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
(561) 922-5808
(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
(954) 462-2000
|
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.
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 |
| ● | 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.
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 11th 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 |
|
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| |
|
|
|
|
| /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 |
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| /s/ John Heinrich |
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Director |
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August 11, 2023 |
| John Heinrich |
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| /s/ William McCall |
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Director |
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August 11, 2023 |
| William McCall |
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| /s/ Samuel O’Rear |
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Director |
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August 11, 2023 |
| Samuel O’Rear |
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| /s/ Anthony B. Petrelli |
|
Director |
|
August 11, 2023 |
| Anthony B. Petrelli |
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EXHIBIT INDEX
II-4
Exhibit 5.1
| |
Our File Number: 41163.00003
Writer’s Direct Dial Number: (954) 468-1321
Writer’s E-Mail Address: rlamm@gunster.com |
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: 954-523-1722
| 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.
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Very truly yours, |
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|
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/s/ GUNSTER, YOAKLEY & STEWART, P.A. |
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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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