Securities Registration: Employee Benefit Plan (s-8)
March 22 2023 - 4:32PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on March 22, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Hyperfine, Inc.
(Exact
name of registrant as specified in its charter)
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| Delaware |
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98-1569027 |
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incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
351 New Whitfield Street
Guilford, Connecticut 06437
(Address, including zip code, of registrant’s principal executive offices)
Hyperfine, Inc. 2021 Equity Incentive Plan
Non-Qualified Stock Option Agreement dated February 13, 2023
(Full title of the plans)
Maria Sainz
President
and Chief Executive Officer
Hyperfine, Inc.
351 New Whitfield Street
Guilford, Connecticut 06437
Telephone: (866) 796-6767
(Name, address and telephone number, including area code, of agent for service)
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.
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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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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. ☐
EXPLANATORY NOTE
This Registration Statement registers an aggregate of 3,827,111 shares (the “Shares”) of Class A common stock, par value
$0.0001 per share (the “Class A common stock”), of Hyperfine, Inc. (the “Registrant”), consisting of (i) 2,827,111 additional shares of Class A common stock reserved under the Hyperfine, Inc. 2021 Equity Incentive Plan
(the “2021 Plan”), representing an increase of 2,827,111 shares reserved under the 2021 Plan effective January 1, 2023 by operation of the 2021 Plan’s “evergreen” provision, and (ii) 1,000,000 shares of Class A
common stock that may be issued upon exercise of non-qualified stock options (the “Inducement Awards”) granted to Brett Hale in accordance with Nasdaq Listing Rule 5635(c)(4) as an inducement
material to his entering into employment with the Registrant.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and
Exchange Commission (the “Commission”), the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for
offers of Class A common stock pursuant to the 2021 Plan and the Inducement Awards. The documents containing the information specified in Part I will be delivered to the participants in the 2021 Plan and the Inducement Awards covered by this
Registration Statement as required by Rule 428(b)(1) under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are incorporated herein by reference:
(a) The Registrant’s Annual Report on Form
10-K for the year ended December 31, 2022, filed with the Commission on March 22, 2023;
(b) The Registrant’s Current Reports on Form 8-K filed with the Commission on February 8,
2023 and February 21, 2023 (except for the information furnished under Items 2.02 or 7.01 and the
exhibits furnished thereto); and
(c) The description of the Registrant’s securities contained in the Registrant’s registration
statement on Form 8-A (File No. 001-39949), filed by the
Registrant with the Commission under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on January 26, 2021, including any amendments or reports filed for the purpose of updating such
description.
All reports and other documents filed by the Registrant after the date hereof 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), prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such
reports and 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 the 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of
Named Experts and Counsel.
The validity of the issuance of the shares of Class A common stock registered under this Registration
Statement has been passed upon for the Registrant by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and members of that firm own an aggregate of approximately 28,515 shares of Class A
common stock of the Registrant.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the “DGCL”), permits a corporation to indemnify its directors and officers
against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties. The directors or officers must
have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a
derivative action, an action only by or in the right of the corporation, indemnification may be made only for expenses, including attorney’s fees, actually and reasonably incurred by directors and officers in connection with the defense or
settlement of an action or suit, and only with respect to a matter as to which they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation. No indemnification shall be made if
such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought determines upon application that the defendant officers or directors are fairly and reasonably
entitled to indemnity for such expenses despite such adjudication of liability. The certificate of incorporation, as amended, of the registrant provides that the registrant may indemnify its directors, officers, employees or agents to the fullest
extent permitted by applicable law and the bylaws, as amended, of the registrant provide that the registrant shall indemnify its directors and officers to the fullest extent permitted by applicable law.
Section 102(b)(7) of the DGCL permits a corporation to provide in its charter that a director or officer of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except for liability of (1) a director or officer for any breach of the director’s or officer’s duty
of loyalty to the corporation or its stockholders, (2) a director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) a director for payments of unlawful dividends
or unlawful stock purchases or redemptions, (4) a director or officer for any transaction from which the director or officer derived an improper personal benefit, or (5) an officer in any action by or in the right of the corporation. The
certificate of incorporation, as amended, of the registrant provides for such limitation of liability with respect to directors of the corporation.
We have entered into indemnification agreements with each of our directors and officers in which we have agreed to indemnify and hold
harmless, and also advance expenses as incurred, to the fullest extent permitted under applicable law, against all expenses, losses and liabilities incurred by the indemnitee or on the indemnitee’s behalf arising from the fact that such person
is or was a director, officer, employee or agent of our company or our subsidiaries.
The indemnification rights set forth above shall not
be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, our certificate of incorporation, as amended, our bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise.
We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims
made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit
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Exhibit Description |
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Filed
Herewith |
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Incorporated by
Reference herein from
Form or Schedule
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Filing Date |
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SEC
File/Reg.
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Consent of Deloitte & Touche LLP, independent registered public accounting firm of Hyperfine, Inc. |
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1) |
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X |
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| 24.1 |
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Power of Attorney (included on the signature page hereof) |
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Hyperfine, Inc. 2021 Equity Incentive Plan |
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Form 8-K
(Exhibit 10.20.1) |
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12/28/2021 |
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001-39949 |
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| 99.2+ |
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Form of Stock Option Agreement under 2021 Equity Incentive Plan |
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Form 8-K
(Exhibit 10.20.2) |
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12/28/2021 |
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001-39949 |
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| 99.3+ |
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Form of Restricted Stock Unit Agreement under 2021 Equity Incentive Plan |
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Form S-8
(Exhibit 99.3) |
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3/28/2022 |
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333-263897 |
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| 99.4+ |
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Inducement Non-Qualified Stock Option Agreement, dated as of February
13, 2023, by and between the Registrant and Brett Hale |
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Form 10-K
(Exhibit 10.25) |
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3/22/2023 |
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001-39949 |
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| 107 |
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Filing Fee Table |
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Denotes management contract or compensatory plan or arrangement. |
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 of 1933;
(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 (1)(i) and (1)(ii) of this section 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 Securities Exchange Act of 1934 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.
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(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 of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this
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 of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6, 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
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 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, 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 Town of
Guilford, State of Connecticut, on March 22, 2023.
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| HYPERFINE, INC. |
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| By: |
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/s/ Maria Sainz |
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Maria Sainz |
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President, Chief Executive Officer and Director |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each of Maria Sainz and Brett Hale, acting alone or together with another attorney-in-fact, as his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all further 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 and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the date indicated.
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| Signature |
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Title |
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Date |
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| /s/ Maria Sainz
Maria Sainz |
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President, Chief Executive Officer and Director
(Principal Executive Officer) |
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March 22, 2023 |
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| /s/ Alok Gupta
Alok Gupta |
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Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer) |
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March 22, 2023 |
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| /s/ R. Scott Huennekens
R. Scott Huennekens |
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Executive Chairperson |
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March 22, 2023 |
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| /s/ Jonathan M. Rothberg, Ph.D.
Jonathan M. Rothberg, Ph.D. |
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Vice Chairperson |
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March 22, 2023 |
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| /s/ John Dahldorf
John Dahldorf |
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Director |
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March 22, 2023 |
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| /s/ Ruth Fattori
Ruth Fattori |
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Director |
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March 22, 2023 |
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| /s/ Daniel J. Wolterman
Daniel J. Wolterman |
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Director |
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March 22, 2023 |
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