As filed with the Securities and Exchange Commission on February 24, 2022
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VAPOTHERM, INC.
(Exact name of registrant as specified in its charter)
Delaware | 46-2259298 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
100 Domain Drive, Exeter, New Hampshire |
03833 | |
(Address of Principal Executive Offices) | (Zip Code) |
Vapotherm, Inc. 2018 Employee Stock Purchase Plan
Vapotherm, Inc. Amended and Restated 2018 Equity Incentive Plan
(Full title of the plan)
James A. Lightman
Senior Vice President and General Counsel
Vapotherm, Inc.
100 Domain Drive
Exeter, NH 03833
(Name and address of agent for service)
(603) 658-0011
(Telephone number, including area code, of agent for service)
Copies requested to:
Amy E. Culbert, Esq.
Fox Rothschild LLP
222 South Ninth Street, Suite 2000
Minneapolis, Minnesota 55402-3338
(612) 607-7000
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. ☐
EXPLANATORY NOTE
REGISTRATION OF ADDITIONAL SECURITIES PURSUANT TO GENERAL INSTRUCTION E
This Registration Statement on Form S-8 (this Registration Statement) has been filed by Vapotherm, Inc. (the Registrant) to register (i) 261,262 additional shares of common stock, par value $0.001 per share, of the Registrant (the Common Stock) available for issuance under the Vapotherm, Inc. 2018 Employee Stock Purchase Plan (the ESPP) and (ii) 1,045,050 additional shares of Common Stock available for issuance under the Vapotherm, Inc. 2018 Equity Incentive Plan (the 2018 Plan). This Registration Statement relates to securities of the same class as those that were previously registered by the Registrant on a Registration Statement on Form S-8 (Reg. No. 333-229327), filed with the Securities and Exchange Commission (the SEC) on January 22, 2019 (the 2019 Registration Statement), a Registration Statement on Form S-8 (Reg. No. 333-236953), filed with the SEC on March 6, 2020 (the 2020 Registration Statement), and a Registration Statement on Form S-8 (Reg. No. 333-253597), filed with the SEC on February 26, 2021 (the 2021 Registration Statement).
Pursuant to General Instruction E to Form S-8 regarding registration of additional securities, the entire contents of the 2019 Registration Statement, the 2020 Registration Statement and the 2021 Registration Statement are incorporated herein by reference, except to the extent supplemented, amended or superseded by the information set forth herein.
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 which have been previously filed (not furnished) with the SEC:
(a) | The Registrants Annual Report on Form 10-K for the year ended December 31, 2021 filed with the SEC on February 24, 2022 (File No. 001-38740); |
(b) | The Registrants Current Report on Form 8-K filed with the SEC on January 4, 2022 (File No. 001-38740); and |
(c) | The description of the Common Stock contained in the Description of Securities filed as Exhibit 4.9 to the Registrants Annual Report on Form 10-K for the year ended December 31, 2021 filed with the SEC on February 24, 2022, including any amendments or reports filed for the purpose of updating such description (File No. 001-38740). |
In addition, all other documents filed (not furnished) by the Registrant pursuant to Section 13(a), Section 13(c), Section 14 or Section 15(d) of the Exchange Act 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 hereby have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated in this Registration Statement by reference and to be a part of this Registration Statement from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished to and not filed with the SEC in accordance with the rules of the SEC shall not be deemed incorporated by reference into 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 for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which 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 8. | Exhibits. |
The following exhibits are filed with or incorporated by reference into this Registration Statement:
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 Exeter, State of New Hampshire, on February 24, 2022.
VAPOTHERM, INC. | ||
By: | /s/ Joseph Army | |
Joseph Army | ||
President and Chief Executive Officer |
Each person whose signature appears below constitutes and appoints Joseph Army, John Landry and James A. Lightman, and each of them acting individually, 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 this Registration Statement on Form S-8 to be filed by Vapotherm, Inc., and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority 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 their 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.
Name and Signature |
Title |
Date | ||
/s/ Joseph Army Joseph Army |
President and Chief Executive Officer and Director (Principal Executive Officer) |
February 24, 2022 | ||
/s/ John Landry John Landry |
Senior Vice President and Chief Financial Officer (Principal Financial Officer) |
February 24, 2022 | ||
/s/ Dorota McKay Dorota McKay |
Controller and Chief Accounting Officer (Principal Accounting Officer) |
February 24, 2022 | ||
/s/ Anthony L. Arnerich Anthony L. Arnerich |
Director |
February 24, 2022 | ||
/s/ Lance A. Berry Lance A. Berry |
Director |
February 24, 2022 | ||
/s/ Lori Knowles Lori Knowles |
Director |
February 24, 2022 | ||
/s/ James W. Liken James W. Liken |
Director |
February 24, 2022 | ||
/s/ Mary Beth Moynihan Mary Beth Moynihan |
Director |
February 24, 2022 | ||
/s/ Donald J. Spence Donald J. Spence |
Director |
February 24, 2022 | ||
/s/ Elizabeth H. Weatherman Elizabeth H. Weatherman |
Director |
February 24, 2022 |
Exhibit 5.1
[Fox Rothschild LLP Letterhead]
February 24, 2022
Vapotherm, Inc.
100 Domain Drive
Exeter, NH 03833
Re: | Vapotherm, Inc. |
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Vapotherm, Inc., a Delaware corporation (the Company), in connection with the Companys registration of 261,262 shares (collectively, the ESPP Shares) of the Companys common stock, par value $0.001 per share (the Common Stock), issuable under the Vapotherm, Inc. 2018 Employee Stock Purchase Plan (the ESPP) and 1,045,050 shares (collectively, the 2018 Plan Shares and collectively, with the ESPP Shares, the Shares) of Common Stock issuable under the Vapotherm, Inc. Amended and Restated 2018 Equity Incentive Plan (the 2018 Plan and collectively, with the ESPP, the Plans) pursuant to a Registration Statement on Form S-8 (the Registration Statement) under the Securities Act of 1933, as amended (the Securities Act), filed by the Company with the Securities and Exchange Commission (the SEC) on the date hereof.
In connection with this opinion, we have examined and relied upon the originals, or copies certified or otherwise identified to our satisfaction, of such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to enable us to render the opinions expressed below. As to certain factual matters, we have relied upon certificates of the officers of the Company and have not sought to independently verify such matters.
In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents, including electronic signatures made and/or transmitted using electronic signature technology (e.g., via DocuSign or similar electronic signature technology), and that any such signed electronic record shall be valid and as effective to bind the party so signing as a paper copy bearing such partys handwritten signature; the legal capacity of all natural persons; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as certified or photocopies; the authenticity of the originals of such latter documents; the accuracy and completeness of all documents and records reviewed by us; the accuracy, completeness and authenticity of certificates issued by any governmental official, office or agency and the absence of change in the information contained therein from the effective date of any such certificate; and the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents.
Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing) and is based on these laws as in effect on the date hereof. We express no opinion as to whether the laws of any jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or other state law, rule or regulation relating to securities, or to the sale or issuance thereof.
On the basis of the foregoing and in reliance thereon, and subject to the qualifications herein stated, we are of the opinion that the Shares registered pursuant to the Registration Statement have been duly and validly authorized and reserved for issuance and that upon the issuance of the Shares and payment therefor in accordance with the provisions of the applicable Plan, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable law.
Very truly yours, |
/s/ Fox Rothschild LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated February 24, 2022 with respect to the consolidated financial statements and internal control over financial reporting of Vapotherm, Inc. included in the Annual Report on Form 10-K for the year ended December 31, 2021, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement.
/s/ GRANT THORNTON LLP |
New York, New York
February 24, 2022
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Vapotherm, Inc.
(Exact name of registrant as specified in its charter)
Table 1: Newly Registered Securities
Security type |
Security class title |
Fee calculation rule |
Amount registered(1) |
Proposed maximum offering price per unit |
Maximum aggregate offering price |
Fee rate |
Amount of registration fee | |||||||||
Equity - Vapotherm, Inc. 2018 Employee Stock Purchase Plan |
Common Stock, par value $0.001 per share |
457(c) and 457 (h) |
261,262 shares(2) |
$13.74(3) | $3,589,739.88 | $92.70 per $1,000,000 |
$332.77 | |||||||||
Equity - Vapotherm, Inc. Amended and Restated 2018 Equity Incentive Plan |
Common Stock, par value $0.001 |
457(c) and 457 (h) |
1,045,050 shares(4) |
$13.74(3) | $14,358,987.00 | $92.70 per $1,000,000 |
$1,331.08 | |||||||||
Total Offering Amounts |
$17,948,726.88 | $1,663.85 | ||||||||||||||
Total Fee Offsets |
$0 | |||||||||||||||
Net Fee Due |
$1,663.85 |
(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this Registration Statement on Form S-8 (this Registration Statement) also covers such additional shares of common stock, par value $0.001 per share (the Common Stock) of Vapotherm, Inc. (the Registrant) as may be issued to prevent dilution from stock splits, stock dividends and similar transactions. |
(2) | Represents 261,262 shares of Common Stock that were automatically added to the shares authorized for issuance under the Vapotherm, Inc. 2018 Employee Stock Purchase Plan (the ESPP) on January 1, 2022 pursuant to an evergreen provision contained in the ESPP. The evergreen provision provides that on each January 1st from January 1, 2020 through January 1, 2028, the number of shares of Common Stock available for issuance under the ESPP will automatically increase annually in an amount equal to the lesser of (i) 1% of outstanding shares of the Registrants Common Stock as of the close of business on the immediately preceding December 31st or (ii) the number of shares determined by the Registrants board of directors on or prior to such date, up to a maximum of 1,741,300 shares in the aggregate. |
(3) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) based on the average of the high and low prices of the Registrants Common Stock as reported by the New York Stock Exchange on February 18, 2022 to be $14.00 and $13.47, respectively. |
(4) | Represents 1,045,050 shares of Common Stock that were automatically added to the shares authorized for issuance under the Vapotherm, Inc. Amended and Restated 2018 Equity Incentive Plan (the 2018 Plan) on January 1, 2022 pursuant to an evergreen provision contained in the 2018 Plan. The evergreen provision provides that on each January 1st from January 1, 2019 through January 1, 2028, the number of shares of Common Stock available for issuance under the 2018 Plan will automatically increase annually in an amount equal to the lesser of (i) 4% of outstanding shares of the Registrants Common Stock as of the close of business on the immediately preceding December 31st or (ii) the number of shares determined by the Registrants board of directors on or prior to such date. |