As
filed with the Securities and Exchange Commission on August 22, 2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
ELECTROMED,
INC.
(Exact
name of registrant as specified in its charter)
Minnesota
(State
or other jurisdiction of
incorporation or organization) |
|
41-1732920
(I.R.S.
Employer Identification No.) |
| |
|
|
500
Sixth Avenue NW
New
Prague, Minnesota
(Address
of Principal Executive Offices) |
|
56071
(Zip
Code) |
Performance
Stock Unit Agreement (Inducement Grant)
Non-Qualified
Stock Option Agreement (Inducement Grant)
(Full
titles of the plans)
Bradley
M. Nagel
Chief
Financial Officer
Electromed,
Inc.
500
Sixth Avenue NW
New
Prague, Minnesota 56071
(952)
758-9299
(Name,
address and telephone number, including area code, of agent for service)
Copy
to:
Joshua
L. Colburn and Ryan R. Woessner
Faegre
Drinker Biddle & Reath LLP
2200
Wells Fargo Center
90
South Seventh Street
Minneapolis,
Minnesota 55402
(612)
766-7000
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
As
previously disclosed on a Current Report on Form 8-K filed with the Securities and Exchange Commission (the “Commission”)
on June 5, 2023, James L. Cunniff was appointed as President and Chief Executive Officer
of Electromed, Inc., a Minnesota corporation (the “Registrant”), effective as of July 1, 2023 (the “Effective
Date”). In connection with Mr. Cunniff’s appointment, this Registration Statement on Form S-8 (this “Registration
Statement”) is being filed with the Commission for the purpose of registering an aggregate of 350,000 shares of the Registrant’s
common stock, par value $0.01 per share (the “Common Stock”), issuable upon (i) the vesting of a maximum of 175,000
performance-based restricted stock units granted to Mr. Cunniff pursuant to a Performance Stock Unit Agreement (Inducement Grant),
and (ii) the vesting of an option to purchase up to 175,000 shares of Common Stock granted to Mr. Cunniff pursuant to a Non-Qualified
Stock Option Agreement (Inducement Grant), each of which were entered into between the Registrant and Mr. Cunniff on the Effective
Date.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Part I of Form S-8 is not required to be 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 of 1933, as amended (the
“Securities Act”). The information required in the Section 10(a) prospectus is included in the documents being maintained
and delivered by the Registrant as required by Rule 428 under the Securities Act. Such documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item
3. | Incorporation
of Documents by Reference. |
The
following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
(a)
The Registrant’s Annual Report on Form 10-K for the fiscal year ended June 30, 2023, filed with the Commission on August
22, 2023;
(b)
All other reports filed by the Registrant with
the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
since June 30, 2023 (other than information deemed to have been “furnished” rather than “filed” in accordance
with the Commission’s rules); and
(c)
The description of the Registrant’s capital stock contained in Exhibit 4.1 to the Registrant’s Annual Report
on Form 10-K for the fiscal year ended June 30, 2019, filed with the Commission on August 27, 2019, including any amendment or
report filed for the purpose of updating such description.
In
addition, all reports and other documents subsequently filed, but not furnished, by the Registrant 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 that
indicates that all of the shares of Common Stock offered hereby have been sold or that deregisters all shares of the Common Stock
then remaining unsold, shall be deemed to be incorporated by reference in and a part of this Registration Statement from the date
of filing of such reports and documents; except as to any document, or portion of or exhibit to a document, that is “furnished”
to (rather than “filed” with) the Commission.
Any
statement contained in a document incorporated, or deemed to be incorporated, by reference in this Registration Statement shall
be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in
this Registration Statement or in any other subsequently filed document that also is or is deemed to be incorporated by reference
in this Registration Statement 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
4. | Description
of Securities. |
Not
applicable.
| Item
5. | Interests
of Named Experts and Counsel. |
Not
applicable.
| Item
6. | Indemnification
of Directors and Officers. |
Section
302A.521, subd. 2, of the Minnesota Business Corporation Act (the “MBCA”) provides that a corporation shall indemnify
any person made or threatened to be made a party to a proceeding by reason of the former
or present official capacity of the person against judgments, penalties, fines, including, without limitation, excise taxes assessed
against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’
fees and disbursements, incurred by the person in connection with the proceeding, if, with respect to the acts or omissions
of the person complained of in the proceeding, the person:
(a)
has not been indemnified by another organization or employee benefit plan for the same
expenses with respect to the same acts or omissions;
(b)
acted in good faith;
(c)
received no improper personal benefit and Section 302A.255 of the MBCA (regarding conflicts
of interest), if applicable, has been satisfied;
(d)
in the case of a criminal proceeding, had no reasonable cause to believe the conduct
was unlawful; and
(e)
in the case of acts or omissions by persons in their official capacity for the corporation,
reasonably believed that the conduct was in the best interests of the corporation, or in the case of acts or omissions by persons
in their capacity for other organizations, reasonably believed that the conduct was not opposed to the best interests of the corporation.
In
addition, Section 302A.521, subd. 3, of the MBCA requires payment or reimbursement by the corporation, upon written request, of
reasonable expenses (including attorneys’ fees) incurred by a person in advance of the final disposition of a proceeding,
(i) upon receipt by the corporation of a written affirmation by the person of a good faith belief that the requirements for indemnification
set forth above have been met as well as a written undertaking by the person to repay all amounts so paid or reimbursed by the
corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied, and (ii) after a determination
that the facts then known to those making the determination would not preclude indemnification under this section.
As
permitted by Section 302A.251 of the MBCA, Article 6 of the Registrant’s Articles of Incorporation (as amended, the “Articles
of Incorporation”) limit its directors’ personal liability for claims of breach of fiduciary duty to the full extent
permitted by the MBCA, and Article 5 of the Registrant’s Amended and Restated Bylaws (the “Bylaws”) provides
that the Registrant shall indemnify such persons for such expenses and liabilities, in such manner, under such circumstances and
to such extent permitted by the MBCA, as now enacted or hereafter amended.
In
addition to the indemnification provisions of the MBCA, and the Articles of Incorporation and the Bylaws, the Registrant has entered
into employment agreements with certain of its employees, including certain directors and officers, which agreements, among other
things, require the Registrant to pay reasonable expenses, including attorneys’ fees and disbursements pertaining to any
threatened, pending, or completed civil, criminal, administrative, arbitration, or investigative proceeding in which the employee
is made or threatened to be made a party. Such payment obligation is contingent, however, upon receipt by the Registrant of (i)
a written affirmation by the employee of a good faith belief that criteria for indemnification set forth in Section 302A.521,
subd. 2, of the MBCA have been satisfied and a written undertaking by the employee to repay all amounts so paid or reimbursed
by the Registrant if it is ultimately determined that the criteria for indemnification have not been satisfied, and (ii) a finding
that the facts then known to those making the determination would not preclude indemnification under the Articles of Incorporation
or the Bylaws or Section 302A.521 of the MBCA, including but not limited to whether the alleged misconduct by the employee that
is the subject of the proceeding is within the course and scope of the employee’s employment. The employment agreements
also provide that the Registrant shall purchase and maintain directors’ and officers’ liability insurance, comprehensive
general liability insurance, and errors and omissions insurance to cover its employees, in accordance with its or their terms,
to the maximum extent of the coverage available for any director or officer of the Registrant.
The
Registrant believes that these agreements are reasonable, prudent, and necessary to attract and retain qualified directors, officers
and employees
| Item
7. | Exemption
from Registration Claimed. |
Not
applicable.
| 1. | The
undersigned Registrant hereby undertakes: |
(a) 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 Filing Fee” table in the effective Registration Statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
provided,
however, that paragraphs (a)(i) and (a)(ii) 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 that are incorporated by reference herein.
(b) 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.
(c) 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.
2. The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. 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
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 New Prague, State of
Minnesota, on August 22, 2023.
| |
ELECTROMED, INC. |
| |
|
|
| |
By: |
/s/ James
L. Cunniff |
| |
|
James L. Cunniff |
| |
|
President and Chief Executive Officer |
POWER
OF ATTORNEY
Each
person whose signature to this Registration Statement appears below hereby constitutes and appoints James L. Cunniff and Bradley
M. Nagel, and each of them, his, her or their true and lawful attorney-in-fact and agent, each with full power of substitution
and resubstitution, for him, her or their and in his, her or their name, place and stead, in any and all capacities, to sign any
and all amendments, including post-effective amendments, to this Registration Statement, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to
be done, as fully to all intents and purposes as he, she or they might or could do in person, hereby ratifying and confirming
all that each of said attorneys-in-fact and agents or their substitute or 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.
| Signature |
|
Title |
Date |
| |
|
|
|
| /s/ James
L. Cunniff |
|
President and Chief
Executive Officer and Director |
August 22, 2023 |
| James L. Cunniff |
|
(Principal Executive
Officer) |
|
| |
|
|
|
| /s/
Bradley M. Nagel |
|
Chief
Financial Officer (Principal Financial Officer |
August
22, 2023 |
| Bradley M. Nagel |
|
and Principal Accounting
Officer) |
|
| |
|
|
|
| /s/ Stan
K. Erickson |
|
Director |
August 22, 2023 |
| Stan K. Erickson |
|
|
|
| |
|
|
|
| /s/ Gregory
J. Fluet |
|
Director |
August 22, 2023 |
| Gregory J. Fluet |
|
|
|
| |
|
|
|
| /s/ Joseph
L. Galatowitsch |
|
Director |
August 22, 2023 |
| Joseph L. Galatowitsch |
|
|
|
| |
|
|
|
| /s/ Lee
A. Jones |
|
Director |
August 22, 2023 |
| Lee A. Jones |
|
|
|
| |
|
|
|
| /s/ Kathleen
S. Skarvan |
|
Director |
August 22, 2023 |
| Kathleen S. Skarvan |
|
|
|
| |
|
|
|
| /s/ Andrew
J. Summers |
|
Director |
August 22, 2023 |
| Andrew J. Summers |
|
|
|
| |
|
|
|
| /s/ Kathleen
A. Tune |
|
Director |
August 22, 2023 |
| Kathleen A. Tune |
|
|
|
| |
|
|
|
| /s/ Andrea
M. Walsh |
|
Director |
August 22, 2023 |
Andrea
M. Walsh |
|
|
|
| |
|
|
|
Exhibit 5.1
Faegre
Drinker Biddle & Reath LLP
2200
Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402
+1
612 766 7000 main
+1 612 766 1600 fax
August
22, 2023
Electromed,
Inc.
500
Sixth Avenue NW
New
Prague, Minnesota 56071
Re: Registration
Statement on Form S-8
Ladies
and Gentlemen:
We
have acted as counsel to Electromed, Inc., a Minnesota corporation (the “Company”), in connection with the preparation
and filing with the Securities and Exchange Commission (the “Commission”) of the Company’s Registration Statement
on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”),
registering the offer and sale of up to 350,000 shares (the “Shares”) of the Company’s common stock, par value
$0.01 per share (the “Common Stock”), issuable by the Company upon (i) the vesting of a maximum of 175,000 performance-based
restricted stock units granted to James L. Cunniff, the Company’s President and Chief Executive Officer, pursuant to a Performance
Stock Unit Agreement (Inducement Grant) (the “PSU Inducement Agreement”), and (ii) the exercise of a stock option
to purchase up to 175,000 shares of Common Stock granted to Mr. Cunniff pursuant to a Non-Qualified Stock Option Agreement (Inducement
Grant) (the “Option Inducement Agreement” and, together with the PSU Inducement Agreement, the “Inducement Award
Agreements”), each of which was entered into between the Company and Mr. Cunniff on July 1, 2023.
For
purposes of this opinion letter, we have examined the Inducement Award Agreements, the Registration Statement, the Company’s
articles of incorporation, as amended and currently in effect, the Company’s amended and restated bylaws, as currently in
effect, and the resolutions of the Company’s board of directors authorizing the issuance of the Shares. We have also examined
a certificate of the Secretary of the Company dated the date hereof (the “Certificate”) and originals, or copies certified
or otherwise authenticated to our satisfaction, of such corporate records and other records, agreements, instruments, certificates
of public officials and documents as we have deemed necessary as a basis for the opinions hereinafter expressed and have made
such examination of statutes as we have deemed relevant and necessary in connection with the opinions hereinafter expressed. As
to facts material to this opinion letter, we have relied upon certificates, statements or representations of public officials,
of officers and representatives of the Company (including the Certificate) and of others, without any independent verification
thereof.
In
our examination, we have assumed: (i) the legal capacity of all natural persons; (ii) the genuineness of all signatures,
including electronic signatures; (iii) the authenticity of all documents submitted to us as originals; (iv) the conformity
to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies; (v) the
authenticity of the originals of such latter documents; (vi) the truth, accuracy and completeness of the information, representations
and warranties contained in the agreements, documents, instruments, certificates and records we have reviewed; and (vii) the
absence of any undisclosed modifications to the agreements and instruments reviewed by us.
Based
on and subject to the foregoing and to the other qualifications, assumptions and limitations set forth herein, we are of the opinion
that all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Shares
to be issued in accordance with the Inducement Award Agreements and that, when the Shares have been issued and sold as contemplated
in the Registration Statement and related prospectus and in accordance with the Inducement Award Agreements, and the consideration
for the Shares specified in the Option Inducement
Agreement has been received by the Company, the Shares will be validly issued, fully paid and nonassessable.
We
are admitted to the practice of law in the State of Minnesota, and the foregoing opinions are limited to the laws of that state.
This
opinion letter speaks only as of the date the Registration Statement becomes effective under the Act, and we assume no obligation
to revise or supplement this opinion letter thereafter. This opinion letter is limited to the specific issues addressed herein,
and no opinion may be inferred or implied beyond that expressly stated herein.
We
hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do
not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission thereunder.
Yours
very truly,
| FAEGRE DRINKER BIDDLE &
REATH LLP |
| |
| By: |
/s/
Joshua L. Colburn |
|
| |
Joshua L. Colburn |
|
Exhibit 23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Registration Statement on Form S-8 of Electromed, Inc., of our report dated
August 22, 2023, relating to the financial statements of Electromed, Inc., appearing in the Annual Report on Form 10-K for the
fiscal year ended June 30, 2023.
| /s/ RSM US LLP |
|
| |
|
| Rochester, Minnesota |
|
| |
|
| August
22, 2023 |
|
| |
|
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-8
(Form
Type)
Electromed,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1—Newly Registered Securities
Security
Type |
Security
Class Title |
Fee
Calculation
Rule |
Amount
Registered
(1)(2) |
Proposed
Maximum
Offering
Price Per
Unit (3) |
Maximum
Aggregate
Offering Price
(3) |
Fee
Rate |
Amount
of
Registration
Fee |
| Equity |
Common
Stock, par value $0.01 per share |
Other |
350,000 |
$9.42 |
$3,297,000.00 |
0.00011020 |
$363.33 |
| Total
Offering Amounts |
|
$3,297,000.00 |
|
$363.33 |
| Total
Fee Offsets |
|
|
|
— |
| Net
Fee Due |
|
|
|
$363.33 |
| (1) | The
number of shares of common stock, par value $0.01 per share (“Common Stock”), registered represents an aggregate of
350,000 shares of Common Stock issuable upon (a) the vesting of a maximum of 175,000 performance-based restricted stock units
granted to James L. Cunniff pursuant to a Performance Stock Unit Agreement (Inducement Grant) (the “PSU Inducement Agreement”),
and (b) the vesting of an option to purchase up to 175,000 shares of Common Stock granted to Mr. Cunniff pursuant to a Non-Qualified
Stock Option Agreement (Inducement Grant) (the “Option Inducement Agreement” and, together with the PSU Inducement
Agreement, the “Inducement Award Agreements”), each under NYSE American LLC Company Guide Section 711(a). |
| (2) | Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall
also cover any additional shares of Common Stock that become issuable under the Inducement Award Agreements by reason of any stock
split, stock dividend or other similar transaction effected without the receipt of consideration which results in an increase
in the number of shares of outstanding Common Stock. |
| (3) | Estimated
solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) of
the Securities Act, based on the average of the high and low sale prices per share of Common Stock on August 18, 2023, as reported
on the NYSE American. |
Electromed (AMEX:ELMD)
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Electromed (AMEX:ELMD)
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