Item 1.01
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Entry into a Material Definitive Agreement
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On January 14, 2021, Viveve Medical, Inc. (the “Company”) entered into an Underwriting Agreement (the “Underwriting Agreement”) with A.G.P./Alliance Global Partners (the “Underwriter”), pursuant to which the Company issued and sold, in a registered public offering by the Company (the “Public Offering”), (a) 4,607,940 Class A Units at a public offering price of $3.40 per unit, each such unit consisting of one share of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), and one warrant to purchase one share of our Common Stock that expires on the fifth anniversary of the date of issuance (“Warrant”), and (b) 2,450,880 Class B Units at a public offering price of $3.40 per unit, each such unit consisting of one share of the Company’s Series C Convertible Preferred Stock, par value $0.0001 per share (the “Series C Preferred Stock”), convertible into one share of Common Stock, and one Warrant.
In addition, pursuant to the Underwriting Agreement, the Company granted the Underwriter a 45-day option (the “Overallotment Option”) to purchase up to 1,058,823 additional shares of Common Stock and/or 1,058,823 additional Warrants. The Overallotment Option was exercised on January 14, 2021.
The Class A Units and Class B Units were not certificated and the shares of Common Stock, shares of Series C Preferred Stock and Warrants comprising such units were immediately separable and were issued separately in the Public Offering. The securities were offered by the Company pursuant to the registration statement on Form S-1 (File No. 333-251517), and each amendment thereto, which was initially filed with the Securities and Exchange Commission (the “Commission”) on December 18, 2020 and declared effective by the Commission on January 13, 2021 (the “Registration Statement”).
On January 19, 2021, the Public Offering closed, inclusive of the Over-Allotment Option. The net proceeds to the Company, after deducting the underwriting discounts and commissions and estimated offering expenses payable by the Company, are expected to be approximately $25.22 million.
Each Warrant issued in the Public Offering is exercisable at $3.40 per share of Common Stock underlying such Warrant. Subject to limited exceptions, a holder of Warrants will not have the right to exercise any portion of its Warrants if the holder (together with such holder’s affiliates, and any persons acting as a group together with such holder or any of such holder’s affiliates) would beneficially own a number of shares of Common Stock in excess of 4.99% (or, upon election by a holder prior to the issuance of any warrants, 9.99%) of the shares of Common Stock then outstanding. At the holder’s option, upon notice to the Company, the holder may increase or decrease this beneficial ownership limitation not to exceed 9.99% of the shares of Common Stock then outstanding, with any such increase becoming effective upon 61 days’ prior notice to the Company.
The Underwriting Agreement contains representations, warranties and covenants made by the Company that are customary for transactions of this type. Under the terms of the Underwriting Agreement, the Company has agreed to indemnify the Underwriter against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”). In addition, pursuant to the terms of the Underwriting Agreement and subject to certain carveouts, the Company and its executive officers, directors and certain stockholders have entered into agreements providing that the Company and each of these persons may not, without the prior written approval of the Underwriter, subject to limited exceptions, offer, sell, transfer or otherwise dispose of the Company’s securities for a period of six months from the date of the closing with respect to the Company and for a period of 90 days following the date of the Underwriting Agreement with respect to the executive officers, directors and such stockholders.
On January 19, 2021, the Company also entered into a warrant agent agreement with the Company’s transfer agent, VStock Transfer LLC, who will act as warrant agent for the Company, setting forth the terms and conditions of the Warrants sold in the Public Offering (the “Warrant Agent Agreement”).
The foregoing summaries of the Underwriting Agreement, the Warrants and the Warrant Agent Agreement do not purport to be complete and are subject to, and qualified in their entirety by, such documents attached as Exhibits 1.1, 4.1 and 4.2, respectively, to this Current Report on Form 8-K (this “Current Report”), which are incorporated herein by reference. The Underwriting Agreement is attached hereto as an exhibit to provide interested persons with information regarding its terms, but is not intended to provide any other factual information about the Company. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of the Underwriting Agreement as of specific dates indicated therein, were solely for the benefit of the parties to the Underwriting Agreement, and may be subject to limitations agreed upon by the parties, including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Underwriting Agreement.