As filed with the Securities and Exchange Commission on April 11, 2023.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
CUTERA, INC.
(Exact name of Registrant as specified in its charter)
Delaware | 77-0492262 | |
(State of incorporation) | (I.R.S. Employer Identification No.) |
3240 Bayshore Blvd.,
Brisbane, California 94005
(415) 657-5500
(Address, including zip code, and telephone number, including area code, of Registrants principal executive offices)
Amended and Restated 2019 Equity Incentive Plan
(Full title of the Plans)
David H. Mowry
Cutera, Inc.
Chief Executive Officer
3240 Bayshore Blvd.,
Brisbane, California 94005
(Name and address of agent for service)
(415) 657-5500
(Telephone number, including area code, of agent for service)
Copy to:
Philip H. Oettinger Jesse F. Schumaker Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 (650) 493-9300 |
Vikram Varma 3240 Bayshore Blvd. Brisbane, California 94005 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 Securities Act. ☐
CUTERA, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
This Registration Statement on Form S-8 is being filed by Cutera, Inc. (the Company or the Registrant) to register 600,000 shares of common stock of the Registrant, $0.001 par value per share, which may be acquired upon the exercise or vesting of stock options, restricted stock awards, restricted stock units, stock appreciation rights, performance units, performance shares, performance bonus awards and any other awards granted to certain employees, consultants and directors of the Company, under the Companys Amended and Restated 2019 Equity Incentive Plan (the 2019 Plan). The increase of 600,000 shares under the 2019 Plan was approved by the Companys stockholders on June 15, 2022.
Item 1. | Plan Information. |
The documents containing the information specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Exchange Act of 1934, as amended (the Exchange Act). In accordance with the rules and regulations of the Securities and Exchange Commission (the Commission) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item 2. | Registrant Information and Employee Plan Annual Information. |
The documents containing the information specified in this Item 2 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. | Incorporation of Documents by Reference. |
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed by the Registrant with the Commission:
(a) | The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on April 7, 2023, pursuant to Section 13 of the Exchange Act; |
(b) | The Registrants Current Reports on Form 8-K filed with the Commission on March 24, 2023 and April 7, 2023; |
(c) | All other reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report; and |
(d) | The description of the Registrants Common Stock contained in the Registrants Registration Statement on Form 8-A filed on March 22, 2004, pursuant to Section 12(b) of the Exchange Act, and any further amendment or report filed hereafter for the purpose of updating such description, including Exhibit 4.2 to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the Commission on March 16, 2020. |
All documents subsequently 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 which indicates that all securities offered have been sold or which 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. For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded 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 4. | Description of Securities. |
Not applicable.
Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
Item 6. | Indemnification of Directors and Officers. |
Section 145(a) of the Delaware General Corporation Law (the DGCL) provides in relevant part that [a] corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person 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 reasonable cause to believe the persons conduct was unlawful. With respect to derivative actions, Section 145(b) of the DGCL provides in relevant part that [a] corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor .[by reason of the persons service in one of the capacities specified in the preceding sentence] against expenses (including attorneys fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
The Registrants Amended and Restated Certificate of Incorporation provides that to the fullest extent permitted by the DGCL, no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. The Restated Certificate of Incorporation also provides that no amendment or repeal of such provision shall apply to or have any effect on the right to indemnification permitted thereunder with respect to claims arising from acts or omissions occurring in whole or in part before the effective date of such amendment or repeal whether asserted before or after such amendment or repeal.
The Registrants bylaws provide for the indemnification of officers, directors and third parties acting on behalf of the Registrant if such person acted in good faith and in a manner reasonably believed to be in and not opposed to the best interest of the Registrant, and, with respect to any criminal action or proceeding, the indemnified party had no reason to believe his or her conduct was unlawful. The Registrant has entered into indemnification agreements with its directors and executive officers and intends to enter into indemnification agreements with any new directors and executive officers in the future.
The Registrant carries officer and director liability insurance with respect to certain matters, including matters arising under the Securities Act.
Item 7. | Exemption from Registration Claimed. |
Not applicable.
Item 8. Exhibits.
* | Filed herewith |
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 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 Securities Exchange Act of 1934 that are incorporated by reference in this 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 of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 Brisbane, State of California, on April 11, 2023.
CUTERA, INC. | ||
By: | /s/ David H. Mowry | |
David H. Mowry Chief Executive Officer | ||
(Principal Executive Officer) |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints David H. Mowry and Rohan Seth, and each of them acting individually, as their true and lawful attorneys and agents, each with full power of substitution, to sign and file on behalf of the undersigned any amendment or amendments to this Registration Statement on Form S-8 (including post-effective amendments) with all exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission and granting unto said attorneys 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 foregoing, as full to all intents and purposes as the undersigned might or could do in person, and each of the undersigned does hereby ratify and confirm all that said attorneys and agents, or their or his substitutes, 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 on April 11, 2023 by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ David H. Mowry David H. Mowry |
Chief Executive Officer and Director (Principal Executive Officer) | April 11, 2023 | ||
/s/ Rohan Seth Rohan Seth |
Chief Financial Officer (Principal Financial and Accounting Officer) | April 11, 2023 | ||
/s/ J. Daniel Plants J. Daniel Plants |
Executive Chairman of the Board | April 11, 2023 | ||
/s/ Gregory A. Barrett Gregory A. Barrett |
Director | April 11, 2023 | ||
/s/ Timothy J. OShea Timothy J. OShea |
Director | April 11, 2023 | ||
/s/ Joseph E. Whitters Joseph E. Whitters |
Director | April 11, 2023 | ||
/s/ Janet D. Widmann Janet D. Widmann |
Director | April 11, 2023 | ||
/s/ Juliane T. Park Juliane T. Park |
Director | April 11, 2023 | ||
/s/ Sheila A. Hopkins Sheila A. Hopkins |
Director | April 11, 2023 |
Exhibit 5.1
April 11, 2023
Cutera, Inc.
3240 Bayshore Blvd.
Brisbane, CA 94005
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about April 11, 2023 (the Registration Statement) in connection with the registration under the Securities Act of 1933, as amended (the Act) of 600,000 additional shares of Common Stock reserved for issuance under your Amended and Restated 2019 Equity Incentive Plan. Such shares of Common Stock are referred to herein as the Shares and such plan is referred to herein as the Plan. As your counsel in connection with this transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the issuance and sale of the Shares pursuant to the Plan.
It is our opinion that, upon the completion of the proceedings to be taken prior to issuance of the Shares pursuant to the Registration Statement and upon completion of the proceedings to be taken in order to permit such transactions to be carried out in accordance with the securities laws of the various states where required, the Shares, when issued and sold in the manner referred to in the Plan and the agreements which accompany the Plan will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto.
Very truly yours, |
WILSON SONSINI GOODRICH & ROSATI |
Professional Corporation |
/s/ Wilson Sonsini Goodrich & Rosati |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
Cutera, Inc.
Brisbane, California
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of our reports dated April 7, 2023, relating to the consolidated financial statements and schedule, and the effectiveness of Cutera, Inc.s internal control over financial reporting, which appear in the Annual Report to Shareholders, which is incorporated by reference in this Annual Report on Form 10-K. Our report on the effectiveness of internal control over financial reporting expresses an adverse opinion on the effectiveness of the Companys internal control over financial reporting as of December 31, 2022.
/s/ BDO USA, LLP |
San Francisco, California |
April 11, 2023 |
Exhibit 107
CALCULATION OF REGISTRATION FEE TABLES
Form S-8
(Form Type)
Cutera, Inc.
(Exact name of Registrant as Specified in its Charter)
Table 1 Newly Registered Securities
Security Type | Securities Class Type |
Fee Calculation Rule |
Amount to be |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Fee Rate | Amount of Registration Fee | |||||||
Equity | Common Stock $0.001 par value, reserved for issuance pursuant to the Amended and Restated 2019 Equity Incentive Plan | Rules 457(c) and (h) | 600,000 shares (2) | $23.44 (3) | $14,064,000 | 0.0001102 | $1,549.86 | |||||||
TOTAL OFFERING AMOUNT | 600,000 shares | $14,064,000 | $1,549.86 | |||||||||||
TOTAL FEE OFFSETS (4) | ||||||||||||||
NET FEE DUE | $1,549.86 |
(1) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the Securities Act), this Registration Statement covers any additional shares of the Registrants common stock that become issuable under the Registrants Amended and Restated 2019 Equity Incentive Plan (the 2019 Plan) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrants receipt of consideration that results in an increase in the number of outstanding shares of common stock. |
(2) | Represents an increase of 600,000 shares of the Registrants common stock reserved for issuance under the Registrants 2019 Plan, which was approved by the Registrants stockholders on June 15, 2022. |
(3) | Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $23.44 per share, which represents the average of the high and low prices on the common stock as reported on the Nasdaq Global Select Market on April 6, 2023. |
(4) | The Registrant does not have any fee offsets. |