Sec Form 13D Filing - PERCEPTIVE ADVISORS LLC filing for VAPOTHERM INC (VAPO) - 2024-06-25

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment ___)*

Vapotherm, Inc.

(Name of Issuer)

Common Stock, $0.001 par value per share

(Title of Class of Securities)

922107305

(CUSIP Number)

Alexander Rakitin

Perceptive Advisors LLC

51 Astor Place, 10^th Floor

New York, NY 10003

(646) 205-5340

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 17, 2024

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 922107305

CUSIP No. 922107305

CUSIP No. 922107305

CUSIP No. 922107305

This Schedule 13D relates to the common stock, par value $0.001 per share (the “Common Stock”) of Vapotherm, Inc., a Delaware corporation (the “Issuer”), which has its principal executive offices at 100 Domain Drive, Exeter, New Hampshire 03833.

The information set forth below in Item 5(b) of this Schedule 13D is incorporated by reference into this Item 3.

The information set forth below in Item 6 of this Schedule 13D is incorporated by reference into this Item 4.

On June 17, 2024, the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of June 17, 2024, among Veronica, Veronica Intermediate, and Veronica Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Veronica Intermediate (“Merger Sub”). Defined terms used but not defined herein shall have the meaning provided in the Merger Agreement.

The Merger Agreement

The Merger Agreement provides that, upon the terms and subject to the conditions therein, Merger Sub will be merged with and into the Issuer (the “Merger”). As a result of the Merger, the separate corporate existence of Merger Sub will cease, and the Issuer will continue as the Surviving Corporation of the Merger and as a wholly owned subsidiary of Veronica Intermediate. As a result of the Merger, each issued and outstanding share of Common Stock (a “Share”) immediately prior to the Effective Time of the Merger (other than (a) Shares held by a holder who is entitled to demand and properly exercises and perfects its respective demand for appraisal of such Shares in accordance with Section 262 of the General Corporation Law of the State of Delaware, (b) Shares held in the treasury of the Issuer or owned by the Issuer or any wholly owned subsidiary of the Issuer, (c) Shares owned by Veronica, Veronica Intermediate, Merger Sub or any of their respective wholly owned subsidiaries, and (d) Shares subject to rollover agreements entered into by a holder of Common Stock and Veronica in respect of such holders’ investment in Veronica (clauses (a) through (d), collectively, the “Excluded Shares”), will automatically be cancelled and converted into the right to receive $2.18 in cash (the “Per Share Merger Consideration”), without interest thereon and subject to applicable withholding.

Pursuant to the Merger Agreement, as of the Effective Time, except as otherwise agreed to between Veronica Intermediate, the Issuer and a holder of an award, (A) each RSU Award restricted stock unit (each, a “RSU Award”) that is outstanding, whether or not vested, immediately prior to the Effective Time will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of Shares subject to the vested portion of such RSU Award immediately prior to the Effective Time multiplied by (ii) the Per Share Merger Consideration, (B) each performance stock unit (each, a “PSU Award”) that is outstanding immediately prior to the Effective Time will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of Shares subject to the vested portion of such PSU Award immediately prior to the Effective Time (assuming target performance is achieved, or such higher level if required under the terms of such PSU Award), multiplied by (ii) the Per Share Merger Consideration, and (C) each option to purchase Shares (each, a “Stock Option” and collectively with the RSU Awards and PSU Awards, the “VAPO Equity Awards”)) that is outstanding immediately prior to the Effective Time, whether or not vested, will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of Shares subject to the vested portion of such Stock Option immediately prior to the Effective Time, multiplied by (ii) the excess, if any, of the Per Share Merger Consideration over the applicable exercise price per Share subject to such Stock Option.

At the Effective Time, the directors of Merger Sub immediately prior to the Effective Time will be the initial directors of the Surviving Corporation, and the officers of the Issuer immediately prior to the Effective Time will be the initial officers of the Surviving Corporation, in each case, until the earlier of his or her death, resignation or removal, or until his or her successor is duly elected and qualified.

The above description of the Merger Agreement is qualified in its entirety by reference to the terms of the agreement, which is filed as Exhibit 2 to this Schedule 13D and incorporated by reference into this Item 6.

The Rollover Agreements

In connection with the Merger Agreement, Veronica, the Issuer and certain shareholders of the Issuer (the “Rollover Shareholders”) entered into Rollover Agreements, each dated as of June 17, 2024 (the “Rollover Agreements”). Pursuant to and subject to the terms and conditions of the Rollover Agreements, on the closing date of the Merger but immediately prior to the Effective Time, the Rollover Shareholders agree to contribute, transfer and assign to Veronica all of the Shares held directly by such Rollover Shareholders (the “Rollover Shares”) in exchange for common units in Veronica (the “Common Units”) at a price per Common Unit equal to $2.18.

Pursuant to, and upon the terms and subject to the conditions of the Rollover Agreements, the Rollover Shareholders also agree (a) to vote all of the Rollover Shares (i) in favor of the adoption and approval of the Merger Agreement and the Merger, (ii) against any action, proposal, agreement or transaction that would reasonably be expected to change in any manner the voting rights of any class of shares of the Issuer or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (iii) against any action, proposal, transaction or agreement that would result in (A) a breach of any covenant, representation or warranty or any other obligation or agreement of the Issuer in the Merger Agreement, or of such Rollover Shareholders contained in the Rollover Agreements, or (B) any of the conditions to the consummation of the Merger set forth in Article VI of the Merger Agreement not being fulfilled, and (iv) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Issuer called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the board of directors of the Issuer or the special committee thereof in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger, and (b) not to (v) transfer any of the Rollover Shares or enter any contract, option or other ar rangement or understanding with respect to the transfer of any of the Rollover Shares or any interest therein, (w) deposit any of the Rollover Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect to the Rollover Shares that is inconsistent with the such Rollover Shareholders’ obligations under the Rollover Agreements, (x) convert or exchange, or take any action which would, or would reasonably be expected to, result in the conversion or exchange, of any of the Rollover Shares, (y) take any action that would, or would reasonably be expected to, (1) make any representation or warranty of such Rollover Shareholders in the Rollover Agreements materially untrue or materially incorrect, (2) have the effect of preventing, disabling, or materially delaying such Rollover Shareholders from performing any of their respective obligations under the Rollover Agreements or (3) result in a breach of any covenant, agreement or obligation of such Rollover Shareholders set forth in the Rollover Agreements, or (z) commit or agree to commit to take any of the actions referred to in the immediately preceding clauses (v), (w), (x) or (y). Pursuant to the Rollover Agreements, the Rollover Shareholders granted to and appointed Veronica and its designees, such Rollover Shareholders’ proxy and attorney-in-fact to vote all of the Rollover Shares or execute and deliver a consent or approval in respect of the Rollover Shares in accordance with and solely with respect to the obligations set forth above.

The above description of the Rollover Agreements is qualified in its entirety by reference to the terms of the agreements, the forms of which are filed as Exhibit 3 and Exhibit 4 to this Schedule 13D and incorporated by reference into this Item 6.

The Subscription Agreement

In addition, in connection with the Merger Agreement, Veronica and certain subscribing parties (the “Purchasers”) entered into Subscription Agreements, each dated as of June 17, 2024 (the “Subscription Agreements”). Pursuant to and subject to the terms and conditions of the Subscription Agreements, on the closing date of the Merger and immediately following the Effective Time, the Purchasers have agreed to purchase from Veronica a number of Common Units as determined pursuant the Subscription Agreements, at a subscription price of $2.18 per Common Unit, which number of Common Units shall, subject to the Purchasers paying the Issuer prior to the consummation of the Merger an amount of cash equal to the applicable taxes required to be withheld with respect to the vesting and/or settlement of such Purchasers’ VAPO Equity Awards, be determined by calculating (i) all of the Purchasers’ consideration payable (prior to any withholding taxes) in respect of his VAPO Equity Awards, divided by (ii) a price per Common Unit equal to $2.18. Pursuant to, and upon the terms and subject to the conditions of the Subscription Agreements, the Purchasers also agree not to (a) transfer any of the VAPO Equity Awards or enter any contract, option or other arrangement or understanding with respect to the transfer of any of their VAPO Equity Awards or any interest therein, (b) convert or exchange, or take any action which would, or would reasonably be expected to, result in the conversion or exchange, of any of their VAPO

Equity Awards, (c) take any action that would, or would reasonably be expected to, (i) make any representation or warranty of the Purchasers in the Subscription Agreements materially untrue or materially incorrect, (ii) have the effect of preventing, disabling, or materially delaying such Purchasers from performing any of their respective obligations under the Subscription Agreements or (iii) result in a breach of any covenant, agreement or obligation of such Purchasers set forth in the Subscription Agreements, or (d) commit or agree to commit to take any of the actions referred to in the immediately preceding clauses (a), (b) or (c).

The above description of the Subscription Agreements is qualified in its entirety by reference to the terms of the agreement, the form of which is filed as Exhibit 5 to this Schedule 13D and incorporated by reference into this Item 6.

The Voting Agreements

In addition, in connection with the Merger Agreement, Veronica Intermediate and certain stockholders of the Issuer (individually, a “Voting Party” and together, the “Voting Parties”) entered into Voting and Support Agreements, each dated as of June 17, 2024 (the “Voting Agreements”). Pursuant to and subject to the terms and conditions of the Voting Agreements, the Voting Parties have agreed to vote the shares of Common Stock set forth opposite such Voting Party’s name on Schedule I to the applicable Voting Agreement (the “Covered Shares”) (a) in favor of the adoption and approval of the Merger Agreement and the Merger, (b) against any action, proposal, agreement or transaction (including any alternative acquisition proposal) that would reasonably be expected, or the effect of which would reasonably be expected, to change in any manner the voting rights of any class of shares of the Issuer or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger, or the performance by the Voting Parties of their obligations under the Voting Agreements, (c) against any action, proposal, transaction or agreement that would result in (i) a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Issuer contained in the Merger Agreement, or of any Voting Party contained in the Voting Agreements; or (ii) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (d) in favor of any adjournment, recess, delay or postponement of a meeting of the Issuer’s stockholders as may be reasonably requested by the Issuer’s board of directors or special committee thereof in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger.

Pursuant to the Voting Agreements, prior to the Expiration Date (as defined below), each Voting Party granted to and appointed Veronica Intermediate and its designees, such Voting Party’s proxy and attorney-in-fact to vote all of the Covered Shares or execute and deliver a consent or approval in respect of the Covered Shares in accordance with and solely with respect to the obligations set forth above.

Each Voting Party has also agreed in the Voting Agreements to certain restrictions on the transfer and conversion of the Covered Shares, as more fully described in the Voting Agreements.

The Voting Agreements provide that they will automatically terminate upon the earliest to occur of (such time, the “Expiration Date”) (a) the mutual written agreement of Veronica Intermediate and the applicable Voting Party, (b) the effective time of the Merger, (c) the valid termination of the Merger Agreement, and (d) the time (if any) that the board of directors of the Issuer (or any committee thereof) shall have made a Change of Board Recommendation.

The above description of the Voting Agreements is qualified in its entirety by reference to the terms of the agreements, the form of which is filed as Exhibit 6 to this Schedule 13D and incorporated by reference into this Item 6.

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: June 25, 2024