Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8 Filing Table of Contents
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‘S-8’ — Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan Document Table of Contents
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):
Large accelerated filer ¨
Accelerated
filer ¨
Non-accelerated filer x
Smaller reporting company x
Emerging growth company x
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 . x
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 (2)
Amount of
Registration
Fee
Common Stock, $0.001 par value per share
---
Obalon Therapeutics, Inc. 2016 Equity Incentive Plan
1,075,902 (3)
$0.60
$645,541.20
$78.24
--- Obalon Therapeutics, Inc. 2016 Employee Stock Purchase Plan
268,975 (4)
$0.60
$161,385.00
$19.56
Total
1,344,877
—
$806,926.20
$97.80
(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. 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.
(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 July 18, 2019, which date is within five business days prior to filing this Registration Statement.
(3) Represents additional shares of the Registrant’s common stock that became available for issuance on January 1, 2019 under the 2016 Plan, pursuant to the evergreen provision of the 2016 Plan.
(4) Represents
additional shares of the Registrant’s common stock that became available for issuance on January 1, 2019 under the 2016 ESPP, pursuant to the evergreen provision of the 2016 ESPP.
EXPLANATORY NOTE
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 1,344,877 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 and File No. 333-224864) are effective: (i) the Obalon Therapeutics, Inc. 2016 Equity Incentive Plan (as amended, the "2016 Plan") which, as a result of the operation of an automatic annual increase provision therein, added 1,075,902 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 268,975 shares of common stock.
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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
the description of the Registrant’s common stock in our registration statement on Form 8-A filed with the Commission on September 27, 2016 and any amendment or report filed with the Commission for the purpose of updating such description.
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.
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 July 22, 2019.
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes
and appoints William Plovanic, 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.
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.
