S-8 1 neurometrix-formsx8may2022.htm S-8 Document

As filed with the Securities and Exchange Commission on May 19, 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
____________________________
NeuroMetrix, Inc.
(Exact name of registrant as specified in its charter)
____________________________

Delaware
04-3308180
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer
Identification No.)

4B Gill Street
Woburn, Massachusetts 01801
(781) 890-9989
(Address, Including Zip Code, of Principal Executive Offices)

NeuroMetrix, Inc. 2022 Equity Incentive Plan
NeuroMetrix, Inc. Employee Stock Purchase Plan
(Full title of the plans)

Shai N. Gozani, M.D., Ph.D.
President and Chief Executive Officer
NeuroMetrix, Inc.
4B Gill Street
Woburn, Massachusetts 01801
Telephone: (781) 890-9989
(Name, address and telephone number, including area code, of agent for service)

Copies to:
Megan N. Gates, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Telephone: (617) 542-6000
____________________________
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☒Smaller reporting company☒
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. ☐


Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission (the “Commission”), the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of common stock, $0.0001 par value (“Common Stock”), of NeuroMetrix, Inc. (the “Registrant,” “we,” or “our”) pursuant to the NeuroMetrix, Inc. Employee Stock Purchase Plan (the “ESPP”) and the NeuroMetrix, Inc. 2022 Equity Incentive Plan (the “2022 Plan” and together with the ESPP, the “Plans”). The documents containing the information specified in Part I will be delivered to the participants in the Plans covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act of 1933”).
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are incorporated herein by reference:
(a)    The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021, filed on January 28, 2022 (File No. 001-33351);
(b)    The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed on April 26, 2022 (File No. 001-33351);
(c)    The Registrant’s Current Report on Form 8-K filed with the Commission on May 3, 2022 (File No. 001-33351);
(d)    The portions of the Registrant’s Definitive Proxy Statement on Schedule 14A filed on March 24, 2022 (File No. 001-33351) that are deemed “filed” with the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and
(e)    The description of the Registrant’s securities contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-33351), filed by the Registrant with the Commission under Section 12(b) of the Exchange Act, on July 19, 2004, including any amendments or reports filed for the purpose of updating such description.
All reports and other documents filed by the Registrant after the date hereof 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), 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. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the 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 by reference herein modifies or supersedes such 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.
Our amended and restated certificate of incorporation provides that we shall indemnify, to the fullest extent authorized by the Delaware General Corporation Law, each person who is involved in any litigation or other proceeding because such person is or was our director or officer or is or was serving as an officer or director of another entity at our request, against all expense, loss or liability reasonably incurred or suffered in connection therewith. Our amended and restated certificate of incorporation provides that the right to indemnification includes the right to be paid expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that such advance payment will only be made upon delivery to us of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately determined that such director is not entitled to indemnification. If we do not pay a proper claim for indemnification in full within 10 days after we receive a written claim for such indemnification, our
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amended and restated certificate of incorporation and our restated bylaws authorize the claimant to bring an action against us and prescribe what constitutes a defense to such action.
Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in right of the corporation) brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action, (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law, Article Seventh of our amended and restated certificate of incorporation eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
    from any breach of the director’s duty of loyalty to us or our stockholders;
    from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
    under Section 174 of the Delaware General Corporation Law; and
    from any transaction from which the director derived an improper personal benefit.
As permitted by Section 145 of the Delaware General Corporation Law, we carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers.
Any underwriting agreements that we may enter into will likely provide for the indemnification of us, our controlling persons, our directors and certain of our officers by the underwriters against certain liabilities, including liabilities under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit NumberExhibit DescriptionFiled with this ReportIncorporated by
Reference herein
from Form or
Schedule		Filing DateSEC File/
Registration
Number
4.1.1S-8
(Exhibit 4.1)		8/9/2004333-118059
4.1.28-K
(Exhibit 3.1)		9/1/2011001-33351
4.1.38-K
(Exhibit 3.1)		2/15/2013001-33351
4.1.48-K
(Exhibit 3.1)		12/1/2015001-33351
2

4.1.58-K
(Exhibit 3.1)		5/12/2017001-33351
4.1.68-K
(Exhibit 3.1)		11/18/2019001-33351
4.1.78-A12(b)
(Exhibit 3.1)		3/8/2007001-33351
4.1.88-K
(Exhibit 3.1)		6/6/2013001-33351
4.1.98-K
(Exhibit 3.2)		6/6/2013001-33351
4.1.108-K
(Exhibit 3.1)		6/25/2014001-33351
4.1.118-K
(Exhibit 3.2)		6/25/2014001-33351
4.1.128-K
(Exhibit 3.1)		5/29/2015001-33351
4.1.138-K
(Exhibit 3.1)		12/30/2015001-33351
4.1.148-K
(Exhibit 3.1)		6/3/2016001-33351
4.1.158-K
(Exhibit 3.1)		12/29/2016001-33351
4.1.168-K
(Exhibit 3.1)		7/11/2017001-33351
4.28-K
(Exhibit 3.1)		12/10/2021001-33351
4.3S-1/A
(Exhibit 4.1)		7/19/2004333-115440
3

4.4.18-A12(b)
(Exhibit 4.1)		3/8/2007001-33351
4.4.28-K
(Exhibit 4.1)		9/14/2009001-33351
4.4.3
8-K
(Exhibit 4.2)		6/6/2013001-33351
4.4.48-K
(Exhibit 4.2)		6/25/2014001-33351
4.4.510-Q
(Exhibit 4.1)		7/23/2015001-33351
4.4.68-K
(Exhibit 4.3)		12/30/2015001-33351
4.4.78-K
(Exhibit 4.2)		6/3/2016001-33351
4.4.88-K
(Exhibit 4.2)		12/29/2016001-33351
4.4.910-K
(Exhibit 4.2.9)		2/8/2017001-33351
4.4.108-K
(Exhibit 4.2)		7/11/2017001-33351
4.4.1110-K
(Exhibit 4.2.11)		2/8/2018001-33351
4.4.1210-K
(Exhibit 4.2.11)		1/24/2019001-33351
4

4.4.1310-K
(Exhibit 4.3.13)		1/28/2020001-33351
4.4.1410-K
(Exhibit 4.3.14)		1/29/2021001-33351
4.4.1510-Q
(Exhibit 4.1)		7/22/2021001-33351
5.1X
23.1X
23.2X
24.1Power of Attorney (included on the signature page hereof)
99.1+X
99.2+
X
99.3+X
99.4+X
107X
+
Denotes management contract or compensatory plan or arrangement.

Item 9. Undertakings.
(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 (1)(i) and (1)(ii) of this section 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 Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
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(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this 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 of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange 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 Act and will be governed by the final adjudication of such issue.

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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, 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 Woburn, Massachusetts on May 19, 2022.
NEUROMETRIX, INC.
By     /s/ Shai N. Gozani, M.D., Ph.D.    
Shai N. Gozani, M.D., Ph.D.
Chairman, President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints Shai N. Gozani, M.D., Ph.D. and Thomas T. Higgins, acting alone or together with another attorney-in-fact, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all further amendments (including post-effective amendments) to this registration statement, 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 or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SignatureTitleDate
/s/ Shai N. Gozani, M.D., Ph.D.
President, Chief Executive Officer and Director
(Principal Executive Officer)
May 19, 2022
Shai N. Gozani, M.D., Ph.D.
/s/ Thomas Higgins
Senior Vice President, Chief Financial Officer and Treasurer
(Principal Financial Officer and Principal Accounting Officer)
May 19, 2022
Thomas T. Higgins
/s/ David E. Goodman, M.D.DirectorMay 19, 2022
David E. Goodman, M.D.
/s/ Nancy E. KatzDirectorMay 19, 2022
Nancy E. Katz
/s/ David Van AvermaeteDirectorMay 19, 2022
David Van Avermaete