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As filed with the Securities and Exchange Commission on March 25, 2021
Registration No. 333-

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549


FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933


CHF Solutions, Inc.
 
(Exact name of registrant as specified in its charter)
    
       
Delaware
  
68-0533453
  
(State or other jurisdiction of
incorporation or organization)
  
(I.R.S. Employer Identification No.)
  
       
12988 Valley View Road
Eden Prairie, Minnesota
  

55344
  
(Address of Principal Executive Offices)
  
(Zip Code)
  
       
 
CHF Solutions, Inc. 2017 Equity Incentive Plan
CHF Solutions, Inc. 2013 Non-Employee Directors’ Equity Incentive Plan
CHF Solutions, Inc. New-Hire Equity Incentive Plan
 
 
(Full title of the plan)
    
       
 
Nestor Jaramillo
Chief Executive Officer
CHF Solutions, Inc.
12988 Valley View Road
Eden Prairie, MN 55344
(952) 345-4200
    
 
(Name, address and telephone number, including area code, of agent for service)
    
 
Copies to:
    
 
Phillip D. Torrence, Esq.
Honigman LLP
650 Trade Center Way, Ste 200
Kalamazoo, MI 49002
(269) 337-7700
Thomas P. Lynch
Chief Legal and Compliance Officer
CHF Solutions, Inc.
12988 Valley View Road
Eden Prairie, MN 55344
(952) 345-4200
    
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.

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. ☐
CALCULATION OF REGISTRATION FEE
Title of securities to be registered
Amount to be
Registered (1)
Proposed maximum
offering price
per share (2)
Proposed maximum
aggregate offering
price (2)
Amount of
registration
fee
Common Stock, par value $0.0001 per share
793,380
$6.36
$5,045,896.80
$550.51
 (1)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock (“Common Stock”) that become issuable under the Plans (as defined below) by reason of any stock dividend, stock split, recapitalization or any other similar transaction without receipt of consideration that results in an increase in the number of shares of the Registrant’s outstanding Common Stock.
(2)
Estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act. The offering price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock as reported on the NASDAQ Capital Market on March 23, 2021, a date within five business days prior to the date of filing of this Registration Statement, for: (i) shares reserved for grant pursuant to the Registrant’s 2017 Equity Incentive Plan (as amended, the “2017 EIP”); (ii) shares reserved for grant pursuant to the Registrant’s 2013 Non-Employee Directors’ Equity Incentive Plan (the “Directors’ EIP”); and (iii) shares reserved for grant pursuant to the Registrant’s New-Hire Equity Incentive Plan (as amended, the “New-Hire Plan”; and collectively, with the 2017 EIP and the Directors’ EIP, the “Plans”).
 
 
Securities
  
Number of Shares
  
Offering Price
Per Share
  
Aggregate Offering Price
    
Shares reserved for grant under the 2017 EIP
    
693,398 (3)
  
$6.36
  
$4,410,011.28
    
Shares reserved for grant under the Directors’ EIP
  
 
87,982 (4)
  
$6.36
  
$559,565.52
    
Shares reserved for grant under the New-Hire Plan
    
12,000 (5)
  
$6.36
  
$76,320
    
Proposed Maximum Offering Price
              
$5,045,896.80
    
(3)
Consists of shares that were automatically added to the shares authorized for issuance under the 2017 EIP on January 1, 2021 pursuant to an “evergreen” provision contained in the 2017 EIP.  Pursuant to the 2017 EIP, the share reserve will automatically increase on January 1st of each year, for a period of not more than ten years, commencing on January 1, 2018 and ending on (and including) January 1, 2020, to an amount equal to thirteen percent (13%) of the fully diluted shares outstanding on December 31st of the preceding calendar year and commencing on January 1, 2021 and on January 1st of each year thereafter and ending on (and including) January 1, 2027, to an amount equal to seventeen percent (17%) of the fully diluted as of December 31st of the preceding calendar year; provided that the Registrant’s Board of Directors (the “Board”) may act prior to January 1st of a given year to provide that there will be no January 1st increase in the share reserve for such year or that the increase in the share reserve for such year will be a lesser number of shares than would otherwise occur.
(4)
Consists of shares that were automatically added to the shares authorized for issuance under the Directors’ EIP on January 1, 2021 pursuant to an “evergreen” provision contained in the Directors’ EIP.  Pursuant to the Directors’ EIP, the share reserve will automatically increase on January 1st of each year, for a period of not more than ten years, commencing on January 1, 2014 and ending on (and including) January 1, 2023, by an amount equal to two percent (2%) of the fully diluted shares outstanding on December 31st of the preceding calendar year; provided that the Board may act prior to January 1st of a given year to provide that there will be no January 1st increase in the share reserve for such year or that the increase in the share reserve for such year will be a lesser number of shares than would otherwise occur.
(5)
Consists of shares reserved for grant under the New-Hire Plan pursuant to an Eighth Amendment to the New-Hire Plan that was approved by the Board on February 17, 2021.
EXPLANATORY NOTE

This Registration Statement on Form S-8 (the “Registration Statement”) is being filed by CHF Solutions, Inc., a Delaware corporation (the “Registrant”) to register (i) an additional 693,398 shares of common stock, par value $0.0001 per share (the “Common Stock”), reserved for grant pursuant to an “evergreen provision” of the Registrant’s 2017 Equity Incentive Plan, as amended, (ii) an additional 87,982 shares of Common Stock reserved for grant pursuant to an “evergreen provision” of the Registrant’s 2013 Non-Employee Directors’ Equity Incentive Plan, and (iii) an additional 12,000 shares of Common Stock reserved for grant pursuant to the Registrant’s New-Hire Equity Incentive Plan, as amended.

INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENTS ON FORM S-8

The contents of the Registration Statements on Form S-8 previously filed with the Securities and Exchange Commission (the “Commission”) on September 14, 2012 (File No. 333-183924), September 14, 2012 (File No. 333-183925), May 30, 2013 (File No. 333-188935), August 9, 2013 (File No. 333-190499), March 18, 2014 (File No. 333-194642), March 20, 2015 (File No. 333-202904), March 15, 2016 (File No. 333-210215), June 2, 2017 (File No. 333-218464), March 23, 2018 (File No. 333-223879), August 8, 2019 (File No. 333-233152) and May 15, 2020 (File No. 333-238276) are incorporated by reference herein.

PART I

INFORMATION REQUIRED IN PROSPECTUS

The documents containing the information required in this Part I will be delivered to the participants in the Plan, as specified in Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to be filed with the Commission as part of this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.     Incorporation of Documents by Reference.

The following documents filed with the Commission by the Registrant are hereby incorporated by reference in this Registration Statement:

(a)          The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2020, filed with the Commission on March 25, 2021;

(b)          The Registrant’s Current Reports on Form 8-K filed with the Commission on January 19, 2021, February 25, 2021 and March 17, 2021;

(c)         The description of the Registrant’s Common Stock contained in the Registration Statement on Form 10 (File No. 001-35312) filed pursuant to Section 12(b) on September 30, 2011 and all amendments thereto.

In addition, all documents the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities covered hereby then remaining unsold are incorporated by reference in this Registration Statement and are a 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, which also is or is deemed to be incorporated by reference herein, modifies or supersedes such prior statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
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Item 4.                                 Description of Securities.
 
Not applicable.
 
Item 5.                                 Interests of Named Experts and Counsel.
 
Not applicable.

Item 6.                                 Indemnification of Directors and Officers.
 
The Registrant’s Fourth Amended and Restated Certificate of Incorporation, as amended, limits the liability of the Registrant’s directors to the fullest extent permitted by Delaware law.  Delaware law provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability for any:
 
•                  breach of their duty of loyalty to the Registrant or the Registrant’s stockholders;
 
•                  act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
 
•                  unlawful payment of dividends or redemption of shares as provided in Section 174 of the Delaware General Corporation Law (the “DGCL”); or
 
•                  transaction from which the directors derived an improper personal benefit.
 
These limitations of liability do not apply to liabilities arising under federal securities laws and do not affect the availability of equitable remedies such as injunctive relief or rescission.
 
The Registrant’s Second Amended and Restated Bylaws (the “Bylaws”) provide that it will indemnify and advance expenses to its directors and officers to the fullest extent permitted by law or, if applicable, pursuant to indemnification agreements. The Bylaws further provide that the Registrant may choose to indemnify its other employees or agents from time to time. Subject to certain exceptions and procedures, the Bylaws also require it to advance to any person who was or is a party, or is threatened to be made a party, to any proceeding by reason of the person’s service as one of the Registrant’s directors or officers all expenses incurred by the person in connection with such proceeding.
 
The Bylaws and Section 145(g) of the DGCL also permit it to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in connection with their services to us, regardless of whether the Bylaws permit indemnification. The Registrant maintains a directors’ and officers’ liability insurance policy.
 
The Registrant entered into indemnification agreements with each of its directors and executive officers that provide, in general, that the Registrant will indemnify them to the fullest extent permitted by law in connection with their service to the Registrant or on its behalf and, subject to certain exceptions and procedures, that the Registrant will advance to them all expenses that they incur in connection with any proceeding to which they are, or are threatened to be, a party.
 
At present, there is no pending litigation or proceeding involving any of the Registrant’s directors or officers as to which indemnification is required or permitted, and the Registrant is not aware of any threatened litigation or proceeding that may result in a claim for indemnification.
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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 Securities and Exchange Commission this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
 
Item 7.          Exemption from Registration Claimed.
 
Not applicable.
        
Item 8.          Exhibits.
EXHIBIT INDEX

The following exhibits are filed as part of this registration statement.

 
 
 
 
Incorporated By Reference
 
 
 
 
Exhibit
Number
 
Exhibit
Description
 
Form
 
File
Number
 
Date of First
Filing
 
Exhibit
Number
 
Filed
Herewith
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
4.1
 
 
10
 
001-35312
 
February 1, 2012
 
3.1
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
4.2
 
 
8-K
 
001-35312
 
January 13, 2017
 
3.1
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
4.3
    
8-K
  
001-35312
  
May 23, 2017
  
3.1
    
 
                          
 
4.4
    
8-K
  
001-35312
  
October 12, 2017
  
3.1
    
                           
 
4.5
    
8-K
  
001-35312
  
January 2, 2019
  
3.1
    
                           
 
4.6
    
8-K/A
  
001-35312
  
October 16, 2020
  
3.1
    
                           
 
4.7
 
  
8-K
  
001-35312
  
May 23, 2017
  
3.2
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
4.8
 
 
8-K
 
001-35312
 
June 14, 2013
 
3.1
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
4.9
  
 
 S-1/A
 
 333-221010
 
 November 17, 2017
 
 3.7
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
4.10
 
 
8-K
 
001-35312
 
August 8, 2016
 
4.1
    
3
 
 
 
 
Incorporated By Reference
 
 
 
 
Exhibit
Number
 
Exhibit
Description
 
Form
 
File
Number
 
Date of First
Filing
 
Exhibit
Number
 
Filed
Herewith
                           
 
5.1
                    
X
                           
 
23.1
                    
X
 
                          
 
23.2
                    
Included in Exhibit 5.1
                            
 
24
                     
X
                            
 
99.1
 
 
14A
 
001-35312
 
April 5, 2013
  
App. A
    
 
  
 
 
 
 
 
 
 
 
 
  
 
 
  
 
99.2
 
 
10-Q
 
001-35312
 
August 8, 2013
  
10.1
 
  
 
  
 
 
 
 
 
 
 
 
 
  
 
 
  
 
99.3
 
 
10-Q
 
001-35312
 
November 12, 2013
  
10.1
 
  
 
  
 
 
 
 
 
 
 
 
 
  
 
 
  
 
99.4
 
 
S-8
 
333-202904
 
March 20, 2015
  
99.12
 
  
                             
 
99.5
    
S-8
  
333-210215
  
March 15, 2016
  
99.13
    
                             
 
99.6
    
8-K
  
001-35312
  
May 30, 2017
  
10.4
    
                             
 
99.7
    
8-K
  
001-35312
  
January 18, 2018
  
10.1
    
                             
 
99.8
    
10-Q
  
001-35312
  
August 8, 2019
  
10.2
    
                             
 
99.9
    
8-K
  
001-35312
  
December 6, 2019
  
10.1
    
                             
 
99.10
    
8-K/A
  
001-35312
  
February 25, 2021
  
10.1
    
                             
 
99.11
    
8-K
  
001-35312
  
May 30, 2017
  
10.1
    
                             
 
99.12
    
14A
  
001-35312
  
September 11, 2020
 		  
App. A
    
                             
†
Indicates management compensatory plan, contract or arrangement.
4
Item 9.  Undertakings.
 
(a)                  The 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 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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; and
 
(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 Registrant hereby undertakes that, for the 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 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 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.
5
SIGNATURES

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 City of Eden Prairie, State of Minnesota, on March 25, 2021.

 
CHF SOLUTIONS, INC.
   
 
By:
 /s/ Nestor Jaramillo
 
Name:
Nestor Jaramillo
 
Title:
President and Chief Executive Officer

We, the undersigned officers and directors of CHF Solutions, Inc., hereby constitute Nestor Jaramillo and Claudia Drayton, as the true and lawful attorneys with full power to them, and each of them singly to sign for us and in our names, in the capacities indicated below the Registration Statement filed herewith and any amendments to said Registration Statement, and generally to do all such things in our name and behalf in our capacities as officers and directors to enable CHF Solutions, Inc. to comply with the provisions of the Securities Act of 1933 and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.  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/ Nestor Jaramillo
President and Chief Executive Officer
March 25, 2021
Nestor Jaramillo
(principal executive officer)
  
     
/s/ Claudia Drayton
Chief Financial Officer
March 25, 2021
Claudia Drayton
(principal financial and accounting officer)
  
     
/s/ Steve Brandt
Director
March 25, 2021
Steve Brandt
    
     
/s/ Maria Rosa Costanzo
Director
March 25, 2021
Maria Rosa Costanzo
    
     
/s/ John L. Erb
Chairman of the Board
March 25, 2021
John L. Erb
    
     
/s/ Jon W. Salveson
Director
March 25, 2021
Jon W. Salveson
    
     
/s/ Gregory D. Waller
Director
March 25, 2021
Gregory D. Waller
    
     
/s/ Warren S. Watson
Director
March 25, 2021
Warren S. Watson
    
     

6

Exhibit 5.1
HONIGMAN

Honigman LLP
Attorneys and Counselors
 
 
(269) 337-7700
 
Fax: (269) 337-7701
 
March 25, 2021

CHF Solutions, Inc.
12988 Valley View Road
Eden Prairie, MN 55344

RE:  Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to CHF Solutions, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of 793,380 shares of the Company’s Common Stock, $0.0001 par value per share (the “Common Stock”), that may be issued pursuant to awards under the Company’s 2017 Equity Incentive Plan, 2013 Non-Employee Directors’ Equity Incentive Plan, and New-Hire Equity Incentive Plan (as such plans are amended from time to time, collectively, the “Plans”).

Based on our examination of such documents and other matters as we deem relevant, we are of the opinion that the shares of Common Stock to be offered by the Company under the Plans pursuant to the Registration Statement are duly authorized and, when issued and sold by the Company in accordance with the applicable Plan and awards thereunder, the Registration Statement and the related Prospectuses, will be validly issued, fully paid and nonassessable.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.  In giving such consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated thereunder by the Commission.

 
Very truly yours,
   
 
/s/ Honigman LLP


Honigman LLP • 650 Trade Centre Way • Suite 200 • Kalamazoo, Michigan 49002-0402

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement on Form S-8 of CHF Solutions, Inc. and subsidiaries of our report dated March 25, 2021, relating to the consolidated financial statements of CHF Solutions, Inc. and subsidiaries, appearing in the Annual Report on Form 10-K for the year ended December 31, 2020.

/s/ Baker Tilly US, LLP (formerly known as Baker Tilly Virchow Krause, LLP)

Minneapolis, Minnesota
March 25, 2021