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 (Date of earliest event reported): March 31, 2021
VIVEVE MEDICAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
1-11388 |
04-3153858 |
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(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
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345 Inverness Drive South, Building B, Suite 250 Englewood, Colorado |
80112 |
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(Address of principal executive offices) |
(Zip Code) |
Registrant’s telephone number, including area code: (720) 696-8100
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
Trading symbol(s) |
Name of each exchange on which registered |
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Common Stock |
VIVE |
Nasdaq Capital Market |
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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 or Rule 12b-2 of the Securities Exchange Act of 1934.
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. ☐
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Item 1.01. |
Entry into a Material Definitive Agreement. |
Viveve Medical, Inc. (the “Company”), previously entered into a purchase agreement on June 8, 2020 (the “Purchase Agreement”) with Lincoln Park Capital Fund, LLC (“LPC”), which provided that the Company had the right, in its sole discretion, to sell to LPC up to $10 million of shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”) from time to time over a 30-month period pursuant to the terms of the Purchase Agreement. The Purchase Agreement limited the Company’s sale shares of Common Stock to LPC to 3,017,625 shares of Common Stock (or 301,762 shares after giving effect to the Company’s reverse stock split in December 2020), representing 19.99% of the shares of the Common Stock outstanding on the date of the Purchase Agreement unless (i) shareholder approval was obtained to issue more than such amount or (ii) the average price of all applicable sales of Common Stock to Lincoln Park under the Purchase Agreement equaled or exceeded $0.646 per share (or $6.46 per share after giving effect to the Company’s reverse stock split), which represented the lower of (A) the closing price of the Common Stock on the Nasdaq Capital Market immediately preceding the date of the Purchase Agreement or (B) the average of the closing price of the Common Stock on the Nasdaq Capital Market for the five business days immediately preceding the date of the Purchase Agreement, as calculated in accordance with Nasdaq Rules.
On March 31, 2021, the Company and LPC entered into a First Amendment to Purchase Agreement (the “Amendment”). The Amendment limited the Company’s sale shares of Common Stock to LPC from the date thereof to 2,068,342 shares of shares of Common Stock, representing 19.99% of the shares of the Common Stock outstanding on the date of Amendment unless (i) shareholder approval is obtained to issue more than such amount or (ii) the average price of all applicable sales of Common Stock to Lincoln Park under the Purchase Agreement, as amended equals or exceeds $2.99 per share, which represents the lower of (A) the closing price of the Common Stock on the Nasdaq Capital Market immediately preceding the date of the Amendment or (B) the average of the closing prices of the Common Stock on the Nasdaq Capital Market for the five business days immediately preceding the date of the Amendment, as calculated in accordance with Nasdaq Rules.
The foregoing description of the Amendment is qualified in its entirety by reference to the full text of the Amendment, a copy which is attached hereto as Exhibit 10.1, and which is incorporated herein in its entirety by reference.
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Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits
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Exhibit No. |
Description |
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10.1 |
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SIGNATURES
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.
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Date: March 31, 2021 |
Viveve Medical, Inc. |
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By: |
/s/ Scott Durbin |
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Scott Durbin |
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Chief Executive Officer |
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Exhibit 10.1
FIRST AMENDMENT TO
PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this “First Amendment”), dated as of March 31, 2021, by and between VIVEVE MEDICAL, INC., a Delaware corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited liability company (the “Investor”).
WHEREAS, the Company and the Investor entered into that certain Purchase Agreement (the “Agreement”) dated as of June 8, 2020. The Company and the Investor now desire to amend the Agreement, however, only as set forth in this First Amendment.
NOW THEREFORE, the Company and the Investor hereby agree as follows:
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1. |
Section 1(ss) of the Agreement is deleted in its entirety and replaced by the following: |
“Signing Market Price” means $2.99, representing the closing price of the Common Stock on The Nasdaq Capital Market on the First Amendment Effective Date, which shall be the lower of (i) the Nasdaq Official Closing Price of the Common Stock immediately preceding the date of the First Amendment Effective Date or (ii) the average of the Nasdaq Official Closing Prices of the Common Stock for the five (5) Business Days immediately preceding the First Amendment Effective Date.”
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2. |
Section 1 of the Agreement is amended by adding the following defined term thereto in appropriate alphabetical order: |
“First Amendment Effective Date” means March 31, 2021.”
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3. |
Section 2(b) of the Agreement is deleted in its entirety and replaced by the following: |
“Commencement of Regular Sales of Common Stock. Upon the satisfaction of the conditions set forth in Sections 7 and 8 hereof (the “Commencement” and the date of satisfaction of such conditions the “Commencement Date”) and thereafter, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of a Regular Purchase Notice from time to time, to purchase up to Two Hundred Fifty Thousand (250,000) Purchase Shares, subject to any adjustment for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction (such maximum number of Purchase Shares, as may be adjusted from time to time (the “Regular Purchase Share Limit” and each such purchase, a “Regular Purchase”)); provided, however, that the Investor’s committed obligation under any single Regular Purchase shall not exceed Two Million Dollars ($2,000,000). If the Company delivers any Regular Purchase Notice for a Purchase Amount in excess of the limitations contained in the immediately preceding sentence, such Regular Purchase Notice shall be void ab initio to the extent of the amount by which the amount of Purchase Shares set forth in such Regular Purchase Notice exceeds the amount of Purchase Shares which the Company is permitted to include in such Purchase Notice in accordance herewith, and the Investor shall have no obligation to purchase such excess Purchase Shares in respect of such Regular Purchase Notice; provided that the Investor shall remain obligated to purchase the amount of Purchase Shares which the Company is permitted to include in such Regular Purchase Notice. The Company may deliver Regular Purchase Notices to the Investor as often as every Business Day, so long as the Company has not failed to deliver Purchase Shares for all prior Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases, including, without limitation, those that have been effected on the same Business Day as the applicable Purchase Date, have theretofore been received by the Investor as DWAC Shares in accordance with this Agreement. Notwithstanding the foregoing, the Company shall not deliver any Regular Purchase Notices during the PEA Period.”
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4. |
Section 2(g)(i) of the Agreement is deleted in its entirety and replaced by the following: |
“Exchange Cap. Subject to Section 2(g)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement on or following the First Amendment Effective Date and the transactions contemplated hereby would be equal to or greater than 2,068,342 shares of Common Stock, representing 19.99% of the shares of Common Stock outstanding on the First Amendment Effective Date (which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of The Nasdaq Capital Market or any other Principal Market on which the Common Stock may be listed or quoted) (the “Exchange Cap”), unless and until the Company elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of The Nasdaq Capital Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended (the “Bylaws”). For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(g)(i), the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement (except as set forth in Section 2(g)(ii) below).”
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5. |
Except as amended and modified by this First Amendment, the Agreement is hereby ratified and affirmed. |
** Signature Page Follows **
IN WITNESS WHEREOF, the Investor and the Company have caused this First Amendment to Purchase Agreement to be duly executed as of the date first written above.
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THE COMPANY:
VIVEVE MEDICAL, INC. |
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By: |
/s/ Scott Durbin |
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Name: |
Scott Durbin |
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| Title: | Chief Executive Officer | ||
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INVESTOR:
LINCOLN PARK CAPITAL FUND, LLC BY: LINCOLN PARK CAPITAL, LLC BY: ALEX NOAH INVESTORS INC. |
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| By: | /s/ Jonathan Cope | ||
| Name: | Jonathan Cope | ||
| Title: | President | ||
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