ZLTQ Zeltiq Aesthetics, Inc.

As filed with the Securities and Exchange Commission on March 10, 2015

Registration No. 333-                    

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

ZELTIQ Aesthetics, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		27-0119051
(State or other jurisdiction of Incorporation or organization)		(I.R.S. Employer Identification No.)

 

 

4698 Willow Road, Suite 100

Pleasanton, CA 94588

(Address, including zip code, of Principal Executive Offices)

 

 

2011 Equity Incentive Plan

(Full title of the plans)

 

 

Sergio Garcia

Senior Vice President, General Counsel and Corporate Secretary

4698 Willow Road, Suite 100

Pleasanton, CA 94588

(925) 474-2500

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

 

 

Copies to:

Timothy J. Moore

Brett D. White

Cooley LLP

3175 Hanover Street

Palo Alto, CA

(650) 843-5000

 

 

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		x
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 (2)		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee
Common Stock, par value $0.001 per share		1,000,000		$32.545		$32,545,000		$3,782

 

(1)

Pursuant to Rule 416(a), this Registration Statement shall also cover any additional shares of Registrant’s Common Stock that become issuable under the 2011 Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Registrant’s Common Stock.

(2)	Represents the average of the high and low prices of the Common Stock on March 4, 2015, as reported by NASDAQ, and is set forth solely for the purpose of calculating the filing fee pursuant to Rules 457(c) and 457(h) under the Act.

 

 

 

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EXPLANATORY NOTE

This Registration Statement on Form S-8 registers the offer and sale of 1,000,000 shares of Common Stock of ZELTIQ Aesthetics, Inc. (the “Company”) for issuance under the ZELTIQ Aesthetics, Inc. 2011 Equity Incentive Plan (the “EIP”). The contents of the prior Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on October 28, 2011 (File No. 333-177606), March 13, 2013 (File No. 333-187226) and February 26, 2014 (File No. 333-194134), relating to the EIP, are incorporated herein by reference.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents filed by ZELTIQ Aesthetics, Inc. (the “Company”) with the Commission are incorporated by reference into this Registration Statement:

 

1.

The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, as filed on March 10, 2015 (the “2014 Form 10-K”).

 

2.

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 covered by the 2014 Form 10-K; and

 

3.

The description of the Company’s Common Stock contained in the Company’s registration statement on Form 8-A filed with the Commission on October 18, 2011, including any amendments or reports filed for the purpose of updating such description.

All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein and to be a part of this Registration Statement from the date of the filing of such reports and documents.

Item 8. Exhibits.

 

Exhibit No.		Description of Document
3.1(1)		Amended and Restated Certificate of Incorporation
3.2(2)		Amended and Restated Bylaws
5.1		Opinion of Cooley LLP
23.1		Consent of PricewaterhouseCoopers LLP
23.2		Consent of Cooley LLP (included in Exhibit 5.1)
24.1		Power of Attorney (included in Part II of this Registration Statement)
99.1(3)		ZELTIQ Aesthetics, Inc. 2011 Equity Incentive Plan

 

(1)

Incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q, as with filed with the SEC on April 26, 2013 (Reg. No. 001-35318).

 

(2)

Incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K, as with filed with the SEC on February 20, 2015 (Reg. No. 001-35318).

 

(3)

Incorporated by reference to Exhibit 99.1 to our registration statement on Form S-8, as filed with the SEC on March 13, 2013 (Reg. No. 333-187226).

 

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SIGNATURES

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 Pleasanton, State of California, on March 10, 2015.

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Sergio Garcia and Mark J. Foley, and each or any one of them, his or her true and lawful attorney-in-fact and agent, 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 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 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 of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Mark J. Foley Mark J. Foley		President, Chief Executive Officer and Director (Principal Executive Officer)		March 10, 2015
/s/ Patrick F. Williams Patrick F. Williams		Chief Financial Officer (Principal Financial and Accounting Officer)		March 10, 2015
/s/ Mary M. Fisher Mary M. Fisher		Director		March 10, 2015
/s/ Jean M. George Jean M. George		Director		March 10, 2015
/s/ D. Keith Grossman D. Keith Grossman		Director		March 10, 2015
/s/ Kevin C. O’Boyle Kevin C. O’Boyle		Director		March 10, 2015
/s/ Bryan E. Roberts Bryan E. Roberts, Ph.D.		Director		March 10, 2015
/s/ Andrew N. Schiff Andrew N. Schiff, M.D.		Director		March 10, 2015

 

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EXHIBIT INDEX

 

Exhibit No.		Description of Document
3.1(1)		Amended and Restated Certificate of Incorporation
3.2(2)		Amended and Restated Bylaws
5.1		Opinion of Cooley LLP
23.1		Consent of PricewaterhouseCoopers LLP
23.2		Consent of Cooley LLP (included in Exhibit 5.1)
24.1		Power of Attorney (included in Part II of this Registration Statement)
99.1(3)		ZELTIQ Aesthetics, Inc. 2011 Equity Incentive Plan

 

(1)

Incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q, as with filed with the SEC on April 26, 2013 (Reg. No. 001-35318).

 

(2)

Incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K, as with filed with the SEC on February 20, 2015 (Reg. No. 001-35318).

 

(3)

Incorporated by reference to Exhibit 99.1 to our registration statement on Form S-8, as filed with the SEC on March 13, 2013 (Reg. No. 333-187226).

 

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Exhibit 5.1

Timothy J. Moore

(650) 843-5690

mooretj@cooley.com

March 9, 2015

ZELTIQ Aesthetics, Inc.

4698 Willow Road, Suite 100

Pleasanton, CA 94588

Ladies and Gentlemen:

We have acted as counsel to ZELTIQ Aesthetics Inc. (the “Company”) in connection with the filing of a registration statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 1,000,000 shares of the Company’s common stock, par value $0.001 per share (the “Shares”), pursuant to its 2011 Equity Incentive Plan (the “Plan”).

In connection with this opinion, we have examined the Registration Statement and related prospectus, the Company’s certificate of incorporation and by-laws, each as amended, the Plan, and such other documents, records, certificates, memoranda or other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies thereof.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and related prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware.

We consent to the filing of this opinion as an exhibit to the Registration Statement.

Sincerely,

COOLEY LLP

By:   /s/ Timothy J. Moore            

Timothy J. Moore

FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM

 

EXHIBIT 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 10, 2015 relating to the consolidated financial statements and the effectiveness of internal control over financial reporting, which appears in ZELTIQ Aesthetics, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2014.

/s/ PricewaterhouseCoopers LLP

San Jose, California

March 10, 2015