Form S-8 - Securities to be offered to employees in employee benefit plans

As filed with the Securities and Exchange Commission on August 11, 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

 

 

 

Sensus Healthcare, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware		27-1647271
(State of incorporation)		(I.R.S. Employer Identification Number)

 

851 Broken Sound Pkwy. NW #215

Boca Raton, FL 33487

(Address of Principal Executive Offices)

 

 

 

2017 Incentive Plan

(Full Title of Plan)

 

 

 

Javier Rampolla Chief Financial Officer Sensus Healthcare, Inc. 851 Broken Sound Pkwy. NW #215 Boca Raton, Florida 33487 [phone] (Name, Address and Telephone Number, Including Area Code, of Agent for Service)

Copy To: Robert B. Lamm, Esq. Gunster, Yoakley & Stewart, P.A. 450 E. Las Olas Blvd., Suite 1400 Fort Lauderdale, Florida 33301 [phone]

 

 

 

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 “accelerated filer,” “large 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. ☐

 

 

 

 

 

 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 250,000 shares of the Common Stock of Sensus Healthcare, Inc. (the “Company”) to be issued pursuant to the Company’s 2017 Incentive Plan, as amended and restated (the “Plan”). The Company registered 500,000 shares of Common Stock for issuance under the Plan on a Registration Statement on Form S-8 (File No. 333-221372) (the “Initial Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) on November 6, 2017. In accordance with Section E of the General Instructions to Form S-8, the contents of the Initial Registration Statement are incorporated by reference herein, except that provisions contained in Part II of the Initial Registration Statement are modified as set forth herein.

 

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PART II

 

Information Required in the Registration Statement

 

Item 6. Indemnification of Directors and Officers.

 

Section 145(a) of the Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation may 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 such 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 person’s conduct was unlawful.

 

Section 145(b) of the DGCL provides that a Delaware corporation may 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 fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by such 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, 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 shall deem proper.

 

Further subsections of the DGCL Section 145 provide that:

 

●

to the extent a present or former director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by such person in connection therewith;

 

●

the indemnification and advancement of expenses provided for pursuant to Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise; and

 

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●

the corporation shall have the power to purchase and maintain insurance of behalf of any person who 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 any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145.

 

The term “proceeding” means any threatened, pending, or completed action, suit, or proceeding, whether or not by or in the right of the Corporation, and whether civil, criminal, administrative, investigative or otherwise.

 

Section 145 of the DGCL makes provision for the indemnification of such individuals in terms sufficiently broad to indemnify them under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The Company may, in its discretion, similarly such individuals, including its employees, agents, executive officers, and directors.

 

The certificate of incorporation and bylaws of the Company provide that, to the fullest extent and under the circumstances permitted by Section 145 of the DGCL, the Company will indemnify directors and officers from and against any and all of the expenses, liabilities or other maters referred to in Section 145 of the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its directors and officers from personal liability to such corporation or its stockholders for monetary damages for breaches of their fiduciary duties, except as specified in such section. The Company’s certificate of incorporation relieves its directors, but not its officers, from personal liability to the Company or its stockholders for any breach of their fiduciary duties in accordance with such section.

 

The Company maintains insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or controlling persons pursuant to the provisions described above, or otherwise, we have 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 8. Exhibits.

 

The exhibits listed below in the “Exhibit Index” are part of this Registration Statement on Form S-8 and are numbered in accordance with Item 601 of Regulation S-K.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Company certifies that it has reasonable grounds to believe that it meets all 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 Boca Raton, State of Florida, on the 11^th day of August, 2023.

 

	SENSUS HEALTHCARE, INC.
	By:	/s/ Joseph C. Sardano
		Joseph C. Sardano
		Chief Executive Officer
		(Principal Executive Officer)

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Joseph C. Sardano, Javier Rampolla and Michael Sardano and each 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 the 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 attorney-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said attorneys-in-fact and agents or any of them or their 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 dates indicated:

 

Signature		Title		Date
/s/ Joseph C. Sardano		Chief Executive Officer		August 11, 2023
Joseph C. Sardano		(Principal Executive Officer), Director
/s/ Javier Rampolla		Chief Financial Officer		August 11, 2023
Javier Rampolla		(Principal Financial Officer and Principal Accounting Officer)
/s/ Megan Cornish		Director		August 11, 2023
Megan Cornish
/s/ John Heinrich		Director		August 11, 2023
John Heinrich
/s/ William McCall		Director		August 11, 2023
William McCall
/s/ Samuel O’Rear		Director		August 11, 2023
Samuel O’Rear
/s/ Anthony B. Petrelli		Director		August 11, 2023
Anthony B. Petrelli

 

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EXHIBIT INDEX

 

4.1		Amended and Restated Certificate of Incorporation of Sensus Healthcare, Inc. - incorporated herein by reference to Exhibit 3.1 of the Registrant’s Amendment No. 2 to Registration Statement on Form S-1 (filed 3/25/16) (No. 333-209451).
4.2		Bylaws of Sensus Healthcare, Inc. - incorporated herein by reference to Exhibit 3.2 of the Registrant’s Amendment No. 1 to Registration Statement on Form S-1 (filed 2/10/16) (No. 333-209451).
5.1*		Opinion of Gunster, Yoakley & Stewart, P.A.
10.1		2017 Incentive Plan, as amended and restated as of June 2, 2023 – incorporated herein by reference to Appendix A of the Registrant’s Definitive Proxy Statement on Form DEF 14A (filed 5/1/2023) (No. 001-37714).
10.2		Form of Restricted Stock Award Agreement incorporated by reference to Exhibit 10.2 of the Company’s Registration Statement on Form S-8 (filed 11/6/17)(No. 333-221372).
23.1*		Consent of Marcum LLP.
23.2		Consent of Gunster, Yoakley & Stewart, P.A. (contained in Exhibit 5.1).
24.1		Power of Attorney (included on signature page).
107*		Filing Fee Table

 

 

*

Filed herewith

 

 

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Exhibit 5.1

 

 

 

Our File Number: 41163.00003 Writer’s Direct Dial Number: [phone] Writer’s E-Mail Address: [e-mail]

 

August 11, 2023

 

Sensus Healthcare, Inc.

851 Broken Sound Parkway, NW #215

Boca Raton, FL 33487

 

Re: Sensus Healthcare, Inc. – Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as legal counsel for Sensus Healthcare, Inc., a corporation organized under the laws of the State of Delaware (the “Registrant”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of the Registrant’s Registration Statement on Form S-8 relating to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of up to 250,000 of the Registrant’s common stock, par value of $0.01 per share (the “Common Stock”), that may be issued from time to time by the Registrant upon exercise of stock options, awards of restricted stock or other equity awards pursuant to the Registrant’s 2017 Incentive Plan, as amended and restated as of June 2, 2023 (the “Plan”).

 

We do not express any opinion herein as to any laws other than the provisions of the Delaware General Corporation Law (the “DGCL”) that are applicable to our opinion set forth below. Except as described above, we have neither examined nor do we express any opinion with respect to Delaware law. Without limiting the foregoing, we express no opinion on Delaware contracts law or on general principles of equity, considerations of public policy, judicial discretion or other considerations which may affect the application of the DGCL to specific facts.

 

We have examined the originals, or certified, conformed or reproduction copies, of all such records, agreements, instruments and documents as we have deemed relevant or necessary as the basis for the opinion hereinafter expressed. In all such examinations, we have assumed the genuineness of all signatures on originals or certified copies and the conformity to original or certified copies of all copies submitted to us as conformed or reproduction copies. As to various questions of fact relevant to such opinion, we have relied upon, and assumed the accuracy of, certificates and oral or written statements and other information of or from public officials, officers or representatives of the Registrant, and others.

 

 

 

Las Olas Centre, Suite 1400, 450 East Las Olas Boulevard ● Fort Lauderdale, FL 33301-4206 | 954-462-2000 | Fax: [phone] | www.gunster.com

 

BOCA RATON ● FORT LAUDERDALE ● JACKSONVILLE ● MIAMI ● NAPLES ● orlando ● PALM BEACH ● STUART ● TALLAHASSEE ● tampa ● VERO BEACH ● WEST PALM BEACh

 

 

 

 

August 11, 2023

Sensus Healthcare, Inc.

Page 2

 

Opinion

 

Based upon and subject to the foregoing, and subject to the limitations, qualifications and assumptions set forth in this opinion letter, as of the date hereof, we are of the opinion that the Common Stock, when issued and delivered by the Registrant in accordance with the terms and conditions of the Plan, will be validly issued, fully paid and nonassessable.

 

Nothing contained in this opinion letter shall be deemed to be an opinion other than as set forth in the immediately preceding paragraph.

 

Qualifications And Limitations

 

This opinion letter is furnished solely in connection with the offering and sale of the Common Stock while the Registration Statement is in effect. The opinion expressed in this opinion letter is rendered as of the date hereof and are based on facts in existence and statutes, rules, regulations and judicial decisions in effect on the date hereof, and we express no opinion as to circumstances or events that may occur subsequent to such date. In addition, we specifically disclaim any undertaking or obligation to advise you of changes that hereafter may be brought to our attention. Furthermore, the opinion provided herein is provided as a legal opinion only and not as a guarantee or warranty of the matters discussed herein.

 

We hereby consent to the filing of this opinion letter with the Commission as Exhibit 5.1 to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not 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.

 

The opinion set forth in this opinion letter is limited to the matters expressly set forth and no opinion is to be implied or may be inferred beyond the matters expressly stated.

 

	Very truly yours,
	/s/ GUNSTER, YOAKLEY & STEWART, P.A.
	GUNSTER, YOAKLEY & STEWART, P.A.

 

RBL/CRS

 

 

 

 

Exhibit 23.1

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of Sensus Healthcare, Inc. on Form S-8 of our report dated March 23, 2023 with respect to our audits of the consolidated financial statements of Sensus Healthcare, Inc. as of December 31, 2022 and 2021, and for the years ended December 31, 2022 and 2021, which report is incorporated by reference in this Registration Statement.

 

 

/s/ Marcum llp

 

Marcum llp

Tampa, Florida

August 11, 2023

 

Exhibit 107

 

Calculation of Filing Fee Table

 

Form S-8

(Form Type)

 

SENSUS HEALTHCARE, INC.

(Exact Name of Registrant as Specified in its Charter)

 

Table I: Newly Issued Securities

 

Security Type		Security Class Title		Fee Calculation Rule		Amount Registered				Proposed Maximum Offering Price Per Share				Maximum Aggregate Offering Price				Fee Rate		Amount of Registration Fee
Equity		Common Stock, $0.01 par value per share		Rules 457(c) and 457(h)			250,000	(1)		$	3.31	(2)		$	827,500	(2)		$110.20 per $1,000,000		$	91.19
		Total Offering Amounts												$	827,500	(2)				$	91.19
		Total Fee Offsets																		$	0.00
		Net Fee Due																		$	91.19

 

(1)

Represents shares of Common Stock to be registered under the registrant’s 2017 Incentive Plan. Pursuant to Section 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares of Common Stock that may become issuable as a result of stock splits, stock dividends, or similar transactions under the anti-dilution provisions of the 2017 Incentive Plan. The registrant has previously registered 500,000 shares that may be issued under the 2017 Incentive Plan on Registration Statement No. 333-221372. The registration fee for the previously registered shares was paid at the time that such registration statement was filed.

 

(2)

Estimated solely for the purpose of computing the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act. Pursuant to Rules 457(c) and 457(h) under the Securities Act, the proposed maximum aggregate offering price was determined based on the average of the high and low prices reported for Sensus Healthcare, Inc.’s Common Stock on NASDAQ on August 7, 2023.

 

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