S-8

As filed with the Securities and Exchange Commission on February 23, 2022.

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)

Jeffrey Black

Chief Financial 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

Milson C. Yu

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 ¨
Non-accelerated filer x	Smaller reporting company x
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. ¨

EXPLANATORY NOTE

Apollo Endosurgery, Inc. (the “Company”) is filing this Registration Statement on Form S-8 for the purpose of registering an additional 1,581,852 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 February 26, 2021 (File No. 333-253568), April 30, 2020 (File No. 333-237919), May 3, 2019 (File No. 333-231202), March 6, 2018 (File No. 333-223461) 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 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:

(a)the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on February 22, 2022 (File No. 001-35706);

(b)the Company’s Current Report on Form 8-K filed with the SEC on February 22, 2022 (File No. 001-35706)(other than Item 2.02 and Exhibit 99.1 thereto);

(c)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

(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

Exhibit No.	Exhibit Description	Schedule / Form	File Number	Exhibit	Filing Date
4.1	Amended and Restated Certificate of Incorporation	8-K	001-35706	3.1	June 13, 2017
4.2	Amended and Restated Bylaws	8-K	001-35706	3.2	June 13, 2017
4.3	Specimen Common Stock Certificate of Apollo Endosurgery, Inc.	10-Q	001-35706	4.1	May 4, 2017
5.1*	Opinion of Cooley LLP
23.1*	Consent of Moss Adams LLP, Independent Registered Public Accounting Firm
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	Apollo Endosurgery, Inc. 2017 Equity Incentive Plan	8-K	001-35706	10.1	June 13, 2017
99.2	Forms of grant notice, stock option agreement and notice of exercise under the Apollo Endosurgery, Inc. 2017 Equity Incentive Plan	8-K	001-35706	10.2	June 13, 2017
99.3	Forms of restricted stock unit grant notice and award agreement under the Apollo Endosurgery, Inc. 2017 Equity Incentive Plan	8-K	001-35706	10.3	June 13, 2017
107*	Filing Fee Table

 ____________

*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 23rd day of February, 2022.

APOLLO ENDOSURGERY, INC.
By:	/s/ Jeffrey Black
Name:	Jeffrey Black
Title:	Chief Financial Officer, Treasurer and Secretary

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Charles McKhann and Jeffrey Black, 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/ Charles McKhann	Chief Executive Officer, President and Director	February 23, 2022
Charles McKhann	(Principal Executive Officer)
/s/ Jeffrey Black	Chief Financial Officer, Treasurer and Secretary	February 23, 2022
Jeffrey Black	(Principal Financial Officer)
/s/ Chrissy Citzler-Carr	Controller	February 23, 2022
Chrissy Citzler-Carr	(Principal Accounting Officer)
/s/ John Barr	Chairman of the Board	February 23, 2022
John Barr
/s/ Rick Anderson	Director	February 23, 2022
Rick Anderson
/s/ William D. McClellan, Jr.	Director	February 23, 2022
William D. McClellan, Jr.
/s/ R. Kent McGaughy, Jr.	Director	February 23, 2022
R. Kent McGaughy, Jr.
/s/ David C. Pacitti	Director	February 23, 2022
David C. Pacitti
/s/ Julie Shimer, Ph.D.	Director	February 23, 2022
Julie Shimer, Ph.D.

EX-FILING FEES

Calculation of Filing Fee Table

Form S-8

Apollo Endosurgery, Inc.

Table 1 – Newly Registered Securities
Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1)	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock	Other(3)	1,581,852(2)	$5.42(2)	$8,573,637.84	0.0000927	$795.00
Total Offering Amounts				–	$8,573,637.84	–	$795.00
Total Fees Previously Paid				–	–	–	–
Total Fee Offsets				–	–	–	–
Net Fee Due				–	–	–	$795.00

(1)Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock of Apollo Endosurgery, Inc. (the “Registrant”) 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 that results in an increase to the number of outstanding shares of the Registrant’s common stock, as applicable.

(2)Represents 1,581,852 additional shares of common stock available for issuance as a result of the annual evergreen increase on January 1, 2022 under the Registrant’s 2017 Plan.

(3)Estimated in accordance with Rules 457(c) and 457(h) solely for purposes of calculating the registration fee on the basis of $5.42, the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq Global Market on February 17, 2022, a date that is within five business days prior to the date on which this Registration Statement is being filed.

EX-5.1

Exhibit 5.1 and 23.2

John T. McKenna

+1 650 843 5059

jmckenna@cooley.com

February 23, 2022

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 1,581,852 shares of the Company’s Common Stock, $0.001 par value, (the “Shares”) pursuant to theApollo Endosurgery, Inc. 2017 Equity Incentive Plan (the “Plan”).

In connection with this opinion, we have examined the Registration Statement and related prospectus, the Plan, the Company's certificate of incorporation and bylaws, each as currently in effect, and such other documents, records, certificates, memoranda and other instruments as we in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, 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 T. McKenna

    John T. McKenna

Cooley LLP 3175 Hanover Street Palo Alto, CA 94304-1130

t: (650) 843-5000 f: (650) 849-7400 cooley.com

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Apollo Endosurgery, Inc. (the “Company”), of our report dated February 22, 2022, relating to the consolidated financial statements of the Company, which report expresses an unqualified opinion, appearing in the Annual Report on Form 10-K for the year ended December 31, 2021.

/s/ Moss Adams LLP

Dallas, Texas

February 23, 2022