Securities Registration: Employee Benefit Plan (s-8)
October 13 2021 - 4:02PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on October13, 2021
Registration No. 333-
United
States
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INSPIREMD,
INC.
(Exact name of registrant as specified in its charter)
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Delaware
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26-2123838
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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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4 Menorat Hamaor St.
Tel Aviv, Israel 6744832
(Address of Principal Executive Offices)
InspireMD, Inc. 2021 Equity Compensation Plan
(Full title of the plan)
Marvin Slosman
Chief Executive Officer
InspireMD, Inc.
4 Menorat Hamaor St.
Tel Aviv, Israel 6744832
Telephone: (888) 776-6804
(Name, Address and Telephone Number of Agent For Service)
Copies to:
Oded Har-Even, Esq.
Ron Ben-Bassat, Esq.
Sullivan & Worcester LLP
1633 Broadway
New York, NY 10019
Telephone: (212) 660-3000
Facsimile: (212) 660-3001
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
provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
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 (2)
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Shares of common stock, $0.0001 par value per share (3)
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1,492,694
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(2)
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$3.875
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(2)
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$
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5,784,189.25
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$
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536.19
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional securities which may be offered and issued to prevent dilution resulting from stock splits, stock dividends, recapitalizations or similar transactions.
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(2)
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The fee is based on the number of shares of common stock which may be issued under the plan this registration statement relates to and is estimated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee based upon the average of the high and low sales price of InspireMD, Inc.’s (the “Company”) common stock as reported on the Nasdaq Capital Market on October 11 , 2021.
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(3)
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Represents shares of common stock issuable upon stock options or other awards to be granted pursuant to the Company’s 2021 Equity Compensation Plan (the “2021 Plan”).
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PART I
INFORMATION REQUIRED IN
THE SECTION 10(a) PROSPECTUS
The documents
containing the information required in Part I of this registration statement have been or will be sent or given to participating employees
as specified in Rule 428(b)(1) under the Securities Act in accordance with the rules and regulations of the United States Securities and
Exchange Commission (the “Commission”). Such documents are not being filed with the Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated
by reference into this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which
have been filed by the Company with the Commission are incorporated by reference in and made a part of this registration statement, as
of their respective dates:
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(a)
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The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as filed with the Commission on March 8, 2021;
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(b)
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The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021, and June 30, 2021, filed with the Commission on May 10, 2021, and August 9, 2021, respectively;
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(c)
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The Company’s Current Reports on Form 8-K, as filed with the Commission on January 11, 2021, February 3, 2021, February 9, 2021 March 10, 2021, March 17, 2021, April 14, 2021, April 19, 2021, May 10, 2021, May 11, 2021, May 12, 2021, May 20, 2021, May 27, 2021, June 29, 2021, July 26, 2021, August 10, 2021 and September 30, 2021;
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(d)
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The description of the Company’s common stock contained in its registration statement on Form 8-A filed with the Commission on November 8, 2012, as amended on June 7, 2021, including any amendments and reports filed for the purpose of updating such description.
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All documents subsequently filed
by us with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment 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 in this registration statement and to be part hereof from the date
of filing of such 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 herein, or in any subsequently filed document which also is or is deemed to be incorporated by
reference, 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.
Section 145 of the General Corporation
Law of the State of Delaware provides, in general, that a corporation incorporated under the laws of the State of Delaware, as we are,
may 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 (other than a derivative action by or in the right of the corporation) by reason of the fact that such 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 enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith
and in a manner such 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 such person’s conduct was unlawful. In the case of a derivative
action, a Delaware corporation may indemnify any such person against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in
a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification
will be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of the State of Delaware or any other court in which such action was brought
determines such person is fairly and reasonably entitled to indemnity for such expenses.
Our amended and restated certificate
of incorporation and amended and restated bylaws provide that we will indemnify our directors, officers, employees and agents to the extent
and in the manner permitted by the provisions of the General Corporation Law of the State of Delaware, as amended from time to time, subject
to any permissible expansion or limitation of such indemnification, as may be set forth in any stockholders’ or directors’
resolution or by contract. Any repeal or modification of these provisions approved by our stockholders will be prospective only and will
not adversely affect any limitation on the liability of any of our directors or officers existing as of the time of such repeal or modification.
We are also permitted to apply
for insurance on behalf of any director, officer, employee or other agent for liability arising out of his or her actions, whether or
not the General Corporation Law of the State of Delaware would permit indemnification.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
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Exhibit No.
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Description
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3.1
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Amended and Restated Certificate of Incorporation, as amended through September 30, 2015 (incorporated by reference to Exhibit 3.1 to Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 9, 2015).
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3.2
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Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to Current Report on Form 8-K filed with the Securities and Exchange Commission on June 29, 2021).
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3.3
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Certificate of Designation, Preferences and Rights of Series A Preferred Stock (incorporated by reference to Exhibit 3.1 to Current Report on Form 8-K filed with the Securities and Exchange Commission on October 25, 2013).
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3.4
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of InspireMD, Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on May 25, 2016).
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3.5
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of InspireMD, Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on September 29, 2016).
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3.6
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Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on March 15, 2017).
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3.7
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Certificate of Amendment to Certificate of Designation of Preferences, Rights and Limitation of Series C Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on November 29, 2017).
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3.8
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Certificate of Amendment to Certificate of Designation of Preferences, Rights and Limitation of Series B Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on December 12, 2017).
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3.9
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of InspireMD, Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on February 7, 2018).
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3.10
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of InspireMD, Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on March 28, 2019).
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3.11
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of InspireMD, Inc., dated April 14, 2021 (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q filed on May 10, 2021)
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5.1*
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Opinion of Sullivan & Worcester LLP.
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23.1*
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Consent of Kesselman & Kesselman, Independent Registered Public Accounting Firm.
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23.2*
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Consent of Sullivan & Worcester LLP (contained in Exhibit 5.1).
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24.1*
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Power of Attorney (included on signature page).
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99.1
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The registrant’s 2021 Equity Compensation Plan (Incorporated by reference to Annex A to the registrant’s Proxy Statement on Schedule 14A filed with the Commission on August 12, 2021).
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Item 9. Undertakings.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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 this 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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
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provided, however, that subparagraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is
contained in the periodic 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 this registration statement.
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(2)
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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.
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(3)
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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.
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(b)
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The undersigned registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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.
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(c)
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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 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 Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Tel Aviv, Israel, on the [●] day of October, 2021.
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INSPIREMD, INC.
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By:
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/s/ Marvin
Slosman
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Name: Marvin Slosman
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Title: Chief Executive Officer
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power of
attorney and signatures
We, the undersigned officers and
directors of InspireMD, Inc., hereby severally constitute and appoint Marvin Slosman and Craig Shore, and each of them individually, our
true and lawful attorney to sign for us and in our names in the capacities indicated below any and all amendments or supplements, including
any post-effective amendments, to this registration statement on Form S-8 and to file the same, with exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorney full power and authority to do and perform
each and every act and thing requisite or 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 our signatures to said amendments to this registration statement signed by our
said attorney and all else that said attorney may lawfully do and cause to be done by virtue hereof.
Pursuant to the requirements of
the Securities Act, this registration statement on Form S-8 has been signed below by the following persons in the capacities and on the
dates indicated.
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Person
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Capacity
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Date
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/s/ Marvin
Slosman
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Chief Executive Officer
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October 13, 2021
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Marvin Slosman
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(Principal Executive Officer), President, Director
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/s/
Craig Shore
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Chief Financial Officer, Chief Administrative
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October 13, 2021
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Craig Shore
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Officer (Principal Financial and Accounting Officer), Secretary and Treasurer
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/s/ Paul
Stuka
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Chairman of the Board of Directors
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October 13, 2021
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Paul Stuka
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/s/ Michael
Berman
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Director
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October 13, 2021
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Michael Berman
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/s/ Campbell
Rogers, M.D.
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Director
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October 13, 2021
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Campbell Rogers, M.D.
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/s/ Thomas
J. Kester
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Director
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October 13, 2021
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Thomas J. Kester
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/s/ Gary
Roubin, M.D.
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Director
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October 13, 2021
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Gary Roubin, M.D.
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/s/ Kathryn
Arnold
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Director
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October 13,
2021
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Kathryn Arnold
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