As filed with the Securities and Exchange Commission on March 13, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
electroCore, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 20-3454976 | |
|
(State or Other Jurisdiction of Incorporation) |
(I.R.S. Employer Identification Number) |
200 Forge Way, Suite 205
Rockaway, New Jersey 07866
(Address, including zip code, of registrant’s principal executive offices)
2018 Omnibus Equity Incentive Plan
(Full title of the plan)
Daniel S. Goldberger
Chief Executive Officer
electroCore, Inc.
200 Forge Way, Suite 205
Rockaway, NJ 07866
(973) 290-0097
(Name and address, and telephone number, including area code, of agent for service)
Copies to:
Ira L. Kotel, Esq.
Dentons US LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 768-6700
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.
| 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 13(a) of the Exchange Act. ☐
EXPLANATORY NOTE
electroCore, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 for the purpose of registering an additional 331,935 shares of its common stock, par value $0.001 per share (the “Common Stock”), issuable to eligible persons under the 2018 Omnibus Equity Incentive Plan, which shares are in addition to the shares registered on the Registrant’s registration statements on Form S-8 filed on June 25, 2018 (File No. 333-225864), March 31, 2020 (File No. 333-237498), March 11, 2021 (File No. 333-254171), March 18, 2022 (File No. 333-263675), and March 8, 2023 (File No. 333-270362) (collectively, the “Prior Registration Statements”).
This Registration Statement relates to securities of the same class as that to which the Prior Registration Statements relate, and is submitted in accordance with General Instruction E to Form S-8 regarding Registration of Additional Securities. Pursuant to General Instruction E of Form S-8, the contents of the Prior Registration Statements, to the extent relating to the registration of Common Stock issuable under the 2018 Omnibus Equity Incentive Plan, are incorporated herein by reference and made part of this Registration Statement, except as supplemented, amended, and superseded by the information set forth or incorporated by reference herein. Only those items of Form S-8 containing new information not contained in the Prior Registration Statements are presented herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the Registrant pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in this registration statement:
| (a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the Commission on March 13, 2024; | |
| (b) | The Registrant's Current Report on Form 8-K filed with the Commission on January 16, 2024; and | |
| (c) | The description of the Registrant’s Common Stock contained in the Registrant’s registration statement on Form 8-A (File No. 001-38538) filed with the Commission on June 18, 2018, and any subsequently filed amendments and reports updating such description.. |
All documents that the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date
of this registration statement (except for any portions of the Registrant’s current reports on Form 8-K furnished pursuant to Item
2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission) and prior to the filing of a post-effective
amendment to this registration statement indicating that all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a 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 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 shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
| 4.11 | Form of Non-Employee Director Annual Non-qualified Stock Option Agreement for electroCore, Inc. 2018 Omnibus Equity Incentive Plan. | S-1 | 333-225084 | 10.12 | May 21, 2018 | |||||
| 4.12 | Form of Non-Employee Director Annual Restricted Stock Unit Agreement for electroCore, Inc. 2018 Omnibus Equity Incentive Plan. | S-1 | 333-225084 | 10.13 | May 21, 2018 | |||||
| 4.13 | Description of Capital Stock | 10-K | 001-38538 | 4.1 | March 13, 2024 | |||||
| 5.1* | Opinion of Dentons US LLP. | |||||||||
| 23.1* | Consent of Marcum LLP. | |||||||||
| 23.2* | Consent of Dentons US LLP (included in Exhibit 5.1). | |||||||||
| 24.1* | Power of Attorney (contained on signature page hereto). | |||||||||
| 107* | Filing Fee Table. |
| * | Filed herewith. |
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Rockaway, State of New Jersey, on this 13th day of March 2024.
| ELECTROCORE, INC. | ||
| (Registrant) | ||
| By: | /s/ Brian Posner | |
| Name: Brian Posner | ||
| Title: Chief Financial Officer | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Daniel S. Goldberger and Brian Posner, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution, for him in any and all capacities, to sign this Registration Statement on Form S-8 of electroCore, Inc., and any or all amendments thereto (including post-effective amendments), 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 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 and about the premises hereby ratifying and confirming all that said attorneys-in-fact and agent, proxy and agent, or his 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 on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
|
Signature |
Title |
Date | ||
| /s/ Daniel S. Goldberger | Chief Executive Officer and Director | March 13, 2024 | ||
| Daniel S. Goldberger | (Principal Executive Officer) | |||
| /s/ Brian Posner | ||||
| Brian Posner |
Chief Financial Officer (Principal Financial and Accounting Officer) |
March 13, 2024 | ||
| /s/ Peter Cuneo | Chairman of the Board | March 13, 2024 | ||
| Peter Cuneo | ||||
| /s/ Thomas J. Errico, M.D. | Director | March 13, 2024 | ||
| Thomas J. Errico, M.D. | ||||
| /s/ John Gandolfo | Director | March 13, 2024 | ||
| John Gandolfo | ||||
| /s/ Julie A. Goldstein | Director | March 13, 2024 | ||
| Julie A. Goldstein | ||||
| /s/ Thomas M. Patton | Director | March 13, 2024 | ||
| Thomas M. Patton | ||||
| /s/ Charles S. Theofilos, M.D. | Director | March 13, 2024 | ||
| Charles S. Theofilos, M.D. | ||||
| /s/ Patricia Wilber | Director | March 13, 2024 | ||
| Patricia Wilber | ||||
 |
Dentons US LLP F +1 212 768 6800
dentons.com
|
Exhibit 5.1
March 13, 2024
electroCore, Inc.
200 Forge Way, Suite 205
Rockaway, New Jersey 07866
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to electroCore, Inc., a corporation organized under the laws of the State of Delaware (the “Company”), in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the issuance from time to time of 331,935 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), pursuant to the Company’s 2018 Omnibus Equity Incentive Plan, as amended (the “2018 Plan”), on a Registration Statement on Form S-8 being filed on the date hereof by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act (such registration statement, as it may be amended, the “Registration Statement”).
We are delivering this opinion to you in accordance with your request and in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
In connection with rendering this opinion, we have examined originals, certified copies or copies otherwise identified as being true copies of the following:
| 1. | the Registration Statement, together with the exhibits filed as a part thereof and including any documents incorporated by reference therein; |
| 2. | the Certificate of Incorporation of the Company; |
| 3. | the Amended and Restated Bylaws of the Company, as amended; |
| 4. | the 2018 Plan; |
| 5. | corporate resolutions and proceedings of the Company relating to its proposed issuance of the Shares; and |
| 6. | such other instruments and documents as we have deemed relevant or necessary in connection with our opinions set forth herein. |
We have made such examination of law as we have deemed necessary to express the opinion contained herein. As to matters of fact relevant to this opinion, we have relied upon, and assumed without independent verification, the accuracy of certificates of public officials and officers of the Company. We have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as certified, facsimile or photostatic copies, and the authenticity of the originals of such copies.
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electroCore, Inc. Page 2
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dentons.com | ||
Based on the foregoing, and subject to the limitations, qualifications, exceptions and assumptions expressed herein, we are of the opinion, assuming no change in the applicable law or pertinent facts and having due regard for such legal considerations as we deem relevant, that the Shares, when issued and paid for in accordance with the terms of the 2018 Plan, will be validly issued, fully paid and non-assessable.
We express no opinion as to the laws of any jurisdiction other than the State of New York (excluding local laws), Delaware corporate law (which includes the Delaware General Corporate Law and applicable provisions of the Delaware constitution, as well as reported judicial options interpreting the same), and the federal laws of the United States of America.
This opinion is solely for your benefit and may not be furnished to, or relied upon by, any other person or entity without the express prior written consent of the undersigned, however, we hereby consent to the use of our opinion as herein set forth as an exhibit to the Registration Statement. We do not, by giving such consent, admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.
| Very truly yours, | |
| /s/ Dentons US LLP |
Independent Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference in this Registration Statement of electroCore, Inc. on Form S-8 of our report dated March 13, 2024, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to our audits of the consolidated financial statements of electroCore, Inc. and Subsidiaries as of December 31, 2023 and 2022 and for the years ended December 31, 2023 and 2022 appearing in the Annual Report on Form 10-K of electroCore, Inc. for the year ended December 31, 2023.
/s/ Marcum llp
Marcum llp
New York, NY
March 13, 2024
Exhibit 107
CALCULATION OF FILING FEE TABLES
Form S-8
(Form Type)
electroCore, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title | Fee Calculation Rule (3) | Amount Registered(1) | Proposed Maximum Offering Price per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee (4) | |||||||||||||||||||
| Equity | Common Stock, par value $0.001 | 457(c) and 457(h) | 331,935 | (2) | $ | 6.28 (3) | $ | 2,084,551.80 | 0.00014760 | $ | 307.68 | |||||||||||||||
| Total Offering Amounts | $ | 2,084,551.80 | $ | 307.68 | ||||||||||||||||||||||
| Total Fee Offsets | — | |||||||||||||||||||||||||
| Net Fee Due | $ | 307.68 | ||||||||||||||||||||||||
| (1) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the 2018 Omnibus 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 the Registrant’s outstanding shares of common stock. |
| (2) | Three hundred thirty-one thousand nine hundred thirty-five (331,935) shares represents an increase of approximately 4% of the total number of shares of the Registrant’s common stock outstanding on a fully-diluted basis on December 31, 2023, which increase is provided for in the 2018 Omnibus Equity Incentive Plan. |
| (3) | This estimate is made pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price of the Registrant’s common stock are based upon the average of the high and low prices of the Common Stock on March 12, 2024, as reported on the Nasdaq Stock Market, which date is within five business days prior to the filing of this Registration Statement. |
| (4) | The Registrant does not have any fee offsets. |