As filed with the Securities and Exchange Commission on November 29, 2017
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. Goodwin Procter LLP 100 Northern Avenue Boston, Massachusetts 02210 (617) 570-1000 |
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. þ
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. þ 333-221053
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 | þ |
| (Do not check if a small reporting company) | Emerging growth company | þ |
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 Aggregate Offering | Amount of Registration Fee | ||||||
| Common Stock, $0.0001 par value per share(2) | $ | 1,541,000 | $ | 191.86 | ||||
| Warrants to purchase common stock(2) | — | — | (4) | |||||
| Common stock, $0.0001 par value per share, underlying the warrants to purchase common stock(6) | $ | 2,185,287.50 | $ | 272.07 | ||||
| Underwriter warrant(3) | — | — | (4) | |||||
| Common stock, $0.0001 par value per share, underlying the underwriter warrant(5) | $ | 30,820 | $ | 3.84 | ||||
| Total | $ | 3,757,107.50 | $ | 467.77 | ||||
| (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. 333-221053). 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 1% 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 three 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. 333-221053) 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 November 29, 2017, 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. 333-221053), originally filed with the Securities and Exchange Commission on October 20, 2017 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 November 29, 2017.
| 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: November 29, 2017 | |
| Name: | Paul R. Gudonis | |
| Title: | Chairman,
Chief Executive Officer and President (Principal Executive Officer) |
|
| /s/ Ralph A. Goldwasser | Dated: November 29, 2017 | |
| Name: | Ralph A. Goldwasser | |
| Title: | Chief
Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
|
| * | Dated: November 29, 2017 | |
| Name: | Thomas A. Crowley, Jr. | |
| Title: | Director | |
| * | Dated: November 29, 2017 | |
| Name: | Thomas F. Kirk | |
| Title: | Director | |
| * | Dated: November 29, 2017 | |
| Name: | Amy Knapp | |
| Title: | Director | |
| * | Dated: November 29, 2017 | |
| Name: | Steve Sanghi | |
| Title: | Director |
* By: /s/ Paul R. Gudonis
Attorney-in-fact
Exhibit 5.1
| November 29, 2017 |
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. 333-221053) 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) 642,083 shares (the “Shares”) of the Company’s Common Stock, $0.0001 par value per share, (ii) warrants (the “Warrants”) to purchase up to 642,083 shares of Common Stock (the “Warrant Shares”) and (iii) warrants (the “Underwriter Warrants”) to purchase up to 12,841 shares of Common Stock (the “Underwriter Warrant Shares” and, collectively with the Shares, the Warrants, the 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 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 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.
This opinion is based upon currently existing statutes, rules, regulations and judicial decisions and assumes future compliance by the Company with all applicable laws, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
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 27, 2017, 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, 2016 and 2015 and for the years ended December 31, 2016 and 2015 incorporated by reference in the Prospectus included in the Registration Statement, as amended.
/s/ Marcum LLP
Marcum LLP
New York, NY
November 29, 2017