Document

As filed with the Securities and Exchange Commission on March 13, 2018

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
OptiNose, Inc.
(Exact name of registrant as specified in its charter)

Delaware
 
1020 Stony Hill Road, Suite 300
Yardley, Pennsylvania 19067
 
42-1771610
(State or other jurisdiction of
incorporation or organization)
 
(Address, including zip code, of Registrant’s
principal executive offices)
 
(I.R.S. Employer
Identification No.)

AMENDED AND RESTATED 2010 STOCK INCENTIVE PLAN
2017 EMPLOYEE STOCK PURCHASE PLAN

(Full title of the plans)
Peter K. Miller
Chief Executive Officer
OptiNose, Inc.
1020 Stony Hill Road, Suite 300
Yardley, Pennsylvania 19067
(267) 364-3500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With Copies to:

Steven J. Abrams
Hogan Lovells US LLP
1735 Market Street, 23rd Floor
Philadelphia, PA 19103
(267) 675-4600
Michael F. Marino
Chief Legal Officer
OptiNose, Inc.
1020 Stony Hill Road, Suite 300
Yardley, PA 19067
(267) 364-3500

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 (Check one):


 


Large accelerated filer
Non-accelerated filer
☒ (Do not check if a smaller reporting company)
Smaller 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 Securities Act. þ

CALCULATION OF REGISTRATION FEE
Title Of
Securities
To Be
Registered
Amount
To Be
Registered
(1)
Proposed
Maximum
Offering
Price Per
Share (2)
Proposed
Maximum
Aggregate
Offering
Price
Amount Of
Registration
Fee
Common Stock, $0.001 par value per share
 
 
 
 
- Amended and Restated 2010 Stock Incentive Plan
1,512,102
$ 17.59
$ 26,597,875
$ 3,312
- 2017 Employee Stock Purchase Plan
378,025

$ 17.59
$ 6,649,460
$ 828
Total
1,890,127
 
$ 33,247,335
$ 4,140
(1)
In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2)
Estimated in accordance with Rule 457(c) and Rule 457(h) solely for the purpose of calculating the registration fee on the basis of the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Global Select Market on March 8, 2018.







 



EXPLANATORY NOTE
 
This Registration Statement is being filed for the purpose of registering an additional (i) 1,512,102
shares of common stock of OptiNose, Inc. (the “Registrant”) issuable pursuant to the OptiNose, Inc. Amended and Restated 2010 Stock Incentive Plan (the “2010 Plan”) and (ii) 378,025 shares of common stock of the Registrant to be issued pursuant to the OptiNose, Inc. 2017 Employee Stock Purchase Plan (the “2017 ESPP”). These additional shares of common stock have become reserved for issuance as a result of the operation of the “evergreen” provision in each of the 2010 Plan and the 2017 ESPP, which provides that the total number of shares subject to such plan will be increased on the first day of each fiscal year pursuant to a specified formula. The contents of the previous Registration Statement on Form S-8 filed by the Registrant with the Securities and Exchange Commission (the “Commission”) for both the 2010 Plan and the 2017 ESPP on October 20, 2017 (File No. 333-221047), to the extent not otherwise amended or superseded by the contents hereof, are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form S-8.

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8.    Exhibits.
The exhibits to this Registration Statement are listed in the Exhibit Index attached hereto and incorporated by reference herein.

1
 




EXHIBIT INDEX
Exhibit Number
Description
4.1
4.2
5.1*
10.1
10.2
10.3
23.1*
23.2*
24.1*
Power of Attorney (included on the signature page).
* Filed herewith




2
 



SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Borough of Yardley, Commonwealth of Pennsylvania, on the 13th day of March, 2018.
OPTINOSE, INC.


By:    
/s/ PETER K. MILLER    
    Peter K. Miller
    Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of OptiNose, Inc., hereby severally constitute and appoint Peter K. Miller and Keith A. Goldan, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable OptiNose, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities indicated on the dates indicated.


 



 
 
 
 
 
Signature
 
Title
 
Date
 
 
 
 
 
/s/ PETER K. MILLER
Peter K. Miller
 
Chief Executive Officer and Director (Principal Executive Officer)
 
March 13, 2018
 
/s/ KEITH A. GOLDAN
Keith A. Goldan
 
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
 
March 13, 2018

 
/s/ JOSEPH C. SCODARI
Joseph C. Scodari
 
Chairman of the Board of Directors
 
March 13, 2018

 
/s/ LARRY G. PICKERING
Larry G. Pickering
 
Vice Chairman of the Board of Directors
 
March 13, 2018

 
/s/ SRIRAM VENKATARAMAN
Sriram Venkataraman 
 
Director
 
March 13, 2018

 
/s/ WILLIAM F. DOYLE
William F. Doyle
 
Director
 
March 13, 2018

 
/s/ JOSHUA A. TAMAROFF
Joshua A. Tamaroff
 
Director
 
March 13, 2018

 
/s/ WILHELMUS GROENHUYSEN
Wilhelmus Groenhuysen
 
Director
 
March 13, 2018

 
/s/ SANDRA L. HELTON
Sandra L. Helton
 
Director
 
March 13, 2018




 
Exhibit
Exhibit 5.1


https://cdn.kscope.io/940f3e2ddf05c37d1dd7fe7ddd6a2848-hoganlogo.jpg
Hogan Lovells US LLP
1735 Market Street, 23rd Floor
Philadelphia, PA 19103
T +1 267 675 4600
F +1 267 675 4601
www.hoganlovells.com



March 13, 2018

Board of Directors
OptiNose, Inc.
1020 Stony Hill Road, Suite 300
Yardley, Pennsylvania 19067
Ladies and Gentlemen:
We are acting as counsel to OptiNose, Inc., a Delaware corporation (the “Company”), in connection with its registration statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the proposed offering of up to 1,890,127 shares of common stock, par value $0.001 per share, of the Company (the “Shares”), consisting of (i) 1,512,102 Shares available for issuance under the OptiNose, Inc. Amended and Restated 2010 Stock Incentive Plan (the “Plan”) and (ii) 378,025 Shares available for issuance under the OptiNose, Inc. 2017 Employee Stock Purchase Plan (the “ESPP”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including pdfs). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, as amended. We express no opinion herein as to any other statutes, rules or regulations. As used herein, the term “Delaware General Corporation Law, as amended” includes the statutory provisions contained therein, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws.
Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares pursuant to the terms of the Plan or the ESPP, as applicable, and (iii) receipt by the Company of the consideration for the Shares specified in the applicable

Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Birmingham Boston Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Minneapolis Monterrey Moscow Munich New York Northern Virginia Paris Perth Philadelphia Rio de Janeiro Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Ulaanbaatar Warsaw Washington DC Associated offices: Budapest Jakarta Shanghai FTZ Zagreb. Business Service Centers: Johannesburg Louisville. For more information see www.hoganlovells.com



resolutions of the Board of Directors and in the Plan or the ESPP, as applicable, the Shares will be validly issued, fully paid and nonassessable.

This opinion letter has been prepared for use in connection with the Registration Statement. We assume no obligation to advise of any changes in the foregoing subsequent to the effective date of the Registration Statement.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Act.

Very truly yours,

/s/ HOGAN LOVELLS US LLP

HOGAN LOVELLS US LLP



Exhibit
Exhibit 23.1

Consent of Independent Registered Public Accounting Firm
 
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Amended and Restated 2010 Stock Incentive Plan, and the 2017 Employee Stock Purchase Plan of OptiNose, Inc. of our report dated March 13, 2018, with respect to the consolidated financial statements of OptiNose, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2017, filed with the Securities and Exchange Commission.
 
 
 
/s/ Ernst & Young LLP
 
Philadelphia, Pennsylvania
 
March 13, 2018