Securities Registration: Employee Benefit Plan (s-8)
June 28 2018 - 4:10PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 28, 2018
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
Under
The
Securities Act of 1933
MYOMO, INC.
(Exact name
of registrant as specified in its charter)
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Delaware
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47-0944526
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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One Broadway, 14th Floor
Cambridge, Massachusetts 02142
(617)
996-9058
(Address of Principal Executive Offices)
Myomo, Inc. 2018 Stock Option and Incentive Plan
(Full Title of the Plans)
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
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.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☒
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Emerging growth company
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☒
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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
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Title of Securities
to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering
Price
per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, $0.0001 par value per share
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666,255 shares(2)
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$3.00(3)
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$1,998,765
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$248.85
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Total
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666,255 shares
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$1,998,765
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$248.85
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of common stock which become issuable under the
above-named plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of common stock.
Pursuant to Rule 416(c) under the Securities Act, this Registration Statement shall also cover an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein.
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(2)
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Represents 666,255 shares of common stock reserved for issuance under the 2018 Stock Option and Incentive Plan.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 of the Securities Act, and based on $3.00, the average of the high and low sale prices of the registrants common stock
on the NYSE American on June 21, 2018.
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Proposed sales to take place as soon after the effective date of the Registration Statement as
awards are granted, exercised or distributed under the above-named plan.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
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Plan Information.
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The documents containing the information specified in this Item 1 will be sent
or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to
Form S-8,
such
documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item 2.
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Registrant Information and Employee Plan Annual Information.
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The documents containing the information
specified in this Item 2 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to
Form S-8,
such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The registrant hereby incorporates by reference into this
Registration Statement the following documents filed with the SEC:
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(a)
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The annual report on Form
10-K
filed by the Registrant on March 12, 2018, which contains the registrants audited financial statements for the year ended
December 31, 2017, which is the latest fiscal year for which such statements have been filed; and
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(b)
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The description of the registrants common stock contained in the registrants Registration Statement on Form
8-A
(File
No. 001-38109),
filed by the registrant with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), on June 8, 2017, including any
amendments or reports filed for the purpose of updating such description.
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All documents that the registrant subsequently files pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this registration statement which indicates that all of the shares of common stock offered have been sold or which deregisters all of such
shares then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of the 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 to the extent
that a statement contained herein or in any other subsequently filed document which also is or 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.
Under no circumstances will any information filed under current
items 2.02 or 7.01 of Form
8-K
be deemed incorporated herein by reference unless such Form
8-K
expressly provides to the contrary.
Item 4.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
Item 6.
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Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law
permits a corporation to include in its charter documents, and in agreements between the corporation and its directors and officers, provisions expanding the scope of indemnification beyond that specifically provided by the current law.
The Registrants amended and restated certificate of incorporation provides for the indemnification of directors to the fullest extent permissible under
Delaware law.
The Registrants amended and restated
by-laws
provide for the indemnification of officers,
directors and third parties acting on the Registrants behalf if such persons act in good faith and in a manner reasonably believed to be in and not opposed to the Registrants best interest, and, with respect to any criminal action or
proceeding, such indemnified party had no reason to believe his or her conduct was unlawful.
The Registrant has entered into indemnification agreements
with each of its directors and executive officers, in addition to the indemnification provisions provided for in its charter documents, and the Registrant intends to enter into indemnification agreements with any new directors and executive officers
in the future.
The Registrant maintains insurance on behalf of any person who is or was a director or officer against any loss arising from any claim
asserted against him or her and incurred by him or her in that capacity, subject to certain exclusions and limits of the amount of coverage.
Item 7.
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Exemption from Registration Claimed.
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Not applicable.
EXHIBIT INDEX
* Filed herewith.
(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% 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) herein do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act (15
U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement.
(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 undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act,
each filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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.
(h) 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 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.
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 Cambridge, Commonwealth of
Massachusetts, on the 28th day of June, 2018.
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MYOMO, INC.
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By:
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/s/ Paul R. Gudonis
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Paul R. Gudonis
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Chairman, Chief Executive Officer and President
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POWER OF ATTORNEY AND SIGNATURES
KNOW ALL BY THESE PRESENT, that each individual whose signature appears below hereby constitutes and appoints each of Paul R. Gudonis and Ralph A. Goldwasser
as such persons true and lawful
attorney-in-fact
and agent with full power of substitution and resubstitution, for such person in such persons 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,
and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission granting unto each said
attorney-in-fact
and agent full power and authority to do and
perform each and every act and thing requisite and necessary 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 any said
attorney-in-fact
and agent, or any substitute or substitutes of any of them, 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 person in the capacities and on the
date indicated.
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Name
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Title
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Date
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/s/ Paul R. Gudonis
Paul R. Gudonis
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Chairman, Chief Executive Officer and President
(Principal Executive Officer)
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June 28, 2018
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/s/ Ralph A. Goldwasser
Ralph A. Goldwasser
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Chief Financial Officer (Principal Financial and
Accounting Officer)
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June 28, 2018
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/s/ Thomas A. Crowley, Jr.
Thomas A. Crowley, Jr.
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Director
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June 28, 2018
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/s/ Thomas F. Kirk
Thomas F. Kirk
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Director
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June 28, 2018
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/s/ Amy Knapp
Amy Knapp
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Director
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June 28, 2018
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/s/ Steve Sanghi
Steve Sanghi
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Director
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June 28, 2018
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