Delaware
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68-0533453
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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12988 Valley View Road
Eden Prairie, Minnesota
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55344
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(Address of Principal Executive Offices)
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(Zip Code)
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John L. Erb
Chief Executive Officer
CHF Solutions, Inc.
12988 Valley View Road
Eden Prairie, MN 55344
(952) 345-4200
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||
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
Phillip D. Torrence, Esq.
Honigman Miller Schwartz and Cohn LLP
350 East Michigan Avenue, Suite 300
Kalamazoo, MI 49007
(269) 337-7702
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Title of securities to be registered
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Amount to be
registered(1)
|
Proposed maximum
offering price
per share(2)
|
Proposed maximum
aggregate offering
price(2)
|
Amount of
registration
fee
|
Common Stock, par value $0.0001 per share
|
2,394,174
|
$3.19
|
$7,637,415.06
|
$950.86
|
(1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”
), this Registration Statement shall also cover any additional shares of the Registrant’s common stock (
“Common Stock”
) that become issuable under the Plans (as defined below) by reason of any stock dividend, stock split, recapitalization or any other similar transaction without receipt of consideration that results in an increase in the number of shares of the Registrant’s outstanding Common Stock.
|
(2) |
Estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act. The offering price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock as reported on the NASDAQ Capital Market on March 22, 2018, a date within five business days prior to the date of filing of this Registration Statement, for: (i) shares reserved for future grant pursuant to the Registrant’s 2017 Equity Incentive Plan (the
“2017 EIP”
); (ii) shares reserved for future grant pursuant to the Registrant’s 2013 Non-Employee Directors’ Equity Incentive Plan (the
“Directors’ EIP”
); and (iii) shares reserved for future grant pursuant to the Registrant’s New-Hire Equity Incentive Plan (the
“New-Hire Plan”
; and collectively, with the 2017 EIP and the Directors’ EIP, the
“Plans”
).
|
Securities
|
Number of Shares
|
Offering Price
Per Share
|
Aggregate Offering Price
|
|||||||||
Shares reserved for future grant under the 2017 EIP
|
1,673,901
|
(3)
|
$3.19
|
$5,339,744.19
|
||||||||
Shares reserved for future grant under the Directors’ EIP
|
264,023
|
(4)
|
$3.19
|
$842,233.37
|
||||||||
Shares reserved for future grant under the New-Hire Plan
|
456,250
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(5)
|
$3.19
|
$1,455,437.50
|
||||||||
Proposed Maximum Offering Price
|
$7,637,415.06
|
(3) |
Consists of shares that were automatically added to the shares authorized for issuance under the 2017 EIP on January 1, 2018 pursuant to an “evergreen” provision contained in the 2017 EIP. Pursuant to the 2017 EIP, the share reserve will automatically increase on January 1st of each year, for a period of not more than ten years, commencing on January 1, 2018 and ending on (and including) January 1, 2027, to an amount equal to thirteen percent (13%) of the fully diluted shares outstanding on December 31st of the preceding calendar year; provided that the board of directors of the Registrant may act prior to January 1st of a given year to provide that there will be no January 1st increase in the share reserve for such year or that the increase in the share reserve for such year will be a lesser number of shares than would otherwise occur.
|
(4) |
Consists of shares that were automatically added to the shares authorized for issuance under the Directors’ EIP on January 1, 2018 pursuant to an “evergreen” provision contained in the Directors’ EIP. Pursuant to the Directors’ EIP, the share reserve will automatically increase on January 1st of each year, for a period of not more than ten years, commencing on January 1, 2014 and ending on (and including) January 1, 2023, by an amount equal to two percent (2%) of the fully diluted shares outstanding on December 31st of the preceding calendar year; provided that the board of directors of the Registrant may act prior to January 1st of a given year to provide that there will be no January 1st increase in the share reserve for such year or that the increase in the share reserve for such year will be a lesser number of shares than would otherwise occur.
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(5) |
Consists of shares reserved for future grant under the New-Hire Plan pursuant to a Fifth Amendment to the New-Hire Plan that was approved by the Registrant’s board of directors on January 17, 2018.
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Item 3. |
Incorporation of Documents by Reference.
|
Item 4. |
Description of Securities.
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Item 5. |
Interests of Named Experts and Counsel.
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Item 6. |
Indemnification of Directors and Officers.
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· |
breach of their duty of loyalty to the Registrant or the Registrant’s stockholders;
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· |
act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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· |
unlawful payment of dividends or redemption of shares as provided in Section 174 of the Delaware General Corporation Law; or
|
· |
transaction from which the directors derived an improper personal benefit.
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Item 7. |
Exemption from Registration Claimed.
|
Item 8. |
Exhibits.
|
Incorporated By Reference
|
|||||||||||||
Exhibit
Number
|
Exhibit
Description
|
Form
|
File
Number
|
Date of First
Filing
|
Exhibit
Number
|
Filed
Herewith
|
|||||||
4.1
|
10
|
001-35312
|
February 1, 2012
|
3.1
|
|||||||||
4.2
|
8-K
|
001-35312
|
January 13, 2017
|
3.1
|
|||||||||
4.3
|
8-K
|
001-35312
|
May 23, 2017
|
3.1
|
|||||||||
4.4
|
8-K
|
001-35312
|
October 12, 2017
|
3.1
|
|||||||||
4.5
|
8-K
|
001-35312
|
May 23, 2017
|
3.2
|
|||||||||
4.6
|
8-K
|
001-35312
|
June 14, 2013
|
3.1
|
|||||||||
4.7
|
S-1/A
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333-221010
|
November 17, 2017
|
3.7
|
|||||||||
4.8
|
8-K
|
001-35312
|
February 19, 2015
|
4.1
|
|||||||||
4.9
|
8-K
|
001-35312
|
February 19, 2015
|
4.2
|
|||||||||
4.10
|
8-K
|
001-35312
|
July 22, 2016
|
4.2
|
|||||||||
4.11
|
8-K
|
001-35312
|
July 22, 2016
|
4.3
|
Incorporated By Reference
|
|||||||||||||
Exhibit
Number
|
Exhibit
Description
|
Form
|
File
Number
|
Date of First
Filing
|
Exhibit
Number
|
Filed
Herewith
|
|||||||
4.12
|
8-K
|
001-35312
|
August 8, 2016
|
4.1
|
|||||||||
4.13
|
8-K
|
001-35312
|
October 31, 2016
|
4.1
|
|||||||||
4.14
|
8-K
|
001-35312
|
February 16, 2017
|
4.1
|
|||||||||
4.15
|
S-1/A
|
333-216841
|
April 4, 2017
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4.8
|
|||||||||
4.16
|
S-1/A
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333-221010
|
November 17, 2017
|
4.9
|
Opinion of Honigman Miller Schwartz Cohn LLP
|
X
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||||||||||||
Consent of Baker Tilly Virchow Krause, LLP
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X
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||||||||||||
Consent of Ernst & Young LLP
|
X
|
||||||||||||
23.3
|
Consent of Honigman Miller Schwartz Cohn LLP
(included in its opinion filed as Exhibit 5.1 to this Registration Statement)
|
X
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|||||||||||
24
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Power of Attorney (included on signature page)
|
X
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Item 9. |
Undertakings.
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(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;
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(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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
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(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;
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(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 offer thereof.
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(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.
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CHF SOLUTIONS, INC.
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By:
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/s/ John L. Erb
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Name:
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John L. Erb
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Title:
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Chief Executive Officer
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SIGNATURE
|
TITLE
|
DATE
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/s/ J
ohn
L. E
rb
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President, CEO and Chairman
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March 23, 2018
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John L. Erb
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(principal executive officer)
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/s/
Claudia Drayton
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Chief Financial Officer
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March 23, 2018
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Claudia Drayton
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(principal financial and accounting officer)
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/s/
Steve Brandt
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Director
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March 23, 2018
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Steve Brandt
|
||
/s/
Matthew Likens
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Director
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March 23, 2018
|
Matthew Likens
|
||
/s/
Jon W. Salveson
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Director
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March 23, 2018
|
Jon W. Salveson
|
||
/s/
Gregory D. Waller
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Director
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March 23, 2018
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Gregory D. Waller
|
||
/s/
Warren S. Watson
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Director
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March 23, 2018
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Warren S. Watson
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(313) 465-7000
Fax: (313) 465-8000
www.honigman.com
|
350 East Michigan Avenue ∙ Suite 300 ∙ Kalamazoo, Michigan 49007-3800
Detroit ∙ Lansing ∙ Oakland County ∙ Ann Arbor ∙ Kalamazoo ∙ Chicago
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