hsdt-s8.htm

S-8 1 hsdt-s8.htm S-8 hsdt-s8.htm

As filed with the Securities and Exchange Commission on February 15, 2019

Registration No. 333-______

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_________________________

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

____________________________

HELIUS MEDICAL TECHNOLOGIES, INC.

(Exact Name of Registrant as Specified in Its Charter)

Delaware

(State or Other Jurisdiction of

Incorporation or Organization)

642 Newtown Yardley Road, Suite 100

Newtown, Pennsylvania

36-4787690

(I.R.S. Employer Identification No.)

18940

(Address of Principal Executive Offices)

(Zip Code)

_____________________________

2018 Omnibus Incentive Plan, as amended

(Full Title of the Plan)

_____________________________

Philippe Deschamps

Chief Executive Officer

642 Newtown Yardley Road, Suite 100

Newtown, Pennsylvania 18940

(Name and Address of Agent for Service)

(215) 944-6100

(Telephone Number, Including Area Code, of Agent For Service)

With copies to:

Jeffrey P. Libson

Darren K. DeStefano

Geoffrey R. Starr

Cooley LLP

11951 Freedom Drive

Reston, VA 20190

Tel: (703) 456-8000

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.

Large accelerated filer ☐Accelerated filer ☑

Non-accelerated filer ☐ Smaller reporting company ☑

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 7(a)(2)(B) 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⁽²⁾

Proposed Maximum

Aggregate

Offering Price⁽²⁾

Amount

Registration Fee

Class A common stock, $0.001 par value per share

5,356,114

$7.42 - $9.47

$41,017,267

$4,971.29

(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 Class A common stock, $0.001 par value per share (the “Common Stock”) that become issuable under the 2018 Omnibus Incentive Plan (the “2018 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock.

(2)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon (a) $9.47, which is the weighted-average exercise price for outstanding options granted under the 2018 Plan and (b) $7.42, which is the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq on February 8, 2019. The chart below details the calculations of the registration fee.


Securities	Number of Shares	Offering Price Per Share ⁽²⁾	Aggregate Offering Price
Shares issuable upon the exercise of outstanding options granted under the 2018 Plan	621,903	$9.47^(2)(a)	$5,889,421
Shares reserved for future grant under the 2018 Plan	4,734,211	$7.42^(2)(b)	$35,127,846

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

ITEM 1.

PLAN INFORMATION.

Not required to be filed with this Registration Statement.

ITEM 2.

REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.

Not required to be filed with this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents filed by Helius Medical Technologies, Inc. (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:

(a) The Description of the Registrant’s Common Stock included in the Registrant’s Form 8-A (filed April 4, 2018) including any amendment or reports filed for the purposes of updating this description.

(b) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2017, filed with the Commission on March 12, 2018, as amended on April 30, 2018.

(d) The Registrant’s Form 10-Q for the quarter ended June 30, 2018 filed with the Commission on August 9, 2018.

(e) The Registrant’s Form 10-Q for the quarter ended September 30, 2018 filed with the Commission on November 8, 2018.

(f) The Registrant’s Current Reports on Form 8-K filed with the Commission on January 4, 2018, January 5, 2018, January 23, 2018, April 12, 2018, May 15, 2018, July 5, 2018, October 22, 2018, October 30, 2018, November 16, 2018 and January 25, 2019.

All documents, reports and definitive proxy or information statements filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall 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 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 herein or in any subsequently filed document that also 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 4. Description of Securities.

Not applicable.

Item 5. Interest of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law (the “DGCL”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act. The Registrant’s certificate of incorporation permits indemnification of our directors, officers and agents to the maximum extent permitted by the Delaware General Corporation Law, and the Registrant’s amended and restated bylaws provide that the Registrant will indemnify its directors and executive officers and permit the Registrant to indemnify its other officers, employees and other agents, in each case to the maximum extent permitted by the DGCL.

We have entered into indemnification agreements with our directors and officers. These agreements provide broader indemnity rights than those provided under the DGCL and our certificate of incorporation. The indemnification agreements are not intended to deny or otherwise limit third-party or derivative suits against us or our directors or officers, but to the extent a director or officer were entitled to indemnity or contribution under the indemnification agreement, the financial burden of a third-party suit would be borne by us, and we would not benefit from derivative recoveries against the director or officer. Such recoveries would accrue to our benefit but would be offset by our obligations to the director or officer under the indemnification agreement.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8.Exhibits.


Exhibit No.	Description
3.1	Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Form 8-K filed October 30, 2018).
3.2	Bylaws as amended and restated (incorporated by reference to Exhibit 3.3 to the Form 10-Q filed August 9, 2018).
4.1	2018 Omnibus Incentive Plan, as amended (incorporated by reference to Exhibit 10.2 to the Form 10-Q filed November 8, 2018).
4.2	Form of Stock Option Grant Notice and Stock Option Agreement under 2018 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.3 to the Form 10-Q filed November 8, 2018).
4.3	Form of Restricted Stock Unit Grant Agreement under 2018 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.4 to the Form 10-Q filed November 8, 2018).
5.1	Opinion of Cooley LLP (filed herewith)
23.1	Consent of BDO USA, LLP (filed herewith)
23.2	Consent of Cooley LLP (included in Exhibit 5.1)
24.1	Powers of Attorney (included on the signature page of this Form S-8)

Item 9. Undertakings.

1.	The undersigned registrant hereby undertakes:

(a) 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 prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% 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)(i) and (a)(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.

(b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered

herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) 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.

(d) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

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 Securities and Exchange 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 the City of Newtown, State of Pennsylvania, on this 15^th day of February, 2019.

Helius Medical Technologies, inc.

By: /s/ Philippe Deschamps

     Philippe Deschamps
     Chief Executive Officer and
     President

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Philippe Deschamps and Joyce LaViscount, 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 or her substitutes or 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 dates indicated.

By	/s/ Philippe Deschamps	Date: February 15, 2019
	Philippe Deschamps
	President, Chief Executive Officer and
	Director

By	/s/ Joyce LaViscount	Date: February 15, 2019
	Joyce LaViscount
	Chief Financial Officer (Principal Financial Officer and Principal Accounting
	Officer), and Corporate Secretary

By	/s/ Blane Walter	Date: February 15, 2019
	Blane Walter
	Director

By	/s/ Mitchell E. Tyler	Date: February 15, 2019

	Mitchell E. Tyler
	Director

By	/s/ Edward M. Straw	Date: February 15, 2019
	Edward M. Straw
	Director

By	/s/ Huaizheng Peng	Date: February 15, 2019
	Huaizheng Peng Director

By	/s/ Thomas E. Griffin	Date: February 15, 2019
	Thomas E. Griffin
	Director

By	/s/ Dane Andreeff	Date: February 15, 2019
	Dane Andreeff
	Director