Soliton, Inc. (Form: 8-K, Received: 02/22/2019 17:10:36)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

___________________________

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Dat e of ear liest event reported): February 19, 2019

___________________________

Soliton , Inc.

(Exact name of registrant as specified in its charter)

___________________________

Delaware

001-38815

36-4729076

(State or other jurisdiction of

incorporation or organization)

(Commission File Number)

(I.R.S. Employer Identification No.)

5304 Ashbrook Drive

Houston, Texas 77081

(Address of principal executive offices) (Zip Code)

Registrant’s telephon e number, including area code: ( 844 ) 705 - 4866

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

___________________________

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

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 13(a) of the Exchange Act. ☐

Item 5 .0 3 . Amendments to Articles of Incorporation or Bylaws

On February 19, 2019, Soliton, Inc. (the "Company") filed an Amended and Restated Certificate of Incorporation (the "Amended Certificate of Incorporation") in the State of Delaware in the same form as set forth in exhibit 2.1 of the Company’s Form 1-A (file no. 024-10854). A copy of the as filed Amended Certificate of Incorporation is attached as Exhibit 3.1 and is incorporated herein by reference.

The Amended Certificate of Incorporation provides for, among other items:

(i) that our authorized capital stock shall be 100,000,000 shares of common stock (no preferred stock is authorized for issuance);

(ii) that any action required or permitted to be taken by stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing by such stockholders;

(iii) the requirement for the affirmative vote of at least two-thirds of our shares to amend, alter or repeal certain provisions in the certificate of incorporation, including, how we elect directors, our obligation to indemnify our officers and directors, our agreement to limit the liability of our directors to the extent permitted by Delaware law, the prohibition on written consents discussed above;

(iv) that we have elected to be governed by Section 203 of the Delaware General Corporation Law; and

(v) that the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought our behalf, (b) any action asserting a claim of breach of a fiduciary duty owed by any of our directors or officers to us or our stockholders, (c) any action asserting a claim against us arising pursuant to any provision of the Delaware General Corporation Law, or our certificate of incorporation or the bylaws, and (d) any action asserting a claim against us governed by the internal affairs doctrine.

Item 8.01. Other Events

On February 19, 2019, the Company completed its initial public offering (“IPO”) and sold 2,172,591 shares of its common stock at a price to the public of $5.00 per share, resulting in aggregate gross proceeds of $10,862,955, before deducting underwriting commissions and other related expenses. A copy of the press release announcing the closing of the Company’s IPO is attached as Exhibit 99.1 and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits

	Exhibit No.	Exhibit

	3.1	Amended and Restated Certificate of Incorporation dated February 19, 2019.

	99.1	Press Release of Soliton, Inc. dated February 19, 2019.

Signature

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	SOLITON, INC.


	By:	/s/ Lori Bisson
		Lori Bisson
		Executive Vice-President,
		Chief Financial Officer

Dated: February 22, 2019

Exhibit 3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

SOLITON, INC.

__________________________________

Soliton, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), certifies that:

A. The name of the Corporation is Soliton, Inc.

B. The Corporation’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on March 27, 2012.

C. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware and by written consent of the stockholders of the Corporation in accordance with Section 228 of the General Corporation Law of the State of Delaware, and restates, integrates and further amends the provisions of the Corporation’s Certificate of Incorporation, as amended.

D. The text of the Corporation’s Certificate of Incorporation, as amended and restated, is hereby amended, integrated and restated to read in its entirety as set forth in EXHIBIT A attached hereto.

E. This Amended and Restated Certificate of Incorporation shall be effective upon filing.

IN WITNESS WHEREOF, Soliton, Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by Christopher Capelli, a duly authorized officer of the Corporation, on February 19, 2019.

		/s/ Christopher Capelli
		Christopher Capelli, President

Exhibit A

Article

NAME

The name of the corporation is “Soliton, Inc.” (the “ Corporation ” or “ Company ”).

Article

REGISTERED OFFICE AND AGENT

The address of the registered office of the Corporation in the State of Delaware is 1209 Orange St., Wilmington, Delaware 19801. The registered agent of the Corporation at such address is The Corporation Trust Company in New Castle County.

Article

PURPOSE

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law (the “ DGCL ”).

Article	CAPITAL STOCK

4.1.	Authorized Shares

The Corporation is authorized to issue one class of stock to be designated “ Common Stock .” The total number of shares of Common Stock that the Corporation shall have the authority to issue is One Hundred Million (100,000,000) shares, having a par value of $0.001 per share.

4.2.	Common Stock

4.2.1	Relative Rights

Each share of Common Stock shall have the same relative rights as and be identical in all respects to all the other shares of Common Stock.

4.2.2

Dividends

Dividends may be paid on the Common Stock out of any assets legally available for the payment of dividends thereon, but only when and as declared by the Board of Directors of the Corporation.

4.2.3

Dissolution, Liquidation, Winding Up

In the event of any dissolution, liquidation, or winding up of the Corporation, whether voluntary or involuntary, the holders of the Common Stock shall become entitled to participate in the distribution of any assets of the Corporation remaining after the Corporation shall have paid, or provided for payment of, all debts and liabilities of the Corporation.

4.2.4

Voting Rights

Each holder of shares of Common Stock shall be entitled to attend all special and annual meetings of the stockholders of the Corporation and to cast one vote for each outstanding share of Common Stock so held upon any matter or thing (including, without limitation, the election of one or more directors) properly considered and acted upon by the stockholders.

Article 5.

BOARD OF DIRECTORS

5.1

Number; Term; Election

The number of directors of the Corporation shall be such number as from time to time shall be fixed by, or in the manner provided in, the bylaws of the Corporation. Unless and except to the extent that the bylaws of the Corporation shall otherwise require, the election of directors of the Corporation need not be by written ballot. Except as otherwise provided in this certificate of incorporation, each director of the Corporation shall be entitled to one vote per director on all matters voted or acted upon by the Board of Directors. Directors need not be residents of the state of incorporation or stockholders of the Corporation. Each director shall serve until his or her successor is duly elected and qualified or until his or her death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the terms of any incumbent director.

The Board of Directors shall have the power to adopt, amend or repeal the bylaws.

5.2

Management of Business and Affairs of the Corporation

The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

ARTICLE 6.

INDEMNIFICATION AND ADVANCEMENT OF EXPENSES

6.1

Mandatory Indemnification.

Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding"), by reason of the fact that he or she is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (a "Required Indemnitee"), whether the basis of such Proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent allowed under the DGCL, as the same exists or may hereafter be amended, against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnities in connection therewith, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. A Required Indemnitee shall be indemnified and held harmless by the Corporation to the fullest extent permitted under DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnities in connection therewith.

6.2

Permissive Indemnification.

In addition to the indemnification provided pursuant to Article 6.1 above, the Corporation is authorized and empowered, but not required, to indemnify and or to agree to indemnify, to the fullest extent permitted by Delaware law, any person that is or was an agent or employee of the Corporation and who was or is made a party or is threatened to be made a party to or is otherwise involved in any Proceeding, by reason of the fact that he or she is or was an agent or employee of the Corporation (a " Permitted Indemnitee ," and any Permitted Indemnitee or Required Indemnitee may be referred to as an " Indemnitee "), whether the basis of such Proceeding is alleged action in an official capacity or in any other capacity while serving as an employee or agent if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.

6.3

Good Faith.

The termination of any Proceeding by judgment order, settlement, conviction, or plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and further with respect to any criminal action proceeding, that the person had reasonable cause to believe that his conduct was unlawful.

6.4

Right to Advancement of Expenses.

The Corporation is authorized and empowered, but not required, to advance Costs (as defined below), or to agree to advance Costs to any person (an " Advancee ") who is or was an officer, director, agent or employee of the Corporation and who was or is made a party or is threatened to be made a party to or is otherwise involved in any Proceeding, by reason of the fact that he or she is or was a director, officer, agent or employee of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such Proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent. Any such advancement of Costs may be referred to as an " Advancement of Expenses ." For purposes of this Article 6.4, " Costs " shall mean the expenses (including attorneys' fees) incurred in defending any such Proceeding in advance of its final disposition to the extent permitted under the DGCL, provided, however, that, if the DGCL requires, Costs incurred by any person in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered) shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such Advancee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal, that such Advancee is not entitled to be indemnified for such expenses under this Article 6 or otherwise.

6.5

Advancement of Expenses by Contract.

To the extent authorized from time to time by the Board of Directors, the Corporation may enter into contracts providing for indemnification and Advancement of Expenses, or otherwise grant rights to indemnification and Advancement of Expenses to any employee or agent of the Corporation to the fullest extent permitted under Delaware law.

6.6

Rights to Indemnification and Advancement of Expenses Are Contract Rights.

The rights to indemnification and Advancement of Expenses conferred in, or pursuant to, Article 6 shall be contract rights and such rights shall continue as to an Indemnitee or Advancee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators.

6.7

Non-Exclusivity of Rights.

The rights to indemnification and to the Advancement of Expenses conferred in this Article 6 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, this certificate of incorporation, the bylaws, an agreement, a vote of the stockholders or of the disinterested directors or otherwise.

6.8

Insurance.

The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.

Article 7.

LIMITATION OF LIABILITY

No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision shall not eliminate or limit the liability of a director (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders; (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) under Section 174 of the DGCL; or (d) for any transaction from which the director derived an improper personal benefit. Any repeal or modification of this Article 7 shall be prospective only and shall not adversely affect any right or protection of, or any limitation of the liability of, a director of the Corporation existing at, or arising out of facts or incidents occurring prior to, the effective date of such repeal or modification.

Article 8.

AMENDMENT OF CERTIFICATE

The Corporation reserves the right to amend, alter or repeal any provision contained in this certificate of incorporation in the manner prescribed by the DGCL and all rights conferred upon stockholders are granted subject to this reservation. Notwithstanding any other provision of this certificate of incorporation, the affirmative vote of the holders of at least two-thirds of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter or repeal, or adopt any provision as part of this certificate of incorporation inconsistent with the purpose and intent of Articles 5, 6, 7, 8, 9 or 10.

Article 9.

BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS

The Corporation elects to be governed by the provisions of Section 203 of the DGCL regarding business combinations with interested shareholders.

ARTICLE 10.

NO STOCKHOLDER ACTION BY WRITTEN CONSENT

The stockholders of the Corporation may not take action by written consent without a meeting, and must take any actions at a duly called annual or special meeting. Meetings of stockholders may be called in such manner as the Corporation’s bylaws may provide.

Article 11.

COURT OF CHANCERY OF THE STATE OF DELAWARE EXCLUSIVE FORUM

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or this certificate of incorporation or the bylaws, and (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Article 12.

SURVIVAL

If any Article of this certificate of incorporation or any portion thereof is found to be void or unenforceable by a court of competent jurisdiction, the remaining Articles or portion of any affected Article, as the case may be, shall nevertheless remain in full force and effect as though the void or unenforceable part had been severed and deleted.

Exhibit 99.1

Soliton, Inc.

5304 Ashbrook Drive

Houston, TX 77081

Soliton, Inc. Completes IPO and Begins Trading on Nasdaq Under Ticker Symbol “SOLY”

NEW YORK, HOUSTON and LOS ANGELES, February 19, 2019 -- Soliton, Inc. (NASDAQ: SOLY) (“Soliton” or the “Company”), a pre-revenue stage medical device company with a novel and proprietary platform technology licensed from The University of Texas on behalf of the MD Anderson Cancer Center (“MD Anderson”), today announced that its shares have commenced trading on the Nasdaq Capital Market under the symbol “SOLY”. Soliton closed its Regulation A+ Tier 2 offering (the "Offering") by selling 2,172,591 shares of its common stock at the IPO price of $5.00 each, resulting in aggregate gross proceeds of $10,862,955, before deducting underwriting commissions and other related expenses. Boustead Securities, LLC (“Boustead”) was the sole underwriter of the Soliton initial public offering (“IPO”), the California-based investment bank’s second Nasdaq IPO of 2019.

“We are thrilled to begin trading on Nasdaq,” said Soliton CEO Chris Capelli. “The closing of Soliton’s IPO marks the beginning of a new chapter for our company and its dedicated investors, both long-term and those that have come on board in this Nasdaq IPO. We will continue to push forward with our proprietary technology for tattoo removal and for cellulite reduction by completing further clinical and preclinical trials before bringing the Soliton’s Rapid Acoustic Pulse (“RAP”) shockwave device to a large addressable market,” Capelli stated.

“Congratulations to Soliton CEO Chris Capelli and the entire Soliton team for a promising trading debut on Nasdaq,” said Boustead’s Head of Equity Capital Markets, Dan McClory. “The successful completion of the first Reg A+ IPO on Nasdaq or the NYSE in over one year by any company is a particularly important milestone, and it says a lot about the resilience and commitment of Soliton, its investors, advisors, and underwriter,” McClory concluded.

The Company intends to use the net proceeds of the IPO offering primarily to develop and commercialize the RAP device; conduct further clinical trials for new indications; pay license fees and fund research and development; and for general working capital.

Soliton’s patented RAP device uses acoustic shockwaves that, in clinical trials, accelerated the speed of tattoo removal when used in conjunction with lasers, delivering results in as little as 2 to 3 treatments versus the 10 to 12 average with the current standard of care lasers alone. In addition to tattoo removal, Soliton discovered other capabilities of its technology during preclinical testing. Among them, the Company observed that their RAP device may have the potential to improve skin laxity as well as the appearance of cellulite by creating mechanical stress at the cellular level and inducing collagen growth. These clinical and preclinical trials are in early stages and intended as a proof-of-concept and there are no assurances that the trials will have a successful outcome.

An offering circular on Form 1-A relating to this U.S. offering was filed with the Securities and Exchange Commission (“SEC”) and was qualified by the SEC as of November 27, 2018. The offering of these securities was made only by means of an offering circular on Form 1-A. The final offering circular is available at https://www.flashfunders.com/soliton , https://www.sec.gov or may be obtained from Boustead Securities at +1 (949) 502-4409 or offerings@bousted1828.com

About the Company

Soliton, Inc. is a pre-revenue stage medical device company with a novel and proprietary platform technology licensed from MD Anderson. The Company’s first commercial product uses rapid pulses of designed acoustic shockwaves to dramatically accelerate the removal of unwanted tattoos. The Company is based in Houston, Texas, and is actively engaged in bringing this device to the market. The Company expects to file for premarket clearance with the U.S. Food and Drug Administration ("FDA") for its first device in the first quarter of 2019 and expects to receive clearance to market the device in mid-2019. For more information about the Company, please visit: http://www.soliton.com .

About Boustead Securities, LLC

Boustead Securities, LLC (“Boustead”) is an investment banking firm that executes and advises on IPOs, mergers and acquisitions, capital raises and restructuring assignments in a wide array of industries, geographies and transactions, for a broad client base. Boustead’s core value proposition is the ability to create opportunity through innovative solutions and tenacious execution. With experienced professionals in the United States and around the world, Boustead’s team moves quickly and provides a broad spectrum of sophisticated financial advice and services. For more information about Boustead, please visit www.boustead1828.com

CONTACT:

Boustead Securities, LLC:

Dan McClory, Head of Equity Capital Markets

+1 (949) 502 4408

dan@boustead1828.com

About FinTech Global Markets, Inc.

FinTech Global Markets, Inc. (“FTGM”) was founded in 2012 and is headquartered in Southern California. FTGM owns and operates a FINRA member broker-dealer, FinTech Clearing, LLC; FlashFunders Shareholder Services, LLC, a SEC-registered transfer agent; FlashFunders Funding Portal, LLC, a FINRA member funding portal; and two investment advisors, Maco.la Management, Inc. and Initiate Advisors, LLC. Through these subsidiaries, FTGM operates a U.S.-based online securities platform whose underlying technology and regulatory infrastructure are designed to enable issuers to engage in Regulation D, Regulation A (known as Reg A+), Regulation S, Regulation CF and fully registered S-1 and F-1 Initial Public Offerings on NASDAQ in compliance with applicable federal, state and non-U.S. securities laws. www.flashfunders.com

This press release is neither an offer to sell nor a solicitation of an offer to buy any securities of the Company, including without limitation the common stock nor shall such securities be offered or sold in the United States absent registration or an applicable exemption from registration, nor shall there be any offer, solicitation or sale of any of the Company's securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction.

Regulation A+ Offerings

An Offering Circular regarding Soliton, Inc. (“Soliton”) has been filed with the Securities and Exchange Commission (“SEC”). The SEC has qualified the Soliton Offering Circular, which only means that we may make sales of the securities described in its Offering Circular. It does not mean that the SEC has approved, passed upon the merits, or passed upon the accuracy or completeness of the information in Soliton’s Offering Circular. You may obtain copies of the Offering Circular for Soliton here: https://www.sec.gov/Archives/edgar/data/1548187/000162827918000315/soliton253g2.htm

Liquidity Risk-Regulation A+ Offerings

An investment in Soliton has a high degree of risk, including, but not limited to, a small equity market capitalization and lack of significant public float, which may impair the liquidity of these investments. Soliton can make no assurances about the success of its products, licensing or marketing efforts; consequently, investors in Soliton may lose some or all of their investments.

Safe Harbor Statement

The Company has made statements in this press release that are considered "forward-looking statements" which are usually identified by the use of words such as "anticipates," "believes," "estimates," "expects," "intends," "may," "plans," "projects," "seeks," "should," "will," and variations of such words or similar expressions. All statements other than statements of historical fact in this press release are forward-looking statements. These forward-looking statements reflect our current views about our plans, intentions, expectations, strategies and prospects, which are based on the information currently available to us and on assumptions we have made. Although we believe that our plans, intentions, expectations, strategies and prospects as reflected in or suggested by those forward-looking statements are reasonable, we can give no assurance that the plans, intentions, expectations or strategies will be attained or achieved. Furthermore, actual results may differ materially from those described in the forward-looking statements and will be affected by a variety of risks and factors that are beyond our control. For further discussion of the factors that could affect outcomes, please refer to the risk factors set forth in the "Risk Factors" section of the Final Offering Circular. We assume no obligation to update publicly any forward-looking statements, whether as a result of new information, future events or circumstances, or changes in the Company’s expectations, except as may be required by law. Although the Company believes that the expectations expressed in these forward-looking statements are reasonable, it cannot assure you that such expectations will turn out to be correct, and the Company cautions investors that actual results may differ materially from the anticipated results.