As filed with the Securities and Exchange Commission on August 10, 2000
November 8, 2017
Registration Statement No. 333- ================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
Washington, D.C. 20549
----------------------
FORM S-3
----------------------
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
PLC SYSTEMS
VIVEVE MEDICAL, INC.
(Exact
(Exact name of registrant as specified in its charter)
----------------------
YUKON TERRITORY, CANADA 04-3153858
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10 FORGE PARK
FRANKLIN, MASSACHUSETTS 02038
(508) 541-8800
(Address,
Delaware | 3841 | 04-3153858 |
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification No.) |
345 Inverness Drive South, Building B, Suite 250
Englewood, Colorado 80112
Telephone: (720) 696-8100
(Address, including zip code and telephone number, including area code, of registrant'sRegistrant’s principal executive offices)
----------------------
MARK R. TAUSCHER
CHIEF EXECUTIVE OFFICER
PLC SYSTEMS INC.
10 FORGE PARK
FRANKLIN, MASSACHUSETTS 02038
(508) 541-8800
(Name,
Scott Durbin
345 Inverness Drive South, Building B, Suite 250
Englewood, Colorado 80112
Telephone: (720) 696-8100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
----------------------
Copies to:
Steven D. Singer, Esq.
Hale and Dorr
Mitchell S. Bloom
Bradley A. Bugdanowitz
Goodwin Procter LLP
60 State Street
Boston, Massachusetts 02109
Tel: (617) 526-6000
Fax: (617) 526-5000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable
Three Embarcadero Center, 28th Floor
San Francisco, CA 94111
(415) 733-6000
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Formform are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / /
☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/
box: ☒
If this Formform is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / 333-_______.
☐
If this Formform is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / 333-__________.
☐
If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434, please462(e) under the Securities Act, check the following box. / /
----------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------- -------------- -------------- ----------------- ---------------
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
to be Price Offering Registration
Title of Shares to be Registered Registered Per Share(1) Price(1) Fee
- -------------------------------------------------- -------------- -------------- ----------------- ---------------
Common Stock, no par value per share.......... 154,864 $1.1875 $183,901 $48.55
- -------------------------------------------------- -------------- -------------- ----------------- ---------------
(1) Estimated solely for purposes☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of calculating the registration feesecurities pursuant to Rule 457(c)413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and based upon the
averageemerging growth company” in Rule 12b-2 of the high and low prices onExchange Act. (Check one):
Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
Non-accelerated filer | ☐ (Do not check if a smaller reporting company) | Smaller reporting company | ☒ | |||
Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the American Stock Exchange on
August 4, 2000.
----------------------
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
| ||||||||
Title of Each Class of Securities |
| Amount to be |
| Proposed Maximum |
| Proposed Maximum |
| Amount of |
| ||||||||
Common Stock, $0.0001 par value per share |
| (1) |
| (2) |
| (2) |
| — |
| ||||||||
Preferred Stock, $0.0001 par value per share |
| (1) |
| (2) |
| (2) |
| — |
Warrants |
| (1) |
| (2) |
| (2) |
| — |
| ||||||||
Units |
| (1) |
| (2) |
| (2) |
| — |
| ||||||||
Total |
| (1) |
| (2) |
| $50,000,000.00 |
| $6,225.00 |
| ||||||||
(1) | There are being registered hereunder such indeterminate number of shares of common stock and preferred stock and such indeterminate number of warrants and units as shall have an aggregate initial offering price not to exceed $50,000,000. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock and preferred stock as may be issued upon conversion of or exchange for preferred stock that provide for conversion or exchange, upon exercise of warrants or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
(2) | The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. |
(3) | Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
THE COMPANYREGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANYREGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A)8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)8(a), SHALLMAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED AUGUST 10, 2000
PROSPECTUS
PLC SYSTEMS INC.
154,864 SHARES OF COMMON STOCK
----------------------
EXPLANATORY NOTE
This registration statement contains two prospectuses:
• | a base prospectus which covers the offering, issuance and sale by us of up to $50,000,000 in the aggregate of the securities identified above from time to time in one or more offerings; and |
• | a sales agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $25,000,000 of our common stock that may be issued and sold under a sales agreement with Cowen and Company, LLC, or Cowen. |
The base prospectus relatesimmediately follows this explanatory note. The specific terms of any securities to resalesbe offered pursuant to the base prospectus other than the shares under the sales agreement will be specified in a prospectus supplement to the base prospectus. The specific terms of sharesthe securities to be issued and sold under the sales agreement are specified in the sales agreement prospectus that immediately follows the base prospectus. The $25,000,000 of common stock that may be offered, issued and sold under the sales agreement prospectus is included in the $50,000,000 of PLC
Systems Inc. which are issuable uponsecurities that may be offered, issued and sold by us under the exercise of warrants to purchase an
aggregate of 154,864 shares of our common stock. We issued these warrants in
connection with the private placement of convertible debt in 1997 and 1998.
We will not receive any proceeds from the sale of the shares.
base prospectus.
The selling stockholders identifiedinformation in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or their
pledgees, donees, transferees or other successors-in-interest,sale is not permitted.
PROSPECTUS (Subject to Completion) | Dated November 8, 2017 |
$50,000,000
Common Stock
Preferred Stock
Warrants
Units
We may offer the
shares from time to time issue, in one or more series or classes, up to $50,000,000 in aggregate principal amount of our common stock, preferred stock, warrants and/or units in one or more offerings. We may offer these securities separately or together in units. We will specify in the accompanying prospectus supplement the terms of the securities being offered. We may sell these securities to or through publicunderwriters and also to other purchasers or private transactions at prevailing
market prices, at prices related to prevailing market pricesthrough agents. We will set forth the names of any underwriters or at privately
negotiated prices.
agents, and any fees, conversions or discount arrangements, in the accompanying prospectus supplement. We may not sell any securities under this prospectus without delivery of the applicable prospectus supplement.
You should read this document and any prospectus supplement or amendment carefully before you invest in our securities.
Our common stock is tradedlisted on the American Stock ExchangeThe Nasdaq Capital Market under the symbol "PLC."“VIVE.” On August 4, 2000,November 7, 2017, the closing sale price of thefor our common stock, as reported on the American Stock ExchangeThe Nasdaq Capital Market, was $1.25$5.63 per share. ----------------------
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
BEGINNING ON PAGE 4.
----------------------
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE NOT
APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------
Our principal executive office is located at 345 Inverness Drive South, Building B, Suite 250, Englewood, Colorado 80112.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the heading “Risk Factors” contained in this prospectus beginning on page 2 and any applicable prospectus supplement, and under similar headings in the other documents that are incorporated by reference into this prospectus.
This prospectus may not be used to offer or sell securities unless accompanied by a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectusProspectus is _______________,______.
TABLE OF CONTENTS
Page | ||||
About this Prospectus | 1 | |||
Risk Factors | 2 | |||
Cautionary Statement Regarding Forward-Looking Statements | 3 | |||
The Company | 4 | |||
Use of Proceeds | 7 | |||
Securities We May Offer | 8 | |||
Description of Capital Stock | 9 | |||
Description of Warrants | 14 | |||
Description of Units | 15 | |||
Plan of Distribution | 18 | |||
Legal Matters | 21 | |||
Experts | 22 | |||
Where You Can Find More Information | 23 | |||
Incorporation by Reference | 24 | |||
ABOUT THIS PROSPECTUS
This prospectus is (508) 541-8800part of a registration statement that we filed with the United States Securities and our
Internet address is bloodlinelaser.comExchange Commission (the “SEC”), using a “shelf” registration process. Under this shelf registration process, we may from time to time sell any combination of the securities described in this prospectus in one or plcmed.com.more offerings up to a total amount of $50,000,000.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide one or more prospectus supplements that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and the accompanying prospectus supplement together with the additional information described under the heading “Where You Can Find More Information” beginning on our
Internet website is notpage 23 of this prospectus.
You should rely only on the information contained in or incorporated by reference in this prospectus. Unlessprospectus, any accompanying prospectus supplement or in any related free writing prospectus filed by us with the context otherwise requires references in this prospectus to "PLC," "we," "us,"
and "our" refer to PLC Systems Inc. and its subsidiaries.
PLC Medical Systems, Inc. and design and The Heart Laser and design are
our registered trademarks.SEC. We have not authorized anyone to provide you with different information. This prospectus and the accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in the accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information different
from that contained orappearing in this prospectus, any prospectus supplement, the documents incorporated by reference in this prospectus. The selling
stockholders are offering to sell, and seeking offers to buy, shares of our
common stock only in jurisdictions where offers and sales are permitted. The
information contained in thisany related free writing prospectus is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially since those dates.
Unless the date ofcontext otherwise indicates, references in this prospectus regardlessto “Viveve,” the “Company,” “we,” “us,” and “our” refer, collectively, to Viveve Medical, Inc., a Delaware corporation, and its subsidiaries.
RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully consider the time of delivery ofrisks referenced below and described in the documents incorporated by reference in this prospectus or of any sale
of common stock.
-2-
PROSPECTUS SUMMARY
THIS SUMMARY HIGHLIGHTS IMPORTANT FEATURES OF THIS OFFERING AND THE
INFORMATION INCLUDED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS. THIS
SUMMARY DOES NOT CONTAIN ALL OF THE INFORMATION THAT YOU SHOULD CONSIDER BEFORE
INVESTING IN OUR COMMON STOCK. YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY,
ESPECIALLY THE RISKS OF INVESTING IN OUR COMMON STOCK DISCUSSED UNDER "RISK
FACTORS."
PLC Systems Inc.
We design, manufacture and market a patented high-powered carbon
dioxide laser system for use in the treatment of severe coronary artery disease,
a form of heart disease caused by the blockage of blood flow into the coronary
arteries which supply oxygen-rich blood to the heart. Typically, patients
suffering from severe coronary artery disease experience excruciating spasmodic
attacks of chest pain, know as angina, and often experience shortness of breath
and fatigue.
We designed our laser system, known as The Heart Laser System, for use
in a surgical laser procedure known as transmyocardial revascularization, or
TMR, which can relieve the often debilitating pain associated with severe
coronary artery disease. In a TMR procedure, a cardiovascular surgeon uses a
laser to create between 20 and 40 tiny channels in the heart wall of a patient
suffering from severe coronary artery disease, thereby allowing oxygen-rich
blood to reach the heart muscle. The procedure does not require a heart-lung
bypass machine and is performed through a small incision between the patient's
ribs while the patient's heart is beating.
We developed The Heart Laser System specifically for TMR, and we
believe that it is the only TMR system that can create a channel completely
through the heart wall with a single laser pulse. In addition, our laser system
uses patented technology to fire this single laser pulse in the fraction of a
second between a patient's heartbeats, a relatively safe point in a patient's
heartbeat cycle when the heart is relatively still and unresponsive to stimuli.
The FDA has approved the use of The Heart Laser System for patients who have
severe, stable angina and who have areas of their heart not suitable for
coronary bypass surgery, and for whom other surgical or interventional
techniques may not be available or advisable to alleviate the effects of severe
coronary artery disease.
We market our laser system to hospitals worldwide. We offer our
customers the option of purchasing The Heart Laser System as a piece of capital
equipment or paying us a procedural fee each time they use a system which we
own. As of June 30, 2000, over 6,000 patients have been treated with our Heart
Laser System.
THE OFFERING
Common Stock offered by selling stockholders......... 154,864 shares
Use of proceeds...................................... PLC Systems Inc. will not receive any proceeds from
the sale of shares in this offering
American Stock Exchange symbol....................... PLC
-3-
RISK FACTORS
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU
SHOULD CAREFULLY CONSIDER THE RISKS AND UNCERTAINTIES DESCRIBED BELOW BEFORE
PURCHASING OUR COMMON STOCK. THE RISKS AND UNCERTAINTIES DESCRIBED BELOW ARE NOT
THE ONLY ONES FACING OUR COMPANY. ADDITIONAL RISKS AND UNCERTAINTIES MAY ALSO
IMPAIR OUR BUSINESS OPERATIONS. IF ANY OF THE FOLLOWING RISKS ACTUALLY OCCUR,
OUR BUSINESS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS WOULD LIKELY SUFFER.
IN THAT CASE, THE TRADING PRICE OF OUR COMMON STOCK COULD FALL, AND YOU MAY LOSE
ALL OR PART OF THE MONEY YOU PAID TO BUY OUR COMMON STOCK.
WE DEPEND ON THE HEART LASER SYSTEM FOR SUBSTANTIALLY ALL OF OUR REVENUE, AND IF
THIS PRODUCT DOES NOT GAIN WIDESPREAD MARKET ACCEPTANCE, OUR REVENUE WILL NOT
GROW AND COULD DECLINE.
We develop and market one principal product, a patented high-powered
carbon dioxide laser system known as The Heart Laser System and related
disposable accessories. The Heart Laser System is designed for use in the
treatment of coronary artery disease in a relatively new surgical laser
procedure known as transmyocardial revascularization, or TMR.
We began marketing The Heart Laser System in Europe in 1995 and in the
United States in 1998. This product has not yet achieved widespread commercial
acceptance. To be successful, we need to:
- - demonstrate to the medical community in general, and to heart surgeons
and cardiologists in particular, that TMR procedures and The Heart
Laser System are effective, relatively safe and cost effective;
- - train heart surgeons to perform TMR procedures using The Heart Laser
System; and
- - obtain widespread insurance reimbursement for the TMR procedure.
To date, we have trained only a limited number of heart surgeons and will need
to expand our marketing and training capabilities.
We derived approximately 89% of our revenue in fiscal 1999 and 90% in
fiscal 1998 from The Heart Laser System. Because we currently depend on The
Heart Laser System and related disposable accessories for substantially all of
our revenue and we have no other significant products, if this product fails to
achieve widespread market acceptance we will not be able to sustain or grow our
product revenue.
WE EXPECT TO INCUR LOSSES IN THE FUTURE.
We have incurred operating losses in each year since our inception,
except fiscal 1995. We expect to continue to incur operating losses at least
through 2001 as we expand our sales and marketing programs and research and
development efforts. We will spend these amounts before we receive any
incremental revenue from these efforts. Therefore, our losses will be greater
than the losses we would incur if we developed our business more slowly. In
addition, we may find that these efforts are more expensive than we currently
anticipate, which would further increase our losses. Our failure to become or
remain profitable may depress the market price of our common stock and our
ability to raise capital and continue our operations.
WE MAY NEED ADDITIONAL FINANCING TO CONTINUE OPERATIONS WHICH COULD BE DIFFICULT
TO OBTAIN.
As of June 30, 2000, we had cash and cash equivalents totaling
$7,429,000. We expect that our existing capital resources will be sufficient to
fund our operations at least through December 31, 2000. However, our future
capital requirements will depend upon a number of factors, including:
- - the availability of capital resources required to fund future operating
losses, expand our sales and marketing programs and research and
development efforts, and meet market demand for The Heart Laser System;
- - the progress of our research and development programs;
-4-
- - the resources we devote to developing, manufacturing and marketing The
Heart Laser System,
- - the market acceptance of TMR and The Heart Laser System; and
- - the resources, if any, we may devote to the expansion of our business,
including through the possible acquisition of businesses, technologies
or other intellectual property rights.
We may require additional funds, and we cannot be certain that
additional funding will be available when needed or on terms acceptable to us.
Further, if we issue additional equity securities, stockholders may experience
additional dilution, or the new equity securities may have rights, preferences
or privileges senior to those of existing holders of our common stock. If we
cannot raise funds on acceptable terms, if and when needed, we may not be able
to develop or enhance our products, take advantage of future opportunities, grow
our business or respond to competitive pressures or unanticipated requirements.
RESULTS OF LONG-TERM CLINICAL STUDIES OF THE HEART LASER SYSTEM MAY ADVERSELY
AFFECT OUR BUSINESS.
Surgeons began testing The Heart Laser System on humans in 1990. As a
result, few clinical studies exist on the long-term effectiveness of TMR or The
Heart Laser System. The emergence of harmful, long-term consequences arising
from the TMR or the use of The Heart Laser System may materially and adversely
affect our business and financial condition.
WE MAY BE UNABLE TO KEEP UP WITH NEW PRODUCTS OR ALTERNATIVE TECHNIQUES
DEVELOPED BY OTHERS, WHICH COULD IMPAIR OUR ABILITY TO REMAIN COMPETITIVE AND
ACHIEVE FUTURE GROWTH.
The medical industry in which we market our products is characterized
by rapid product development and technological advances. Our current or planned
products are at risk of obsolescence from:
- - new devices and procedures to treat coronary artery disease;
- - the development of less invasive methods of performing TMR procedures;
and
- - advances in drugs or genetic engineering to prevent or treat coronary
artery disease.
We may not be able to improve our products or develop new products or
technologies quickly enough to maintain a competitive position in our market and
continue to sustain or grow our business.
IF WE DO NOT DEVELOP AND IMPLEMENT A SUCCESSFUL SALES AND MARKETING STRATEGY,
OUR BUSINESS WILL SUFFER.
We have recently shifted our sales and marketing approach from one
where we emphasize selling The Heart Laser System to hospitals as a piece of
capital equipment to one where we offer the hospital the alternative of paying
us a procedural fee each time they use our system. If this sales and marketing
approach is not widely accepted, we will not reach the level of sales necessary
to achieve profitability. In addition, this sales and marketing approach
generally defers the receipt of cash over a longer period than with a direct
sale, and we may not be able to adequately fund this strategy without additional
financing, which we may not be able to obtain. Our cash position and need for
additional financing to fund operations will be dependent in part upon the
number of hospitals that acquire The Heart Laser System on a fee per use basis
and the number and frequency of procedures performed by these hospitals using
our laser system.
WE MAY NOT BE ABLE TO COMPETE EFFECTIVELY, WHICH COULD RESULT IN PRICE
REDUCTIONS AND A DECREASED DEMAND FOR OUR PRODUCTS.
We may face substantial competition from larger medical device
companies that may have greater financial, technical, marketing and other
resources than we do. We face competition from companies that manufacture
competing products that use different types of lasers than we use in The Heart
Laser System, including holmium and
-5-
excimer lasers. These types of lasers may gain broader market acceptance than
The Heart Laser System. In addition, we may face competition from large
pharmaceutical companies that are developing drug therapies to treat severe
coronary artery disease as an alternate to bypass surgery or TMR. Other
companies may develop TMR laser systems or alternate therapies that treat severe
coronary artery disease more effectively than The Heart Laser System and/or cost
less. In addition, one or more of our competitors may develop products that are
substantially equivalent to our FDA-approved products, in which case they may be
able to use our clinical data to more quickly obtain FDA approval of their
competing products. Competition in the sale of TMR devices and other therapies
to treat severe coronary artery disease could result in price reductions, fewer
orders, reduced gross margins and loss of market share.
OUR ABILITY TO MARKET AND SELL OUR PRODUCTS AND GENERATE REVENUE IN THE UNITED
STATES DEPENDS UPON FDA APPROVAL OF OUR PRODUCTS AND MANUFACTURING OPERATIONS.
Before we can market new products in the United States, we must obtain
clearance from the United States Food and Drug Administration, or FDA. In August
1998, the FDA approved The Heart Laser System for sale in the United States.
However, the FDA did not approve The Heart Laser System for use with patients
whose condition is amenable to conventional treatments, such as heart bypass
surgery and angioplasty.
If the FDA concludes that any of our products do not meet the
requirements to obtain clearance of a premarket notification under Section
510(k) of the Food, Drug and Cosmetic Act, then we would be required to file a
premarket approval application. The approval process for a premarket approval
application is lengthy, expensive and typically requires extensive preclinical
and clinical trial data. We may not obtain clearance of a 510(k) notification or
approval of a premarket approval application with respect to any of our product
candidates on a timely basis, if at all. If we fail to obtain timely clearance
or approval for our products, we will not be able to market and sell our
products, which will limit our ability to generate revenue. We may also be
required to obtain a pre-market approval supplement from the FDA before we can
market some enhancements to our currently marketed products that we modify after
initial approval. We have filed and have received pre-market approval
supplements for some improvements to The Heart Laser System. We have also made
enhancements to The Heart Laser System that we have determined do not
necessitate the filing of a pre-market approval supplement. However, if the FDA
does not agree with our determination, it will require us to file a pre-market
approval supplement for the modification and may prohibit us from marketing the
device until the FDA approves the supplement.
The FDA also requires us to adhere to current Good Manufacturing
Practices regulations, which include production design controls, testing,
quality control, storage and documentation procedures. The FDA may at any time
inspect our facilities to determine whether we adequately comply with these
regulations. Compliance with current Good Manufacturing Practices regulations
for medical devices is difficult and costly. In addition, we may not continue to
be compliant as a result of future changes in, or interpretations of,
regulations by the FDA or other regulatory agencies. If we do not achieve
continued compliance, the FDA may withdraw marketing clearance or require
product recall. When any change or modification is made to a device or its
intended use, the manufacturer may need to reassess compliance with current Good
Manufacturing Practices regulations, which may cause interruptions or delays in
the marketing and sale of our products.
The federal and state laws and regulations regarding the manufacture
and sale of our products are subject to future changes, as are administrative
interpretations of regulatory agencies. If we fail to comply with applicable
federal or state laws or regulations, we could be subject to enforcement
actions, including product seizures, recalls, withdrawal of clearances or
approvals and civil and criminal penalties.
OUR ABILITY TO MARKET AND SELL OUR PRODUCTS AND GENERATE REVENUE INTERNATIONALLY
DEPENDS UPON FOREIGN REGULATORY APPROVAL OF OUR PRODUCTS.
Sales of our products outside the United States are subject to foreign
regulatory requirements that vary from country to country. The time required to
obtain approvals from foreign countries may be longer or shorter than that
required for FDA approval, and requirements for foreign licensing may differ
from FDA requirements. In 1995, The Heart Laser System received the CE Mark,
which allows us to market this product in all European Community countries. In
October 1997, however, the French Ministry of Health instituted a commercial
moratorium on TMR procedures, because it considered TMR an experimental
procedure that should only be performed within the context of a clinical study.
In 1998, we completed a clinical study of The Heart Laser System and filed for
governmental
-6-
approval in Japan. We do not know whether this clinical study will be sufficient
or when, if ever, we will receive approval to sell The Heart Laser System in
Japan.
Foreign laws and regulations regarding the manufacture and sale of our
products are subject to future changes, as are administrative interpretations of
foreign regulatory agencies. If we fail to comply with applicable foreign laws
or regulations, we could be subject to enforcement actions, including product
seizures, recalls, withdrawal of clearances or approvals and civil and criminal
penalties.
WE DEPEND ON THIRD PARTY REIMBURSEMENT TO OUR CUSTOMERS FOR MARKET ACCEPTANCE OF
OUR PRODUCTS. OUR PROFITABILITY WOULD SUFFER IF THIRD PARTY PAYORS FAIL TO
PROVIDE APPROPRIATE LEVELS OF REIMBURSEMENT FOR THE PURCHASE AND USE OF OUR
PRODUCTS.
Sales of medical products largely depend on the reimbursement of
patients' medical expenses by government health care programs and private health
insurers. The cost of The Heart Laser System is substantial. Without the
financial support of the government or third party insurers, the market for some
of our products will be limited. Medical products and devices incorporating new
technologies are closely examined by governments and private insurers to
determine whether the products and devices will be covered by reimbursement, and
if so, the level of reimbursement which may apply. We cannot be sure that third
party payors will reimburse medical procedures that utilize our products under
development, or enable us to sell them at profitable prices. We also cannot be
sure that third party payors will continue the current level of reimbursement to
physicians and medical centers for use of The Heart Laser System. Any reduction
in the amount of this reimbursement could harm our business.
The federal government and private insurers have considered ways to
change, and have changed, the manner in which health care services are provided
and paid for in the U.S. In the future, it is possible that the government may
institute price controls and further limits on Medicare and Medicaid spending.
These controls and limits could affect the payments we collect from product
sales. Internationally, medical reimbursement systems vary significantly, with
some medical centers having fixed budgets, regardless of levels of patient
treatment, and other countries requiring application for, and approval of,
government or third party reimbursement. Even if we succeed in bringing our new
products to market, uncertainties regarding future health care policy,
legislation and regulation, as well as private market practices, could affect
our ability to sell our products in commercially acceptable quantities at
profitable prices.
WE MAY BE REQUIRED TO BRING LITIGATION TO ENFORCE OUR INTELLECTUAL PROPERTY
RIGHTS, WHICH MAY RESULT IN SUBSTANTIAL EXPENSE AND MAY DIVERT OUR ATTENTION
FROM THE IMPLEMENTATION OF OUR BUSINESS STRATEGY.
We believe that the success of our business depends, in part, on
obtaining patent protection for our products, defending our patents once
obtained and preserving our trade secrets. We rely on a combination of
contractual provisions, confidentiality procedures and patent, trademark and
trade secret laws to protect the proprietary aspects of our technology. These
legal measures afford only limited protection and competitors may gain access to
our intellectual property and proprietary information. Litigation may be
necessary to enforce our intellectual property rights, to protect our trade
secrets and to determine the validity of the scope of our proprietary rights.
Any litigation could result in substantial expense and diversion of our
attention from the growth of the business and may not adequately protect our
intellectual property rights.
WE MAY BE SUED BY THIRD PARTIES WHICH CLAIM THAT OUR PRODUCTS INFRINGE ON THEIR
INTELLECTUAL PROPERTY RIGHTS, PARTICULARLY BECAUSE THERE IS SUBSTANTIAL
UNCERTAINTY ABOUT THE VALIDITY OR BREADTH OF MEDICAL DEVICE PATENTS.
We may be exposed to future litigation by third parties based on claims
that our products infringe the intellectual property rights of others, The risk
is exacerbated by the fact that the validity and breadth of claims covered in
medical technology patents involve complex legal and factual questions for which
important legal principles are unresolved. Any litigation or claims against us,
whether or not valid, could result in substantial costs, could place a
significant strain on our financial resources and could harm our reputation. In
addition, intellectual property litigation or claims could force us to do one or
more of the following:
- - cease selling, incorporating or using any of our products that
incorporate the challenged intellectual property, which would adversely
affect our revenue;
-7-
- - obtain a license from the holder of the infringed intellectual property
right, which license may not be available on reasonable terms, if at
all; and
- - redesign our products, which would be costly and time-consuming.
WE COULD BE EXPOSED TO SIGNIFICANT PRODUCT LIABILITY CLAIMS WHICH COULD DIVERT
MANAGEMENT ATTENTION AND ADVERSELY AFFECT OUR CASH BALANCES, OUR REPUTATION AND
OUR ABILITY TO OBTAIN AND MAINTAIN INSURANCE COVERAGE AT SATISFACTORY RATES OR
IN ADEQUATE AMOUNTS.
The manufacture and sale of The Heart laser System and any other
products we may develop expose us to product liability claims and product
recalls, including those which may arise from misuse or malfunction of, or
design flaws in, our products or use of our products with devices and
accessories not manufactured or sold by us. Product liability claims or product
recalls, regardless of their ultimate outcome, could require us to spend
significant time and money in litigation or to pay significant damages, We
currently maintain insurance; however, it might not cover the costs of any
product liability claims made against us. Furthermore, we may not be able to
obtain insurance in the future at satisfactory rates or in adequate amounts.
OUR BUSINESS COULD SUFFER DUE TO POTENTIAL DEFECTS IN SOFTWARE CONTAINED IN THE
HEART LASER SYSTEM.
The Heart Laser System incorporates sophisticated computer software which we
have developed or licensed from third parties. Software as complex as that
incorporated into this product frequently contain errors or failures, especially
when first introduced. In addition, new products or enhancements may contain
undetected errors or performance problems that, despite testing, are discovered
only after commercial shipment. Because The Heart Laser System is used with
critically ill patients, we expect that our customers will have an increased
sensitivity to software defects than the market for software products generally.
Any errors or performance problems that arise may cause delays in product
shipments, loss of revenue, delays in market acceptance of our products,
diversion of management's time, damage to our reputation and increased service
or warranty costs.
OUR DEPENDENCE ON SOLE SUPPLIERS COULD ADVERSELY AFFECT OUR ABILITY TO MEET OUR
CUSTOMERS' DEMANDS FOR OUR PRODUCTS IN A TIMELY MANNER OR WITHIN BUDGET.
We believe that some of the components that are necessary for the
assembly of The Heart Laser System , including some of the components used in
the laser, are currently provided to us by separate sole suppliers or a limited
group of suppliers. We purchase components through purchase orders rather than
long-term supply agreements and generally do not maintain large volumes of
inventory. We have experienced shortages and delays in obtaining some of the
components of The Heart Laser System and may experience similar delays or
shortages in the future. The disruption or termination in the supply of
components could cause a significant increase in the costs of these components,
which could affect our profitability. A disruption or termination in the supply
of components could also result in our inability to meet demand for our
products, which could lead to customer dissatisfaction and damage to our
reputation. Furthermore, if we are required to change the manufacturer of a key
component of The Heart Laser System, we may be required to verify that the new
manufacturer maintains facilities and procedures that comply with quality
standards and with all applicable regulations and guidelines. The delays
associated with the verification of a new manufacturer could delay our ability
to manufacture products in a timely manner or within budget.
FLUCTUATIONS IN OUR QUARTERLY OPERATING RESULTS COULD CAUSE OUR STOCK PRICE TO
DECREASE.
Our operating results have fluctuated significantly from quarter to
quarter in the past and are likely to vary in the future. These fluctuations are
due to several factors relating to the sale of our products, including the
timing and volume of customer orders for The Heart Laser System, customer
cancellations and the timing and amount of our expenses. Because of these
fluctuations, it is likely that in some future quarter or quarters our operating
results could fall below the expectations of securities analysts or investors.
If so, the market price of our stock would likely decrease.
In addition, because we do not have a significant backlog of customer
orders for The Heart Laser System, revenue in any quarter depends on orders
received in that quarter. Our quarterly results may also be adversely affected
because some customers may have inadequate financial resources to purchase our
products or may fail to pay for our products after receiving them. In
particular, hospitals are increasingly experiencing financial constraints,
consolidations
-8-
and reorganizations as a result of cost-containment measures and declining third
party reimbursement for services, which may result in decreased product orders
or an increase in bad debts in any quarter.
WE MAY NOT BE ABLE TO MEET THE UNIQUE OPERATIONAL, LEGAL AND FINANCIAL
CHALLENGES THAT WE WILL ENCOUNTER IN OUR INTERNATIONAL OPERATIONS, WHICH MAY
LIMIT THE GROWTH OF OUR BUSINESS.
Product sales outside of the U.S. account for a portion of our
revenues. Establishing and expanding international sales can be expensive,
managing and overseeing foreign operations may be difficult, and products may
not receive market acceptance. We are increasingly subject to a number of
challenges which specifically relate to our international business activities.
These challenges include:
- - failure of local laws to provide the same degree of protection against
infringement of our intellectual property;
- - protectionist laws and business practices that favor local competitors,
which could slow our growth in international markets;
- - less acceptance by foreign cardiac surgeons of the use of TMR in
general and The Heart Laser System in particular for the treatment of
severe coronary artery disease;
- - difficulties in obtaining licenses to export technologies and products
from the United States;
- - longer sales cycles to sell products like The Heart Laser System to
hospitals, which could slow our revenue growth from international
operations; and
- - longer accounts receivable payment cycles and difficulties in
collecting accounts receivable.
If we are unable to meet and overcome these challenges, our
international operations may not be successful, which would limit the growth of
our business.
WE HAVE BEEN SUED FOR ALLEGED VIOLATIONS OF SECURITIES LAWS, AND THE OUTCOME OF
THESE SUITS MAY ADVERSELY AFFECT OUR BUSINESS.
In July 1997, an FDA advisory panel recommended against approval of our
application to market The Heart Laser System in the United States. Following
this recommendation, we were named as defendant in 21 purported class action
lawsuits filed between August 1997 and November 1997 in the United States
District Court for the District of Massachusetts. The lawsuits seek an
unspecified amount of damages in connection with alleged violations of the
federal securities laws based on our failure to obtain a favorable FDA panel
recommendation in 1997. The court consolidated nineteen of these complaints into
a single action for pretrial purposes, and two suits were voluntarily dismissed.
We moved to dismiss all of the remaining claims. On March 26, 1999, the court
issued an order dismissing some, but not all of the remaining claims. The
parties both filed motions for reconsideration and on October 12, 1999, the
court dismissed additional, but not all remaining claims. We cannot make a
meaningful estimate of the amount or range of loss that could result from an
unfavorable outcome of these lawsuits. We may not be able to pay the amount of
any judgment against us. An unfavorable outcome in this litigation could
adversely affect our business, financial position and results of operations.
BECAUSE WE ARE INCORPORATED IN CANADA, YOU MAY NOT BE ABLE TO ENFORCE JUDGMENTS
FROM COURTS IN THE UNITED STATES AGAINST US AND OUR CANADIAN DIRECTORS.
Under Canadian law, you may not be able to enforce a judgment issued by
courts in the United States against us or our Canadian directors. The status of
the law in Canada is unclear as to whether a U.S. citizen can enforce a judgment
from a U.S. court in Canada for violations of U.S. securities laws. A separate
suit may need to be brought directly in Canada.
WE MAY INCUR SIGNIFICANT COSTS FROM CLASS ACTION LITIGATION DUE TO OUR EXPECTED
STOCK VOLATILITY.
-9-
Our stock price may fluctuate for many reasons, including the addition
or departure of key employees, variations in our quarterly operating results and
changes in market valuations of medical device companies. Recently, when the
market price of a stock has been volatile as our stock price may be, holders of
that stock have occasionally instituted securities class action litigation
against the company that issued the stock. If any of our stockholders we to
bring a lawsuit of this type against us, even if the lawsuit is without merit,
we could incur substantial costs defending the lawsuit. The lawsuit could also
divert the time and attention of our management.
ANTI-TAKEOVER PROVISIONS IN OUR CHARTER DOCUMENTS COULD PREVENT OR DELAY
TRANSACTIONS THAT STOCKHOLDERS MAY FAVOR.
Provisions of our articles of continuance and by-laws may discourage,
delay or prevent a merger or acquisition that stockholders may consider
favorable, including transactions in which you might otherwise receive a premium
for your shares. These provisions include:
- - authorizing the issuance of "blank check" preferred stock without any
need for action by stockholders; and
- - providing for a board of directors with staggered terms of up to three
years.
OUR STOCK PRICE COULD BE DEPRESSED IF OTHER STOCKHOLDERS SELL THEIR STOCK.
If our stockholders sell substantial amounts of our common stock in the
public market, the market price of our common stock could fall. Such sales also
might make it more difficult for us to sell equity or equity-related securities
in the future at a price we deem appropriate.
THE VALUE OF YOUR COMMON STOCK MAY DECREASE IF OTHER SECURITY HOLDERS EXERCISE
THEIR OPTIONS AND WARRANTS.
As of June 30, 2000, we had reserved 2,819,438 shares of common stock
for future issuance upon exercise or conversion of outstanding options and
redeemable warrants. Our equity incentive and stock purchase plans authorize the
issuance of an additional 1,150,581 shares of common stock. We may issue
additional options and warrants in the future. If any of these securities are
exercised, you may experience significant dilution in the market value and
earnings per share of your common stock.
OUR STOCK PRICE WILL FLUCTUATE, WHICH MAY CAUSE YOUR INVESTMENT IN OUR STOCK TO
SUFFER A DECLINE IN VALUE.
The stock market in general has recently experienced extreme price and
volume fluctuations. In addition, the market prices of securities of technology
and medical device companies have been extremely volatile and have experienced
fluctuations that often have been unrelated or disproportionate to the operating
performance of these companies. These broad market fluctuations could result in
extreme fluctuations in the price of our common stock, which could cause a
decline in the value of your shares.
WE MAY NOT RESERVE AMOUNTS ADEQUATE TO COVER PRODUCT OBSOLESCENCE CLAIMS AND
RETURNS, WHICH COULD RESULT IN UNANTICIPATED EXPENSES AND FLUCTUATIONS IN
OPERATING RESULTS.
Depending on factors such as the timing of our introduction of new
products, as well as warranty claims and product returns, we may need to reserve
amounts in excess of those currently reserved for product obsolescence, excess
inventory, warranty claims and product returns. These reserves may not be
adequate to cover all costs associated with these items. If these reserves are
inadequate, we would be required to incur unanticipated expenses which could
result in unexpected fluctuations in quarterly operating results.
IF WE DO NOT RETAIN OUR SENIOR MANAGEMENT AND OTHER KEY EMPLOYEES, WE MAY NOT BE
ABLE TO SUCCESSFULLY IMPLEMENT OUR BUSINESS STRATEGY.
Although our President and Chief Executive Officer, Mark Tauscher, and
our Chief Financial Officer, James Thomasch, joined PLC within the last year,
they,prospectus supplement, as well as other membersinformation we include or incorporate by reference into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be materially adversely affected by the materialization of any of these risks. The trading price of our management and key employees, have
extensive experience withsecurities could decline due to the medical device industry. Our success is
substantially dependent on the ability, experience and performancematerialization of any of these membersrisks, and you may lose all or part of our senior management and other key employees. Because of their
-10-
ability and experience, if we lose one or more of the members of our senior
management or other key employees, our ability to successfully implement our
business strategy could be seriously harmed.
WE DO NOT INTEND TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE.
We do not anticipate paying any cash dividends on our common stock in
the foreseeable future. We intend to retain future earnings to fund our growth.
Accordingly, our stockholders will not receive a return on their investment in
our common stock through the payment of dividends in the foreseeable future and
may not realize a return on their investment even if they sell their shares. As
a result, our stockholders may not be able to resell their shares at or above
the price they paid for them. Any future payment of dividends to our
stockholders will depend on decisions that will be made by our board of
directors and will depend on then existing conditions, including our financial
condition, contractual restrictions, capital requirements and business
prospects.
THIS PROSPECTUS STATEMENT CONTAINS FORWARD LOOKING STATEMENTS WHICH MAY NOT
PROVE TO BE ACCURATE, AND SUCH INACCURACY COULD MATERIALLY AND ADVERSELY AFFECT
THE MARKET PRICE OF OUR COMMON STOCK.your investment. This prospectus and the documents incorporated herein by reference also containscontain forward-looking statements that involve risks and uncertainties. Our actualActual results could differ significantlymaterially from those anticipated in these forward-looking statements as a result of certain factors, including the risks described abovereferenced below and elsewhere in this prospectus anddescribed in the documents incorporated inherein by reference, including (i) our annual report on Form 10-K for the fiscal year ended December 31, 2016, which is on file with the SEC and is incorporated herein by reference, (ii) our quarterly reports on Form 10-Q for the quarters ended March 31, 2017, June 30, 2017, and September 30, 2017, which are incorporated by reference into this prospectus, and (iii) other documents we file with the SEC that are deemed incorporated by reference.
SPECIAL NOTEreference into this prospectus.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
STATEMENTS
This prospectus, includes and incorporatesincluding the documents that we incorporate by reference, may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934. All1934, as amended (the “Exchange Act”).
Forward-looking statements other than statements of
historical facts, included or incorporated in this prospectus regardingand any accompanying prospectus supplement give our strategy,current expectations or forecasts of future operations, financial position, future revenues, projected
costs, prospects, plans and objectivesevents. You can identify these statements by the fact that they do not relate strictly to historical or current facts. You can find many (but not all) of management are forward-looking
statements. Thethese statements by looking for words "anticipates," "believes," "estimates," "expects,"
"intends," "may," "plans," "projects," "will," "would" andsuch as “approximates,” “believes,” “hopes,” “expects,” “anticipates,” “estimates,” “projects,” “intends,” “plans,” “would,” “should,” “could,” “may” or other similar expressions are intended to identifyin this prospectus and any prospectus supplement. In particular, forward-looking statements although not allinclude statements relating to future actions, prospective products and applications, customers, technologies, future performance or future financial results. These forward-looking statements contain these identifying words. We cannot guaranteeare subject to certain risks and uncertainties that we actually will achieve the plans, intentions or expectations disclosed in
our forward-looking statements and you should not place undue reliance on our
forward-looking statements. Actualcould cause actual results or events couldto differ materially from the plans, intentionsour historical experience and our present expectations disclosedor projections. Factors that could cause actual results to differ from those discussed in the forward-looking statements we make. We have included important factors in the cautionary
statements included or incorporated in this prospectus, particularly under the
heading "Risk Factors",include, but are not limited to:
● | our limited cash and our history of losses; |
● | our ability to achieve profitability; |
● | our limited operating history; |
● | emerging competition and rapidly advancing technology; |
● | whether we are successful in having our medical device approved for sale by the U.S. Food and Drug Administration (the “FDA”) or by foreign regulatory authorities for all indications; |
● | whether demand develops for our medical device; |
● | the impact of competitive or alternative products, technologies and pricing; |
● | the adequacy of protections afforded to us by the patents that we own and the cost to us of maintaining, enforcing and defending those patents; |
● | our ability to obtain, expand and maintain patent protection in the future, and to protect our non-patented intellectual property; |
● | our exposure to and ability to defend third-party claims and challenges to our patents and other intellectual property rights; |
● | our ability to obtain adequate financing in the future, as and when we need it; |
● | our ability to continue as a going concern; |
● | our success at managing the risks involved in the foregoing items; and |
● | other factors discussed in this prospectus. |
Although we believe could cause actual results or events to
differ materially fromthat the expectations reflected in the forward-looking statements thatare reasonable, we make. Ourcannot guarantee future results, levels of activity, performance or achievements. The forward-looking statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures or investments we may make.
We do not assume any obligation to update any forward-looking statements.
-11-
USE OF PROCEEDS
We will not receive any proceeds from the sale of shares by the selling
stockholders.
The selling stockholders will pay any underwriting discountsare based upon management’s beliefs and commissionsassumptions and expenses incurred by the selling stockholders for brokerage,
accounting, tax or legal services or any other expenses incurred by the selling
stockholders in disposing of the shares. We will bear all other costs, fees and
expenses incurred in effecting the registration of the shares covered by this
prospectus, including, without limitation, all registration and filing fees,
American Stock Exchange listing fees and fees and expenses of our counsel and
our accountants.
SELLING STOCKHOLDERS
We may issue the shares of common stock covered by this prospectus upon
the exercise of warrants which we issued in connection with the private
placement of convertible debt in 1997 and 1998. The following table sets forth,
to our knowledge, certain information about the selling stockholders as of
August 1, 2000.
Beneficial ownership is determined in accordance with the rules of the
SEC, and includes voting or investment power with respect to shares. Shares of
common stock issuable under warrants that are exercisable within 60 days after
August 1, 2000 are deemed outstanding for computing the percentage ownership of
the person holding the warrants but are not deemed outstanding for computing the
percentage ownership of any other person. Unless otherwise indicated below, to
our knowledge, all persons named in the table have sole voting and investment
power with respect to their shares of common stock. The inclusion of any shares
in this table does not constitute an admission of beneficial ownership for the
person named below.
Shares of Common Stock Number of Shares Shares of Common Stock to be
Beneficially Owned Prior to of Common Stock Beneficially Owned After
Name of Selling Stockholder Offering Being Offered Offering (1)
--------------------------- -------- ------------- ------------
Number Percentage Number Percentage
- ---------------------------- ------ ---------- ------ ----------
HBK Master Fund L.P. 72,264 (2) * 72,264 (2) 0 0%
Strong River Investments , 76,155 (2) * 76,155 (2) 0 0%
Inc.
Brown Simpson ORD Investments 6,445 (2) * 6,445 (2) 0 0%
LLC
- --------------------------
* Less than one percent.
(1) We do not know when or in what amounts a selling stockholder may offer
shares for sale. The selling stockholders may not sell any or all of
the shares offered by this prospectus. Because the selling stockholders
may offer all or some of the shares pursuant to this offering, and
because there are currently no agreements, arrangements or
understandings with respect to the sale of any of the shares, we can
not estimate the number of the shares that will be held by the selling
stockholders after completion of the offering. However, for purposes of
this table, we have assumed that, after completion of the offering,
none of the shares covered by this prospectus will be held by the
selling stockholders.
(2) Consists of shares of our common stock issuable upon the exercise of
outstanding warrants.
Except as set forth below, none of the selling stockholders has held
any position or office with, or has otherwise had a material relationship with,
us or any of our subsidiaries within the past three years. Brown Simpson, LLC,
an affiliate of Brown Simpson ORD Investments LLC, acted as a financial advisor
to PLC in connection with the private placement of approximately $20.1 million
of 5% convertible debentures and related warrants on July 17 and August 14,
1997. In addition, affiliates of Brown Simpson ORD Investments LLC and HBK
Master Fund L.P. participated in the private placement of 5% convertible
debentures in July and August, 1997 and an affiliate of Brown Simpson ORD
Investments LLC participated in the private placement of approximately $5.0
million of non-interest bearing convertible debentures on April 23, 1998.
-12-
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of an unlimited number of common
shares without par value and an unlimited number of preferred shares, issuable
in series, without par value. We also have issued the warrants described below.
The following summary describes the material terms of our capital stockmade as of the date of this prospectus. However, youWe undertake no obligation to publicly update or revise any forward-looking statements included in this prospectus to conform such statements to actual results or changes in our expectations. You should not place undue reliance on these forward-looking statements.
THE COMPANY
Viveve designs, develops, manufactures and markets a medical device for the non-invasive treatment of vaginal introital laxity, for improved sexual function, for vaginal rejuvenation, and for use in general surgery for electrocoagulation and hemostasis, depending on the relevant country-specific clearance or approval, that we refer to as Geneveve. Women can develop vaginal laxity for a number of reasons, including aging, genetic predisposition, lifestyle, and/or the actualtrauma of natural childbirth. Vaginal laxity can often cause decreased sexual function and satisfaction in women, yet most surveyed physicians who practice obstetrics and gynecology (“OB/GYN”) and urogynecologists recognize that it is an underreported, yet bothersome, medical condition that impacts relationship happiness as well as sexual function. Currently, few medical treatments are available to effectively treat vaginal laxity. The most widely prescribed treatments include Kegel exercises, although, to our knowledge, there is no validated evidence indicating that Kegel exercises improve vaginal laxity, and surgical procedures, which are not only invasive and expensive but sometimes lead to worse outcomes as a result of scarring. At this time, our products are indicated for use in general surgical procedures for electrocoagulation and hemostasis in the United States, and the device has not been cleared or approved for use for the treatment of vaginal laxity, to improve sexual function, or for vaginal rejuvenation in the United States. Accordingly, the Company is prohibited under U.S. regulations from promoting it to physicians or consumers for these unapproved or off-label uses.
Geneveve is a non-invasive solution for vaginal laxity which includes three major components: the Viveve System (an RF, or radio frequency, generator housed in a table-top console), a reusable handpiece and a single-use treatment tip, as well as several other consumable accessories. Physicians attach the single-use treatment tip to the handpiece, which is connected to the console. The generator authenticates the treatment tip and programs the system for the desired treatment without further physician intervention. The treatment is performed in a physician’s office, in less than 30 minutes, and does not require the use of anesthesia. The tissue tightening effect resulting from Geneveve has been demonstrated by our pre-clinical and clinical research.
We believe that Geneveve provides a number of benefits for physicians and patients, including:
● | a non-invasive, non-ablative alternative to surgery with no identified safety issues to date; |
● | the requirement of only a single treatment; |
● | compelling physician economics; and |
● | ease of use. |
Currently, our products are cleared for marketing in 60 countries throughout the world under the following indications for use:
Indication for Use: | No. of Countries: |
General surgical procedures for electrocoagulation and hemostasis | 3 (including the U.S.) |
Treatment of vaginal laxity | 41 |
Treatment of the vaginal introitus, after vaginal childbirth, to improve sexual function | 15 |
Vaginal rejuvenation | 1 |
In the U.S., Geneveve FDA-cleared indication is for use in general surgical procedures for coagulation and hemostasis and we market and sell through a direct sales force. Outside the U.S., we market and sell through an extensive network of distribution partners.
Our goal is to become the leading provider of non-invasive solutions to treat vaginal laxity by:
● | Increasing the Installed Base of Viveve Systems. In our existing markets, we plan to (i) expand the number of Viveve Systems from our initial base of early adopters by leveraging our current and future clinical study results and through innovative marketing programs directed at both physicians and patients, where permissible by law, and (ii) expand our efforts and obtain regulatory approvals in additional markets, although there are no assurances that we will ever receive such approvals. |
● | Driving Increased Treatment Tip Usage. We work collaboratively with our physician customer base to increase treatment tip usage by enhancing customer awareness and facilitating the marketing efforts of our physician customers to their patients, where permissible by law. We intend to launch innovative marketing programs with physician customers to develop a profitable Geneveve practice, where permissible by law. |
● | Broadening Our Physician Customer Base. While our initial focus is on marketing our procedure to the OB/GYN specialty, we intend to selectively expand our sales efforts into other physician specialties, such as plastic surgery, dermatology, urology, urogynecology, general surgery and family practice. Additionally, we intend to pursue sales from physician-directed medi-spas with track records of safe and successful aesthetic treatments. |
● | Developing New Treatment Tips and System Enhancements. We intend to continue to expand our line of treatment tips to allow for even shorter procedure times to benefit both physicians and patients. We also plan to pursue potential system modifications and next generation enhancements that will further increase the ease-of-use of Geneveve. |
● | Investing in Intellectual Property and Patent Protection. We will continue to invest in expanding our intellectual property portfolio, and we intend to file for additional patents to strengthen our intellectual property rights. |
Through September 30, 2017, we have sold 364 Viveve Systems and approximately 12,250 single-use treatment tips.
Corporate Information
The address of our corporate headquarters is 345 Inverness Drive South, Building B, Suite 250, Englewood, Colorado 80112, and our telephone number is (720) 696-8100. Our website can be accessed at www.viveve.com. The information contained on, or that may be obtained from, our website is not a part of this prospectus.
“Geneveve” and our logo are our trademarks. All other service marks, trademarks and trade names appearing in this prospectus are the property of their respective owners. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, these other companies.
Merger with PLC Systems, Inc.
On September 23, 2014, Viveve Medical, Inc. (formerly PLC Systems, Inc.), a Delaware corporation (“Viveve Medical”) completed a reverse acquisition and recapitalization pursuant to the terms and conditions of an Agreement and Plan of Merger (the “Merger Agreement”) by and among PLC Systems Acquisition Corp., a wholly owned subsidiary of PLC Systems Inc., with and into Viveve, Inc., a Delaware corporation (the “Merger”). In conjunction with the Merger, we changed our name from PLC Systems Inc. to Viveve Medical, Inc. to better reflect our new business. Viveve Medical competes in the women’s health industry by marketing the Geneveveproduct as a way to improve the overall sexual well-being and quality of life of women experiencing vaginal laxity, depending on the relevant country-specific clearance or approval.
Reverse Stock Splits
On September 23, 2014, immediately prior to the effective time of the Merger, PLC Systems, Inc. effected a 1-for-100 reverse stock split.
On July 22, 2015, we held our 2015 Annual and Special Meeting of Stockholders. At the meeting, the stockholders voted to approve a special resolution authorizing a share consolidation (reverse split) of our common stock at a ratio of up to 1-for-10, which ratio was to be determined by the Board of Directors of Viveve Medical (the “Board”), in its sole discretion, and effective as of a date no more than 12 months from the date of the meeting. On April 15, 2016, we effected a 1-for-8 reverse stock split of our common stock. On the effective date of the reverse stock split, (i) each 8 shares of outstanding common stock were reduced to 1 share of common stock; (ii) the number of shares of common stock into which each outstanding warrant or option to purchase common stock was exercisable were proportionately reduced on a 1-for-8 basis; and (iii) the exercise price of each outstanding warrant or option to purchase common stock was proportionately increased on a 1-for-8 basis. All of the share numbers, share prices, and exercise prices have been adjusted, on a retroactive basis, to reflect this 1-for-8 reverse stock split (collectively, the “Stock Split”).
Except where otherwise indicated, all share and per share data in this prospectus and any accompanying prospectus supplement and any other offering materials reflect these reverse stock splits.
Change of Corporate Domicile
At the 2015 Annual and Special Meeting of Stockholders, the stockholders approved a special resolution authorizing a continuance of the Company from the Yukon Territory, Canada into the State of Delaware under the Delaware General Corporation Law (the “DGCL”) and the adoption of charter documents that comply with the DGCL in connection therewith (the “Continuance”), effective as of a date to be determined by the Board, in its sole discretion, no more than twelve months from the date of the meeting. On May 9, 2016, the Company filed the necessary Application for Authorization to Continue into Another Jurisdiction and Statutory Declaration with the Yukon registrar. On May 10, 2016, the Company filed a Certificate of Conversion and Certificate of Incorporation with the Secretary of State of the State of Delaware to move its domicile from the Yukon Territory to Delaware.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of any securities offered under this prospectus for general corporate purposes unless otherwise indicated in the applicable prospectus supplement. General corporate purposes may include research and development and clinical development costs to support the advancement of our product candidates and the expansion of our product candidate pipeline; repayment and refinancing of debt; working capital; and capital expenditures. We may also use a portion of the net proceeds to acquire or invest in businesses, products and technologies that are complementary to our own, although we have no commitments or agreements with respect to any acquisitions as of the date of this prospectus. Pending these uses, we may invest the net proceeds in a variety of capital preservation instruments, including short-term, investment-grade, interest-bearing instruments and U.S. government securities, or may hold such proceeds as cash, until they are used for their stated purpose. We have not determined the amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation of net proceeds.
SECURITIES WE MAY OFFER
This prospectus contains summary descriptions of the securities we may offer from time to time. These summary descriptions are not meant to be complete descriptions of each security. The particular terms of any security will be described in the applicable prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of our common stock and preferred stock, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the common stock and preferred stock that we may offer under this prospectus. The following description of our capital stock containeddoes not purport to be complete and is subject to, and qualified in its entirety by, our articlescertificate of continuanceincorporation and by-lawsbylaws, which are filed as exhibits to the registration statement of which this prospectus is
part.
COMMON STOCK
As of June 30, 2000, 23,906,385 sharesforms a part, and by applicable law. The terms of our common stock were
outstanding. In addition, asand preferred stock may also be affected by Delaware law.
Authorized Capital Stock
Our authorized capital stock consists of June 30, 2000, options to purchase a total of
2,603,24875,000,000 shares of our common stock, werepar value $0.0001 per share, and 10,000,000 shares of preferred stock, par value $0.0001 per share, all of which are undesignated preferred stock. As of November 7, 2017, we had 19,426,415 shares of common stock outstanding with a weighted average
exercise priceand no shares of $3.64 per share.
Holderspreferred stock outstanding.
Common Stock
The holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders andthe stockholders. The holders of our common stock do not have any cumulative voting rights. Two stockholders or proxyholders holding not less than ten
percent (10%)Holders of our outstanding shares entitled to vote at a meeting constitute
a quorum for stockholder action at such meeting. Directors are elected by a
majority of the votes of the voting shares present in person or by proxy at a
meeting. Holders of common stock are entitled to receive ratably suchany dividends
if any, as may be declared by our board of directors out of funds legally available for that purpose, subject to any preferential dividend rights of any outstanding preferred stock. UponOur common stock has no preemptive rights, conversion rights or other subscription rights or redemption or sinking fund provisions.
In the event of our liquidation, dissolution or dissolution of PLC, thewinding up, holders of our common stock arewill be entitled to receiveshare ratably our netin all assets availableremaining after the payment of all our debts and other liabilities subject to the prior rightsand any liquidation preference of any outstanding preferred stock. HoldersAll outstanding shares are fully paid and nonassessable.
When we issue shares of our common stock under this prospectus, the shares will fully be paid and nonassessable and will not have, noor be subject to, any preemptive subscription, redemption or similar rights.
Undesignated Preferred Stock
Our board of directors is authorized to issue up to 10,000,000 shares of undesignated preferred stock in one or more series without stockholder approval. Our board of directors may determine the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, nor are they entitledredemption privileges and liquidation preferences, of each series of preferred stock.
The purpose of authorizing our board of directors to issue preferred stock in one or more series and determine the benefitnumber of shares in the series and its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. Examples of rights and preferences that the Board may fix are:
dividend rights;
conversion rights;
voting rights;
terms of redemption;
liquidation preferences;
sinking fund terms; and
the number of shares constituting, or the designation of, such series, any sinking fund.or all of which may be greater than the rights of common stock.
The existence of authorized but unissued shares of undesignated preferred stock may enable our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example, if in the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is not in the best interests of us or our stockholders, our board of directors could cause shares of preferred stock to be issued without stockholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer, stockholder or stockholder group. The rights powers, preferences and privileges of holders of our common stock aredescribed above, will be subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock whichthat we may designate and issue in the future. WARRANTS
AsThe issuance of June 30, 2000,shares of undesignated preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common stock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the effect of delaying, deterring or preventing a totalchange in control of 216,190us.
We will incorporate by reference as an exhibit to the registration statement, which includes this prospectus, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering. This description and the applicable prospectus supplement will include:
the title and stated value;
the number of shares authorized;
the liquidation preference per share;
the purchase price;
the dividend rate, period and payment date, and method of calculation for dividends;
whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
the procedures for any auction and remarketing, if any;
the provisions for a sinking fund, if any;
the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights;
any listing of the preferred stock on any securities exchange or market;
whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion period;
whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated, and the exchange period;
voting rights, if any, of the preferred stock;
preemptive rights, if any;
restrictions on transfer, sale or other assignment, if any;
whether interests in the preferred stock will be represented by depositary shares;
a discussion of any material United States federal income tax considerations applicable to the preferred stock;
the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
any limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
When we issue shares of preferred stock under this prospectus, the shares will fully be paid and nonassessable and will not be subject to any preemptive or similar rights.
Antitakeover Effects of Delaware Law and Provisions of our Restated Certificate of Incorporation and Amended and Restated Bylaws
Certain provisions of the Delaware General Corporation Law and of our restated certificate of incorporation and amended and restated bylaws could have the effect of delaying, deferring or discouraging another party from acquiring control of us unless such takeover or change of control is approved by the board of directors. These provisions, which are summarized below, are expected to discourage certain types of coercive takeover practices and inadequate takeover bids and, as a consequence, they might also inhibit temporary fluctuations in the market price of our common stock were
issuable that often result from actual or rumored hostile takeover attempts. These provisions are also designed in part to encourage anyone seeking to acquire control of us to first negotiate with our board of directors. These provisions might also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish transactions that stockholders might otherwise deem to be in their best interests. However, we believe that the advantages gained by protecting our ability to negotiate with any unsolicited and potentially unfriendly acquirer outweigh the disadvantages of discouraging such proposals, including those priced above the then-current market value of our common stock, because, among other reasons, the negotiation of such proposals could improve their terms.
Delaware Takeover Statute
We are subject to the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year period following the time that this stockholder becomes an interested stockholder, unless the business combination is approved in a prescribed manner. Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
before the stockholder became interested, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances, but not the outstanding voting stock owned by the interested stockholder; or
at or after the time the stockholder became interested, the business combination was approved by our board of directors and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
Section 203 defines a business combination to include:
any merger or consolidation involving the corporation and the interested stockholder;
any sale, transfer, lease, pledge, exchange, mortgage or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or
the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
In general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.
Provisions of our Restated Certificate of Incorporation and Amended and Restated Bylaws
Our restated certificate of incorporation and amended and restated bylaws include a number of provisions that may have the effect of delaying, deferring or discouraging another party from acquiring control of us and encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. These provisions include the items described below.
Board composition and filling vacancies. In accordance with our restated certificate of incorporation, our board is divided into three classes serving staggered three-year terms, with one class being elected each year. Our restated certificate of incorporation also provides that directors may be removed only for cause and then only by the affirmative vote of the holders of 75% or more of the shares then entitled to vote at an election of directors. Furthermore, any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in the size of our board, may only be filled by the affirmative vote of a majority of our directors then in office even if less than a quorum.
No written consent of stockholders. Our restated certificate of incorporation provides that all stockholder actions are required to be taken by a vote of the stockholders at an annual or special meeting, and that stockholders may not take any action by written consent in lieu of a meeting. This limit may lengthen the amount of time required to take stockholder actions and would prevent the amendment of our bylaws or removal of directors by our stockholder without holding a meeting of stockholders.
Meetings of stockholders. Our bylaws provide that only a majority of the members of our board of directors then in office may call special meetings of stockholders and only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders. Our bylaws limit the business that may be conducted at an annual meeting of stockholders to those matters properly brought before the meeting.
Advance notice requirements. Our bylaws establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 90 days or more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. The notice must contain certain information specified in our bylaws.
Amendment to certificate of incorporation and bylaws. As required by the Delaware General Corporation Law, any amendment of our restated certificate of incorporation must first be approved by a majority of our board of directors, and if required by law or our restated certificate of incorporation, must thereafter be approved by a majority of the outstanding shares entitled to vote on the amendment, and a majority of the outstanding shares of each class entitled to vote thereon as a class, except that the amendment of the provisions relating to stockholder action, directors, limitation of liability and the amendment of our restated certificate of incorporation must beapproved by not less than 75% of the outstanding shares entitled to vote on the amendment, and not less than 75% of the outstanding shares of each class entitled to vote thereon as a class. Our bylaws may be amended by the affirmative vote of a majority vote of the directors then in office, subject to any limitations set forth in the bylaws; and may also be amended by the affirmative vote of at least 75% of the outstanding shares entitled to vote on the amendment, or, if the board of directors recommends that the stockholders approve the amendment, by the affirmative vote of the majority of the outstanding shares entitled to vote on the amendment, in each case voting together as a single class.
Undesignated preferred stock. Our restated certificate of incorporation provides for authorized shares of preferred stock. The existence of authorized but unissued shares of preferred stock may enable our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example, if in the due exercise of outstanding warrants atits fiduciary obligations, our board of directors were to determine that a weighted average
exercise pricetakeover proposal is not in the best interests of $16.17 per share. These warrants contain a cashless exercise
feature whichus or our stockholders, our board of directors could resultcause shares of preferred stock to be issued without stockholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer or insurgent stockholder or stockholder group. In this regard, our restated certificate of incorporation grants our board of directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common stockstock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the effect of delaying, deterring or preventing a change in control of us.
DESCRIPTION OF WARRANTS
The following description, together with nothe additional proceeds to PLC.
PREFERRED STOCK
Our articlesinformation we may include in any applicable prospectus supplements, summarizes the material terms and provisions of continuance authorizes our board of directors, subjectthe warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the terms summarized below will apply generally to any limitations prescribedwarrants that we may offer, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any warrants offered under that prospectus supplement may differ from the terms described below. Specific warrant agreements will contain additional important terms and provisions and will be incorporated by law, without further stockholder approval,reference as an exhibit to the registration statement, which includes this prospectus.
General
We may issue from time to time an unlimited numberwarrants for the purchase of shares ofcommon stock, preferred stock in one or more series. EachWe may issue warrants independently or together with common stock, preferred stock, and the warrants may be attached to or separate from these securities.
We will evidence each series of warrants by warrant certificates that we will issue under a separate warrant agreement. We will enter into the warrant agreement with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
We will describe in the applicable prospectus supplement the terms of the series of warrants, including:
the offering price and aggregate number of warrants offered;
the currency for which the warrants may be purchased;
if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
if applicable, the date on and after which the warrants and the related securities will be separately transferable;
in the case of warrants to purchase common stock or preferred stock, will have the number of shares designations,of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
the terms of any rights to redeem or call the warrants;
any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
the periods during which, and places at which, the warrants are exercisable;
the manner of exercise;
the dates on which the right to exercise the warrants will commence and expire;
the manner in which the warrant agreement and warrants may be modified;
federal income tax consequences of holding or exercising the warrants;
the terms of the securities issuable upon exercise of the warrants; and
any other specific terms, preferences, voting powers, qualifications and special or relative rights or privileges as are determined by our boardlimitations of directors, whichor restrictions on the warrants.
DESCRIPTION OF UNITS
We may include, among others, dividend rights, voting rights, redemption provisions,
liquidation preferences, conversion rights and preemptive rights.
Our stockholders have granted our boardissue units comprised of directors authority to issue
theshares of common stock, shares of preferred stock and warrants in any combination. We may issue units in such amounts and in as many distinct series as we wish. This section outlines certain provisions of the units that we may issue. If we issue units, they will be issued under one or more unit agreements to determine itsbe entered into between us and a bank or other financial institution, as unit agent. The information described in this section may not be complete in all respects and is qualified entirely by reference to the unit agreement with respect to the units of any particular series. The specific terms of any series of units offered will be described in the applicable prospectus supplement. If so described in a particular supplement, the specific terms of any series of units may differ from the general description of terms presented below. We urge you to read any prospectus supplement related to any series of units we may offer, as well as the complete unit agreement and unit certificate that contain the terms of the units. If we issue units, forms of unit agreements and unit certificates relating to such units will be incorporated by reference as exhibits to the registration statement, which includes this prospectus.
Each unit that we may issue will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and preferencesobligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in orderthe unit may not be held or transferred separately, at any time or at any time before a specified date. The applicable prospectus supplement may describe:
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
any provisions of the governing unit agreement;
the price or prices at which such units will be issued;
the applicable United States federal income tax considerations relating to eliminate delays associated withthe units;
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
any other terms of the units and of the securities comprising the units.
The provisions described in this section, as well as those described under “Description of Capital Stock,” and “Description of Warrants” will apply to the securities included in each unit, to the extent relevant and as may be updated in any prospectus supplements.
Issuance in Series
We may issue units in such amounts and in as many distinct series as we wish. This section summarizes terms of the units that apply generally to all series. Most of the financial and other specific terms of a stockholder vote on specific issuances. particular series of units will be described in the applicable prospectus supplement.
Unit Agreements
We will issue the units under one or more unit agreements to be entered into between us and a bank or other financial institution, as unit agent. We may add, replace or terminate unit agents from time to time. We will identify the unit agreement under which each series of units will be issued and the unit agent under that agreement in the applicable prospectus supplement.
The rightsfollowing provisions will generally apply to all unit agreements unless otherwise stated in the applicable prospectus supplement:
Modification without Consent
We and the applicable unit agent may amend any unit or unit agreement without the consent of any holder:
to cure any ambiguity; any provisions of the governing unit agreement that differ from those described below;
to correct or supplement any defective or inconsistent provision; or
to make any other change that we believe is necessary or desirable and will not adversely affect the interests of the affected holders in any material respect.
We do not need any approval to make changes that affect only units to be issued after the changes take effect. We may also make changes that do not adversely affect a particular unit in any material respect, even if they adversely affect other units in a material respect. In those cases, we do not need to obtain the approval of the holder of the unaffected unit; we need only obtain any required approvals from the holders of common stock will be subjectthe affected units.
Modification with Consent
We may not amend any particular unit or a unit agreement with respect to any particular unit unless we obtain the rightsconsent of holdersthe holder of that unit, if the amendment would:
impair any preferred stock issuedright of the holder to exercise or enforce any right under a security included in the future. The issuanceunit if the terms of preferred stock,
while providing desirable flexibility in connection with possible acquisitions
and other corporate purposes, could adversely affectthat security require the voting power or other
rightsconsent of the holdersholder to any changes that would impair the exercise or enforcement of our common stock, and could make it more difficult for
a third party to acquire,that right; or discourage a third party from attempting to
acquire, a majority
reduce the percentage of our outstanding voting stock.
YUKON BUSINESS CORPORATIONS ACT, CHARTER AND BY-LAW PROVISIONS; ANTI-TAKEOVER
EFFECTS
-13-
Our board of directors is classified into three classes, as nearly
equal in size as possible, with staggered three-year terms. In addition, our
by-laws provide that directors may be removed only by a majority ofunits or any series or class the votes of
the shares present and entitled to vote at a meeting of stockholders or by
unanimous written consent of stockholders. Under our by-laws, any vacancy on our
board of directors may be filled bywhose holders is required to amend that series or class, or the applicable unit agreement with respect to that series or class, as described below.
Any other change to a voteparticular unit agreement and the units issued under that agreement would require the following approval:
If the change affects only the units of a majority ofparticular series issued under that agreement, the directors then
in office. Our charter provides that the board may appoint additional directors,
provided that the number of directors appointed by our board may not exceed
one-third of the number of directors in office at the end of our last annual
meeting of stockholders. Any director appointed by our board of directors,
however, may only serve until the next annual meeting of our stockholders. The
classification of our board of directors and the limitations on the removal of
directors and the filling of vacancies could have the effect of making it more
difficult for a third party to acquire, or of discouraging a third party from
acquiring, control.
Our by-laws provide that our stockholders may act by written consent
only if such consent is unanimous. Our by-laws further provide that special
meetings of the stockholders may onlychange must be called by our board of directors,
except that, in limited circumstances, a stockholder may call a special meeting
to fill a vacancy in our board of directors following a failure of our board to
fill such vacancy. Further, the holders of not less than 5% of our outstanding
voting stock may requisition the directors to call a meeting of stockholders.
The foregoing provisions could have the effect of delaying until the next
stockholders' meeting stockholder actions which are favoredapproved by the holders of a majority of ourthe outstanding voting securities. These provisions may also
discourage another personunits of that series; or entity from making a tender offer for our common
stock, because such person or entity, even if
If the change affects the units of more than one series issued under that agreement, it acquired a majority of our
outstanding voting securities, wouldmust be able to take action as a stockholder,
such as electing new directors or approving a merger, only at a duly called
stockholders meeting, and notapproved by written consent.
The Yukon Business Corporations Act provides generally that the affirmative vote of two-thirds of the shares entitled to vote on any matter is
required to amend a corporation's articles of incorporation and that the
affirmative voteholders of a majority of all outstanding units of all series affected by the shares entitledchange, with the units of all the affected series voting together as one class for this purpose.
These provisions regarding changes with majority approval also apply to vote onchanges affecting any matter issecurities issued under a unit agreement, as the governing document.
In each case, the required approval must be given by written consent.
Unit Agreements Will Not Be Qualified under Trust Indenture Act
No unit agreement will be qualified as an indenture, and no unit agent will be required to amendqualify as a corporation's by-laws. trustee, under the Trust Indenture Act. Therefore, holders of units issued under unit agreements will not have the protections of the Trust Indenture Act with respect to their units.
Mergers and Similar Transactions Permitted; No Restrictive Covenants or Events of Default
The stockholder vote isunit agreements will not restrict our ability to merge or consolidate with, or sell our assets to, another corporation or other entity or to engage in additionany other transactions. If at any time we merge or consolidate with, or sell our assets substantially as an entirety to, another corporation or other entity, the successor entity will succeed to and assume our obligations under the unit agreements. We will then be relieved of any separate class vote that mightfurther obligation under these agreements.
The unit agreements will not include any restrictions on our ability to put liens on our assets, nor will they restrict our ability to sell our assets. The unit agreements also will not provide for any events of default or remedies upon the occurrence of any events of default.
Governing Law
The unit agreements and the units will be governed by Delaware law.
Form, Exchange and Transfer
We will issue each unit in global—i.e., book-entry—form only. Units in book-entry form will be represented by a global security registered in the futurename of a depositary, which will be required pursuantthe holder of all the units represented by the global security. Those who own beneficial interests in a unit will do so through participants in the depositary’s system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depositary and its participants. We will describe book-entry securities, and other terms regarding the issuance and registration of the units in the applicable prospectus supplement.
Each unit and all securities comprising the unit will be issued in the same form.
If we issue any units in registered, non-global form, the following will apply to them.
The units will be issued in the termsdenominations stated in the applicable prospectus supplement. Holders may exchange their units for units of any series preferred stock that might be outstandingsmaller denominations or combined into fewer units of larger denominations, as long as the total amount is not changed.
Holders may exchange or transfer their units at the time any
such amendments are submittedoffice of the unit agent. Holders may also replace lost, stolen, destroyed or mutilated units at that office. We may appoint another entity to stockholders.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Our by-laws provide that, subject to any limitations contained in the
Yukon Business Corporations Act, we will indemnify our directors and officers
against all expenses and liabilities reasonably incurred in connection with the
service for usperform these functions or on our behalf, provided that :
- - such director acted honestly and in good faith with a view to the best
interests of PLC; and
- - in the case of a criminal or administrative proceeding or a proceeding
seeking a monetary penalty, such director had reasonable grounds to
believe that his conduct was lawful.
Our by-laws further provide that our directors and officersperform them ourselves.
Holders will not be personally liablerequired to PLCpay a service charge to transfer or exchange their units, but they may be required to pay for any liabilities arising from their service to us,
unless such liability results from such director'stax or officer's willful neglect
or default or from a failure to act in accordanceother governmental charge associated with the Yukon Business
Corporations Act.
TRANSFER AGENT AND REGISTRARtransfer or exchange. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership. The transfer agent may also require an indemnity before replacing any units.
If we have the right to redeem, accelerate or settle any units before their maturity, and registrarwe exercise our right as to less than all those units or other securities, we may block the exchange or transfer of those units during the period beginning 15 days before the day we mail the notice of exercise and ending on the day of that mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers of or exchange any unit selected for early settlement, except that we will continue to permit transfers and exchanges of the common stock is U.S. Stock
Transfer Corporation.
-14-
PLAN OF DISTRIBUTION
The shares covered byunsettled portion of any unit being partially settled. We may also block the transfer or exchange of any unit in this prospectusmanner if the unit includes securities that are or may be offeredselected for early settlement.
Only the depositary will be entitled to transfer or exchange a unit in global form, since it will be the sole holder of the unit.
Payments and sold from time
to time by the selling stockholders. The term "selling stockholders" includes
donees, pledgees, transferees or other successors-in-interest selling shares
received after the date of this prospectus from a selling stockholder as a gift,
pledge, partnership distribution or other non-sale related transfer. The selling
stockholders will act independently of us inNotices
In making decisionspayments and giving notices with respect to our units, we will follow the timing, manner and size of each sale. Such sales may be made on one or more
exchanges orprocedures as described in the over-the-counter market or otherwise, at prices and under
terms then prevailing or at prices related to the then current market price or
in negotiated transactions. The selling stockholdersapplicable prospectus supplement.
PLAN OF DISTRIBUTION
We may sell their shares by
onesecurities:
through underwriters;
through dealers;
through agents;
directly to purchasers;
in “at the market offering”, within the meaning of Rule 415(a)(4) of the Securities Act, ; or more of, or
through a combination of the following methods:
- - purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
- - ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
- - block trades in which the broker-dealer so engaged will attempt to sell
the shares as agent but may position and resell a portionany of the block
as principal to facilitate the transaction;
- - an over-the-counter distribution in accordance with the rules of the
Nasdaq National Market;
- - in privately negotiated transactions;
- - in options transactions;
- - an exchange distribution in accordance with the rules of the
applicable exchange;
- - short sales;
- - broker-dealers may agree with the selling stockholders to sell a
specified number of shares at a stipulated price per share; and
- -these methods or any other method permitted by law.
In addition, any shares that qualify for sale pursuantwe may issue the securities as a dividend or distribution or in a subscription rights offering to Rule 144our existing security holders.
We may directly solicit offers to purchase securities, or agents may be solddesignated to solicit such offers. In the prospectus supplement relating to such offering, we will name any agent that could be viewed as an underwriter under Rule 144 rather than pursuantthe Securities Act and describe any commissions that we must pay to this prospectus.
Toany such agent. Any such agent will be acting on a best efforts basis for the extent required, thisperiod of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis. This prospectus may be amendedused in connection with any offering of our securities through any of these methods or supplementedother methods described in the applicable prospectus supplement.
The distribution of the securities may be effected from time to time in one or more transactions:
at a fixed price, or prices, which may be changed from time to time;
at market prices prevailing at the time of sale;
at prices related to such prevailing market prices; or
at negotiated prices.
Each prospectus supplement will describe the method of distribution of the securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a specific planparticular series will describe the terms of distribution.
the offering of the securities, including the following:
the name of the agent or any underwriters;
the public offering or purchase price;
any discounts and commissions to be allowed or paid to the agent or underwriters;
all other items constituting underwriting compensation;
any discounts and commissions to be allowed or paid to dealers; and
any exchanges on which the securities will be listed.
If any underwriters or agents are used in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement, sales agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters or agents and the terms of the related agreement with them.
In connection with distributionsthe offering of securities, we may grant to the underwriters an option to purchase additional securities with an additional underwriting commission, as may be set forth in the accompanying prospectus supplement. If we grant any such option, the terms of such option will be set forth in the prospectus supplement for such securities.
If a dealer is used in the sale of the shares or otherwise,securities in respect of which the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions. In connection withprospectus is delivered, we will sell such transactions, broker-dealers
or other financial institutions may engage in short sales of the common stock
in the course of hedging the positions they assume with selling stockholders.
The selling stockholders may also sell the common stock short and redeliver
the shares to close out such short positions. The selling stockholders may
also engage in short sales against the box, puts and calls and other
transactions in our securities or derivatives of our securities and may sell
or deliver their shares in connection with these transactions. The selling
stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction). The selling stockholders may also pledge shares to a
broker-dealer or other financial institution, and, upon a default, such
broker-dealer or other financial institution, may effect sales of the pledged
shares pursuant to this prospectus (as supplemented or amended to reflect
such transaction).
In effecting sales, broker-dealers or agents engaged by the selling
stockholders may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
stockholders in amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling
stockholders and any broker-dealersdealer, as principal. The dealer, who execute sales for the selling
stockholders may be deemed to be "underwriters" within the meaning ofan “underwriter” as that term is defined in the Securities Act, may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
Agents, underwriters, dealers and other persons may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or performance of delayed delivery contracts.
Offered securities may also be offered and sold, if so indicated in the prospectus supplement, in connection with such sales.a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for us. Any profits realized by the
selling stockholdersremarketing firm will be identified and the terms of its agreement, if any, with us and its compensation of any broker-dealerwill be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriting discountsunderwriters in connection with their remarketing of offered securities.
Certain agents, underwriters and commissions.
dealers, and their associates and affiliates, may be customers of, have borrowing relationships with, engage in other transactions with, or perform services, including investment banking services, for us or one or more of our respective affiliates in the ordinary course of business.
In order to complyfacilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the securities laws of certain states, if
applicable, the shares must be sold in such jurisdictions only through
registered or licensed brokers or dealers.offering, creating a short position for their own accounts. In addition, in certain statesto cover overallotments or to stabilize the sharesprice of the securities or of any such other securities, the underwriters may not be sold unless they have been registeredbid for, and purchase, the securities or qualified for saleany such other securities in the applicable stateopen market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or an exemption froma dealer for distributing the registration or qualification
requirement is available and is complied with.
-15-
We have advised the selling stockholders that the anti-manipulation
rules of Regulation M under the Exchange Act may apply to sales of sharessecurities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market and to the activitiesprice of the selling stockholderssecurities above independent market levels. Any such underwriters are not required to engage in these activities and their affiliates.
In addition, we will make copiesmay end any of this prospectus available tothese activities at any time.
We may engage in at the selling
stockholders for the purpose of satisfying the prospectus delivery requirements
of the Securities Act, which may include delivery through the facilities of the
American Stock Exchange pursuant tomarket offerings into an existing trading market in accordance with Rule 153415(a)(4) under the Securities Act. In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The selling stockholdersthird party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in the applicable prospectus supplement (or a post-effective amendment). In addition, we may indemnifyotherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in three business days, unless the parties to any broker-dealersuch trade expressly agree otherwise. The applicable prospectus supplement may provide that participatesthe original issue date for your securities may be more than three scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date prior to the third business day before the original issue date for your securities, you will be required, by virtue of the fact that your securities initially are expected to settle in more than three scheduled business days after the trade date for your securities, to make alternative settlement arrangements to prevent a failed settlement.
The securities may be new issues of securities and may have no established trading market. The securities may or may not be listed on a national securities exchange. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
The specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers and agents may engage in transactions involvingwith us, or perform services for us, in the saleordinary course of business for which they receive compensation.
The anticipated date of delivery of offered securities will be set forth in the shares against certain liabilities,
including liabilities arising under the Securities Act.
At the time a particular offer of shares is made, if required, aapplicable prospectus supplement relating to each offer.
LEGAL MATTERS
Certain legal matters in connection with this offering will be distributed thatpassed upon for us by Goodwin Procter LLP, San Francisco, California. Any underwriters will set forthalso be advised about the number of
shares being offered and the terms of the offering, including the name of any
underwriter, dealer or agent, the purchase price paid by any underwriter, any
discount, commission and other item constituting compensation, any discount,
commission or concession allowed or reallowed or paid to any dealer, and the
proposed selling price to the public.
We have agreed to indemnify the selling stockholders against certain
liabilities, including certain liabilities under the Securities Act.
LEGAL MATTERS
The validity of the shares offeredsecurities and other legal matters by thistheir own counsel, which will be named in the prospectus has been passed
upon by Anton Campion Macdonald Oyler.
supplement.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our
The consolidated financial statements of Viveve Medical, Inc. as of December 31, 2016 and schedule included2015, and for each of the two years in ourthe period ended December 31, 2016, incorporated in this Registration Statement on Form S-3 by reference to its Annual Report on Form 10-K for the year ended December 31, 1999,2016 have been so incorporated in reliance upon the report (which contains an explanatory paragraph relating to the Company’s ability to continue as set fortha going concern as described in their report, which is
incorporated by reference in this prospectus and elsewhere inNote 1 to the registration
statement. Our consolidated financial statements and schedule are incorporated
by reference in reliance on Ernst & Young's report,statements) of BPM LLP, an independent registered public accounting firm, given on theirthe authority of said firm as experts in accountingauditing and auditing.
accounting.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement that we have filed with the SEC. Certain information in the registration statement has been omitted from this prospectus in accordance with the rules of the SEC. We are subject to the information requirements of the Exchange Act and, in accordance therewith, file annual, quarterly and special reports, proxy statements and other documentsinformation with the Securities and Exchange Commission.SEC. You may read and copy any document we file at the SEC's public reference roomSEC’s Public Reference Room at Judiciary Plaza Building, 450 Fifth100 F Street, N.W.N.E., Room 1024, Washington, D.C. 20549. You shouldmay call the SEC at 1-800-SEC-0330 for morefurther information on the public reference room. Our SEC filings areoperation of the Public Reference Room. These documents also available to youmay be accessed through the SEC’s electronic data gathering, analysis and retrieval system, or EDGAR, via electronic means, including the SEC’s home page on the SEC's Internet site(www.sec.gov).
We have the authority to designate and issue more than one class or series of stock having various preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption. See “Description of Capital Stock.” We will furnish a full statement of the relative rights and preferences of each class or series of our stock which has been so designated and any restrictions on the ownership or transfer of our stock to any stockholder upon request and without charge. Written requests for such copies should be directed to Viveve Medical, Inc., 345 Inverness Drive South, Building B, Suite 250, Englewood, Colorado, 80112, Attention: Chief Financial Officer, by telephone request to (720) 696-8100, or by e-mail to sdurbin@viveve.com. Our website is located at http://www.sec.gov.
Thiswww.viveve.com. Information contained on our website is not incorporated by reference into this prospectus and, therefore, is not part of a registration statement that we filed with
the SEC. The registration statement contains more information than this prospectus regarding us and our common stock, including certain exhibits and
schedules. You can obtain a copy of the registration statement from the SEC at
the address listed above or from the SEC's Internet site.
any accompanying prospectus supplement.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate" into this prospectusincorporate by reference the information thatand reports we file with the SEC in other documents. Thisit, which means that we can disclose important information to you by referring you to other documents that contain that
information.these documents. The information incorporated by reference is considered to bean important part of this prospectus. Information contained in this prospectus, and information that we file later with the SEC inwill automatically update and supersede the future and incorporateinformation already incorporated by reference in this
prospectus automatically updates and supersedes previously filed information.reference. We incorporateare incorporating by reference the documents listed below, which we have already filed with the SEC, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including all filings made after the date of the filing of this registration statement and prior to the effectiveness of this registration statement, except as to any portion of any future report or document that is not deemed filed under such provisions, after the date of this prospectus and prior to the termination of this offering:
Annual Report on Form 10-K for the year ended December 31, 2016, filed with the SEC on February 16, 2017;
The Registrant’s definitive proxy statement on Schedule 14A, which was filed with the SEC on July 7, 2017;
Quarterly Reports on Form 10-Q filed with the SEC for the quarterly periods ended March 31, 2017, June 30, 2017, and September 30, 2017, as filed with the SEC on May 11, 2017, August 10, 2017, and November 8, 2017, respectively;
The Registrant’s Current Reports on Form 8-K as filed with the SEC on January 13, 2017, February 3, 2017, May 16, 2017, May 24, 2017, June 1, 2017, August 10, 2017, and August 17, 2017 (other than any reports or portions thereof that are furnished under Item 2.02 or Item 7.01 and any exhibits included with such Items); and
The description of the common stock contained in the Registrant’s registration statement on Form 8-A filed with the SEC on June 13, 2016, including any amendment or report filed for the purpose of updating such description.
Upon request, we will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of the documents incorporated by reference into this prospectus but not delivered with the prospectus. You may request a copy of these filings, and any exhibits we have specifically incorporated by reference as an exhibit in this prospectus, at no cost by writing or telephoning us at the following address:
Viveve Medical, Inc.
345 Inverness Drive South, Building B, Suite 250
Englewood, Colorado 80112
You may also access these documents, free of charge on the SEC's website at www.sec.gov or on our website at www.viveve.com. Information contained on our website is not incorporated by reference into this prospectus, and you should not consider any information on, or that can be accessed from, our website as part of this prospectus or any accompanying prospectus supplement.
This prospectus is part of a registration statement we filed with the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions that may be important to you.
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or in the documents incorporated by reference is accurate as of any date other than the date on the front of this prospectus or those documents.
Common Stock
Preferred Stock
Warrants
Units
PROSPECTUS
, 2017
We have not authorized any dealer, salesperson or other person to give any information or represent anything not contained in this prospectus. You must not rely on any unauthorized information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus does not offer to sell any securities in any jurisdiction where it is unlawful. Neither the delivery of this prospectus, nor any sale made hereunder, shall create any implication that the information in this prospectus is correct after the date hereof.
The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PROSPECTUS (Subject to Completion) | Dated November 8, 2017 |
$25,000,000
| Common Stock |
We have entered into a sales agreement, with Cowen and Company, LLC, or Cowen, relating to shares of our common stock, $0.0001 par value per share, offered by this prospectus. In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $25,000,000 from time to time through Cowen.
Our common stock is traded on The Nasdaq Capital Market under the symbol “VIVE”. The last reported sales price of our common stock on The Nasdaq Capital Market on November 7, 2017 was $5.63 per share.
Sales of our common stock, if any, under this prospectus may be made in sales deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act, including sales made directly on or through The Nasdaq Capital Market or any other existing trading market for our common stock. Cowen is not required to sell any specific number or dollar amount of securities, but will act as a sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between Cowen and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The compensation to Cowen for sales of common stock sold pursuant to the sales agreement will be equal to 3% of the aggregate gross proceeds of any shares of common stock sold under the sales agreement. In connection with the sale of the common stock on our behalf, Cowen will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation to Cowen will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to Cowen with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended, or the Exchange Act. See section titled “Plan of Distribution” on page S-12 of this prospectus.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” on page S-6 of this prospectus and under similar headings in the other documents that are incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Cowen
, 2017
TABLE OF CONTENTS
Page | ||
ABOUT THIS PROSPECTUS | S-1 | |
PROSPECTUS SUMMARY | S-2 | |
THE OFFERING | S-5 | |
RISK FACTORS | S-6 | |
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS | S-8 | |
USE OF PROCEEDS | S-9 | |
DILUTION | S-10 | |
PLAN OF DISTRIBUTION | S-12 | |
LEGAL MATTERS | S-13 | |
EXPERTS | S-14 | |
WHERE YOU CAN FIND MORE INFORMATION | S-15 | |
INCORPORATION BY REFERENCE | S-16 | |
We are responsible for the information contained and incorporated by reference in this prospectus, in any accompanying prospectus, and in any related free writing prospectus we prepare or authorize. We have not authorized anyone to give you any other information, and we take no responsibility for any other information that others may give you. If you are in a jurisdiction where offers to sell, or solicitations of offers to purchase, the securities offered by this documentation are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer presented in this document does not extend to you. The information contained in this document speaks only as of the date of this document, unless the information specifically indicates that another date applies. Our business, financial condition, results of operations and prospects may have changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus relates to the offering of our common stock. Before buying any of the common stock that we are offering, we urge you to carefully read this prospectus, together with the information incorporated by reference as described under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” in this prospectus, and any free writing prospectus or prospectus supplement that we have authorized for use in connection with this offering. These documents contain important information that you should consider when making your investment decision. This sales agreement prospectus is deemed a prospectus supplement to the base prospectus contained in the registration statement of which this sales agreement prospectus forms a part.
This prospectus describes the terms of this offering of common stock and also adds to and updates information contained in the documents incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated by reference into this prospectus that was filed with the Securities and Exchange Commission, or the SEC, before the date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement in another document having a later date—for example, a document incorporated by reference into this prospectus—the statement in the document having the later date modifies or supersedes the earlier statement.
We have not authorized anyone to provide you with information in addition to or different from that contained in this prospectus, any applicable prospectus supplement and any related free writing prospectus. We take no responsibility for, and can provide no assurances as to the reliability of, any information not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided to you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus, the accompanying prospectus or any related free writing prospectus is accurate only as of the date on the front of the document and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, the accompanying prospectus or any related free writing prospectus, or any sale of a security.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus and the accompanying prospectus are a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find More Information”.
Unless the context otherwise indicates, references in this prospectus to “Viveve,” the “Company,” “we,” “us,” and “our” refer, collectively, to Viveve Medical, Inc., a Delaware corporation, and its subsidiaries.
We use various trademarks and trade names in our business, including without limitation our corporate name and logo. All other trademarks or trade names referred to in this prospectus are the property of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus may be referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights thereto.
PROSPECTUS SUMMARY
This summary highlights certain information about us, this offering and selected information contained elsewhere in or incorporated by reference into this prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether to invest in our common stock. For a more complete understanding of our company and this offering, we encourage you to read and consider carefully the more detailed information in this prospectus, including the information incorporated by reference in this prospectus, and the information included in any free writing prospectus or prospectus supplement that we have authorized for use in connection with this offering, including the information under the heading “Risk Factors” in this prospectus on page S-6 and in the documents incorporated by reference into this prospectus.
Overview
Viveve designs, develops, manufactures and markets a medical device for the non-invasive treatment of vaginal introital laxity, for improved sexual function, for vaginal rejuvenation, and for use in general surgery for electrocoagulation and hemostasis, depending on the relevant country-specific clearance or approval, that we refer to as Geneveve. Women can develop vaginal laxity for a number of reasons, including aging, genetic predisposition, lifestyle, and/or the trauma of natural childbirth. Vaginal laxity can often cause decreased sexual function and satisfaction in women, yet most surveyed physicians who practice obstetrics and gynecology (“OB/GYN”) and urogynecologists recognize that it is an underreported, yet bothersome, medical condition that impacts relationship happiness as well as sexual function. Currently, few medical treatments are available to effectively treat vaginal laxity. The most widely prescribed treatments include Kegel exercises, although, to our knowledge, there is no validated evidence indicating that Kegel exercises improve vaginal laxity, and surgical procedures, which are not only invasive and expensive but sometimes lead to worse outcomes as a result of scarring. At this time, our products are indicated for use in general surgical procedures for electrocoagulation and hemostasis in the United States, and the device has not been cleared or approved for use for the treatment of vaginal laxity, to improve sexual function, or for vaginal rejuvenation in the United States. Accordingly, the Company is prohibited under U.S. regulations from promoting it to physicians or consumers for these unapproved or off-label uses.
Geneveve is a non-invasive solution for vaginal laxity which includes three major components: the Viveve System (an RF, or radio frequency, generator housed in a table-top console), a reusable handpiece and a single-use treatment tip, as well as several other consumable accessories. Physicians attach the single-use treatment tip to the handpiece, which is connected to the console. The generator authenticates the treatment tip and programs the system for the desired treatment without further physician intervention. The treatment is performed in a physician’s office, in less than 30 minutes, and does not require the use of anesthesia. The tissue tightening effect resulting from Geneveve has been demonstrated by our pre-clinical and clinical research.
We believe that Geneveve provides a number of benefits for physicians and patients, including:
● | a non-invasive, non-ablative alternative to surgery with no identified safety issues to date; |
● | the requirement of only a single treatment; |
● | compelling physician economics; and |
● | ease of use. |
Currently, our products are cleared for marketing in 60 countries throughout the world under the following indications for use:
Indication for Use: | No. of Countries: |
General surgical procedures for electrocoagulation and hemostasis | 3 (including the U.S.) |
Treatment of vaginal laxity | 41 |
Treatment of the vaginal introitus, after vaginal childbirth, to improve sexual function | 15 |
Vaginal rejuvenation | 1 |
In the U.S., Geneveve FDA-cleared indication is for use in general surgical procedures for coagulation and hemostasis and we market and sell through a direct sales force. Outside the U.S., we market and sell through an extensive network of distribution partners.
Our goal is to become the leading provider of non-invasive solutions to treat vaginal laxity by:
● | Increasing the Installed Base of Viveve Systems. In our existing markets, we plan to (i) expand the number of Viveve Systems from our initial base of early adopters by leveraging our current and future clinical study results and through innovative marketing programs directed at both physicians and patients, where permissible by law, and (ii) expand our efforts and obtain regulatory approvals in additional markets, although there are no assurances that we will ever receive such approvals. |
● | Driving Increased Treatment Tip Usage. We work collaboratively with our physician customer base to increase treatment tip usage by enhancing customer awareness and facilitating the marketing efforts of our physician customers to their patients, where permissible by law. We intend to launch innovative marketing programs with physician customers to develop a profitable Geneveve practice, where permissible by law. |
● | Broadening Our Physician Customer Base. While our initial focus is on marketing our procedure to the OB/GYN specialty, we intend to selectively expand our sales efforts into other physician specialties, such as plastic surgery, dermatology, urology, urogynecology, general surgery and family practice. Additionally, we intend to pursue sales from physician-directed medi-spas with track records of safe and successful aesthetic treatments. |
● | Developing New Treatment Tips and System Enhancements. We intend to continue to expand our line of treatment tips to allow for even shorter procedure times to benefit both physicians and patients. We also plan to pursue potential system modifications and next generation enhancements that will further increase the ease-of-use of Geneveve. |
● | Investing in Intellectual Property and Patent Protection. We will continue to invest in expanding our intellectual property portfolio, and we intend to file for additional patents to strengthen our intellectual property rights. |
Through September 30, 2017, we have sold 364 Viveve Systems and approximately 12,250 single-use treatment tips.
Corporate Information
The address of our corporate headquarters is 345 Inverness Drive South, Building B, Suite 250, Englewood, Colorado 80112, and our telephone number is (720) 696-8100. Our website can be accessed at www.viveve.com. The information contained on, or that may be obtained from, our website is not a part of this prospectus.
“Geneveve” and our logo are our trademarks. All other service marks, trademarks and trade names appearing in this prospectus are the property of their respective owners. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, these other companies.
Merger with PLC Systems, Inc.
On September 23, 2014, Viveve Medical, Inc. (formerly PLC Systems, Inc.), a Delaware corporation (“Viveve Medical”) completed a reverse acquisition and recapitalization pursuant to the terms and conditions of an Agreement and Plan of Merger (the “Merger Agreement”) by and among PLC Systems Acquisition Corp., a wholly owned subsidiary of PLC Systems Inc., with and into Viveve, Inc., a Delaware corporation (the “Merger”). In conjunction with the Merger, we changed our name from PLC Systems Inc. to Viveve Medical, Inc. to better reflect our new business. Viveve Medical competes in the women’s health industry by marketing the Geneveveproduct as a way to improve the overall sexual well-being and quality of life of women experiencing vaginal laxity, depending on the relevant country-specific clearance or approval.
Reverse Stock Splits
On September 23, 2014, immediately prior to the saleeffective time of the Merger, PLC Systems, Inc. effected a 1-for-100 reverse stock split.
On July 22, 2015, we held our 2015 Annual and Special Meeting of Stockholders. At the meeting, the stockholders voted to approve a special resolution authorizing a share consolidation (reverse split) of our common stock at a ratio of up to 1-for-10, which ratio was to be determined by the Board of Directors of Viveve Medical (the “Board”), in its sole discretion, and effective as of a date no more than 12 months from the date of the meeting. On April 15, 2016, we effected a 1-for-8 reverse stock split of our common stock. On the effective date of the reverse stock split, (i) each 8 shares of outstanding common stock were reduced to 1 share of common stock; (ii) the number of shares of common stock into which each outstanding warrant or option to purchase common stock was exercisable were proportionately reduced on a 1-for-8 basis; and (iii) the exercise price of each outstanding warrant or option to purchase common stock was proportionately increased on a 1-for-8 basis. All of the share numbers, share prices, and exercise prices have been adjusted, on a retroactive basis, to reflect this 1-for-8 reverse stock split (collectively, the “Stock Split”).
Except where otherwise indicated, all share and per share data in this prospectus and any accompanying prospectus supplement and any other offering materials reflect these reverse stock splits.
Change of Corporate Domicile
At the 2015 Annual and Special Meeting of Stockholders, the stockholders approved a special resolution authorizing a continuance of the Company from the Yukon Territory, Canada into the State of Delaware under the Delaware General Corporation Law (the “DGCL”) and the adoption of charter documents that comply with the DGCL in connection therewith (the “Continuance”), effective as of a date to be determined by the Board, in its sole discretion, no more than twelve months from the date of the meeting. On May 9, 2016, the Company filed the necessary Application for Authorization to Continue into Another Jurisdiction and Statutory Declaration with the Yukon registrar. On May 10, 2016, the Company filed a Certificate of Conversion and Certificate of Incorporation with the Secretary of State of the State of Delaware to move its domicile from the Yukon Territory to Delaware.
THE OFFERING
Common stock offered by us | Shares of our common stock having an aggregate offering price of up to $25,000,000. |
Common stock to be outstanding immediately after this offering | Up to 23,859,028 shares (as more fully described in the notes following this table), assuming sales of 4,440,497 shares of our common stock in this offering at an offering price of $5.63 per share, which was the last reported sale price of our common stock on The Nasdaq Capital Market on November 7, 2017. The actual number of shares issued will vary depending on the sales price under this offering. |
Manner of offering | “At the market offering” that may be made from time to time through our sales agent, Cowen and Company, LLC (“Cowen”). See “Plan of Distribution” on page S-12 of this prospectus. |
Use of proceeds | We currently intend to use the net proceeds from this offering primarily for general corporate purposes. See “Use of Proceeds” on page S-9 of this prospectus. |
Risk factors | Investing in our common stock involves significant risks. See “Risk Factors” on page S-6 of this prospectus, and under similar headings in other documents incorporated by reference into this prospectus. |
The Nasdaq Capital Market symbol | “VIVE” |
The number of shares coveredof common stock shown above to be outstanding after this offering is based on 19,418,531 shares outstanding, as of September 30, 2017,and excludes as of that date:
■ | 2,489,979 shares of common stock issuable upon the exercise of stock options outstanding as of September 30, 2017, at a weighted-average exercise price of $5.88 per share; |
■ | 642,622 shares of warrants to purchase common stock as of September 30, 2017; |
■ | 1,408,655 shares of common stock reserved for future issuance under the Viveve Medical, Inc. Amended and Restated 2013 Stock Option and Incentive Plan as of September 30, 2017; and | |
■ | 400,000 shares of common stock that are available for future issuance under the Viveve Medical, Inc. 2017 Employee Stock Purchase Plan as of September 30, 2017. |
RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully consider the risks and uncertainties described in the documents incorporated by reference in this prospectus.
(1)prospectus and any prospectus supplement, as well as other information we include or incorporate by reference into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be materially adversely affected by the materialization of any of these risks. The trading price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks described in the documents incorporated herein by reference, including our most recent Annual Report on Form 10-K for the year ended December 31, 1999;
-16-
(2) Our2016 and our Quarterly ReportReports on Form 10-Q for the quarterquarters ended March 31, 2000;
(3) Our Quarterly Report on Form 10-Q for the quarter ended2017, June 30, 2000;
(4) 2017,
Additional Risks Related To This Offering
We have broad discretion in the use of the net proceeds from this offering and our existing cash and may not use them effectively.
Our Current Reportmanagement will have broad discretion in the application of the net proceeds from this offering, including for any of the purposes described in the section entitled “Use of Proceeds,” as well as our existing cash and cash equivalents, and you will be relying on Form 8-K dated March 27, 2000;
(5) Allthe judgment of our filings pursuantmanagement regarding such application. You will not have the opportunity, as part of your investment decision, to assess whether the Exchange Act afterproceeds are being used appropriately. Our management might not apply the datenet proceeds or our existing cash in ways that ultimately increase the value of filingyour investment. If we do not invest or apply the initial registration statementnet proceeds from this offering or our existing cash in ways that enhance stockholder value, we may fail to achieve expected results, which could cause our stock price to decline. Pending their use, we may invest the net proceeds from this offering in investment-grade, interest-bearing securities. These investments may not yield a favorable return to our stockholders.
You may experience immediate and prior to effectiveness ofsubstantial dilution.
The offering price per share in this offering may exceed the registration statement; and
(6) The descriptionnet tangible book value per share of our common stock containedoutstanding prior to this offering. Assuming that an aggregate of 4,440,497 shares of our common stock are sold at a price of $5.63 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on November 7, 2017, for aggregate gross proceeds of $25 million, and after deducting commissions and estimated offering expenses payable by us, you will experience immediate dilution of $4.33 per share based on the difference between our as adjusted net tangible book value per share as of September 30, 2017 after giving effect to this offering and the assumed offering price. The exercise of outstanding stock options and warrants may result in further dilution of your investment. See the section titled “Dilution” below for a more detailed illustration of the dilution you may incur if you participate in this offering.
You may experience future dilution as a result of future equity offerings.
In order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any other offering at a price per share that is less than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions may be higher or lower than the price per share paid by investors in this offering.
Sales of a substantial number of shares of our common stock in the public market after this offering could cause our stock price to fall.
Sales of a substantial number of shares of our common stock in the public market or the perception that these sales might occur could depress the market price of our common stock and could impair our ability to raise capital through the sale of additional equity securities. We are unable to predict the effect that sales may have on the prevailing market price of our common stock. In addition, the sale of substantial amounts of our common stock could adversely impact the price of our common stock. As of September 30, 2017, 19,418,531 shares of our common stock and options to purchase 2,489,979 shares of our common stock were outstanding. The sale or the availability for sale of a large number of shares of our common stock in the public market could cause the price of our common stock to decline.
Certain holders of shares of our common stock are entitled to rights with respect to the registration of their shares under the Securities Act. Registration of these shares under the Securities Act would result in the shares becoming freely tradable without restriction under the Securities Act, except for shares purchased by affiliates. Any sales of securities by these stockholders could have a material adverse effect on the trading price of our common stock.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference, may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Forward-looking statements in this prospectus and any accompanying prospectus supplement give our current expectations or forecasts of future events. You can identify these statements by the fact that they do not relate strictly to historical or current facts. You can find many (but not all) of these statements by looking for words such as “approximates,” “believes,” “hopes,” “expects,” “anticipates,” “estimates,” “projects,” “intends,” “plans,” “would,” “should,” “could,” “may” or other similar expressions in this prospectus and any prospectus supplement. In particular, forward-looking statements include statements relating to future actions, prospective products and applications, customers, technologies, future performance or future financial results. These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from our historical experience and our present expectations or projections. Factors that could cause actual results to differ from those discussed in the forward-looking statements include, but are not limited to:
● | our limited cash and our history of losses; |
● | our ability to achieve profitability; |
● | our limited operating history; |
● | emerging competition and rapidly advancing technology; |
● | whether we are successful in having our medical device approved for sale by the U.S. Food and Drug Administration (the “FDA”) or by foreign regulatory authorities for all indications; |
● | whether demand develops for our medical device; |
● | the impact of competitive or alternative products, technologies and pricing; |
● | the adequacy of protections afforded to us by the patents that we own and the cost to us of maintaining, enforcing and defending those patents; |
● | our ability to obtain, expand and maintain patent protection in the future, and to protect our non-patented intellectual property; |
● | our exposure to and ability to defend third-party claims and challenges to our patents and other intellectual property rights; |
● | our ability to obtain adequate financing in the future, as and when we need it; |
● | our ability to continue as a going concern; |
● | our success at managing the risks involved in the foregoing items; and |
● | other factors discussed in this prospectus. |
Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. The forward-looking statements are based upon management’s beliefs and assumptions and are made as of the date of this prospectus. We undertake no obligation to publicly update or revise any forward-looking statements included in this prospectus to conform such statements to actual results or changes in our expectations. You should not place undue reliance on these forward-looking statements.
USE OF PROCEEDS
We may offer and sell shares of our common stock having aggregate sales proceeds of up to $25 million from time to time pursuant to this sales agreement prospectus. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time.
We currently intend to use the net proceeds from this offering primarily for general corporate purposes. General corporate purposes may include research and development and clinical development costs to support the advancement of our product candidates and the expansion of our product candidate pipeline; repayment and refinancing of debt; working capital; and capital expenditures. We may also use a portion of the net proceeds to acquire or invest in businesses, products and technologies that are complementary to our own, although we have no commitments or agreements with respect to any acquisitions as of the date of this prospectus. Pending these uses, we may invest the net proceeds in a variety of capital preservation instruments, including short-term, investment-grade, interest-bearing instruments and U.S. government securities, or may hold such proceeds as cash, until they are used for their stated purpose. We have not determined the amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation of net proceeds.
DILUTION
Our net tangible book value as of September 30, 2017 was approximately $6.9 million, or $0.35 per share. Net tangible book value per share is determined by dividing our total tangible assets, less total liabilities, by the number of shares of our common stock outstanding as of September 30, 2017. Dilution with respect to net tangible book value per share represents the difference between the amount per share paid by purchasers of shares of common stock in this offering and the net tangible book value per share of our common stock immediately after this offering.
After giving effect to the assumed sale of 4,440,497 shares of our common stock in this offering at an assumed offering price of $5.63 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on November 7, 2017, and after deducting commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of September 30, 2017 would have been approximately $30.9 million, or $1.30 per share. This represents an immediate increase in net tangible book value of $0.95 per share to our existing stockholders and an immediate dilution of $4.33 per share of common stock issued to the new investors purchasing securities in this offering.
The following table illustrates this per share dilution:
Assumed offering price per share | $ | 5.63 | ||||||
Net tangible book value per share as of September 30, 2017 | $ | 0.35 | ||||||
Increase per share attributable to new investors | $ | 0.95 | ||||||
Net tangible book value per share after this offering | $ | 1.30 | ||||||
Dilution per share to new investors | $ | 4.33 |
The above discussion and table are based on 19,418,531 shares outstanding, as of September 30, 2017,and excludes as of that date:
■ | 2,489,979 shares of common stock issuable upon the exercise of stock options outstanding as of September 30, 2017, at a weighted-average exercise price of $5.88 per share; |
■ | 642,622 warrants to purchase common stock as of September 30, 2017; |
■ | 1,408,655 shares of common stock reserved for future issuance under the Viveve Medical, Inc. Amended and Restated 2013 Stock Option and Incentive Plan as of September 30, 2017; and | |
■ | 400,000 shares of common stock that are available for future issuance under the Viveve Medical, Inc. 2017 Employee Stock Purchase Plan as of September 30, 2017. |
The shares subject to the sales agreement with Cowen are being sold from time to time at various prices. An increase of $1.00 per share in the price at which the shares are sold from the assumed offering price of $5.63 per share shown in the table above, assuming all of our common stock in the aggregate amount of $25,000,000 during the term of the sales agreement with Cowen is sold at that price, would increase our adjusted net tangible book value per share after the offering to $1.33 per share and would increase the dilution in net tangible book value per share to new investors in this offering to $5.30 per share, after deducting commissions and estimated aggregate offering expenses payable by us. A decrease of $1.00 per share in the price at which the shares are sold from the assumed offering price of $5.63 per share shown in the table above, assuming all of our common stock in the aggregate amount of $25,000,000 during the term of the sales agreement with Cowen is sold at that price, would decrease our net tangible book value per share after the offering to $1.25 per share and would decrease the dilution in net tangible book value per share to new investors to $3.38 per share, after deducting commissions and estimated aggregate offering expenses payable by us. This information is supplied for illustrative purposes only and may differ based on the actual offering price and the actual number of shares offered.
To the extent that outstanding options or restricted stock units outstanding as of September 30, 2017 have been or may be exercised or settled or other shares issued, investors purchasing our common stock in this offering may experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent that additional capital is raised through the sale of equity, the issuance of these securities could result in further dilution to our stockholders.
PLAN OF DISTRIBUTION
We have entered into a sales agreement with Cowen, under which we may offer and sell from time to time up to an aggregate of $25,000,000 of our common stock through Cowen as our sales agent. Sales of our common stock, if any, will be made at market prices by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on The Nasdaq Capital Market or any other trading market for our common stock.
Cowen will offer our common stock subject to the terms and conditions of the sales agreement on a daily basis or as otherwise agreed upon by us and Cowen. We will designate the maximum amount of common stock to be sold through Cowen on a daily basis or otherwise determine such maximum amount together with Cowen. Subject to the terms and conditions of the sales agreement, Cowen will use its commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us. We may instruct Cowen not to sell common stock if the sales cannot be effected at or above the price designated by us in any such instruction. Cowen or we may suspend the offering of our common stock being made through Cowen under the sales agreement upon proper notice to the other party. Cowen and we each have the right, by giving written notice as specified in the sales agreement, to terminate the sales agreement in each party’s sole discretion at any time.
The aggregate compensation payable to Cowen as sales agent equals 3% of the aggregate gross sales price of the shares sold through it pursuant to the sales agreement. We have also agreed to reimburse Cowen up to $50,000 of Cowen’s actual outside legal expenses incurred by Cowen in connection with this offering, including any FINRA counsel fees. We estimate that the total expenses of the offering payable by us, excluding commissions payable to Cowen under the sales agreement, will be approximately $157,000.
The remaining sales proceeds, after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection with the sales, will equal our net proceeds for the sale of such common stock.
Cowen will provide written confirmation to us following the close of trading on The Nasdaq Capital Market on each day in which common stock is sold through it as sales agent under the sales agreement. Each confirmation will include the number of shares of common stock sold through it as sales agent on that day, the volume weighted average price of the shares sold, the percentage of the daily trading volume and the net proceeds to us.
We will report at least quarterly the number of shares of common stock sold through Cowen under the sales agreement, the net proceeds to us and the compensation paid by us to Cowen in connection with the sales of common stock.
Settlement for sales of common stock will occur, unless the parties agree otherwise, on the second business day that is also a trading day following the date on which any sales were made in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
In connection with the sales of our common stock on our behalf, Cowen will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation paid to Cowen will be deemed to be underwriting commissions or discounts. We have agreed in the sales agreement to provide indemnification and contribution to Cowen against certain liabilities, including liabilities under the Securities Act. As sales agent, Cowen will not engage in any transactions that stabilizes our common stock.
Our common stock is listed on The Nasdaq Capital Market and trades under the symbol “VIVE.” The transfer agent of our common stock is currently VStock Transfer, LLC.
Cowen and/or its affiliates have provided, and may in the future provide, various investment banking and other financial services for us for which services they have received and, may in the future receive, customary fees.
LEGAL MATTERS
Certain legal matters in connection with this offering will be passed upon for us by Goodwin Procter LLP, San Francisco, California. Cowen and Company, LLC is being represented in this offering by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Massachusetts, in connection with this offering.
EXPERTS
The consolidated financial statements of Viveve Medical, Inc. as of December 31, 2016 and 2015, and for each of the two years in the period ended December 31, 2016, incorporated in this Registration Statement on Form 8-A dated August 20, 1997, as amended to date.
You may request a copy of these documents, which will be provided to
you at no cost, by contacting:
PLC Systems Inc.
10 Forge Park
Franklin, MA 02038
Attention: Chief Financial Officer
Telephone: 508-541-8800
-17-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be incurred in
connection with the sale and distribution of the securities being registered
hereby, all of which will be borne by PLC Systems Inc. (except any underwriting
discounts and commissions and expenses incurred by the selling stockholders for
brokerage, accounting, tax or legal services or any other expenses incurred by
the selling stockholders in disposing of the shares). All amounts shown are
estimates except the Securities and Exchange Commission registration fee.
Filing Fee - Securities and Exchange Commission.....................$48.55
American Stock Exchange Listing Fee.................................$1,430.00(1)
Legal fees and expenses.............................................$10,000.00
Accounting fees and expenses........................................$5,000.00
Miscellaneous expenses..............................................$3,521.45
Total Expenses.............................................$20,000.00
=========
(1) American Stock Exchange listing fee previously paid in connection with
additional listing applications relating to Registration Statement Nos.
333-34315 and 333-53649.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Yukon Business Corporation Act (the "Business Corporations Act"),
Section 126, enables a corporation to indemnify a director or officer or a
former director or officer of the Registrant, or a director or officer or a
former director or officer of a corporation of which it is or was a shareholder
or creditor, and his heirs and personal representatives, against all costs,
charges and expenses, including an amount paid to settle an action or to satisfy
a judgment, including an amount paid to settle an action or satisfy a judgment
reasonably incurred by him, in any civil, criminal or administrative action, or
proceeding to which he is made a party by reason of being or having been a
director or officer if:
a. he acted honestly and in good faith with a view to the best
interest of the corporation; and
b. in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had
reasonable grounds for believing that his conduct was lawful.
The Business Corporations Act also enables a corporation, with the
approval of the Supreme Court of the Yukon Territory, to indemnify such a
director or officer in respect of an action by or on behalf of the corporation
or body corporate to procure a judgment in its favor, to which he is made a
party by reason of having been a director or officer of the corporation or body
corporate, against all costs, charges and expenses reasonably incurred by him in
connection with the action if he fulfils the conditions set forth in
subparagraphs (a) and (b) above.
The Business Corporations Act also provides that a company may purchase
and maintain insurance for the benefit of a director or officer or a former
director or officer of the Company, or a director or officer or a former
director or officer of a corporation of which it is or was a shareholder or
creditor, and his heirs and personal representatives, against liability incurred
by him as:
II-1
a. in his capacity as a director or officer of the corporation,
except where the liability relates to his failure to act
honestly and in good faith with a view to the best interests
of the corporation, or
b. in his capacity as a director or officer of another body
corporate if he acts or acted in that capacity at the
corporation's request; except where the liability relates to
his failure to act honestly and in good faith with a view to
the best interests of the body corporate.
The Registrant's By-Laws provide that no director of the Registrant
shall be liable for the acts, receipts, neglects or defaults of any other
director or officer or employee, or for joining in any receipt or other act for
conformity, or for any loss, damage or expense happening to the Registrant
through the insufficiency or deficiency of title to any property acquired for or
on behalf of the Registrant, or for the insufficiency or deficiency of any
security in or upon which any of the moneys of the Registrant shall be invested,
or for any loss or damage arising from the bankruptcy, insolvency or tortuous
acts of any person with whom any of the moneys, securities or effects of the
Registrant are deposited, or for any loss occasioned by any error of judgement
or oversight on his part, or for any other loss, damage or misfortune whatever
which shall happen in the execution of the duties of his office or in relation
thereto, unless the same are occasioned by his own willful neglect or default or
from any breach of his duty to act in accordance with the Business Corporations
Act and the regulations thereunder.
The Registrant's By-Laws provide that subject to the limitations
contained in the Business Corporations Act, and to the extent he is otherwise
fairly and reasonably entitled thereto, the Registrant shall indemnify a
director or officer, a former director or officer, or a person who acts or acted
at the Registrant's request as a director or officer of a body corporate of
which the Registrant is or was a shareholder or creditor (or a person who
undertakes or has undertaken any liability on behalf of the Registrant or any
such body corporate) and his heirs and legal representatives, against all costs,
charges and expenses, including an amount paid to settle an action or satisfy a
judgment, reasonably incurred by him in respect of any civil, criminal or
administrative action or proceeding to which he is made a party by reason of
being or having been a director or officer of the Registrant or such body
corporate, if
(i) he acted honestly and in good faith with a view to the best
interests of the Registrant; and
(ii) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had
reasonable grounds for believing that his conduct was lawful.
The Registrant's By-Laws also provide that subject to the limitations
contained in the Business Corporations Act, the Registrant may purchase and
maintain insurance for the benefit of its directors and officers as the board
may from time to time determine.
Furthermore, the Registrant's By-Laws provide that directors may rely
upon the accuracy of any statement of fact represented by an officer of the
Registrant to be correct or upon statements in a written report of the auditor
of the Registrant and shall not be responsible or held liable for any loss or
damage resulting from the paying of any dividends or otherwise acting in good
faith upon any such statement.
ITEM 16. EXHIBITS
Exhibit
Number DESCRIPTION
- ------ -----------
4.1 (2) Articles of Continuance of the Registrant.
4.2 (2) By-Laws of the Registrant.
4.3 (1) Specimen Certificate for Common Stock of the Registrant.
5.1 Opinion of Anton Campion Macdonald and Oyler.
II-2
23.1 Consent of Anton Campion Macdonald and Oyler (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included in the signature pages of this Registration Statement).
99.1 (3) Convertible Debenture Purchase Agreement dated as of July 17, 1997 (the "1997 Debenture
Purchase Agreement") between Southbrook International Investment, Ltd., HBK Cayman,
L.P. and HBK Offshore Fund Ltd. and the Registrant.
99.2 (3) First Amendment to 1997 Convertible Debenture Purchase Agreement dated July 22, 1997.
99.3 (3) Second Amendment to 1997 Convertible Debenture Purchase Agreement dated August 14, 1997.
99.4 (3) Form of Warrant issued pursuant to the 1997 Convertible Debenture Purchase Agreement.
99.5 (3) Registration Rights Agreement dated as of July 17, 1997 between Southbrook
International Investment, Ltd., HBK Cayman, L.P. and HBK Offshore Fund Ltd. and the
Registrant.
99.6 (4) Convertible Debenture Purchase Agreement dated as if April 23, 1998 (the "1998
Convertible Debenture Purchase Agreement") between Southbrook International Investment,
Ltd., Brown Simpson Strategic Growth Fund, L.P., Brown Simpson Strategic Growth Fund,
Ltd. and the Registrant.
99.7 (4) Form of Redeemable Warrant issued pursuant to the 1998 Convertible Debenture Purchase
Agreement.
99.8 (4) Registration Rights Agreement dated as if April 23, 1998 between Southbrook
International Investment, Ltd., Brown Simpson Strategic Growth Fund, L.P., Brown
Simpson Strategic Growth Fund, Ltd. and the Registrant.
- ------------
(1) Incorporated hereinS-3 by reference to the exhibits to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-48340).
(2) Incorporated herein by reference to the exhibits to the Registrant'sits Annual Report on Form 10-K for the year ended December 31, 1999.
(3) Incorporated herein2016 have been so incorporated in reliance upon the 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) of BPM LLP, an independent registered public accounting firm, given the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement that we have filed with the SEC. Certain information in the registration statement has been omitted from this prospectus in accordance with the rules of the SEC. We are subject to the information requirements of the Exchange Act and, in accordance therewith, file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. These documents also may be accessed through the SEC’s electronic data gathering, analysis and retrieval system, or EDGAR, via electronic means, including the SEC’s home page on the Internet (www.sec.gov).
We have the authority to designate and issue more than one class or series of stock having various preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption. See “Description of Capital Stock.” We will furnish a full statement of the relative rights and preferences of each class or series of our stock which has been so designated and any restrictions on the ownership or transfer of our stock to any stockholder upon request and without charge. Written requests for such copies should be directed to Viveve Medical, Inc., 345 Inverness Drive South, Building B, Suite 250, Englewood, Colorado, 80112, Attention: Chief Financial Officer, by telephone request to (720) 696-8100, or by e-mail to sdurbin@viveve.com. Our website is located at www.viveve.com. Information contained on our website is not incorporated by reference into this prospectus and, therefore, is not part of this prospectus or any accompanying prospectus supplement.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference the information and reports we file with it, which means that we can disclose important information to you by referring you to these documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede the information already incorporated by reference. We are incorporating by reference the documents listed below, which we have already filed with the SEC, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including all filings made after the date of the filing of this registration statement and prior to the exhibitseffectiveness of this registration statement, except as to any portion of any future report or document that is not deemed filed under such provisions, after the date of this prospectus and prior to the Registrant's
Quarterlytermination of this offering:
Annual Report on Form 10-Q10-K for the periodyear ended June 30, 1997.
(4) Incorporated herein by reference toDecember 31, 2016, filed with the exhibits toSEC on February 16, 2017;
The Registrant’s definitive proxy statement on Schedule 14A, which was filed with the Registrant's
SEC on July 7, 2017;
Quarterly ReportReports on Form 10-Q filed with the SEC for the periodquarterly periods ended March 31, 1998.
ITEM 17. UNDERTAKINGS.
ITEM 512(a) OF REGULATION S-K. 2017, June 30, 2017, and September 30, 2017, as filed with the SEC on May 11, 2017, August 10, 2017, and November 8, 2017, respectively;
The Registrant’s Current Reports on Form 8-K as filed with the SEC on January 13, 2017, February 3, 2017, May 16, 2017, May 24, 2017, June 1, 2017, August 10, 2017, and August 17, 2017 (other than any reports or portions thereof that are furnished under Item 2.02 or Item 7.01 and any exhibits included with such Items); and
The description of the common stock contained in the Registrant’s registration statement on Form 8-A filed with the SEC on June 13, 2016, including any amendment or report filed for the purpose of updating such description.
Upon request, we will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of the documents incorporated by reference into this prospectus but not delivered with the prospectus. You may request a copy of these filings, and any exhibits we have specifically incorporated by reference as an exhibit in this prospectus, at no cost by writing or telephoning us at the following address:
Viveve Medical, Inc.
345 Inverness Drive South, Building B, Suite 250
Englewood, Colorado 80112
You may also access these documents, free of charge on the SEC's website at www.sec.gov or on our website at www.viveve.com. Information contained on our website is not incorporated by reference into this prospectus, and you should not consider any information on, or that can be accessed from, our website as part of this prospectus or any accompanying prospectus supplement.
This prospectus is part of a registration statement we filed with the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions that may be important to you.
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or in the documents incorporated by reference is accurate as of any date other than the date on the front of this prospectus or those documents.
$25,000,000
Common Stock
PROSPECTUS
Cowen
, 2017
Part II—INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution |
The expenses payable by Viveve Medical, Inc. (the “Registrant” or the “Company”) in connection with the issuance and distribution of the securities being registered (other than underwriting discounts and commissions, if any) are set forth below. Each item listed is estimated, except for the Securities and Exchange Commission (the “SEC”) registration.
Securities and Exchange Commission registration fee(1) | $ | 6,225.00 | ||
FINRA filing fee | $ | 8,000.00 | ||
Legal fees and expenses | $ | 75,000.00 | ||
Accounting fees and expenses | $ | 60,000.00 | ||
Transfer agent and trustee fees | $ | 5,000.00 | ||
Miscellaneous | $ | 2,500.00 | ||
Total | $ | 156,725.00 |
(1) | Represents registration fee applicable to amount included in prospectus for $50,000,00 in shares of common stock. Additional registration fees deferred in reliance upon Rules 456(b) and 457(r) under the Securities Act. |
Item 15. | Indemnification of Directors and Officers |
Section 145 of the Delaware General Corporation Law (the “DGCL”) authorizes a corporation to indemnify its directors and officers against liabilities arising out of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys’ fees) incurred by directors and officers in advance of the final disposition of such action, suit or proceeding. In addition, Section 145 provides that a corporation has the power to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them and incurred by them in their capacity as a director or officer, or arising out of their status as such, whether or not the corporation would have the power to indemnify the director or officer against such liability under Section 145.
The registrant has adopted provisions in the registrant’s certificate of incorporation that limit or eliminate the personal liability of the registrant’s directors and officers to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended. Consequently, a director or officer will not be personally liable to the registrant or its stockholders for monetary damages or breach of fiduciary duty as a director, except for liability for:
any breach of the director’s duty of loyalty to the registrant or its stockholders;
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
any unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions; or
any transaction from which the director derived an improper personal benefit.
These limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.
In addition, the registrant’s bylaws provide that:
the registrant will indemnify its directors, officers and, in the discretion of its board of directors, certain employees to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended; and
the registrant will advance reasonable expenses, including attorneys’ fees, to its directors and, in the discretion of its board of directors, to its officers and certain employees, in connection with legal proceedings relating to their service for or on behalf of the registrant, subject to limited exceptions.
The registrant has entered into indemnification agreements with or has contractual rights to provide indemnification to each of its directors and intends to enter into such agreements with certain of its executive officers. These agreements provide that the registrant will indemnify each of its directors, certain of its executive officers and, at times, their affiliates, to the fullest extent permitted by the DGCL. The registrant will advance expenses, including attorneys’ fees (but excluding judgments, fines and settlement amounts), to each indemnified director, executive officer or affiliate in connection with any proceeding in which indemnification is available and the registrant will indemnify its directors and executive officers for any action or proceeding arising out of that person’s services as a director or officer brought on behalf of the registrant and/or in furtherance of the registrant’s rights. Additionally, certain of the registrant’s directors may have certain rights to indemnification, advancement of expenses or insurance provided by their affiliates, which indemnification relates to and might apply to the same proceedings arising out of such director’s services as a director referenced herein. Nonetheless, the registrant has agreed in the indemnification agreements that the registrant’s obligations to those same directors are primary and any obligation of the affiliates of those directors to advance expenses or to provide indemnification for the expenses or liabilities incurred by those directors are secondary.
The registrant also maintains general liability insurance which covers certain liabilities of its directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act.
Item 16. | Exhibits |
A list of exhibits filed with this registration statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference.
Item 17. | Undertakings |
The undersigned Registrantregistrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act");
II-3
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statementthe 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 this
Registration Statement.the registration statement. Notwithstanding the foregoing, any increase or decrease in the 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 Securities and Exchange 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“Calculation of Registration Fee"Fee” table in the effective Registration Statement;registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statementthe registration statement or any material change to such information in this Registration Statement;
PROVIDED, HOWEVER,the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(l)(ii) and (a)(1)(ii)(iii) of this section do not apply if the information required to be included isin a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Companyregistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"“Exchange Act”), that are incorporated by reference in this Registration
Statement.
registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2) That, for the purposespurpose of determining any liability under the Securities Act of 1933, each such post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at thethat time shall be deemed to be the initial BONA FIDEbona fide offering thereof.
thereof;
(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.
ITEM 512(b) OF REGULATION S-K.offering;
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The Registrant hereby undertakesportion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser;
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant'sregistrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan'splan’s annual report pursuant to Section 15(d) of the Securities Exchange Act)Act of 1934) that is incorporated by reference in this Registration Statementthe registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at thethat time shall be deemed to be the initial BONA
FIDEbona fide offering thereof.
ITEM 512(h) OF REGULATION S-K.thereof;
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrantregistrant pursuant to the indemnificationforegoing provisions, described herein, or otherwise, the Registrantregistrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrantregistrant of expenses incurred or paid by a director, officer or controlling person of the Registrantregistrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrantregistrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
II-4
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act of 1939.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Franklin, CommonwealthEnglewood, State of Massachusetts,Colorado, on August 10, 2000.
PLC SYSTEMS INC.
By: /s/ MARK R. TAUSCHER
---------------------------------------
Mark R. Tauscher
President and Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of PLC Systems Inc.November 8, 2017.
VIVEVE MEDICAL, INC. | |||
By: | /s/ Patricia Scheller | ||
Patricia Scheller, Chief Executive Officer (Principal Executive Officer) | |||
By: | /s/ Scott Durbin | ||
Scott Durbin, Chief Financial Officer (Principal Financial and Accounting Officer) | |||
KNOW ALL BY THESE PRESENT, that each person whose signature appears below hereby severally constituteconstitutes and appoint Mark R. Tauscherappoints each of Patricia Scheller and James G. Thomasch,Scott Durbin, and each of them singly, ouras such person’s true and lawful attorneysattorneys-in-fact and agents, with full power to any of them,substitution and to each of them singly, to signresubstitution, for ussuch person and in our namessuch person’s name, place and stead, in the
capacities indicated below the Registration Statement on Form S-3 filed herewith
and any and all pre-effective andcapacities, to sign any or all amendments (including, without limitation, post-effective amendmentsamendments) to said Registration
Statement and generallythis registration statement (or any registration statement for the same offering that is to do all such things in our name and behalf in our
capacities as officers and directorsbe effective upon filing pursuant to enable PLC Systems Inc. to comply with
the provisions ofRule 462(b) under the Securities Act of 1933, as amended,1933), and to file the same, with all exhibits thereto, and all requirements
ofdocuments in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming our
signatures as they may be signed by ourall that any said attorneys,attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to said
Registration Statement and any and all amendments thereto.
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Office(s) | Date | ||
/s/ Patricia Scheller | Chief Executive Officer | November 8, 2017 | ||
Patricia Scheller | (Principal Executive Officer) | |||
/s/ Scott Durbin | Chief Financial Officer | November 8, 2017 | ||
Scott Durbin | (Principal Financial and Accounting Officer) | |||
/s/ Daniel Janney | Director and Chairman of the Board of | November 8, 2017 | ||
Daniel Janney | Directors | |||
/s/ Jon Plexico | Director | November 8, 2017 | ||
Jon Plexico | ||||
/s/ Arlene Morris | Director | November 8, 2017 | ||
Arlene Morris | ||||
/s/ Lori Bush | Director | November 8, 2017 | ||
Lori Bush | ||||
/s/ Debora Jorn | Director | November 8, 2017 | ||
Debora Jorn |
EXHIBIT INDEX
Exhibit |
|
|
| Incorporated by Reference |
|
| Filed |
| ||||||||||
Number |
| Exhibit Description |
| Form |
|
| Date |
|
| Number |
|
| Herewith | |||||
1.1* |
| Form of Underwriting Agreement |
|
|
|
| ||||||||||||
1.2 |
|
|
|
|
|
| X |
| ||||||||||
3.1 |
| Amended and Restated Certificate of Incorporation of the Registrant |
|
| 8-K |
|
|
| 8/16/2017 |
|
|
| 3.1 |
|
| |||
3.2 |
|
|
| 8-K |
|
|
| 8/16/2017 |
|
|
| 3.2 |
|
| ||||
4.1 |
|
|
| S-8 |
|
|
| 10/5/2017 |
|
|
| 4.1 |
|
| ||||
4.12* |
| Form of Certificate of Designations |
|
|
|
| ||||||||||||
4.13* |
| Form of Warrant Agreements |
|
|
|
| ||||||||||||
4.14* |
| Form of Unit Certificate |
|
|
|
| ||||||||||||
4.15* |
| Form of Unit Agreement |
|
|
|
| ||||||||||||
4.16* |
| Form of Preferred Stock Certificate |
|
|
|
| ||||||||||||
5.1 |
|
|
|
|
|
| X |
| ||||||||||
5.2 |
| Opinion of Goodwin Procter LLP relating to the sales agreement prospectus |
|
|
|
|
| X |
| |||||||||
23.1 |
| Consent of BPM LLP, Independent Registered Public Accounting Firm |
|
|
|
|
| X |
| |||||||||
23.2 |
| Consent of Goodwin Procter LLP (included in Exhibit 5.1 hereto) |
|
|
|
|
| X |
| |||||||||
23.3 |
| Consent of Goodwin Procter LLP (included in Exhibit 5.2 hereto) |
|
|
|
|
| X |
| |||||||||
24.1 |
| Power of Attorney (included on the signature pages to this registration statement) |
|
|
|
|
| X |
| |||||||||
* | To be filed, if necessary, by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in |