Initial Registration Statement for Employee Benefit Plan Form S 8

As filed with the Securities and Exchange Commission on October 25, 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

EBR SYSTEMS, INC.

(Exact name of registrant as specified in its charter)

Delaware		51-1164669
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
480 Oakmead Parkway Sunnyvale, CA		94085
(Address of Principal Executive Offices)		(Zip Code)

EBR Systems, Inc. 2013 Equity Incentive Plan

EBR Systems, Inc. 2021 Equity Incentive Plan

(Full titles of the plans)

John McCutcheon

President and Chief Executive Officer

EBR Systems, Inc.

480 Oakmead Parkway

Sunnyvale, CA 94085

(408) 720-1906

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

John H. Sellers

Cooley LLP

3175 Hanover Street

Palo Alto, CA 94304

(650) 843-5000

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. ☐

PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

The information called for by Part I of Form S-8 is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended (the "Securities Act") and the instructions to Form S-8. 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 of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.

Incorporation of Documents by Reference.

The following documents filed by EBR Systems, Inc. (the "Registrant") with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") are incorporated by reference into this Registration Statement:

(a) The Registrant's Registration Statement on Form 10-12G filed on July 30, 2024, as amended by Amendment No. 1, filed on September 18, 2024, and Amendment No. 2, filed on October 23, 2024, and effective as of September 30, 2024, which contains audited consolidated financial statements for the most recent fiscal year for which such statements have been filed.

(b) The description of the Registrant's Common Stock contained in Item 11 of the Registrant's Form 10-12G, including any amendment or report filed for the purpose of updating such description.

(c) All documents, reports and definitive proxy or information statements 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 to this Registration Statement that indicates that all securities offered have been sold or that 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. 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 subsequently filed document that also 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.

As permitted by Sections 102 and 145 of the Delaware General Corporation Law, the Registrant has adopted provisions in its Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws that limit or eliminate the personal liability of its directors for a breach of their fiduciary duty of care as a director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material information reasonably available to them. Consequently, a director will not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:

§	any breach of the director's duty of loyalty to the Registrant or its stockholders;

§	any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

§	any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or

§	any transaction from which the director derived an improper personal benefit.

These limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. The Registrant's Amended and Restated Certificate of Incorporation also authorizes it to indemnify its officers, directors and other agents to the fullest extent permitted under Delaware law.

As permitted by Section 145 of the Delaware General Corporation Law, the Registrant's Amended and Restated Bylaws provide that:

§	the Registrant may indemnify its directors, officers, employees and other agents to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions;

§	the Registrant may advance expenses to its directors, officers and employees in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and

§	the rights provided in the Registrant's Amended and Restated Bylaws are not exclusive.

The Registrant's Amended and Restated Certificate of Incorporation and its Amended and Restated Bylaws, as amended, provide for the indemnification provisions described above. The Registrant has entered into, and intends to continue to enter into, separate indemnification agreements with its directors and officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements generally require the Registrant, among other things, to indemnify its officers and directors against certain liabilities that may arise by reason of their status or service as directors or officers, other than liabilities arising from willful misconduct. These indemnification agreements also generally require the Registrant to advance any expenses incurred by the directors or officers as a result of any proceeding against them as to which they could be indemnified. These indemnification provisions and the indemnification agreements may be sufficiently broad to permit indemnification of the Registrant's officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.

The Registrant has purchased and currently intends to maintain insurance on behalf of each and every person who is one of its directors or officers, within the limits and subject to the terms and conditions thereof, 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.

Item 7.

Exemption from Registration Claimed.

Not applicable.

Item 8.

Exhibits.

The exhibits to this Registration Statement are listed below:

Exhibit Number		Description
4.1		Amended and Restated Certificate of Incorporation, as currently in effect (incorporated herein by reference to Exhibit 3.1 to the Registrant's Registration Statement on Form 10 (File No. 000-56671, filed with the Commission on July 29, 2024).
4.2		Amended and Restated Bylaws, as currently in effect (incorporated herein by reference to Exhibit 3.2 to the Registrant's Registration Statement on Form 10, as amended (File No. 000-56671), filed with the Commission on July 29, 2024).
5.1*		Opinion of Cooley LLP.
23.1*		Consent of Independent Registered Public Accounting Firm.
23.2*		Consent of Cooley LLP (included in Exhibit 5.1).
24.1*		Power of Attorney (included on signature page).
99.1		2021 Equity Incentive Plan, as amended (incorporated herein by reference to Exhibit 10.11 to the Registrant's Registration Statement on Form 10, as amended (File No. 000-56671), filed with the Commission on July 29, 2024).
99.2		2013 Equity Incentive Plan, as amended (incorporated herein by reference to Exhibit 10.16 to the Registrant's Registration Statement on Form 10, as amended (File No. 000-56671), filed with the Commission on July 29, 2024).
99.3		Australian Sub-Plan under the 2021 Equity Incentive Plan, as amended (incorporated herein by reference to Exhibit 10.14 to the Registrant's Registration Statement on Form 10, as amended (File No. 000-56671), filed with the Commission on July 29, 2024).
99.4		United Kingdom Sub-Plan under the 2021 Equity Incentive Plan, as amended (incorporated herein by reference to Exhibit 10.15 to the Registrant's Registration Statement on Form 10, as amended (File No. 000-56671), filed with the Commission on July 29, 2024).
99.5		Form of Stock Option Grant Notice and Stock Option Agreement under the 2021 Equity Incentive Plan (Australian Grants) (incorporated herein by reference to Exhibit 10.12 to the Registrant's Registration Statement on Form 10, as amended (File No. 000-56671), filed with the Commission on July 29, 2024).
99.6		Form of Stock Option Grant Notice and Stock Option Agreement under the 2021 Equity Incentive Plan (United Kingdom Grants) (incorporated herein by reference to Exhibit 10.13 to the Registrant's Registration Statement on Form 10, as amended (File No. 000-56671), filed with the Commission on July 29, 2024).
99.8		Form of Stock Option Grant Notice and Stock Option Agreement under the 2013 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.17 to the Registrant's Registration Statement on Form 10, as amended (File No. 000-56671), filed with the Commission on July 29, 2024).
107*		Filing Fee Disclosure and Payment Methods.

* 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;

(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; and

(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 Registration Statement is on Form S-8, and 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, 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 herein, and the offering of such securities at that time shall be deemed to be the initialbona 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 the City of Sunnyvale, State of California, on October 25, 2024.

		EBR SYSTEMS, INC.
		By:	/s/ John McCutcheon
			John McCutcheon
			President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John McCutcheon and Gary W. Doherty and each of them, as his or her true and lawful attorneys-in-fact and agents, and each of them, with the full power of substitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments), and to file the same, with 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 attorneys-in-fact and agents, 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, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

Signature		Title		Date
/s/ John McCutcheon		President, Chief Executive Officer and Director		October 25, 2024
John McCutcheon		(Principal Executive Officer)
/s/ Gary W. Doherty		Chief Financial Officer		October 25, 2024
Gary W. Doherty		(Principal Financial and Accounting Officer)
/s/ Alan Will		Chairman of the Board of Directors		October 25, 2024
Alan Will
/s/ Karen Drexler		Director		October 25, 2024
Karen Drexler
/s/ Bronwyn Evans AM		Director		October 25, 2024
Bronwyn Evans AM
/s/ Trevor Moody		Director		October 25, 2024
Trevor Moody
/s/ Chris Nave		Director		October 25, 2024
Chris Nave
/s/ David Steinhaus, M.D.		Director		October 25, 2024
David Steinhaus, M.D.

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