S-8 1 d723876ds8.htm S-8 S-8

As filed with the Securities and Exchange Commission on February 27, 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

 

 

 

LOGO

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

City Center

33 South Sixth Street, Suite 3600

Minneapolis, Minnesota 55402-3601

(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) 61,658 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) 246,632 additional shares of Common Stock available for issuance under the Vapotherm, Inc. Amended and Restated 2018 Equity Incentive Plan (the “2018 Plan”). In addition, this Registration Statement registers an additional 410,000 additional shares of Common Stock available for issuance under the 2018 Plan, which increase was approved by the Registrant’s Board of Directors effective February 27, 2024.

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”), a Registration Statement on Form S-8 (Reg. No. 333-253597) filed with the SEC on February 26, 2021 (the “2021 Registration Statement”), a Registration Statement on Form S-8 (Reg. No.  333-262989) filed with the SEC on February 24, 2022 (the “2022 Registration Statement”), and a Registration Statement on Form S-8 (Reg. No. 333-270001) filed with the SEC on February 24, 2023 (the “2023 Registration Statement”), such shares as adjusted for the Reverse Stock Split (as defined below).

On August 17, 2023, the Registrant filed a Certificate of Amendment to the Registrant’s Tenth Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware, which effected a one-for-eight reverse stock split (the “Reverse Stock Split”) of the Registrant’s issued and outstanding shares of Common Stock. As a result of the Reverse Stock Split, every eight shares of Common Stock issued and outstanding were converted into one share of Common Stock. The number of shares to be awarded under the 2018 Plan and the ESPP and the number of additional shares available pursuant to the “evergreen” provisions are also being appropriately adjusted as a result of the Reverse Stock Split.

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, the 2021 Registration Statement, the 2022 Registration Statement, and the 2023 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 Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023 filed with the SEC on February 22, 2024 (File No. 001-38740);

 

  (b)

The Registrant’s Current Report on Form 8-K as filed with the SEC on February 27, 2024 (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 Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023 filed with the SEC on February 22, 2024, 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: 

 

Exhibit No.

   

Description

3.1    Tenth Amended and Restated Certificate of Incorporation of Vapotherm, Inc. (previously filed as Exhibit 3.1 to the Current Report Form 8-K filed by the Registrant on November 20, 2018 (File No. 001—38740) and incorporated herein by reference).
3.2    Certificate of Amendment to the Tenth Amended and Restated Certificate of Incorporation of Vapotherm, Inc. (previously filed as Exhibit 3.1 to the Current Report Form 8-K filed by the Registrant on June 24, 2020 (File No. 001-38740) and incorporated herein by reference).
3.3    Certificate of Amendment to the Tenth Amended and Restated Certificate of Incorporation of Vapotherm, Inc. (previously filed as Exhibit 3.1 to the Current Report on Form 8-K filed on August 17, 2023 (File No. 001-38740) and incorporated herein by reference).
3.4    Second Amended and Restated Bylaws of Vapotherm, Inc. (previously filed as Exhibit 3.1 to the Current Report on Form 8-K filed by the Registrant on February 14, 2023 (File No. 001-38740) and incorporated herein by reference).
4.1    Form of Certificate of Common Stock of Vapotherm, Inc. (previously filed as Exhibit 4.1 to the Registration Statement on Form S-1 filed on November 5, 2018 (File No. 333-227897) and incorporated herein by reference).
5.1    Opinion of Fox Rothschild LLP (filed herewith).
23.1    Consent of Grant Thornton LLP (filed herewith).
23.2    Consent of Fox Rothschild LLP (included within the opinion filed as Exhibit 5.1).
24.1    Power of Attorney (included on signature page to this Registration Statement).
99.1    Vapotherm, Inc. 2018 Employee Stock Purchase Plan (previously filed as Exhibit 10.17 to the Registrant’s Registration Statement on Form S-1 (Reg. No. 333-227897) and incorporated herein by reference).
99.2    Vapotherm, Inc. Amended and Restated 2018 Equity Incentive Plan (filed herewith).
107    Filing Fee Table (filed herewith).

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 27, 2024.

 

VAPOTHERM, INC.
By:  

/s/ Joseph Army

  Joseph Army
  President and Chief Executive Officer

POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints Joseph Army, John Landry and James A. Lightman, and each of them acting individually, a true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person and in such person’s 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 such person 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

   

President and Chief Executive Officer and Director

(Principal Executive Officer)

    February 27, 2024
Joseph Army      

/s/ John Landry

   

Senior Vice President and Chief Financial Officer

(Principal Financial Officer)

    February 27, 2024
John Landry      

/s/ Dorota McKay

   

Vice President, Controller and Chief Accounting Officer

(Principal Accounting Officer)

    February 27, 2024
Dorota McKay      

/s/ Anthony L. Arnerich

    Director    February 27, 2024
Anthony L. Arnerich      

/s/ Lance A. Berry

    Director    February 27, 2024
Lance A. Berry      

/s/ Lori Knowles

    Director    February 27, 2024
Lori Knowles      

/s/ James W. Liken

    Director    February 27, 2024
James W. Liken      

/s/ Mary Beth Moynihan

    Director    February 27, 2024
Mary Beth Moynihan      

/s/ Donald J. Spence

    Director    February 27, 2024
Donald J. Spence      

/s/ Elizabeth H. Weatherman

    Director    February 27, 2024
Elizabeth H. Weatherman