As filed with the Securities and Exchange Commission on August 3, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VIVEVE MEDICAL, INC.
(Exact name of registrant as specified in its charter)
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Yukon Territory, Canada |
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04-3153858 |
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(State or Other Jurisdiction of Incorporation or Organization) |
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(I.R.S. Employer Identification No.) |
150 Commercial Street
Sunnyvale, California
Telephone: (408) 530-1900
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
2013 Stock Option and Incentive Plan, as amended
(Full Title of the Plans)
Scott Durbin
Chief Financial Officer
Viveve Medical, Inc.
150 Commercial Street
Sunnyvale, California
Telephone: (408) 530-1900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to :
Melanie Figueroa, Esq.
Mitchel Silberberg & Knupp LLP
12 East 49th Street, 30th Floor
New York, New York 10017
Telephone: (917) 546-7707
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer,” and “large accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer ☐ |
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Accelerated filer ☐ |
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Non-accelerated filer ☐ |
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Smaller reporting company ☑ |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Title of
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Amount to be
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Proposed
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Proposed
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Amount of
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Common Stock, no par value |
6,988,413 | $ | 0.90 | $ | 6,289,571.70 | $ | 731 | |||||||||
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(1) |
Represents additional shares of the common stock, no par value (the “ Common Stock ”), of Viveve Medical, Inc. (the “ Registrant ") authorized for issuance under the Registrant’s 2013 Stock Option and Incentive Plan, as amended (the “ Plan ”). This registration statement on Form S-8 (this “ Registration Statement ”) also includes an indeterminate number of additional shares that may be issued to adjust the number of shares issued pursuant to the Plan as the result of any future stock split, stock dividend or similar adjustment of the Registrant’s outstanding Common Stock. |
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(2) |
Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) and (h)(1) of the Securities Act of 1933, as amended (the “ Securities Act ”), using the average high and low price for the registrant’s common stock reported by the OTCQB of the OTC Markets Group Inc. on July 30, 2015. |
EXPLANATORY NOTE
This Registration Statement registers an additional 6,988,413 shares of the Registrant’s Common Stock that may be offered and sold under the Plan, pursuant to the increase in shares reserved for issuance under the Plan as set forth in the amendment to the Plan, which was approved by the Registrant’s board of directors on June 4, 2015 and by a majority of the Registrant’s stockholders at its annual and special meeting held on July 22, 2015. This Registration Statement relates solely to the registration of additional securities of the same class as other securities for which one or more other registration statements filed on this form relating to the same employee benefit plan are effective. Pursuant to General Instruction E. to Form S-8, the contents of the Registrant’s previously filed registration statements on Form S-8 relating to the Plan (File No. 333-201551), filed with the Securities and Exchange Commission (the “Commission”) on January 16, 2015, including any amendments thereto or filings incorporated therein, are hereby incorporated by reference herein to the extent not otherwise amended or superseded by the contents hereof.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required in Part I of Form S-8 to be contained in a prospectus meeting the requirements of Section 10(a) of the Securities Act is not required to be filed with the Securities and Exchange Commission (the “ Commission ”) and is omitted from this registration statement in accordance with the explanatory note to Part I of Form S-8 and Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the Registrant with the Commission, are incorporated by reference in this Registration Statement:
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(a) |
The Registrant’s latest Annual Report on Form 10-K, as filed with the Commission on March 16, 2015; |
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(b) |
The Registrant’s Quarterly Report on Form 10-Q as filed with the Commission on May 15, 2015; |
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(c) |
The Registrant’s Current Reports on Form 8-K as filed with the Commission on February 10, 2015, February 25, 2015, June 5, 2015, and July 24, 2015; and |
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(d) |
The description of the common stock contained in the Registrant’s registration statement on Form 8-A filed with the Commission on November 25, 2008, including any amendment or report filed for the purpose of updating such description. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing such documents.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
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 Sunnyvale, State of California on the 3 rd day of August, 2015.
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VIVEVE MEDICAL, INC. |
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By: |
/s/ Patricia Scheller |
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Patricia Scheller, Chief Executive Officer |
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By: |
/s/ Scott Durbin |
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Scott Durbin, Chief Financial Officer |
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:
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Signature |
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Name of Director |
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Date |
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/s/ Patricia Scheller |
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Patricia Scheller |
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August 3, 2015 |
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Brigitte Smith |
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August 3, 2015 |
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Carl Simpson |
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August 3, 2015 |
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Daniel Janney |
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August 3, 2015 |
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Mark Colella |
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August 3, 2015 |
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*By: /s/ Patricia Scheller |
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Patricia Scheller Attorney-in-Fact |
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EXHIBIT INDEX
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Exhibit No. |
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Description of Exhibit |
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4.1 |
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2013 Stock Option and Incentive Plan (1) |
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4.2 |
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Amendment to 2013 Stock Option and Incentive Plan (2) |
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Second Amendment to the Viveve Medical 2013 Stock Option and Incentive Plan (5) |
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5.1 |
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Opinion of Macdonald and Company* |
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10.1 |
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Form of Non-Qualified Stock Option Grant (3) |
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10.2 |
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Form of Incentive Stock Option Grant (4) |
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23.1 |
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Consent of Burr Pilger Mayer, Inc.* |
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23.2 |
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Consent of Macdonald and Company (included in Exhibit 5.1) |
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24.1 |
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Power of Attorney* |
*Filed herewith
(1) Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (SEC File No. 001-11388) filed with the Commission by the Company on June 12, 2013.
(2) Incorporated by reference to Annex E to the Company’s Proxy Statement on Schedule 14A (SEC File No. 001-11388) filed with the Commission by the Company on August 11, 2014.
(3) Incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form S-8 (SEC File No. 333-201551) filed with the Commission by the Company on January 16, 2015.
(4) Incorporated by reference to Exhibit 10.2 to the Company’s Registration Statement on Form S-8 (SEC File No. 333-201551) filed with the Commission by the Company on January 16, 2015.
(5) Incorporated by reference to Appendix A of the Company’s Proxy Statement on Schedule 14A (SEC File No. 001-11388) filed with the Commission by the Company on June 23, 2015.
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Exhibit 5.1
M ACDONALD & C OMPANY
Lawyers
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Grant Macdonald, Q.C. Gareth C. Howells |
Suite 200, Financial Plaza |
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204 Lambert Street |
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Whitehorse, YT Y1A 3T2 |
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Telephone: (867) 667-7885 |
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Ext 239 |
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Fax: (867) 667-7600 |
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Email: ghowells@anton.yk.ca |
July 31, 2015
Viveve Medical, Inc.
150 Commercial Street
Sunnyvale, California
94086-5201
Dear Sirs/Mesdames:
Re: Registration Statement on Form S-8 Our File: 20140495
We have acted as Yukon Territory counsel on behalf of Viveve Medical, Inc., a corporation organized under the laws of the Yukon Territory, Canada (the "Company"), in connection with the registration of 6,988,413 shares of Common Stock of the Company (the "Common Stock") issuable under the Company’s 2013 Stock Option and Incentive Plan (the "Plan"). In connection therewith, we have examined, among other things, the Registration Statement on Form S-8 (the "Registration Statement") proposed to be filed by the Company with the Securities and Exchange Commission on or about July 31, 2015. We have also examined the proceedings and other actions taken by the Company in connection with the authorization of the shares of Common Stock issuable under the Plan and such other matters as we deemed necessary for purposes of rendering this opinion.
Based upon the foregoing, and in reliance thereon, we are of the opinion, as of the date hereof, that the shares of Common Stock issuable under the Plan, when issued, delivered and paid for in accordance with the Plan and in the manner described in the Registration Statement, will be validly issued, fully paid and non-assessable.
In rendering this opinion we express no opinion as to the laws of any jurisdiction other than the laws of the Yukon Territory.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the General Rules and Regulations of the Securities and Exchange Commission.
Yours very truly,
MACDONALD & COMPANY
/s/ Gareth C. Howells
Gareth C. Howells
GCH/mls
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report (which contains an explanatory paragraph relating to the Company’s ability to continue as a going concern as described in Note 1 to the consolidated financial statements) dated March 16, 2015 relating to the consolidated financial statements of Viveve Medical, Inc., which appears in the Annual Report on Form 10-K of Viveve Medical, Inc. for the year ended December 31, 2014.
/s/ Burr Pilger Mayer, Inc.
San Jose, California
July 31, 2015
Exhibit 24.1
THE VIVEVE MEDICAL, INC.
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
Each undersigned officer and/or director of Viveve Medical, Inc., a Yukon Territory corporation (the "Registrant"), does hereby make, constitute and appoint Patricia Scheller, Chief Executive Officer of the Registrant, and Scott Durbin, Chief Financial Officer of the Registrant, and any other person holding the position of Chief Executive Officer or Chief Financial Officer of the Registrant from time to time, and each of them, as attorney-in-fact and agents of the undersigned, each with full power of substitution and resubstitution, with the full power to execute and file:
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(i) |
the Registration Statement on Form S-8 (the "Form S-8 Registration Statement") with respect to the registration under the Securities Act of 1933, as amended, of common stock, no par value, of the Registrant issuable in connection with The Viveve Medical, Inc. 2013 Stock Option and Incentive Plan, as amended (the "Plan"), as may be revised in accordance with the Company resolution entitled "Authorization to file the Registration Statement on Form S-8” along with an indeterminate amount of interests to be offered or sold pursuant to the Plan; |
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any and all amendments, including post-effective amendments, and exhibits to the Form S-8 Registration Statement; and |
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(iii) |
any and all applications or other documents to be filed with the Securities and Exchange Commission or any state securities commission or other regulatory authority with respect to the securities covered by the Form S-8 Registration Statement, with full power and authority to do and perform any and all acts and things whatsoever necessary, appropriate or desirable to be done in the premises, or in the name, place and stead of the said director and/or officer, hereby ratifying and approving the acts of said attorney. |
[ Signature page follows ]
IN WITNESS WHEREOF, the undersigned have subscribed to the above as of August 3, 2015.
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Signature |
Title |
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/s/ Patricia Scheller |
Chief Executive Officer (Principal Executive Officer) and Director |
| Patricia Scheller | |
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/s/ Scott Durbin |
Chief Financial Officer (Principal Financial Officer) |
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Scott Durbin |
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/s/ Brigitte Smith |
Chairman of the Board |
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Brigitte Smith |
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/s/ Mark Colella |
Director |
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Mark Colella |
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/s/ Carl Simpson |
Director |
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Carl Simpson |
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/s/ Daniel Janney |
Director |
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Daniel Janney |
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