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 |
Name of Selling Stockholders | | | Beneficially Owned Before Offering | | | Shares of Common Stock Offered Under this Prospectus | | | Beneficially Owned After Offering(1) | ||||||
| Number | | | Percentage | | | Number | | | Percentage | |||||
EW Healthcare Partners, L.P. and related investment entities(2) | | | 3,509,849 | | | 44.2% | | | 2,082,426 | | | 2,413,435 | | | 35.2% |
(1) | Assumes that all of the shares of common stock being registered by this prospectus are resold by the selling stockholders to third parties. |
(2) | The shares of common stock shown to be beneficially owned before this offering include (i) 1,047,065 shares of common stock held by EW Healthcare Partners, L.P., referred to herein as “EWHP,” (ii) 1,054,009 shares of common stock issuable upon conversion of senior preferred stock held by EWHP, (iii) 961,372 shares of common stock issuable upon conversion of junior preferred stock held by EWHP, (iv) 270,000 shares of common stock issuable upon the exercise of warrants held by EWHP, (v) 42,126 shares of common stock held by EW Healthcare Partners-A, L.P., referred to herein as “EWHP-A,” (vi) 42,405 shares of common stock issuable upon conversion of senior preferred stock held by EWHP-A, (vii) 38,679 shares of common stock issuable upon conversion of junior preferred stock held by EWHP-A, (ix) 49,912 shares of common stock issuable upon the exercise of warrants held by EWHP-A, and (viii) 4,281 shares of common stock issuable upon the exercise of stock options held by EWHP-A. The shares of common stock shown to be beneficially owned before this offering exclude (a) 947,876 shares of common stock issuable upon conversion of senior preferred stock held by EWHP and (b) 38,136 shares of common stock issuable upon conversion of senior preferred stock held by EWHP-A, as such conversions cannot occur within 60 days after July 14, 2023 due to limitations on convertibility imposed by the rules and regulations of the Nasdaq Capital Market. Each of EWHP and EWHP-A have sole voting and investment power with respect to such 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, Petri Vainio and Steve Wiggins are the managers of Essex IX General Partner and may be deemed to exercise shared voting and investment power with respect to such shares; each such 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. The principal address of EWHP, EWHP-A, Essex IX FUND GP, Essex IX General Partner and each of the above-referenced managers is 21 Waterway Avenue, Suite 225, The Woodlands, Texas 77380. |
○ | 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, |
• | the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, |
• | our Quarterly Report on Form 10-Q for the quarter ended March 31, |
• | our Current Reports on Form 8-K, filed on January 6, 2023, February 7, 2023, March 7, 2023, May 11, 2023, May 15, 2023, June |
• | 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 | | | $ |
23,272 | |||
Total | | | $ |
Item 15. | Indemnification of Directors and Officers |
Item 16. | Exhibits |
(a) | 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 Voting Convertible Preferred Stock of Venus Concept Inc. | | | 8-K | | | 11-18-22 | |
| | Certificate of Amendment of Certificate of Incorporation of Venus Concept Inc. | | | 8-K | | | 5-11-23 | |
| | Certificate of Elimination of Nonvoting Convertible Preferred Stock of Venus Concept Inc. | | | 8-K | | | 5-15-23 | |
| | Certificate of Designations of Senior Convertible Preferred Stock of Venus Concept Inc. | | | 8-K | | | 5-15-23 | |
| | Amendment to Certificate of Designations of Senior Convertible Preferred Stock of Venus Concept Inc. | | | 8-K | | | 6-26-23 | |
| | 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 | | | |||
| | Amendment to Stock Purchase Agreement, dated | | | 8-K | | | ||
| | Registration Rights Agreement, dated May 15, 2023, by and between Venus Concept Inc. and the investors listed therein | | | 8-K | | | 5-15-23 | |
| | Consent of MNP LLP | |||||||
| | | | ||||||
| | Consent of Dorsey & Whitney LLP (included in Exhibit 5.1) | | | | | |||
24.1* | | | 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/ | |
| | | | Chief Executive Officer |
Signature | | | Title | | | Date |
| | | | |||
/s/ | | | Chief Executive Officer and Director (Principal Executive Officer) | | | |
| ||||||
| | | | |||
/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 | | |||||
| | | | |||
/s/ Stanley Tyler Hollmig, M.D. | | | Director | | | July 14, 2023 |
Stanley Tyler Hollmig, M.D. | |