OBLN Obalon Therapeutics Inc

As filed with the Securities and Exchange Commission on February 3, 2021

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Registration No. 333-

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UNITED STATES

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SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

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FORM S-8

REGISTRATION STATEMENT UNDER

THE SECURITIES ACT OF 1933

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OBALON THERAPEUTICS, INC.

(Exact Name of Registrant as Specified in its Charter)

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5421 Avenida Encinas, Suite F Carlsbad, California 92008

(Address of Principal Executive Offices) (Zip Code)

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Obalon Therapeutics, Inc. Amended and Restated 2016 Equity Incentive Plan

Obalon Therapeutics, Inc. 2016 Employee Stock Purchase Plan

(Full Title of the Plan)

Andrew Rasdal

President and Chief Executive Officer

Obalon Therapeutics, Inc.

5421 Avenida Encinas, Suite F

Carlsbad, California 92008

(844) 362-2566

(Name, address, and telephone number, including area code, of agent for service)

Copy to:

B. Shayne Kennedy

LATHAM & WATKINS LLP

650 Town Center Drive, 20th Floor

Costa Mesa, California 92626

Telephone: (714) 540-1235

Facsimile: (714) 755-8290

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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. (Check   one):

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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. ⌧

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CALCULATION OF REGISTRATION FEE

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Title of Securities to be Registered	Amount to be Registered (1)	Proposed Maximum Offering Price per Share (2)	Proposed Maximum Aggregate Offering Price (2)	Amount of Registration Fee
Common Stock, $0.001 par value per share	​	​	​	​
--- Obalon Therapeutics, Inc. Amended and Restated 2016 Equity Incentive Plan	478,882 (3)	$4.76	$2,279,478.32	$248.69
--- Obalon Therapeutics, Inc. 2016 Employee Stock Purchase Plan	119,720 (4)	$4.76	$569,867.20	$62.17
Total	598,602	–	$2,849,345.52	$310.86

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(1)Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that becomes issuable under the Obalon Therapeutics, Inc. Amended and Restated 2016 Equity Incentive Plan (as amended, the “2016 Plan”) or Obalon Therapeutics, Inc. 2016 Employee Stock Purchase Plan (as amended, the “2016 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the Registrant’s  outstanding  shares  of  common stock.

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(2)Estimated in accordance with Rule 457(c) solely for the purpose of calculating the registration fee. The maximum price per share and the maximum aggregate offering price are based upon the average of the high and low prices of the Registrant's common stock as reported on the Nasdaq Global Market on January 29, 2021, which date is within five business days prior to filing this Registration Statement.

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(3)Represents additional shares of the Registrant’s common stock that became available for issuance on January 1, 2021 under the 2016 Plan, pursuant to the evergreen provision of the 2016 Plan.

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(4)Represents additional shares of the Registrant’s common stock that became available for issuance on January 1, 2021 under the 2016 ESPP, pursuant to the evergreen provision of the 2016 ESPP.

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EXPLANATORY NOTE

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This Registration Statement on Form S-8 is being filed with the Securities and Exchange Commission (the "Commission") for the purpose of registering an additional 598,602 shares of common stock of Obalon Therapeutics, Inc. (the "Registrant") issuable under the following employee benefit plans for which registration statements of the Registrant on Form S-8 (File No. 333-213988, File No. 333-218482, File No. 333- 224864, File No. 333-232759, File No. 333-235876 and File No. 333-236062) are effective: (i) the Obalon Therapeutics, Inc. Amended and Restated 2016 Equity Incentive Plan (as amended, the "2016 Plan") which, as a result of the operation of an automatic annual increase provision therein, added 478,882 shares of common stock, and (ii) the Obalon Therapeutics, Inc. 2016 Employee Stock Purchase Plan (as amended, the "2016 ESPP") which, as a result of the operation of an automatic annual increase provision therein, added 119,720 shares of common stock.

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Pursuant to General Instruction E of Form S-8, the contents of the above-referenced prior registration statements are incorporated into this Registration Statement by reference to the extent not modified or superseded hereby or by any subsequently filed document, which is incorporated by reference herein or therein.

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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference

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The following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:

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a)	the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019, filed with the Commission on February 27, 2020, as amended on April 29, 2020;

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b)	the Registrant’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on August 7, 2020;

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c)	the Registrant’s Quarterly Reports on Form 10-Q for the three months ended March 31, 2020, June 30, 2020 and September 30, 2020 and filed with the Commission on June 19, 2020 (as amended on June 24, 2020), July 30, 2020 and November 6, 2020, respectively;

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d)

the Registrant’s Current Reports on Form 8-K, filed with the Commission on February 7, 2020, March 30, 2020, April 27, 2020, May 12, 2020,  June 30, 2020, July 2, 2020, August 7, 2020, August 14, 2020, September 22, 2020, December 15, 2020, December 18, 2020, January 20, 2021, and January 22, 2021; and

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e)	the description of the Registrant’s common stock in Exhibit 4.8 to the Registrant's Form 10-K filed with the Commission on February 27, 2020, as amended on April 29, 2020, and any amendment or report filed with the Commission for the purpose of updating such description.

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All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, on the date hereof or after the date of this Registration Statement, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents, except as to any portion of any future annual, quarterly or current report of the Registrant or document that is not deemed filed under such provisions. Unless expressly incorporated into this Registration Statement, a report (or portion thereof) “furnished” on Form 8-K shall not be incorporated by reference into this Registration Statement. Any statement contained in a document 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 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.

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SIGNATURES

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Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Carlsbad, State of California, on February 3, 2021.

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​	OBALON THERAPEUTICS, INC.
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​	By:	/s/ Andrew Rasdal
​	Name:	Andrew Rasdal
​	Title:	President and Chief Executive Officer

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POWER OF ATTORNEY

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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Andrew Rasdal, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and  to  file the  same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent 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 for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.

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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

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Signature		Title		Date
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/s/ Andrew Rasdal	​	President and Chief Executive Officer	​	February 3, 2021
Andrew Rasdal	​	(Principal Executive Officer)	​	​
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/s/ Nooshin Hussainy	​	Chief Financial Officer	​	​
Nooshin Hussainy	​	(Principal Financial Officer and Principal Accounting Officer)	​	February 3, 2021
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/s/ Kim Kamdar, Ph.D.	​	Chairperson of the Board	​	February 3, 2021
Kim Kamdar, Ph.D.	​	​	​	​
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/s/ William Plovanic	​	Director	​	February 3, 2021
William Plovanic	​	​	​	​
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/s/ Ray Dittamore	​	Director	​	February 3, 2021
Ray Dittamore	​	​	​	​
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/s/ Douglas Fisher, M.D.	​	Director	​	February 3, 2021
Douglas Fisher, M.D.	​	​	​	​
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/s/ Les Howe	​	Director	​	February 3, 2021
Les Howe	​	​	​	​
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/s/ Sharon Stevenson, DVM Ph.D.	​	Director	​	February 3, 2021
Sharon Stevenson, DVM Ph.D.	​	​	​	​

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