Securities Registration: Employee Benefit Plan (s-8)
June 16 2021 - 3:31PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on June 16, 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
EDAP TMS
S.A.
(Exact name of registrant as specified
in its charter)
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France
(State or other jurisdiction
of incorporation or organization)
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Not Applicable
(I.R.S. Employer Identification No.)
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Parc d’Activités la Poudrette-Lamartine
4/6, rue du Dauphiné
69120 Vaulx-en-Velin, France
(Address of Principal Executive Offices)
(Zip Code)
EDAP TMS S.A.
2019 Stock-Option Subscription Plan
2019 Stock-Option Purchase Plan
(Full title of the plan)
EDAP Technomed Inc.
5321 Industrial Oaks Blvd, Suite 110
Austin, TX 78735, USA
Tel: +1 (512) 832 7956
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
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Blandine Confort
EDAP TMS S.A.
4/6, rue du Dauphiné
69120 Vaulx-en-Velin, France
+33 (0) 4 72 15 31 50
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Linda Hesse
JONES DAY
2 rue Saint-Florentin
75001 Paris, France
+33 (0) 1 56 59 38 72
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Indicate by check mark whether the Registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or 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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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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
Title of
securities to
be registered
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Amount to be
registered (2)
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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
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Ordinary Shares, €0.13 nominal value per share(1) reserved for issuance upon exercise of outstanding share options granted under the Stock Option Plans identified on the cover of this Registration Statement:
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- 2019 Stock-Option Subscription Plan
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1,000,000
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$6.81(3)
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$6,810,000.00
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$742.97
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- 2019 Stock-Option Purchase Plan
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292,428
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$6.81(3)
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$1,991,434.68
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$217.27
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Total
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1,292,428
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-
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$8,801,434.68
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$960.24
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(1)
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The Ordinary Shares being registered under this registration statement may be represented by the Registrant’s American Depositary Shares. Each American Depositary Share represents one Ordinary Share. American Depositary Shares issuable upon deposit of the Ordinary Shares registered hereby were registered pursuant to a separate Registration Statement on Form F-6EF (File No. 333-176843).
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(2)
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Pursuant to Rule 416 of the Securities Act of 1933 (the “Securities Act”), this Registration Statement also covers such additional Ordinary Shares, €0.13 nominal value per share, of the Registrant, as may become issuable pursuant to the anti-dilution provisions of the Registrant’s equity plan described herein.
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(3)
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Calculated in accordance with Rule 457(h) based on the exercise price of the options, i.e., €5.59 the exercise price was converted from Euros into U.S. dollars based upon the exchange rate of one Euro expressed in U.S. dollars as $1.2174, as set forth in the release of the European Central Bank on June 10, 2021.
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PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the employee benefit
plan information and other information required by Part I of Form S-8 will be included in documents sent or given to participants
in the Plan as specified by Rule 428 under the Securities Act. In accordance with Rule 428 under the Securities Act and the requirements
of Part I of Form S-8, such documents are not being filed with the Securities and Exchange Commission (the “Commission”)
either as a part of this registration statement on Form S-8 (this “Registration Statement”) or as a prospectus
or prospectus supplement pursuant to Rule 424 under the Securities Act. The Registrant will maintain a file of such documents in
accordance with the provisions of Rule 428 under the Securities Act. Upon request, the Registrant will furnish to the Commission
or its staff a copy or copies of all of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which are on
file with the Securities and Exchange Commission (the “Commission”), are incorporated in this Registration Statement
by reference:
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(a)
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The Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2020, filed April 7, 2021 (Commission File No. 000-29374), (the “2020 Form 20-F”);
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(b)
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The Registrant’s Report on Form 6-K furnished to the Commission on May 11, 2021; and
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(c)
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The description of the Registrant’s ordinary shares, nominal value €0.13 per share, set forth under “Memorandum and Articles of Association” in Item 10, the description of the Registrant’s American Depositary Shares set forth under “American Depositary Shares” in Item 12 of the Registrant’s 2020 Form 20-F and the description of securities registered under Section 12 of the Exchange Act in Exhibit 2.3 of the 2020 Form 20-F.
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To the extent designated therein, certain
current reports of the Registrant on Form 6-K and all documents filed by the Registrant with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining
unsold, will 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 any document incorporated or deemed to be incorporated by reference herein will 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 such statement so modified or superseded will not be deemed, except as 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.
Under French law, provisions in the By-laws
that limit the liability of directors and officers are ineffective. However, French law allows sociétés anonymes
to contract for and maintain liability insurance against civil liabilities incurred by any of their directors and officers involved
in a third-party action, provided that they acted in good faith and within their capacities as directors or officers of the company.
Criminal liability cannot be indemnified under French law, whether directly by the company or through liability insurance. Such
rules apply to executive and supervisory board members.
As of the date hereof, we have purchased
liability insurance for our directors and officers, including insurance against liabilities under the Securities Act of 1933, as
amended, and this coverage is subject to annual renegotiation. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to the Registrant’s directors, officers and controlling persons, the Registrant has been advised that,
in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act;
(ii) 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 the 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 a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective Registration Statement.
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement;
provided, however, that paragraphs
(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 reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration Statement.
(2) 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.
(3) 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.
(b) The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities
arising under the Securities Act 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 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 and will be governed by the final adjudication of such issue.
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 Vaulx-en-Velin, France, on June 16, 2021.
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EDAP TMS S.A.
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By:
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/s/ MARC OCZACHOWKSI
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Marc Oczachowski
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Chief Executive Officer
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By:
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/s/ FRANCOIS DIETSCH
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François Dietsch
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Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that
each person whose signature appears below severally constitutes and appoints Marc Oczachowksi and François Dietsch, and
each of them singly, as his/her true and lawful attorneys, with full power to any of them, and to each of them singly, to sign
for him/her and in his/her names in the capacities indicated below any and all pre-effective and post-effective amendments to this
Registration Statement on Form S-8, under the Securities Act of 1933, as amended, in connection with the registration under the
Securities Act of 1933, as amended, of equity securities of EDAP TMS S.A., and to file or cause to be filed the same, with all
exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys,
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 each of them might or could do in person, and hereby ratifying and
confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue
of this Power of Attorney.
Pursuant to the requirements of the Securities
Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
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Date: June 16, 2021
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/s/ MARC OCZACHOWSKI
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Marc Oczachowski
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Chief Executive Officer (Principal Executive
Officer) and Chairman of the Board of Directors
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Date: June 16, 2021
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/s/ FRANCOIS DIETSCH
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François Dietsch
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Chief Financial Officer (Principal Financial and Accounting
Officer)
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Date: June 16, 2021
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/s/ PIERRE BEYSSON
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Pierre Beysson
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Director
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Date: June 16, 2021
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/s/ MARIE MEYNAUDIER
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Marie Meynadier
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Director
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Date: June 16, 2021
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/s/ ROB MICHIELS
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Rob Michiels
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Director
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Date: June 16, 2021
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/s/ ARGIL WHEELOCK
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Argil Wheelock
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Director
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AUTHORIZED REPRESENTATIVE IN THE UNITED
STATES
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement on Form S-8 has been signed by the undersigned as the duly authorized representative in
the United States of EDAP TMS S.A. in Austin, Texas, on June 16, 2021.
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/s/ TIMOTHY
HEYER
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Timothy Heyer
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Vice President – Services & Application
EDAP Technomed Inc.
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