Washington, D.C. 20549







Pursuant to Section 13 or 15(d)

of The Securities Exchange Act of 1934


Date of Report (Date of Earliest Event Reported): April 21, 2020




(Exact name of registrant as specified in its charter)









(State or other jurisdiction

of incorporation)



File Number)


(I.R.S. Employer

Identification No.)



345 Inverness Drive South, Building B, Suite 250

Englewood, Colorado



(Address of principal executive offices)


(Zip Code)


Registrant’s telephone number, including area code (720) 696-8100


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:


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))


Securities registered pursuant to Section 12(b) of the Act:


Title of each class


Trading Symbol(s)


Name of each exchange on which registered

Common Stock




NASDAQ Capital Market


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 1.01. Entry into a Material Definitive Agreement.


On April 24, 2020, Viveve, Inc. (“Viveve”), a wholly-owned subsidiary of Viveve Medical, Inc. (the “Company”), entered into a promissory note (the “Promissory Note”) evidencing an unsecured loan in the amount of $1,343,400 made to Viveve under the Paycheck Protection Program (the “Loan”). The Paycheck Protection Program (or “PPP”) was established under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) and is administered by the U.S. Small Business Administration. The Loan to Viveve is being made through Western Alliance Bank, an Arizona corporation (the “Lender”).


The interest rate on the Loan is 1.00% and the term of the Loan is two years. Beginning seven months from the date of the Loan, Viveve is required monthly payments of principal and interest. The promissory note evidencing the Loan contains customary events of default relating to, among other things, payment defaults or breaching the terms of the Loan documents. The occurrence of an event of default may result in the repayment of all amounts outstanding, collection of all amounts owing from Viveve, or filing suit and obtaining judgment against Viveve.


Under the terms of the CARES Act, PPP loan recipients can apply for and be granted forgiveness for all or a portion of loan granted under the PPP. Such forgiveness will be determined, subject to limitations, based on the use of loan proceeds for payment of payroll costs and any payments of mortgage interest, rent, and utilities. No assurance is provided that Viveve will obtain forgiveness of the Loan in whole or in part.


The foregoing descriptions of the Loan do not purport to be complete and are qualified in their entirety by reference to the full text of the Promissory Note attached to this Form 8-K as Exhibit 10.1 and incorporated herein by reference.


Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of the Registrant


The disclosure in Item 1.01 and Exhibit 10.1 of this Form 8-K are incorporated herein by reference.


Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.


On April 21, 2020, the Company received a letter (the “Notice”) from The Nasdaq Stock Market (“Nasdaq”) advising the Company that for 30 consecutive trading days preceding the date of the Notice, the bid price of the Company’s common stock had closed below the $1.00 per share minimum required for continued listing on the Nasdaq Capital Market pursuant to Nasdaq Listing Rule 5550(a)(1) (the “Minimum Bid Price Requirement”). The Notice has no effect on the listing of the Company’s common stock at this time, and the Company’s common stock continues to trade on the Nasdaq Capital Market under the symbol “VIVE.”




Under Nasdaq Listing Rule 5810(c)(3)(A), if during the 180 calendar day period following the date of the Notice, the closing bid price of the Company’s common stock is at or above $1.00 for a minimum of 10 consecutive business days, the Company will regain compliance with the Minimum Bid Price Requirement and its common stock will continue to be eligible for listing on the Nasdaq Capital Market, absent noncompliance with any other requirement for continued listing.


On April 16, 2020, Nasdaq announced it was providing temporary relief from the Minimum Bid Price Requirement through June 30, 2020. Under the relief, the Company will have additional time to regain compliance with the Minimum Bid Price Requirement with the compliance period beginning July 1, 2020. As such, the compliance period for the Company will expire on December 28, 2020 (the “Compliance Period”).


If the Company does not regain compliance with the Minimum Bid Price Requirement by the end of the Compliance Period, under Nasdaq Listing Rule 5810(c)(3)(A)(ii) if on the last day of the Compliance Period the Company is in compliance with the market value of publicly held shares requirement for continued listing as well as all other standards for initial listing of its common stock on the Nasdaq Capital Market (other than the bid price requirement), the Company may be eligible for additional time if the Company also provides written notice to Nasdaq of its intention to cure the deficiency during a second compliance period (by effecting a reverse stock split if necessary), at which point Nasdaq may grant the Company an additional 180-days to regain compliance with the Minimum Bid Price Requirement. If the Company does not regain compliance with the Minimum Bid Price Requirement by the end of the Compliance Period (or the Compliance Period as may be extended) the Company’s common stock will be subject to delisting.


The Company intends to monitor the closing bid price of its common stock and may, if appropriate, consider implementing available options to regain compliance with the Minimum Bid Price Requirement under the Nasdaq Listing Rules.


Item 9.01. Financial Statements and Exhibits.


(d) Exhibits. 







Promissory Note, dated April 24, 2020, by and between Viveve and the Lender




*        *        *






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.





Date: April 24, 2020


/s/ Scott Durbin


Scott Durbin


Chief Executive Officer




Exhibit 10.1


U.S. Small Business Administration



SBA Loan # 96956271-08
SBA Loan Name Viveve, Inc.
Date 04/23/2020
Loan Amount $1,343,400.00
Interest Rate 1.00% per annum
Borrower Viveve, Inc., a Delaware Corporation
Operating Company N/A
Lender Western Alliance Bank, an Arizona Corporation






In return for the Loan, Borrower promises to pay to the order of Lender the amount of One Million Three Hundred Forty Three Thousand Four Hundred and No/100 Dollars, interest on the unpaid principal balance, and all other amounts required by this Note.






“Collateral” means any property taken as security for payment of this Note or any guarantee of this Note. “Guarantor” means each person or entity that signs a guarantee of payment of this Note.

“Loan” means the loan evidenced by this Note.

“Loan Documents” means the documents related to this loan signed by Borrower, any Guarantor, or anyone who pledges collateral.

“SBA” means the Small Business Administration, an Agency of the United States of America.


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Borrower must make all payments at the place Lender designates. The payment terms for this Note are:

This Note will mature in 2 years from the date of initial disbursement.


The interest rate is 1.00% per year.


Borrower must pay principal and interest payments every month, beginning seven months from the date of initial disbursement in an amount sufficient to fully-amortize the outstanding balance; payments must be made on the 4th calendar day in the months they are due.


Lender will apply each installment payment first to pay interest accrued to the day Lender receives the payment, then to bring principal current, then to pay any late fees, and will apply any remaining balance to reduce principal. Lender may adjust the payment amount periodically as needed to amortize the principal over the remaining term of the Note.


Loan Prepayment:


Notwithstanding any provision in this Note to the contrary:


Borrower may prepay this Note. Borrower may prepay 20 percent or less of the unpaid principal balance at any time without notice. If Borrower prepays more than 20 percent and the Loan has been sold on the secondary market, Borrower must:

a. Give Lender written notice;

b. Pay all accrued interest; and

c. If the prepayment is received less than 21 days from the date Lender receives the notice, pay an amount equal to 21 days' interest from the date lender receives the notice, less any interest accrued during the 21 days and paid under subparagraph b., above.


If Borrower does not prepay within 30 days from the date Lender receives the notice, Borrower must give Lender a new notice.


All remaining principal and accrued interest is due and payable 2 years from date of initial disbursement.


Late Charge. If payment on this Note is more than 10 days late, Lender may charge Borrower a late fee of up to 5.00% of the unpaid portion of the regularly scheduled payment.


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Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower or Operating Company:




Fails to do anything required by this Note and other Loan Documents;




Defaults on any other loan with Lender;




Does not preserve, or account to Lender’s satisfaction for, any of the Collateral or its proceeds;




Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA;




Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA;




Defaults on any loan or agreement with another creditor, if Lender believes the default may materially affect Borrower’s ability to pay this Note;




Fails to pay any taxes when due;




Becomes the subject of a proceeding under any bankruptcy or insolvency law;




Has a receiver or liquidator appointed for any part of their business or property;




Makes an assignment for the benefit of creditors;




Has any adverse change in financial condition or business operation that Lender believes may materially affect Borrower’s ability to pay this Note;




Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without Lender’s prior written consent; or




Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower’s ability to pay this Note.






Without notice or demand and without giving up any of its rights, Lender may:




Require immediate payment of all amounts owing under this Note;




Collect all amounts owing from any Borrower or Guarantor;




File suit and obtain judgment;




Take possession of any Collateral; or




Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement.


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Without notice and without Borrower’s consent, Lender may:




Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses;




Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan Document, and preserve or dispose of the Collateral. Among other things, the expenses may include payments for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and reasonable attorney’s fees and costs. If Lender incurs such expenses, it may demand immediate repayment from Borrower or add the expenses to the principal balance;




Release anyone obligated to pay this Note;




Compromise, release, renew, extend or substitute any of the Collateral; and




Take any action necessary to protect the Collateral or collect amounts owing on this Note.






When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation, defeat any claim of SBA, or preempt federal law.






Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its successors and assigns.








All individuals and entities signing this Note are jointly and severally liable.




Borrower waives all suretyship defenses.




Borrower must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender’s liens on Collateral.




Lender may exercise any of its rights separately or together, as many times and in any order it chooses. Lender may delay or forgo enforcing any of its rights without giving up any of them.




Borrower may not use an oral statement of Lender or SBA to contradict or alter the written terms of this Note.




If any part of this Note is unenforceable, all other parts remain in effect.




To the extent allowed by law, Borrower waives all demands and notices in connection with this Note, including presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired Collateral; or did not obtain the fair market value of Collateral at a sale.


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When SBA is not the holder of this Note, the law of the State where the loan is made shall govern the interpretation and enforcement of this Note.


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By signing below, each individual or entity becomes obligated under this Note as Borrower.


  Viveve, Inc. a Delaware Corporation
  By: /s/ Scott Durbin  
  Name: Scott Durbin  
  Title: Chief Executive Officer  
  Date: 4/24/2020  
  By:  /s/ Jim Robbins   
  Name: Jim Robbins  
  Title: VP of Finance and Administration  
  Date: 4/24/2020  


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