As filed with the Securities and Exchange Commission on February 10, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MYOMO, INC.
(Exact name of Registrant as specified in its charter)
| Delaware | 3842 | 47-0944526 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
One Broadway, 14th Floor
Cambridge, Massachusetts 02142
(617) 996-9058
(Address, including zip code and telephone number, including area code, of Registrant’s principal executive offices)
Paul R. Gudonis
President and Chief Executive Officer Myomo, Inc.
One Broadway, 14th Floor Cambridge, Massachusetts 02142
(617) 996-9058
(Name, address, including zip code and telephone number, including area code of agent for service)
Copies to:
| Mitchell S. Bloom, Esq. James Xu, Esq. |
Paul R. Gudonis President and Chief Executive Officer Myomo, Inc. One Broadway, 14th Floor Cambridge, Massachusetts 02142 (617) 996-9058 |
Steven M. Skolnick, Esq. Lowenstein Sandler LLP 1251 Avenue of the Americas New York, New York 10020 (212) 262-6700 |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☒ 333-235538
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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 Each Class of Securities To Be Registered |
Proposed Maximum Offering Price(1) |
Amount of Registration Fee | ||
| Common Stock, $0.0001 par value per share(2) |
$1,726,725.00 | $224.13 | ||
| Investor warrants to purchase common stock(2) |
(4) | |||
| Common stock, $0.0001 par value per share, underlying the investor warrants to purchase common stock(5) |
$1,406,507.50 | $182.56 | ||
| Pre-funded warrants to purchase common stock |
(4) | |||
| Common stock, $0.0001 par value per share, underlying the investor warrants to purchase common stock(5) |
$1,501,500.00 | $194.89 | ||
| Underwriter warrant(3) |
(4) | |||
| Common stock, $0.0001 par value per share, underlying the underwriter warrant(5) |
$ 140,468.75 | $ 18.23 | ||
| Total |
$4,775,201.25 | $619.82 | ||
|
| ||||
|
| ||||
| (1) | Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended, and represents only the proposed maximum aggregate offering price of the additional securities registered hereby, which does not exceed 20% of the maximum aggregate offering price of the securities eligible to be sold under the related Registration Statement on Form S-1 (File No. 333-235538). Does not include the securities that the Registrant previously registered. |
| (2) | Includes offering price of any additional shares of common stock and warrants that the underwriter has an option to purchase to cover over-allotments, if any. |
| (3) | Represents an underwriter warrant to purchase up to an aggregate of 5% of the shares of common stock and the shares of common stock underlying the warrants sold in this offering, at an exercise price equal to the combined public offering price per share of common stock and related warrant paid by investors in the offering. The underwriter warrant is exercisable six months from the date of issuance and will expire five years from the date of issuance. Resales of the shares issuable upon exercise of the underwriter warrant on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, are registered hereby. See “Underwriting.” |
| (4) | No fee required pursuant to Rule 457(g). |
| (5) | Pursuant to Rule 416 under the Securities Act, there are also being registered such additional securities as may be issued to prevent dilution resulting from share splits, share dividends or similar transactions. |
The Registration Statement shall become effective upon filing in accordance with Rule 462(b) promulgated under the Securities Act of 1933, as amended.
EXPLANATORY NOTE AND INCORPORATION BY REFERENCE
This Registration Statement is being filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”). The contents of the Registration Statement on Form S-1 (File No. 333-235538) filed by Myomo, Inc. with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act, which was declared effective by the Commission on February 10, 2020, are incorporated by reference into this Registration Statement. The required opinion and consents are listed on an Exhibit Index attached hereto and filed herewith.
EXHIBIT INDEX
| Exhibit No. |
Exhibit Index | |
| 5.1 | Opinion of Goodwin Procter LLP | |
| 23.1 | Consent of Marcum LLP | |
| 23.2 | Consent of Goodwin Procter LLP (included in Exhibit 5.1) | |
| 24.1* | Power of Attorney | |
| * | Previously filed on the signature page to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-235538), originally filed with the Securities and Exchange Commission on December 16, 2019 and incorporated by reference herein. |
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cambridge, Commonwealth of Massachusetts, on February 10, 2020.
| MYOMO, INC. | ||
| By: | /s/ Paul R. Gudonis | |
| Name: | Paul R. Gudonis | |
| Title: | Chairman, Chief Executive Officer and President | |
This registration statement has been signed by the following persons in the capacities and on the dates indicated.
| /s/ Paul R. Gudonis | Dated: February 10, 2020 | |||
| Name: |
Paul R. Gudonis | |||
| Title: |
Chairman, Chief Executive Officer and President (Principal Executive Officer) |
|||
| /s/ David A. Henry | Dated: February 10, 2020 | |||
| Name: |
David A. Henry | |||
| Title: |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
|||
| * | Dated: February 10, 2020 | |||
| Name: |
Thomas A. Crowley, Jr. | |||
| Title: |
Director | |||
| * | Dated: February 10, 2020 | |||
| Name: |
Thomas F. Kirk | |||
| Title: |
Director | |||
| * | Dated: February 10, 2020 | |||
| Name: |
Amy Knapp | |||
| Title: |
Director | |||
* By: Paul R. Gudonis
Attorney-in-fact
Exhibit 5.1
February 10, 2020
Myomo, Inc.
One Broadway, 14th Floor
Cambridge, Massachusetts 02142
Re: Securities Registered under Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of (i) a Registration Statement on Form S-1 (the “Initial Registration Statement”) (File No. 333-235538) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), and (ii) a second Registration Statement on Form S-1 filed pursuant to Rule 462(b) promulgated under the Securities Act (the “462(b) Registration Statement”, and together with the Initial Registration Statement, the “Registration Statement”) relating to the registration of the offering by Myomo, Inc., a Delaware corporation (the “Company”) of up to (i) 1,830,800 shares (the “Shares”) of the Company’s Common Stock, $0.0001 par value per share, (ii) warrants (the “Warrants”) to purchase up to 1,830,800 shares of Common Stock (the “Warrant Shares”) (iii) warrants (the “Prefunded Warrants) to purchase up to 1,592,000 shares of Common Stock (the “Prefunded Warrant Shares”) and (iv) warrants (the “Underwriter Warrants”) to purchase up to 183,080 shares of Common Stock (the “Underwriter Warrant Shares” and, collectively with the Shares, the Warrants, the Warrant Shares, the Prefunded Warrants, the Prefunded Warrant Shares and the Underwriter Warrants, the “Securities”), including Shares and Warrants purchasable by the underwriter upon its exercise of an over-allotment option granted to the underwriter by the Company. The Securities are being sold to the underwriter named in, and pursuant to, an underwriting agreement between the Company and such underwriter (the “Underwriting Agreement”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Delaware General Corporation Law and the law of New York.
Based on the foregoing, we are of the opinion that:
(1) The Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Underwriting Agreement, the Shares will be validly issued, fully paid and non-assessable.
(2) The Warrants, the Prefunded Warrants and Underwriter Warrants have been duly authorized and, when issued, delivered and paid for in accordance with the terms of the Underwriting Agreement, will be valid and binding obligations of the Company.
(3) The Warrant Shares, have been duly authorized, and when and if issued upon exercise of the Warrants in accordance with the terms of the Warrants, will be validly issued, fully paid and non-assessable. The Prefunded Warrant Shares, have been duly authorized, and when and if issued upon exercise of the Prefunded Warrants in accordance with the terms of the Prefunded Warrants, will be validly issued, fully paid and non-assessable. The Underwriter Warrant Shares have been duly authorized, and when and if issued upon exercise of the Underwriter Warrants in accordance with the terms of the Underwriter Warrants, will be validly issued, fully paid and non-assessable.
The opinion expressed in numbered opinion paragraph 2 above is subject to bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the 462(b) Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration Statement. In giving our 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 thereunder.
| Very truly yours,
|
| /s/ Goodwin Procter LLP
|
| GOODWIN PROCTER LLP |
Exhibit 23.1
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We consent to the incorporation by reference in this Registration Statement of Myomo, Inc. on Form S-1 filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, of our report dated March 12, 2019, which includes an explanatory paragraph as to the company’s ability to continue as a going concern, and of our report dated March 12, 2019 except for the effects of the reverse stock split discussed in Note 15, as to which the date is February 3, 2020, which includes an explanatory paragraph as to the company’s ability to continue as a going concern, with respect to our audits of the financial statements of Myomo, Inc. as of December 31, 2018 and 2017 and for the years ended December 31, 2018 and 2017, incorporated by reference in the Prospectus included in the Registration Statement, as amended.
/s/ Marcum LLP
Marcum LLP
New York, NY
February 10, 2020