Securities Registration: Employee Benefit Plan (s-8)
September 16 2020 - 02:08PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on September 16, 2020
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)
Delaware
|
|
26-2123838
|
(State
or other jurisdiction of
incorporation or organization)
|
|
(I.R.S.
Employer
Identification Number)
|
4
Menorat Hamaor St.
Tel
Aviv, Israel 6744832
(Address
of Principal Executive Offices; Zip Code)
InspireMD,
Inc. 2013 Long-Term Incentive Plan
(Full
title of the plan)
Marvin
Slosman
President
and Chief Executive Officer
InspireMD,
Inc.
4
Menorat Hamaor St.
Tel
Aviv, Israel 6744832
(Name
and address of agent for service)
(888)
776-6804
(Telephone
number, including area code, of agent for service)
With
a copy to:
David
S. Glatt, Adv.
Jonathan
M. Nathan, Adv.
Meitar
| Law Offices
16 Abba Hillel Road
Ramat Gan 5250608, Israel
Tel: +972 (3) 610-3100
Fax: +972 (3) 610-3111
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 13(a) of the Exchange Act. [ ]
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, $0.0001 par value
|
|
|
1,623,541
|
(2)
|
|
$
|
0.36
|
(3)
|
|
$
|
584,474.76
|
|
|
$
|
75.86
|
|
Common Stock, $0.0001 par value
|
|
|
1,094,594
|
(4)
|
|
$
|
0.39
|
(5)
|
|
$
|
426,891.66
|
|
|
$
|
55.41
|
|
Common Stock, $0.0001 par value
|
|
|
1,175,287
|
(6)
|
|
$
|
0.36
|
(3)
|
|
$
|
423,103.32
|
|
|
$
|
54.92
|
|
Common Stock, $0.0001 par value
|
|
|
2,606,578
|
(7)
|
|
$
|
0.36
|
(3)
|
|
$
|
938,368.08
|
|
|
$
|
121.80
|
|
Total
|
|
|
6,500,000
|
|
|
|
|
|
|
$
|
2,372,837.82
|
|
|
$
|
307.99
|
|
|
(1)
|
Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), we are also registering
an indeterminable number of shares of common stock that may be issued in connection with stock splits, stock dividends or
similar transactions.
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(2)
|
Represents
shares of restricted stock issued under the InspireMD, Inc. 2013 Long-Term Incentive Plan (the “Plan”),
from among the shares of common stock added to the Plan pursuant to the sixth amendment to the Plan (the “Sixth Amendment”),
which increased the number of shares of common stock available for issuance under the Plan.
|
|
|
|
|
(3)
|
Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended, and based upon the average of the high and low prices of the common stock as reported on the NYSE American on Friday,
September 11, 2020.
|
|
|
|
|
(4)
|
Represents
shares of common stock issuable pursuant to options awarded under the Plan, from among the shares added to the Plan pursuant
to the Sixth Amendment.
|
|
|
|
|
(5)
|
Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, and based upon the
price at which such options may be exercised.
|
|
|
|
|
(6)
|
Represents
shares of common stock issuable pursuant to Restricted Stock Units awarded under the Plan, from among the shares of common stock
added to the Plan pursuant to the Sixth Amendment.
|
|
|
|
|
(7)
|
Represents
shares of common stock added to the Plan pursuant to the Sixth Amendment to the Plan and that are reserved for issuance pursuant
to future awards under the Plan.
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EXPLANATORY
NOTE
Additional
Shares Under 2013 Plan Covered by this Registration Statement
This
Registration Statement on Form S-8, or this Form S-8, of InspireMD, Inc., or the Company, has been prepared in accordance with
the requirements of Form S-8 under the Securities Act of 1933, as amended, or the Securities Act, to register the offer, sale
and issuance of an additional 6,500,000 shares of common stock, $0.0001 par value, of the Company, or common stock, that are issuable
the InspireMD, Inc. 2013 Long-Term Incentive Plan, or the 2013 Plan, pursuant to the sixth amendment to the 2013 Plan.
Out
of those 6,500,000 shares of common stock that have been added to the pool of shares under the 2013 Plan:
●
|
1,623,541
shares constitute shares of restricted stock that have been granted to Company employees and directors;
|
●
|
1,094,594
shares underlie options awarded under the Plan;
|
●
|
1,175,287
shares are issuable pursuant to Restricted Stock Units granted under the Plan; and
|
●
|
2,606,578
shares constitute additional shares available for future issuance under the 2013 Plan.
|
Background
Information Re: 2013 Plan
The
2013 Plan was originally approved by our board of directors on October 25, 2013, and by our stockholders at our annual meeting
held on December 16, 2013. There have been several increases in the number of shares of common stock authorized under the 2013
Plan that have been approved by our board of directors and stockholders since the original adoption of the plan. There have also
been several reverse stock splits that we have effected since the original adoption of the 2013 Plan, which have adjusted the
number of shares of common stock authorized under the plan, consisting of:
|
●
|
1-for-10
reverse stock split (effected on October 1, 2015)
|
|
|
|
|
●
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1-for-25
reverse stock split (effected on October 7, 2016)
|
|
|
|
|
●
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1-for-35
reverse stock split (effected on February 7, 2018)
|
|
|
|
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●
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1-for-50
reverse stock split (effected on March 27, 2019)
|
On
a post-reverse stock split basis (after including the effect of all of the above reverse stock splits on an aggregate basis as
if they had all already occurred as of each of the below dates), the number of shares of common stock originally authorized, and
added via amendment, under the 2013 Plan, have been as follows:
●
|
11
shares originally authorized (as of original adoption of 2013 Plan by our board of directors on October 25, 2013 and our stockholders
on December 16, 2013)
|
|
|
●
|
Increase
by 11 shares, to 22 shares authorized under 2013 Plan (under first amendment to 2013 Plan, approved by the stockholders on
September 9, 2015)
|
|
|
●
|
Increase
by 229 shares, to 251 shares authorized under 2013 Plan (under second amendment to 2013 Plan, approved by the stockholders
on May 24, 2016)
|
|
|
●
|
Increase
by 144 shares, to 395 shares authorized under 2013 Plan (under third amendment to 2013 Plan, approved by the stockholders
on September 28, 2016)
|
|
|
●
|
Increase
by 178,000 shares, to 178,395 shares authorized under 2013 Plan (under fourth amendment to 2013 Plan, approved by the stockholders
on October 24, 2018)
|
|
|
●
|
Increase
by 500,000 shares, to 678,395 shares authorized under 2013 Plan (under fifth amendment to 2013 Plan, approved by the stockholders
on March 21, 2019)
|
|
|
●
|
Increase
by 6,500,000 shares, to 7,178,395 shares authorized under 2013 Plan (under sixth amendment to 2013 Plan, approved by the stockholders
on August 31, 2020)
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Incorporation
of Information by Reference to Prior Registration Statement
Except
as otherwise set forth below, the contents of the Registration Statements on Form S-8 filed with the Securities and Exchange Commission,
or the SEC, on May 24, 2013 (File No. 333-188839), June 5, 2014 (File No. 333-196533), June 5, 2017 (File No. 333-218499) and
June 26, 2019 (File No. 333-232348) are incorporated herein by reference as permitted by General Instruction E of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
The
SEC allows us to “incorporate by reference” the information we have filed with it, which means that we can disclose
important information to you by referring you to those documents. The information we incorporate by reference is an important
part of this registration statement, and later information that we file with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any future documents we file with the SEC pursuant to
Sections 13(a), l3(c), 14 or l5(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this registration
statement and prior to the termination of the offering (excluding, in either case, information furnished pursuant to Items 2.02
and 7.01 of Form 8-K):
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●
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Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 10, 2020, or the 2019
Form 10-K;
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|
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|
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●
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Our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2020 and June 30, 2020, filed with the SEC on May 11,
2020 and August 5, 2020, respectively;
|
|
|
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●
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Our
Current Reports on Form 8-K, filed with the SEC on the following dates:
January
6, 2020 (excluding information furnished pursuant to Item 2.02);
|
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January
28, 2020;
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January
30, 2020;
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April
27, 2020;
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June
8, 2020;
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June
10, 2020;
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June
25, 2020;
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July
23, 2020;
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June
28, 2020;
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July
29, 2020;
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August
10, 2020;
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August
18, 2020;
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August
31, 2020;
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September
3, 2020; and
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September 8, 2020; and
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●
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The
description of our common stock, which is contained in our registration statement on Form 8-A, filed with the SEC on March
12, 2013, as updated by the description in Exhibit 4.4 to the 2019 Form 10-K, and as may be further updated or amended in
any amendment or report filed for such purpose.
|
All
filings filed by us pursuant to the Securities Exchange Act of 1934, as amended, after the date of the initial filing of this
amendment to the registration statement and prior to the effectiveness of such amendment (excluding information furnished pursuant
to Items 2.02 and 7.01 of Form 8-K) shall also be deemed to be incorporated by reference into this registration statement.
Any
statement contained in this registration statement or 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
or incorporated by reference herein or in any subsequently filed document which 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.
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Description
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4.1
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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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4.2
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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 April 1, 2011)
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4.3
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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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4.4
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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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4.5
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Certificate
of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (incorporated by reference to
Exhibit 3.5 to the Quarterly Report on Form 10-Q filed on August 9, 2016)
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4.6
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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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4.7
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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)
|
4.8
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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)
|
4.9
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|
Certificate
of Designation of Preferences, Rights and Limitation of Series D Convertible Preferred Stock (incorporated by reference to
Exhibit 3.1 to the Current Report on Form 8-K filed on December 4, 2017)
|
4.10
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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)
|
4.11
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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 22, 2017)
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4.12
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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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4.13
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|
Certificate
of Amendment to Certificate of Designation of Preferences, Rights and Limitation of Series D Convertible Preferred Stock (incorporated
by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on March 1, 2018)
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4.14
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|
Certificate
of Amendment to Certificate of Designation of Preferences, Rights and Limitation of Series D Convertible Preferred Stock (incorporated
by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on April 3, 2018)
|
4.15
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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 July 5, 2018)
|
4.16
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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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4.17
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|
Form
of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to Amendment No. 3 to Registration Statement on Form
S-1 filed with the Securities and Exchange Commission on March 5, 2013)
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4.18
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Rights
Agreement dated as of October 22, 2013 between InspireMD, Inc. and Action Stock transfer Corporation, as Rights Agent, including
exhibits thereto (incorporated by reference to an exhibit to the Registration Statement on Form 8-A filed with Securities
and Exchange Commission on October 25, 2013)
|
4.19
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|
Form
of Series B Warrant Agent Agreement and Form of Series B Warrant (incorporated by reference to Exhibit 4.3 to Amendment No.3
to Registration Statement on Form S-1 filed with the Securities and Exchange Commission on March 6, 2017)
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5.1*
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Opinion of McDermott Will & Emery LLP
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23.1*
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Consent of Kesselman & Kesselman, Certified Public Accountants
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23.2
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Consent of McDermott Will & Emery LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (included in signature page)
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99.1
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|
InspireMD,
Inc. 2013 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 20, 2013)
|
99.2
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First
Amendment to the InspireMD, Inc. 2013 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report
on Form 8-K filed on September 9, 2015)
|
99.3
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Second
Amendment to the InspireMD, Inc. 2013 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report
on Form 8-K filed on May 25, 2016)
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99.4
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Third
Amendment to the InspireMD, Inc. 2013 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report
on Form 8-K filed on September 29, 2016)
|
99.5
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|
Fourth
Amendment to the InspireMD, Inc. 2013 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report
on Form 8-K filed on October 26, 2018)
|
99.6
|
|
Fifth
Amendment to the InspireMD, Inc. 2013 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report
on Form 8-K filed on March 21, 2019)
|
99.7
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|
Sixth
Amendment to the InspireMD, Inc. 2013 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report
on Form 8-K filed on August 31, 2020)
|
99.8
|
|
Form of Incentive Stock Option Award Agreement under the InspireMD, Inc. 2013 Long-Term Incentive Plan (incorporated by reference to Exhibit 99.2 to Registration Statement on Form S-8 filed with the Securities and Exchange Commission on June 5, 2014)
|
99.9*
|
|
Form of Nonqualified Stock Option Award Agreement under the InspireMD, Inc. 2013 Long-Term Incentive Plan*
|
99.10*
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|
Form of Restricted Stock Award Agreement under the InspireMD, Inc. 2013 Long-Term Incentive Plan*
|
99.11*
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Form of Restricted Stock Unit Award Agreement under the InspireMD, Inc. 2013 Long-Term Incentive Plan*
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99.12
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|
Form of Section 3(i) Stock Option Award Agreement under the InspireMD, Inc. 2013 Long-Term Incentive Plan (Israeli) (incorporated by reference to Exhibit 99.6 to Registration Statement on Form S-8 filed with the Securities and Exchange Commission on June 5, 2014)
|
99.13*
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|
Form of Section 102 Capital Gain Stock Option Award Agreement under the InspireMD, Inc. 2013 Long-Term Incentive Plan (Israeli)*
|
99.14*
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|
Form of Section 102 Capital Gain Restricted Stock Award Agreement under the InspireMD, Inc. 2013 Long-Term Incentive Plan (Israeli)*
|
99.15
|
|
Form
of Stock Option Award Agreement under the InspireMD, Inc. 2013 Long-Term Incentive Plan (European) (incorporated by reference
to Exhibit 99.9 to Registration Statement on Form S-8 filed with the Securities and Exchange Commission on June 5, 2014)
|
99.16
|
|
Form
of Restricted Stock Award Agreement under the InspireMD, Inc. 2013 Long-Term Incentive Plan (European) (incorporated by reference
to Exhibit 99.10 to Registration Statement on Form S-8 filed with the Securities and Exchange Commission on June 5, 2014)
|
99.17
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|
Form
of Stock Option Award Agreement outside the InspireMD, Inc. 2013 Long-Term Incentive Plan (incorporated by reference to Exhibit
99.11 to Registration Statement on Form S-8 filed with the Securities and Exchange Commission on June 5, 2014)
|
*
Filed herewith.
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 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the city of Tel Aviv, Israel on September 16th, 2020.
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InspireMD,
Inc.
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By:
|
/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
Each
person whose signature appears below hereby appoints each of Marvin Slosman and Craig Shore, severally, acting alone and without
the other, his or her true and lawful attorney-in-fact, with full power of substitution, and with the authority to execute in
the name of each such person, any and all amendments (including without limitation, post-effective amendments) to this registration
statement on Form S-8, to sign any and all additional registration statements relating to the same offering of securities as this
registration statement, including any amendment to this registration statement for the purpose of registering additional shares
in accordance with General Instruction E to Form S-8, and to file such registration statements with the Securities and Exchange
Commission, together with any exhibits thereto and other documents therewith, necessary or advisable to enable the registrant
to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission
in respect thereof, which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact
executing the same deems appropriate
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.
Signature
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|
Title
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Date
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/s/
Marvin Slosman
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President,
Chief Executive Officer and Director
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September
16, 2020
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Marvin
Slosman
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(principal
executive officer)
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/s/
Craig Shore
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Chief
Financial Officer, Chief Administrative Officer Secretary and
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September
16, 2020
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Craig
Shore
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Treasurer
(principal financial and accounting officer)
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/s/
Paul Stuka
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Chairman
of the Board of Directors
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September
16, 2020
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Paul
Stuka
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/s/
Campbell Rogers
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Director
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September
16, 2020
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Campbell
Rogers, M.D.
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/s/
Michael Berman
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Director
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September
16, 2020
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Michael
Berman
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/s/
Thomas J. Kester
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Director
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September
16, 2020
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Thomas
J. Kester
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