S-8 1 forms8.htm S-8 Document


As filed with the Securities and Exchange Commission on January 30, 2017.

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. 2006 Stock Option Plan
Apollo Endosurgery, Inc. 2016 Equity Incentive Plan

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) 328-4600

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.

Large accelerated filer ☐
 
Accelerated filer ☐
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 per Share
Proposed Maximum Aggregate Offering Price
Amount of Registration Fee
Common Stock, $0.001 par value per share
 
 
 
 
—Apollo Endosurgery, Inc. 2006 Stock Option Plan (issued)
1,015,250 (2)
$2.88 (3)
$2,923,920
$339
—Apollo Endosurgery, Inc. 2016 Equity Incentive Plan (issued)
25,016 (2)
$3.86 (3)
$96,562
$11
—Apollo Endosurgery, Inc. 2016 Equity Incentive Plan (available)
20,274,531 (4)
$13.63 (5)
$276,341,858
$32,028

(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 Registrant’s common stock that become issuable under the plans set forth herein 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 Registrant’s common stock, as applicable.
(2)
Represents shares of Common Stock subject to stock options that are outstanding as of the date this Registration Statement is being filed.
(3)
Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of the weighted-average exercise price of outstanding stock awards granted pursuant to the Apollo Endosurgery, Inc. 2006 Stock Option Plan or Apollo Endosurgery, Inc. 2016 Equity Incentive Plan.
(4)
Represents shares of Common Stock available for grant as of the date this Registration Statement is filed.
(5)
Estimated in accordance with Rules 457(c) and (h) solely for the purpose of calculating the registration fee on the basis of $13.63 per share, the average of the high and low prices of the Registrant’s common stock as reported on The NASDAQ Global market on January 26, 2017, a date that is within five business days prior to the date on which this Registration Statement is being filed.




EXPLANATORY NOTE
On December 29, 2016, Apollo Endosurgery, Inc., formerly known as Lpath, Inc. (the “Registrant,” “we,” “us” or “our”), completed its business combination with what was then known as Apollo Endosurgery, Inc. (“Private Apollo”) in accordance with the terms of the Agreement and Plan of Merger and Reorganization, dated as of September 8, 2016, by and among the Registrant, Lpath Merger Sub, Inc. (“Merger Sub”) and Private Apollo (the “Merger Agreement”), pursuant to which Merger Sub merged with and into Private Apollo, with Private Apollo surviving as a wholly owned subsidiary of the Registrant (the “Merger”). Pursuant to the Merger Agreement, each option to purchase shares of Private Apollo common stock that was outstanding and unexercised immediately prior to the effective time of the Merger under the Apollo Endosurgery, Inc. 2006 Stock Option Plan and the Apollo Endosurgery, Inc. 2016 Equity Incentive Plan, whether or not vested, was converted into and became an option to purchase shares of Registrant common stock and the Registrant assumed the 2006 Plan and the 2016 Plan.

PART II
ITEM 3.    INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities and Exchange Commission (the “SEC”) are incorporated by reference into this Registration Statement:
(a)The Registrant’s Annual Report on Form 10-K (File No. 001-35706) for the fiscal year ended December 31, 2015, filed with the SEC on March 22, 2016 (“Form 10-K”).
(b)The Registrant’s prospectus filed on November 23, 2016 pursuant to Rule 424(b) under the Securities Act, relating to the Registration Statement on Form S-4 deemed effective December 1, 2016, as amended (File No. 333-214059), which contains audited financial statements of Private Apollo as of December 31, 2015 and 2014, the two latest fiscal years for which such statements have been filed, and pro forma financial information for the nine months ended September 30, 2016, including all material incorporated by reference therein.
(c)All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the end of the fiscal year ended December 31, 2015.
(d)The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-35706) filed with the SEC on October 18, 2012, including any other amendments or reports filed for the purposes of updating this description.
(e)All other reports and documents subsequently filed by the Registrant 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 4.    DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5.    INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6.    INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act.




The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws provide that the Registrant will indemnify its directors and officers, and may indemnify its employees and other agents, to the fullest extent permitted by the Delaware General Corporation Law. However, Delaware law prohibits the Registrant’s certificate of incorporation from limiting the liability of the Registrant’s directors for the following:
•any breach of the director’s duty of loyalty to us or to our stockholders;
•acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
•unlawful payment of dividends or unlawful stock repurchases or redemptions; and
•any transaction from which the director derived an improper personal benefit.
The Registrant has entered into agreements to indemnify each of its directors and officers. These agreements provide for the indemnification of such persons for all reasonable expenses and liabilities incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were serving in such capacity.
The Registrant may maintain insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his capacity as such. The Registrant has obtained director and officer liability insurance to cover liabilities directors and officers may incur in connection with their services to the Registrant.
ITEM 7.    EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8.    EXHIBITS
Exhibit No.
 
Exhibit Description
 
Schedule / Form
 
File Number
 
Exhibit
 
Filing Date
4.1
 
Amended and Restated Certificate of Incorporation of Apollo Endosurgery, Inc.
 
8-K
 
001-35706
 
3.1
 
December 29, 2016
4.2
 
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Apollo Endosurgery, Inc.
 
8-K
 
001-35706
 
3.2
 
December 29, 2016
4.3
 
Amended and Restated Bylaws of Lpath Corporation
 
8-K
 
001-35706
 
3.1
 
September 8, 2016
4.4
 
Form of Common Stock Certificate of Lpath, Inc.
 
8-K
 
001-35706
 
4.1
 
July 21, 2014
5.1*
 
Opinion of Cooley LLP.
 
 
 
 
 
 
 
 
23.1*
 
Consent of Moss Adams LLP, independent registered public accounting firm.
 
 
 
 
 
 
 
 
23.2*
 
Consent of KPMG LLP, independent auditors.
 
 
 
 
 
 
 
 
23.3*
 
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. 2006 Stock Option Plan and forms of agreements relating thereto
 
S-4
 
333-214059
 
10.1
 
October 11, 2016
99.2
 
Apollo Endosurgery, Inc. 2016 Equity Incentive Plan and forms of agreements relating thereto
 
S-4
 
333-214059
 
10.2
 
October 11, 2016
 ____________

*Provided herewith.





ITEM 9.    UNDERTAKINGS
1.
The undersigned registrant hereby undertakes:
(a)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;
(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)(i) and (a)(ii) 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 in the registration statement.
(b)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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)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.
2.
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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3.
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 SEC such indemnification is against public policy as expressed in the Securities 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 Austin, State of Texas, on the 30th day of January, 2017.
 
APOLLO ENDOSURGERY, INC.
 
 
 
/s/ Todd Newton
 
Todd Newton
 
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
 
January 30, 2017
Todd Newton
 
(Principal Executive Officer)
 
 
 
 
 
 
 
/s/ Stefanie Cavanaugh
 
Chief Financial Officer, Treasurer and Secretary
 
January 30, 2017
Stefanie Cavanaugh
 
(Principal Financial Officer)
 
 
 
 
 
 
 
/s/ Chrissy Citzler-Carr
 
Controller
 
January 30, 2017
Chrissy Citzler-Carr
 
(Principal Accounting Officer)
 
 
 
 
 
 
 
/s/ Richard J. Meelia
 
Chairman of the Board
 
January 30, 2017
Richard J. Meelia
 
 
 
 
 
 
 
 
 
/s/ Rick Anderson
 
Director
 
January 30, 2017
Rick Anderson
 
 
 
 
 
 
 
 
 
/s/ Matthew S. Crawford
 
Director
 
January 30, 2017
Matthew S. Crawford
 
 
 
 
 
 
 
 
 
/s/ John W. Creecy
 
Director
 
January 30, 2017
John W. Creecy
 
 
 
 




Signature
 
Title
 
Date
 
 
 
 
 
/s/ William D. McClellan, Jr.
 
Director
 
January 30, 2017
William D. McClellan, Jr.
 
 
 
 
 
 
 
 
 
/s/ R. Kent McGaughy, Jr.
 
Director
 
January 30, 2017
R. Kent McGaughy, Jr.
 
 
 
 
 
 
 
 
 
/s/ Jack B. Nielsen
 
Director
 
January 30, 2017
Jack B. Nielsen
 
 
 
 
 
 
 
 
 
/s/ Bruce Robertson, Ph.D.
 
Director
 
January 30, 2017
Bruce Robertson, Ph.D.
 
 
 
 





EXHIBIT INDEX
Exhibit No.
 
Exhibit Description
 
Schedule / Form
 
File Number
 
Exhibit
 
Filing Date
4.1
 
Amended and Restated Certificate of Incorporation of Apollo Endosurgery, Inc.
 
8-K
 
001-35706
 
3.1
 
December 29, 2016
4.2
 
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Apollo Endosurgery, Inc.
 
8-K
 
001-35706
 
3.2
 
December 29, 2016
4.3
 
Amended and Restated Bylaws of Lpath Corporation
 
8-K
 
001-35706
 
3.1
 
September 8, 2016
4.4
 
Form of Common Stock Certificate of Lpath, Inc.
 
8-K
 
001-35706
 
4.1
 
July 21, 2014
5.1*
 
Opinion of Cooley LLP.
 
 
 
 
 
 
 
 
23.1*
 
Consent of Moss Adams LLP, independent registered public accounting firm.
 
 
 
 
 
 
 
 
23.2*
 
Consent of KPMG LLP, independent auditors.
 
 
 
 
 
 
 
 
23.3*
 
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. 2006 Stock Option Plan and forms of agreements relating thereto
 
S-4
 
333-214059
 
10.1
 
October 11, 2016
99.2
 
Apollo Endosurgery, Inc. 2016 Equity Incentive Plan and forms of agreements relating thereto
 
S-4
 
333-214059
 
10.2
 
October 11, 2016
 ____________

*Provided herewith.