Securities Registration: Employee Benefit Plan (s-8)
29 September 2021 - 6:37AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on September 28, 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
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Not applicable
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(State or other jurisdiction of incorporation
or organization)
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(I.R.S. employer
identification No.)
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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.
2021 Free Share 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
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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 future issuance under the 2021 Free Share Plan
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200,000
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$6.25(2)
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$1,250,000.00
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$136.38
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Total
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200,000
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-
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$1,250,000.00
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$136.38
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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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Estimated in accordance with Rule 457(c) under the Securities Act solely for the purpose of calculating the registration fee based upon the average of the $6.32 (high) and $6.17 (low) sale price of the Registrant's Ordinary Shares as reported on the NASDAQ on September 23, 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;
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(c)
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The Registrant’s Report
on Form 6-K furnished to the Commission on August 25, 2021; and
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(d)
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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 September 28, 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: September 28, 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: September 28, 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: September 28,
2021
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/s/ PIERRE BEYSSON
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Pierre Beysson
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Director
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Date: September 28, 2021
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/s/ MARIE MEYNADIER
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Marie Meynadier
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Director
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Date: ,
2021
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Rob Michiels
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Director
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Date: ,
2021
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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 September 28, 2021.
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/s/ HUGO EMBERT
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Hugo Embert
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Chief Marketing Officer
EDAP Technomed Inc.
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