Blueprint
As
filed with the Securities and Exchange Commission on August 9,
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
ENDRA LIFE SCIENCES INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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26-0579295
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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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3600 Green Court, Suite 350, Ann Arbor, MI
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48105
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(Address
of principal executive offices)
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(Zip
Code)
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ENDRA Life Sciences Inc. 2016 Omnibus Incentive Plan
(Full
title of the plan)
Francois Michelon
Chief Executive Officer
ENDRA Life Sciences Inc.
3600 Green Court, Suite 350
Ann Arbor, MI 48105
(Name
and address of agent for service)
(734) 335-0468
(Telephone
number, including area code,
of
agent for service)
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 ☒
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Smaller
reporting company ☒
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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 pursuant to
Section 7(a)(2)(B) of the Securities Act. □
CALCULATION OF
REGISTRATION FEE
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 (2)
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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, to be issued under the
Registrant’s 2016 Omnibus Incentive Plan
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1,304,304(3)
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$1.37
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$1,786,896
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$217
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(1) In
addition, pursuant to Rule 416(a), this Registration Statement also
covers such indeterminate number of additional shares of Common
Stock as is necessary to eliminate any dilutive effect of any
future stock split, stock dividend or similar
transaction.
(2)
Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) and 457(h) of the Securities Act of
1933, as amended, and based on the average of the high and low
prices for the Registrant’s Common Stock on August 5, 2019,
as reported on The Nasdaq Capital Market.
(3)
Represents 1,304,304 additional shares of Common Stock that were
automatically added to the shares authorized for issuance
under the Registrant’s 2016 Omnibus Incentive Plan, as
amended (the “Plan”), on January 1, 2019 pursuant to an
annual “evergreen” increase provision contained in the
Plan. Pursuant to such provision, the number of shares reserved for
issuance under the Plan will
automatically increase on each January 1,
beginning in 2019, by the lesser of (a) the number of shares
necessary such that the aggregate number of shares available under
the Plan equals 25% of the number of fully-diluted outstanding
shares on the increase date (assuming the conversion of all
outstanding shares of preferred stock and other outstanding
convertible securities and the exercise of all outstanding options
and warrants to purchase shares), and (b) a number of shares
determined by the Registrant’s board of
directors.
EXPLANATORY NOTE
This
Registration Statement on Form S-8 is being filed to register an
additional 1,304,304 shares of Common Stock under the ENDRA Life
Sciences Inc. 2016 Omnibus Incentive Plan, as amended (the
“Plan”), as a result of an evergreen provision in the
Plan providing that the total number of shares of Common Stock
reserved for issuance under the Plan will be automatically
increased as of each January 1, beginning in 2019.
These
additional shares of Common Stock are securities of the same class
as other securities for which the Registration Statement on Form
S-8 (File No. 333- 218894) (the “Prior
Registration Statement”) was filed with the Securities and
Exchange Commission (the “Commission”) on June 21,
2017. In accordance with Instruction E of Form S-8, the content of
the Prior Registration Statement is incorporated herein by
reference and made a part of this Registration Statement on Form
S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1.
Plan
Information.
The
information required by this Item 1 is omitted from this
registration statement in accordance with Rule 428(b)(1) of the
Securities Act of 1933, as amended (the “Securities
Act”), and the Note to Part I of Form S-8.
Item
2.
Registrant
Information and Employee Plan Annual Information.
The
information required by this Item 2 is omitted from this
registration statement in accordance with Rule 428(b)(1) of the
Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation
of Documents by Reference.
The
following documents have been filed by ENDRA Life Sciences Inc.
(the “Registrant”) with the Commission and are
incorporated herein by reference:
●
Annual Report on
Form 10-K for the fiscal year ended December 31, 2018, filed with
the Commission on March 11, 2019;
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Quarterly Reports
on Form 10-Q for the quarter ended March 31, 2019, filed with the
Commission on May 14, 2019, and for the quarter ended June 30,
2019, filed with the Commission on August 8, 2019;
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Current Reports on
Form 8-K, filed with the Commission on May 20, 2019 and July 29,
2019; and
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The description of
the Registrant’s Common Stock contained in the
Registrant’s Registration Statement on Form S-1, originally
filed with the Commission on November 21, 2016, as amended (No.
333-214724), which description is incorporated by reference into
the Registrant’s Registration Statement on Form 8-A,
originally filed with the Commission pursuant to Section 12(g) of
the Exchange Act on December 16, 2016 (No. 001-37969), including
any further amendment or report filed hereafter for the purpose of
updating such description.
All
reports and other documents filed by the Registrant pursuant to
Sections 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 all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof
from the date of filing of such reports and documents. The
Registrant is not incorporating by reference any reports or
documents or portions thereof that are not considered to be
“filed” with the Commission.
Any
statement contained herein or in a document incorporated or deemed
to be incorporated herein by reference 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 other
subsequently filed document which also is or is deemed to be
incorporated herein by reference modifies or supersedes such
earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
Item 4. Description of Securities.
Not
applicable.
Item 5. Interests of Named Experts and Counsel.
Not
applicable.
Item 6. Indemnification of Directors and Officers.
The
following summary is qualified in its entirety by reference to the
complete text of any statutes referred to below and the
Registrant’s Fourth Amended and Restated Certificate of
Incorporation.
Section
145 of the General Corporation Law of the State of Delaware (the
“DGCL”) permits a Delaware corporation to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of
the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
the person’s conduct was unlawful.
In the
case of an action by or in the right of the corporation, Section
145 of the DGCL permits a Delaware corporation to
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit
by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection
with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation and except
that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses that the Court of Chancery or such
other court shall deem proper.
Section
145 of the DGCL also permits a Delaware corporation to
purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under Section 145 of
the DGCL.
Article
IX of the Registrant’s Fourth Amended and Restated
Certificate of Incorporation states that the Registrant’s
directors shall not be personally liable to the Registrant or to
its stockholders for monetary damages for any breach of fiduciary
duty as a director, notwithstanding any provision of law imposing
such liability. Under Section 102(b)(7) of the DGCL, the
personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty can
be limited or eliminated except (i) for any breach of the
director’s duty of loyalty to the corporation or its
stockholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii)
under Section 174 of the DGCL (relating to unlawful
payment of dividend or unlawful stock purchase or redemption); or
(iv) for any transaction from which the director derived an
improper personal benefit.
Article
VIII of the Registrant’s Fourth Amended and Restated
Certificate of Incorporation provides that the Registrant shall
indemnify (and advance expenses to) its officers and directors to
the full extent permitted by the DGCL.
All of
the Registrant’s directors and officers are covered by
insurance policies maintained by the Registrant against specified
liabilities for actions taken in their capacities as such,
including liabilities under the Securities Act.
The
Registrant has entered into indemnification agreements with each of
its directors and executive officers that require the Registrant to
indemnify such persons against various actions including, but not
limited to, third-party actions where such director or executive
officer, by reason of his or her corporate status, is a party or is
threatened to be made a party to an action, or by reason of
anything done or not done by such director in any such capacity.
The Registrant intends to indemnify directors and executive
officers against all costs, judgments, penalties, fines,
liabilities, amounts paid in settlement by or on behalf of such
directors or executive officers and for any expenses actually and
reasonably incurred by such directors or executive officers in
connection with such action, if such directors or executive
officers acted in good faith and in a manner they reasonably
believed to be in or not opposed to the Registrant’s best
interests, and with respect to any criminal proceeding, had no
reasonable cause to believe their conduct was unlawful. The
Registrant also intends to advance to the Registrant’s
directors and executive officers expenses (including
attorney’s fees) incurred by or on behalf of such directors
and executive officers in advance of the final disposition of any
action after the Registrant’s receipt of a statement or
statements from directors or executive officers requesting such
payment or payments from time to time, provided that such statement
or statements are preceded or accompanied by a written undertaking,
by or on behalf of such directors or executive officers, to repay
such amount if it shall ultimately be determined that they are not
entitled to be indemnified against such expenses by the
Registrant.
The
indemnification agreements set forth certain procedures that will
apply in the event of a claim for indemnification or advancement of
expenses, including, among others, provisions about submitting a
written request to the Registrant that includes such documentation
and information as is reasonably available to the director or
executive officer and is reasonably necessary to determine
entitlement to indemnification and provisions.
Item 7. Exemption from Registration Claimed.
Not
applicable.
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Exhibit
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Number
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Description
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Fourth Amended and Restated Certificate of Incorporation of ENDRA
Life Sciences Inc. (incorporated by reference to Exhibit 3.2 to the
Registrant’s Current Report on Form 8-K filed on May 12,
2017)
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Amended and Restated Bylaws of ENDRA Life Sciences Inc.
(incorporated by reference to Exhibit 3.4 to Amendment No. 1 to the
Registrant’s Registration Statement on Form S-1 (File No.
333-214724) filed on December 6, 2016)
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ENDRA Life Sciences Inc. 2016 Omnibus Incentive Plan (incorporated
by reference to Exhibit 10.4 to Amendment No. 1 to the
Registrant’s Registration Statement on Form S-1 (File No.
333-214724) filed on December 6, 2016)
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First Amendment to ENDRA Life Sciences Inc. 2016 Omnibus Incentive
Plan (incorporated by reference to Appendix A to the
Registrant’s Definitive Proxy Statement filed on May 10,
2018)
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Form of Stock Option Award under ENDRA Life Sciences Inc. 2016
Omnibus Incentive Plan (incorporated by reference to Exhibit 10.5
to Amendment No. 1 to the Registrant’s Registration Statement
on Form S-1 (File No. 333-214724) filed on December 6,
2016)
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Form of Restricted Stock Unit Award under ENDRA Life Sciences Inc.
2016 Omnibus Incentive Plan (incorporated by reference to Exhibit
10.6 to Amendment No. 1 to the Registrant’s Registration
Statement on Form S-1 (File No. 333-214724) filed on December 6,
2016)
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Opinion of K&L Gates LLP
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Consent of RBSM LLP, Independent Registered Public Accounting
Firm
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23.2
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Consent of K&L Gates LLP (contained in Exhibit
5.1)
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24.1
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Power of Attorney (included on the signature page of this
Registration Statement)
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(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 of
1933;
(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 Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% 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) above 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 into 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 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.
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 Ann Arbor,
State of Michigan, on August 9, 2019.
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ENDRA Life Sciences
Inc.
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By:
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/s/ Francois
Michelon
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Francois
Michelon
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Chief Executive
Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints
Francois Michelon and David R. Wells, and each of them, his true
and lawful attorney-in-fact and agent, each with full power of
substitution and resubstitution, severally, for him and in his
name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement on Form S-8, and to file the same, with all
exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, 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 and about the premises, as fully to all
intents and purposes as he 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 or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power of attorney may be executed in
counterparts.
Pursuant to the requirements of the Securities
Act, this Registration Statement has been signed below by the
following persons in the capacities indicated, in each case
on August 9, 2019:
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Signature
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Title
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/s/
Francois
Michelon
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Chief
Executive Officer and Director
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Francois
Michelon
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(Principal
Executive Officer)
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/s/
David R. Wells
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Chief
Financial Officer
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David
R. Wells
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(Principal
Financial Officer and Principle Accounting Officer)
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/s/
Anthony DiGiandomenico
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Director
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Anthony
DiGiandomenico
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/s/
Sanjiv Gambhir, M.D., Ph.D
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Director
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Sanjiv
Gambhir, M.D., Ph.D
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/s/
Michael Harsh
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Director
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Michael
Harsh
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/s/
Alexander
Tokman
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Director
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Alexander
Tokman
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