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			ROPES & GRAY LLP

			1211 AVENUE OF THE AMERICAS

			NEW YORK, NY 10036-8704

			WWW.ROPESGRAY.COM

July 30, 2024

United States Securities and Exchange Commission

Division of Corporation Finance

Office of Mergers & Acquisitions

100 F Street, N.E.

Washington, D.C. 20549

Attn: Laura McKenzie and Daniel Duchovny

			Re:

			Vapotherm, Inc.

			Schedule 13E-3 filed July 8, 2024, by Vapotherm, Inc. et al.

			File No. 005-90722

			Preliminary Proxy Statement filed July 8, 2024

			File No. 001-38740

Ladies and Gentlemen:

We are submitting this letter on behalf of Vapotherm, Inc. (the “Company,” “Vapotherm,” “we,” or “our”) in response to comments from the staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”) received by electronic mail dated July 23, 2024, relating to the Schedule 13E-3 filed July 8, 2024 by the Company, SLR Capital Partners, LLC et al. (the “Schedule 13E-3”) and the Preliminary Proxy Statement filed July 8, 2024 by the Company (the “Proxy Statement”). Amendment No. 1 to the Schedule 13E-3 and Amendment No. 1 to the Proxy Statement (“Amendment No. 1”) are being submitted via EDGAR concurrently herewith responding to the Staff’s comments and including certain other revisions and updates. The numbered paragraphs below correspond to the numbered comments in the Staff’s letter, and the Staff’s comments are presented in italics.

Page numbers in the text of the Company’s responses correspond to page numbers in Amendment No. 1. Please note that capitalized terms used but not otherwise defined in this letter have the meanings ascribed to such terms in Amendment No. 1.

Our responses are as follows:

Schedule 13E-3 filed July 8, 2024, by Vapotherm, Inc., SLR Capital Partners, LLC et al.

General

			1.

			We note that Joseph Army and John Landry, both of whom are Rollover Stockholders, were involved in negotiations and discussions with SLR relating to a potential transaction prior to the establishment of the Special Committee and continued to participate in discussions with potential investors following the establishment of the Special Committee. In your response, please provide your detailed legal analysis as to why Mr. Army and Mr. Landry are not included as filing persons in the Schedule 13E-3.

Prior to filing the Schedule 13E-3, the Company and the other filing parties considered whether Joseph Army or John Landry might be considered a filing person for purposes of Rule 13e-3. We respectfully submit that, while Mr. Army and Mr. Landry may each be deemed an “affiliate” of the Company within the scope of Rule 13e-3, neither Mr. Army nor Mr. Landry is engaged, directly or indirectly, in the going private transaction within the meaning of Rule 13e-3, and therefore, should not be included as filing persons in the Schedule 13E-3.

Mr. Army is the chief executive officer and a director of the Company, and Mr. Landry is the chief financial officer of the Company, and, in such respective capacities, each may be deemed to be an affiliate of the Company. No relationships exist, however, between either Mr. Army or Mr. Landry and any of the filing persons in the Schedule 13E-3 (other than the Company, the “Acquiring Filers”) that would make either Mr. Army or Mr. Landry an affiliate of any of the Acquiring Filers. Based on Section II.D.3 of the Division of Corporation Finance’s Current Issues and Rulemaking Projects Outline, dated November 14, 2000, the key question in determining whether either Mr. Army or Mr. Landry is required to file a Schedule 13E-3 is whether he is an affiliate of the purchaser and hence on “both sides of the transaction.” Because neither Mr. Army nor Mr. Landry controls or has the power to control any of the Acquiring Filers, neither Mr. Army nor Mr. Landry is on both sides of the Merger. The longstanding position of the Staff has been that employees, even senior officers who continue on as employees or even directors of the company after the transaction, do not necessarily become filing persons under Rule 13e-3. As detailed below, more is necessary, such as significant equity ownership or substantially increased compensation. None of those additional factors is present here with respect to Mr. Army or Mr. Landry. See Commission Release No. 34-16075, Footnote 6.

Consistent with the Staff’s views expressed in C&DIs 201.01, 201.05 and 201.06, the determination that neither Mr. Army nor Mr. Landry is an affiliate engaged in a 13e-3 transaction was based on a review of the facts and circumstances available to the Company and the Acquiring Filers at the time of filing the Schedule 13E-3. As stated in C&DI 201.05, the resolution of whether management is engaging in a Rule 13e-3 transaction is a facts and circumstances analysis and, in a case where the Staff has found that management of an issuer that was engaged in a going private transaction was required to file a Schedule 13E-3, “[a]n important aspect of the staff’s analysis was the fact that the issuer’s management ultimately would hold a material amount of the surviving company’s outstanding equity securities, occupy seats on the board of the company in addition to senior management positions, and otherwise be in a position to ‘control’ the surviving company… .” C&DI 201.01 states that additional factors to consider in assessing whether management is engaging in a Rule 13e-3 transaction include: “increases in consideration to be received by management, alterations in management’s executive agreements favorable to such management, the equity participation of management in the acquiror, and representation of management on the board of the acquiror.” C&DI 201.06 suggests that a 20% stake in the surviving company’s equity after the consummation of an acquisition transaction pursuant to a contractual agreement with a financial buyer, regardless of whether such agreement was finalized at the time of the signing of the acquisition agreement, might cause management to be deemed to be engaged in that transaction for purposes of Rule 13e-3. For the reasons outlined below, we respectfully submit that neither Mr. Army nor Mr. Landry is engaged in a “Rule 13e-3 transaction.”

2

No Current Affiliation with Acquiring Filers. Neither Mr. Army nor Mr. Landry has an equity interest in any of the Acquiring Filers, and neither Mr. Army nor Mr. Landry is currently a director, officer, manager or employee of or otherwise currently affiliated with any of the Acquiring Filers.

Specifically Limited Role in Negotiations. In concluding that neither Mr. Army nor Mr. Landry was “on both sides of the transaction,” we note that the Board of Directors of the Company (the “Board”), acting by unanimous written consent, established the Special Review Committee of the Board (the “Special Committee”), effective as of February 26, 2024, which Special Committee was comprised solely of independent directors, and referred consideration of any potential transaction involving the Company (including the Merger) to the Special Committee, including the authority to, among other things, review, evaluate, negotiate, approve or not approve and recommend or not recommend to the Board and Company stockholders any proposal made by Parent. The Special Committee adopted a charter and elected Donald Spence as Committee Chairperson.

On March 7, 2024, Perceptive sent a non-binding term sheet to Mr. Army (the “March 7 Term Sheet”). Mr. Army promptly sent a copy of the March 7 Term Sheet to the Special Committee. On March 12, 2024, the Special Committee met to discuss the March 7 Term Sheet. The Special Committee determined that the Special Committee, led by Mr. Spence, would lead negotiations of any proposed transaction involving the Company and that Company management’s role would be limited to facilitation and tactical support, providing information about the Company’s business, and responding to diligence requests. Each of Mr. Army’s and Mr. Landry’s participation in negotiations after the formation of the Special Committee was at all times subject to and in accordance with the directions he received from the Special Committee and/or the Special Committee’s advisors.

De Minimis Equity Participation by Mr. Army in Topco and Presence of Controlling Stockholders. Upon the closing of the transactions contemplated by the Merger Agreement (the “Closing”), the Company will be an indirect, wholly owned subsidiary of Topco and indirectly beneficially owned by the equity investors in Topco, with SLR having a controlling equity stake. The A&R LLCA will provide that Topco will be managed by the board of managers of Topco (the “Board of Managers”), who will have overall management and control rights over the business of Topco and its subsidiaries (including the Company). The Board of Managers will consist of five managers as at the Closing.

After the Closing, neither Mr. Army nor Mr. Landry will have direct equity ownership in the Company. Pursuant to the Merger Agreement and the related ancillary agreements, including the Rollover Agreements, dated as of June 17, 2024, that each of Mr. Army and Mr. Landry entered into with Topco and the Company, and the Subscription Agreements, dated as of June 17, 2024, each of Mr. Army and Mr. Landry entered into with Topco, Mr. Army’s and Mr. Landry’s respective existing ownership interests in the Company will be exchanged for common equity securities of Topco that are significantly diluted by the equity securities in Topco to be acquired by SLR and Perceptive in the transaction and will sit junior to the preferred securities issued to SLR and Perceptive.

3

Mr. Army’s existing equity securities in the Company are expected to convert from approximately 8.5% beneficial ownership of the Company’s common stock, par value $0.001 per share (“Common Stock”) into no more than approximately 0.55% of Topco’s issued and outstanding equity interests on a fully diluted basis, consisting of no more than approximately 30.68% of Topco’s issued and outstanding common units (“Topco Common Units”), pursuant to his Rollover Agreement with Topco.

Mr. Landry’s existing equity securities in the Company are expected to convert from approximately 1.3% beneficial ownership of the Common Stock into no more than approximately 0.06% of Topco’s issued and outstanding equity interests on a fully diluted basis, consisting of no more than approximately 3.5% of Topco Common Units, pursuant to his Rollover Agreement with Topco.

As such, after the Closing, each of Mr. Army’s and Mr. Landry’s respective resulting ownership interest in Topco would be less than 5%, which is significantly less than the 10% ownership threshold commonly suggested to indicate potential ‘control’ and significantly below the 20% threshold indicated in C&DI 201.06, and accordingly, would not constitute ‘control’.

Additionally, after the Closing, (i) SLR will own a majority of Topco’s issued and outstanding equity interests on a fully diluted basis, consisting of at least 61.85% of Topco’s issued and outstanding Series A Preferred Units (“Topco Series A Preferred Units”) and approximately 58.20% of the issued and outstanding Topco Common Units, and (ii) Perceptive will own approximately 32.25% of Topco’s issued and outstanding equity interests on a fully diluted basis, consisting of approximately 38.15% of the issued and outstanding Topco Series A Preferred Units and approximately 0.0% of the issued and outstanding Topco Common Units. Neither Mr. Army’s nor Mr. Landry’s ownership interest in Topco will give him the power to direct or cause the direction of the management and policies of the Company or Topco.

In addition, the A&R LLCA will provide each of SLR and Perceptive with certain enhanced governance rights, including consent rights for each with respect to certain enumerated actions of Topco and its subsidiaries, and the right of each of SLR and Perceptive to designate two members to the five-person Board of Managers. The A&R LLCA will provide that matters before the Board of Managers will be decided by a majority of the managers, provided that certain matters will also require the approval of SLR or Perceptive, as applicable. As a result, the designees appointed by SLR and Perceptive will together constitute 80% of the Board of Managers, and can together take action to bind the Company without the participation of the fifth member of the Board of Managers.

4

Additionally, under the terms of the proposed A&R LLCA, the hiring or firing of, or any increase in compensation payable to, the executive officers of the Company requires the prior approval of SLR and the hiring or firing of (other than for cause), or any material increase in compensation payable to, the executive officers of the Company requires the prior approval of Perceptive. The A&R LLCA will also provide SLR, as a majority equityholder of Topco, with contractual control rights, including without limitation, the obligation that Topco first obtain SLR’s approval for any action of the Company that, among other things, directly or indirectly results in material changes to business plans or operating budgets, entry into strategic relationships, joint ventures or partnerships, issuances of equity interests, the incurrence of indebtedness or the making of certain capital expenditures. This further supports that neither Mr. Army nor Mr. Landry controls, or has the power to control, any of the Acquiring Filers and will not control or have the power to control either of Topco or the Company after the Closing.

Consequently, even if Mr. Army serves as the chief executive officer and a director of the Company, and as chief executive officer of Topco and a member of the Board of Managers (as discussed below) and/or if Mr. Landry serves as the chief financial officer of the Company, after the Closing, as a result of (i) SLR’s majority ownership in Topco after the Closing, (ii) Perceptive’s substantial ownership of Topco after the Closing, and (iii) SLR’s and Perceptive’s respective enhanced governance rights in the A&R LLCA, SLR and Perceptive will ‘control’ the Company, Topco and their respective subsidiaries and, consequently, neither Mr. Army nor Mr. Landry will be in a position, or have any contractual right, to ‘control’ the Company, Topco or any of their respective subsidiaries.

Mr. Army’s Expected Positions as Chief Executive Officer and Director of the Company and Chief Executive Officer and Member of the Board of Managers of Topco are not Contractual Rights and His Authority is Limited by the Board of Managers. After the Closing, Mr. Army is anticipated to continue to serve as the chief executive officer and as a director of the Company, and is anticipated to serve as the chief executive officer of Topco and a member of the Board of Managers. The terms of the Amended and Restated Limited Liability Company Agreement of Topco (the “A&R LLCA”) will provide that the chief executive officer of Topco will also serve as a member of the Board of Managers and accordingly, if Mr. Army were appointed as the chief executive officer of Topco and remains such, he would also serve as one member of the five-member Board of Managers.

As one of five members of the Board of Managers, Mr. Army alone will not control the Board of Managers and the rights expected to be granted to each of SLR and Perceptive under the A&R LLCA will give SLR and Perceptive, as majority equityholders of Topco, and not Mr. Army, the power to direct or cause the direction of the management and policies of the Company, Topco and their respective subsidiaries. Additionally, it was never a term or requirement of the Company in connection with the transaction that Mr. Army continue to serve as the chief executive officer or as a director of the Company or serve as the chief executive officer of Topco or a member of Board of Managers after the Closing, and there is no written understanding that h