020
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Matthew S. Crawford
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/s/ William D. McClellan, Jr.
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Director
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April 30, 2020
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William D. McClellan, Jr.
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/s/ R. Kent McGaughy, Jr.
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Director
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April 30, 2020
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R. Kent McGaughy, Jr.
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/s/ David C. Pacitti
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Director
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April 30, 2020
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David C. Pacitti
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/s/ Bruce Robertson, Ph.D.
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Director
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April 30, 2020
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Bruce Robertson, Ph.D.
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/s/ Julie Shimer, Ph.D.
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Director
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April 30, 2020
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Julie Shimer, Ph.D.
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April 30, 2020
John McKenna
T: +1 650 843 5059
jmckenna@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., a Delaware corporation (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 838,078 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 authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified 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/ John McKenna
John McKenna
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 report dated March 26, 2020 with respect to the consolidated balance sheets of Apollo Endosurgery, Inc. and subsidiaries as of December 31, 2019 and 2018, the related consolidated statements of operations and comprehensive loss, changes in stockholders’ equity, and cash flows for the years then ended, and the related notes, incorporated by reference herein.
Our audit report dated March 26, 2020 contains an explanatory paragraph that states that the Company has suffered recurring losses from operations, cash flow deficits and debt covenant violations and has an accumulated deficit, which raise substantial doubt about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
/s/ KPMG LLP
Austin, Texas
April 30, 2020
