Delaware | | | 3841 | | | 06-1681204 |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) |
Large accelerated filer | | | ☐ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☒ | | | Smaller reporting company | | | ☒ |
| | | | Emerging growth company | | | ☒ |
Title of Each Class of Securities to be Registered | | | Amount to be Registered(1)(2)(3) | | | Proposed Maximum Offering Price(1)(2)(3) | | | Amount of Registration Fee(4)(5) |
Common Stock | | | | | | | |||
Preferred Stock | | | | | | | |||
Debt Securities | | | | | | | |||
Warrants | | | | | | | |||
Units | | | | | | | |||
Total | | | $55,047,990.59 | | | $55,047,990.59 | | | $0.00 |
Title of Each Class of Securities to be Registered | | | Amount to be Registered(1)(2) | | | Proposed Maximum Offering Price per Share(3) | | | Proposed Maximum Aggregate Offering Price | | | Amount of Registration Fee |
Common Stock, $0.0001 par value per share | | | 13,599,173 | | | $1.75 | | | $23,798,552.75 | | | $2,206.13 |
(1) |
| | Beneficially Owned Before Offering | | | Shares of Common Stock Offered Under this Prospectus | | | Beneficially Owned After Offering(2) | |||||||
Name of Selling Stockholder(1) | | | Number | | | Percentage | | | Number | | | Percentage | |||
Marlin Fund, Limited Partnership(3) | | | 2,535,198 | | | 3.9% | | | 1,761,200 | | | 773,998 | | | 1.2% |
Marlin Fund II, Limited Partnership(3) | | | 1,885,401 | | | 2.9% | | | 1,312,400 | | | 573,001 | | | * |
Marlin Fund III, Limited Partnership(3) | | | 168,502 | | | * | | | 119,000 | | | 49,502 | | | * |
Marlin Master Fund Offshore II, LP(3) | | | 289,899 | | | * | | | 207,400 | | | 82,499 | | | * |
MSS VC SPV LP(4) | | | 1,574,187 | | | 2.4% | | | 4,599,173 | | | 0 | | | 0.0% |
EW Healthcare Partners, L.P. and related investment entities(5) | | | 21,169,455 | | | 30.8% | | | 3,920,000 | | | 17,249,455 | | | 25.1% |
HealthQuest Partners II, L.P. and related investment entities(6) | | | 8,395,212 | | | 12.8% | | | 1,600,000 | | | 6,795,212 | | | 10.4% |
The Keith J. Sullivan Revocable Trust(7) | | | 80,000 | | | * | | | 80,000 | | | 0 | | | 0.0% |
* | Less than 1 percent (1%). |
(1) | Except as otherwise stated in the footnotes below: (a) we believe, based on information furnished to us by such selling stockholders and as set forth in reports filed with the SEC, that such selling stockholders have sole investment and voting power with respect to the shares of the common stock set forth in the table above; (b) the address for all such selling stockholders is c/o Venus Concept Inc., 235 Yorkland Blvd., Suite 900, Toronto, Ontario M2J 4Y8; and (c) none of such selling stockholders has, or within the past three years has had, any position, office or other material relationship with us. |
(2) | Assumes that all shares of common stock being registered in this prospectus are resold to third parties and that, with respect to a particular selling stockholder, such selling stockholder sells all shares of common stock included in this prospectus held by such selling stockholder. |
(3) | The power to vote and dispose of these shares is held by Michael W. Masters, Managing Member of the General Partner of Marlin Fund, Limited Partnership (“Marlin Fund”), Marlin Fund II, Limited Partnership (“Marlin II), Marlin Fund III, Limited Partnership |
(4) | The power to vote and dispose of these shares is held by Michael W. Masters, Managing Member of the General Partner of MSS VC. Michael W. Masters holds the power to vote and dispose of an aggregate of 6,453,187 shares of common stock held by Marlin I, Marlin II, Marlin III, Marlin Offshore and MSS VC, which includes 765,769 shares of common stock issuable upon conversion of nonvoting convertible preferred stock held by MSS VC, and 21,000 shares of common stock held by an entity that is not a selling stockholder. Such shares do not include 3,024,986 shares of common stock issuable upon conversion of nonvoting convertible preferred stock held by MSS VC, as no conversion is permitted to the extent that such conversion would result in the holder beneficially owning greater than 9.99% of the then-outstanding common stock. The address of the selling stockholder is 3060 Peachtree Road, NW, Ste 1425, Atlanta, GA, 30305. |
(5) | The shares of common stock shown to be beneficially owned before this offering include (i) 15,705,966 shares of common stock held by EW Healthcare Partners, L.P., or EWHP, (ii) 631,890 shares of common stock held by EW Healthcare Partners-A, L.P., or EWHP-A, and (iii) 32,925 stock options held by EWHP-A that have fully vested, each of which have the sole voting and investment power with respect to their respective shares of common stock. Essex Fund IX GP, the general partner of EWHP and EWHP-A, may also be deemed to have sole voting and investment power with respect to such shares of common stock. Essex Fund IX GP disclaims beneficial ownership of such shares of common stock except to the extent of its pecuniary interest therein. Essex IX General Partner, the General Partner of Essex Fund IX GP, may also be deemed to have sole voting and investment power with respect to such shares of common stock. Essex IX General Partner disclaims beneficial ownership of such shares of common stock except to the extent of its pecuniary interest therein. Martin P. Sutter, Scott Barry, Ronald W. Eastman, an individual, Petri Vainio and Steve Wiggins are each a manager and collectively the managers of Essex IX General Partner. Each of the managers may be deemed to exercise shared voting and investment power with respect to such shares. Each manager disclaims beneficial ownership of such shares of common stock except to the extent of his pecuniary interest therein. Scott Barry is a member of the Company’s Board of Directors. Also reflects 748,674 shares of common stock issuable upon the exercise of warrants held by EWHP-A which were exercisable beginning on May 7, 2020, and 4,050,000 shares issuable upon the exercise of warrants which were exercisable beginning September 16, 2020. As of January 14, 2022, no stock options will vest within 60 days after January 14, 2022. The principal address of EWHP, EWHP-A, Essex IX FUND GP, Essex IX General Partner and each of the Managers is 21 Waterway Avenue, Suite 225, The Woodlands, Texas 77380. |
(6) | The shares of common stock shown to be beneficially owned before this offering include 6,795,621 shares of common stock held by HealthQuest Partners II, L.P., or “HealthQuest.” HealthQuest Venture Management II, L.L.C., or “HealthQuest Management,” is the general partner of HealthQuest. As such HealthQuest Management may be deemed to have voting and dispositive power over the shares of common stock held by HealthQuest. Dr. Garheng Kong is a member of the Board and the managing member of HealthQuest Management. As such, Dr. Kong may be deemed to exercise shared voting and investment power with respect to such shares. Dr. Kong is also the Managing Partner and controlling member of HealthQuest Capital Management Company, LLC, or “HQCM,” and may be deemed to have sole voting and dispositive power with respect to the options held of record by HQCM. Dr. Kong disclaims beneficial ownership of such shares of common stock except to the extent of his pecuniary interest therein. Also includes 666,666 shares of common stock issuable upon the exercise of warrants which were exercisable beginning on May 7, 2020. Also includes 900,000 shares issuable upon exercise of warrants which were exercisable beginning September 16, 2020. As of January 14, 2022, 32,925 stock options were fully vested and no stock options will vest within 60 days after January 14, 2022. The address for HealthQuest is 1301 Shoreway Road, Suite 350, Belmont California 94002. |
(7) | The shares of common stock shown to be beneficially owned before this offering include 80,000 shares of common stock held by the Keith J. Sullivan Revocable Trust. Keith Sullivan, a member of the Board, is the sole trustee of the Keith J. Sullivan Revocable Trust. As such, Mr. Sullivan may be deemed to have sole voting and investment power with respect to the shares held by the Keith J. Sullivan Revocable Trust. Mr. Sullivan disclaims beneficial ownership of the shares held by the Keith J. Sullivan Revocable Trust, except to the extent of any pecuniary interests therein. The shares of common stock shown to be beneficially owned before this offering do not include 44,133 shares of common stock or 17,451 stock options that have fully vested, in each case which are owned by Mr. Sullivan individually (and Mr. Sullivan does not own any stock options that will vest within 60 days after January 14, 2022). |
○ | 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 times of sale; |
○ | at prices related to such prevailing market prices; or |
○ | at negotiated prices; |
○ | on a national securities exchange; |
○ | in the over-the-counter market; or |
○ | in transactions otherwise than on an exchange or in the over-the-counter market, or in combination; |
• | our Annual Report on Form 10-K for the year ended December 31, 2020, filed on March 29, |
• | the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2020, and from our Definitive Proxy Statement on Schedule 14A, filed on April 26, |
• | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, filed on May 17, 2021 |
• | our Current Reports on Form 8-K, filed on June 21, 2021, August 30, 2021 |
• | the description of our common stock contained in our registration statement on Form 8-A filed on October 10, 2017, including any amendments or reports filed for the purposes of updating this description. |
Assumed Average Purchase Price Per Share | | | Number of Registered Shares to be Issued if Full Purchase(1) | | | Percentage of Outstanding Shares After Giving Effect to the Issuance to Lincoln Park(2) | | | Gross Proceeds from the Sale of Shares to Lincoln Park Under the $31 Million Purchase Agreement |
$2.06(3) | | | 7,763,411 | | | 12.5% | | | $15,992,627 |
$3.00 | | | 7,763,411 | | | 12.5% | | | $23,290,233 |
$4.00 | | | 7,750,000 | | | 12.5% | | | $31,000,000 |
$5.00 | | | 6,200,000 | | | 10.3% | | | $31,000,000 |
$6.00 | | | 5,166,667 | | | 8.7% | | | $31,000,000 |
$7.00 | | | 4,428,571 | | | 7.6% | | | $31,000,000 |
Item 14. | Other Expenses of Issuance and Distribution |
SEC registration fee | | | $ |
Legal fees and expenses | | | $ |
Accounting fees and expenses | | | $ |
| | ||
$ | |||
5,000.00 | |||
Total | | | $ |
Item 15. | Indemnification of Directors and Officers |
Item 16. | Exhibits |
Exhibit Number | | | Exhibit Description | | | Form | | | Filing Date |
| | Amended and Restated Certificate of Incorporation of Restoration Robotics, Inc. | | | 8-K | | | 10-17-17 | |
| | Certificate of Amendment of Certificate of Incorporation of Restoration Robotics, Inc. | | | 8-K | | | 11-7-19 | |
| | Certificate of Designations of Nonvoting Convertible Preferred Stock of Venus Concept Inc. | | | 8-K | | | 12-15-21 | |
| | Second Amended and Restated Bylaws of Venus Concept Inc. | | | 8-K | | | 11-7-19 | |
| | Form of Common Stock | | | S-1/A | | | 9-18-17 | |
| | Opinion of Dorsey & Whitney LLP | | | | | |||
| | | | 8-K | | | |||
| | | | 8-K | | | |||
| | Investor Rights Agreement, dated December 15, 2021, by and between Venus Concept Inc. and certain investors listed therein | | | 8-K | | | 12-15-21 | |
| | Consent of MNP LLP | |||||||
| | | | ||||||
| | Consent of Dorsey & Whitney LLP (included in Exhibit 5.1) | | | | | |||
| | Power of Attorney (included on signature page hereto) | | | | | |||
Filed herewith. |
Item 17. | Undertakings |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the 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 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering 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. |
(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 |
(i) | 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)(1)(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 purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’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’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| | VENUS CONCEPT INC. | ||||
| | | | |||
| | By: | | | /s/ Domenic Serafino | |
| | | | Domenic Serafino Chief Executive Officer |
Signature | | | Title | | | Date |
| | | | |||
/s/ Domenic Serafino | | | Chief Executive Officer and Director (Principal Executive Officer) | | | |
Domenic Serafino | | | ||||
| | | | |||
/s/ Domenic Della Penna | | | Chief Financial Officer (Principal Financial and Accounting Officer) | | | |
Domenic Della Penna | | | ||||
| | | | |||
/s/ Scott Barry | | | Chairman and Director | | | |
Scott Barry | | | ||||
| | | | |||
/s/ Garheng Kong, M.D. | | | Director | | | |
Garheng Kong, M.D. | | | ||||
| | | | |||
/s/ Louise Lacchin | | | Director | | | |
Louise Lacchin | | | ||||
| | | | |||
/s/ Fritz LaPorte | | | Director | | | |
Fritz LaPorte | | | ||||
| | | | |||
/s/ Anthony Natale, M.D. | | | Director | | | |
Anthony Natale, M.D. | | | ||||
| | | | |||
/s/ Keith Sullivan | | | Director | | | |
Keith Sullivan | | |