UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
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VIVEVE MEDICAL, INC. |
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(Name of Issuer) |
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Common Stock |
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(Title of Securities) |
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92852W105 |
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(CUSIP Number) |
James Atkinson
c/o Viveve Medical, Inc.
150 Commercial Street
Sunnyvale, CA 94086
(408) 530-1900
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
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May 12, 2015 |
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(Date of Event Which Requires Filing of This Statement) |
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box.[ ]
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP No. 92852W105 | ||
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1. |
Names of Reporting Persons
Charles Schwab & Co. Inc. for the benefit of James Gregory Atkinson IRA Contributory Account# 1125-5459 IRS Identification Nos. of Above Persons (Entities Only) | |
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |
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(b) ☐ | ||
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3.
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SEC Use Only | |
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4. |
Source of Funds (See Instructions) AF | |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐ | |
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6. |
Citizenship or Place of Organization Colorado | |
| Number of Shares Beneficially Owned by Each Reporting Person With: | ||
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7. |
Sole Voting Power |
2,669,884 |
| 8. | Shared Voting Power | 3,702,997 (1) |
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9. |
Sole Dispositive Power | 2,669,884 |
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10. |
Shared Dispositive Power | 3,702,997 (1) |
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11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 3,702,997 (1) | |
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ☐ | |
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13. |
Percent of Class Represented by Amount in Row (11) 7.2% (2) | |
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14. |
Type of Reporting Person (See Instructions) OO | |
(1) By virtue of being a beneficiary of the James Gregory Atkinson IRA Contributory Account (the “IRA”) and a co-trustee of the Atkinson Family Trust dated 8/26/2013 (the “Trust”), Mr. Atkinson shares voting and dispositive power over the 2,669,884 shares of common stock held by the IRA and the 784,780 shares of common stock held by the Trust. Mr. Atkinson, individually, also holds a warrant to purchase 217,733 shares of common stock that was granted on May 12, 2015 and exercisable on that date, which is included in this amount.
(2) Based on 51,345,640 shares of common stock outstanding as of November 13, 2015 as reported in the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2015 as filed with the Securities and Exchange Commission on November 13, 2015.
1. Names of Reporting Persons IRS Identification Nos. of Above Persons (Entities Only) Atkinson Family Revocable Trust Dated 8/26/2013 2. Check the Appropriate Box if a Member of a Group (See Instructions) (b) ☐ 3. 4. 5. 6. 7. Sole Voting Power 9. 10. 11. 12. 13. 14.
CUSIP No. 92852W105
(a) ☒
SEC Use Only
Source of Funds (See Instructions) AF
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐
Citizenship or Place of Organization Colorado
Number of Shares Beneficially Owned by Each Reporting Person With:
784,780
8.
Shared Voting Power
3,702,997 (1)
Sole Dispositive Power
784,780
Shared Dispositive Power
3,702,997 (1)
Aggregate Amount Beneficially Owned by Each Reporting Person 3,702,997 (1)
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ☐
Percent of Class Represented by Amount in Row (11) 7.2% (2)
Type of Reporting Person (See Instructions) OO
(1) By virtue of being a beneficiary of the James Gregory Atkinson IRA Contributory Account (the “IRA”) and a co-trustee of the Atkinson Family Trust dated 8/26/2013 (the “Trust”), Mr. Atkinson shares voting and dispositive power over the 2,669,884 shares of common stock held by the IRA and the 784,780 shares of common stock held by the Trust. Mr. Atkinson, individually, also holds a warrant to purchase 217,733 shares of common stock that was granted on May 12, 2015 and exercisable on that date, which is included in this amount.
(2) Based on 51,345,640 shares of common stock outstanding as of November 13, 2015 as reported in the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2015 as filed with the Securities and Exchange Commission on November 13, 2015.
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CUSIP No. 92852W105 | ||
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1. |
Names of Reporting Persons
IRS Identification Nos. of Above Persons (Entities Only) James Atkinson | |
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) | |
| (a) ☒ | ||
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(b) ☐ | ||
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3.
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SEC Use Only | |
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4. |
Source of Funds (See Instructions) PF | |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐ | |
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6. |
Citizenship or Place of Organization Colorado | |
| Number of Shares Beneficially Owned by Each Reporting Person With: | ||
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7. |
Sole Voting Power |
3,702,997 (1) |
| 8. | Shared Voting Power | 3,702,997 (1) |
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9. |
Sole Dispositive Power | 3,702,997 (1) |
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10. |
Shared Dispositive Power | 3,702,997 (1) |
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11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 3,702,997 (1) | |
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ☐ | |
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13. |
Percent of Class Represented by Amount in Row (11) 7.2% (2) | |
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14. |
Type of Reporting Person (See Instructions) IN | |
(1) By virtue of being a beneficiary of the James Gregory Atkinson IRA Contributory Account (the “IRA”) and a co-trustee of the Atkinson Family Trust dated 8/26/2013 (the “Trust”), Mr. Atkinson shares voting and dispositive power over the 2,669,884 shares of common stock held by the IRA and the 784,780 shares of common stock held by the Trust. Mr. Atkinson, individually, also holds a warrant to purchase 217,733 shares of common stock that was granted on May 12, 2015 and exercisable on that date, which is included in this amount.
(2) Based on 51,345,640 shares of common stock outstanding as of November 13, 2015 as reported in the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2015 as filed with the Securities and Exchange Commission on November 13, 2015.
Item 1. Security and Issuer.
This Amendment No. 1 to Schedule 13D (the “Amendment”) filed by the James Gregory Atkinson IRA Contributory Account# 1125-5459, the Atkinson Family Revocable Trust Dated 8/26/2013 and James Atkinson amends and supplements the statement on Schedule 13D originally filed on May 22, 2015 (the “Original Report”) relating to the common stock, no par value per share (the “Common Stock”) of Viveve Medical, Inc. (the “Issuer”) having its principal executive office at 150 Commercial Street, Sunnyvale, California 94086. The Amendment is being filed to include certain derivative securities that were inadvertently omitted from the original Schedule 13D filed on May 22, 2015 (the “Original Report”) and to report subsequent acquisitions of the Issuer’s equity securities.
Item 2. Identity and Background.
This statement is being filed by:
(a) Charles Schwab & Co. Inc. for the benefit of James Gregory Atkinson IRA Contributory Account# 1125-5459 (the “IRA”), of which James Atkinson is a beneficiary;
(b) Atkinson Family Revocable Trust Dated 8/26/2013 (“Trust”), of which James Atkinson is the co-trustee; and
(c) James Atkinson, an individual (the “Mr. Atkinson”).
The persons named in this Item 2 are referred to individually herein as a “Reporting Person” and collectively as the “Reporting Persons.” The Reporting Persons have agreed to file this statement jointly in accordance with the provisions of Rule 13d-1(k) under the Act.
The address of the principal business office of the Reporting Persons is c/o Viveve Medical, Inc., 150 Commercial Street, Sunnyvale, California 94086.
During the five years prior to the date hereof, none of the Reporting Persons has been convicted in a criminal proceeding or has been a party to a civil proceeding ending in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
The IRA and the Trust are organized under the laws of the State of Colorado. Mr. Atkinson is a United States citizen.
Item 3. Source and Amount of Funds or Other Consideration.
On May 12, 2015, pursuant to a Securities Purchase Agreement, the IRA and the Trust agreed to purchase 2,027,027 shares of Common Stock (the “IRA Shares”) and 675,675 shares of Common Stock, respectively, at a price of $0.37 per share in a private placement transaction that was completed on May 14, 2015 (the “May Private Placement”) with the Issuer. On May 12, 2015, the Issuer also issued a ten-year warrant (the “Warrant”) to Mr. Atkinson to purchase 217,733 shares of Common Stock at an exercise price of $0.53 per share (the “Warrant Shares”) as partial compensation for consulting services provided to the Issuer pursuant to a Consulting Agreement. On June 12, 2015, Mr. Atkinson purchased 30,600 shares of Common Stock in the market (the “Investment Shares”). The Investment Shares are held by Mr. Atkinson for the benefit of his child, who is a minor. The per share purchase price for the Investment Shares was $0.899. On November 20, 2015, the IRA purchased 642,857 shares of Common Stock (the “Additional IRA Shares”) and the Trust purchased 109,105 shares of Common Stock (the “Additional Trust Shares”) at a price of $0.70 per share in a private placement transaction that was completed on November 24, 2015 by the Issuer. Together, the “Trust Shares”, the IRA Shares and the shares of Common Stock underlying the Warrant are referred to herein as the “Shares”.
All of the IRA Shares and the Additional IRA Shares were purchased with personal funds generated and contributed to the IRA by Mr. Atkinson. The aggregate purchase price for the IRA Shares was $750,000 and for the Additional IRA Shares was $449,999.90.
All of the Trust Shares and the Additional Trust Shares were purchased with funds generated and held by the Trust. The aggregate purchase price for the Trust Shares was $250,000 and for the Additional Trust Shares was $76,373.50.
The of the Investment Shares were purchased with personal funds of Mr. Atkinson. The aggregate purchase price for the Investment Shares was $27,509.40.
Collectively, the IRA Shares and the Additional IRA Shares, the Trust Shares and the Additional Trust Shares and the Investment Shares are referred to in this Amendment as the “Shares”.
No part of the purchase price of the Shares was represented by funds or other consideration borrowed or otherwise obtained for the purpose of acquiring, holding, trading or voting the Shares.
Item 4. Purpose of Transaction.
All of the Shares were acquired for investment purposes. Depending on market conditions, its continuing evaluation of the business and prospects of the Issuer and other factors, any of the Reporting Persons may dispose of or acquire additional shares of the Issuer.
None of the Reporting Persons have any present plans or proposals that relate to or would result in any change in the business, policies, management, structure or capitalization of the Issuer. The Reporting Persons reserve the right to acquire, or dispose of, additional securities of the Issuer in the ordinary course of their business, to the extent deemed advisable in light of their general investment and trading policies, market conditions or other factors. The Reporting Persons may engage in discussions from time to time with other stockholders of the Issuer regarding the acquisition by the Reporting Persons or others of shares of the Issuer’s Common Stock held by such stockholders.
The Reporting Persons may seek information from management and the Issuer’s Board of Directors, and may engage in further discussions with management, the Issuer’s Board of Directors, other stockholders of the Issuer and other relevant parties, concerning the business, operations, governance, management, strategy, capitalization and/or future plans of the Issuer, or in proposing one or more of the other actions described in subparagraphs (a) through (j) of this Item 4.
Except as set forth above, none of the Reporting Persons has any present plans which relate to or would result in:
(a) The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries;
(d) Any change in the present Board of Directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board;
(e) Any material change in the present capitalization or dividend policy of the Issuer;
(f) Any other material change in the Issuer’s business or corporate structure;
(g) Changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) On November 20, 2015, the IRA was the record owner of 2,669,884 shares of Common Stock, which comprised approximately 5.2% of the Issuer’s outstanding Common Stock, the Trust was the record owner of the 784,780 shares of Common Stock, which comprised approximately 1.5% of the Issuer’s outstanding Common Stock and Mr. Atkinson was the beneficial owner of 248,333 shares of Common Stock comprised of 30,600 shares of Common Stock purchased by Mr. Atkinson for his minor child and 217,733 shares of Common Stock underlying the Warrant issued to Mr. Atkinson on May 12, 2015, which comprised approximately 0.48% of the Issuer’s outstanding Common Stock. The number of shares of Common Stock outstanding on November 13, 2015 as reported on the Issuer’s Form 10-Q for the quarter ended September 30, 2015 was 51,345,640.
(b) Regarding the number of shares as to which such person has:
(i) sole power to vote or to direct the vote: See line 7 of cover sheets
(ii) shared power to vote or to direct the vote: See line 8 of cover sheets
(iii) sole power to dispose or to direct the disposition: See line 9 of cover sheets.
(iv) shared power to dispose or to direct the disposition: See line 10 of cover sheets
(c) Except as set forth in Item 3 above, none of the Reporting Persons has effected any transaction in the Common Stock during the last 60 days.
(d) No other person is known to have the right to receive or the power to direct the receipt of dividends from, or any proceeds from the sale of, securities beneficially owned by any of the Reporting Persons.
(e) Not applicable.
Item 6. Contracts, Arrangements, Undertakings or Relationships with Respect to Securities of the Issuer.
Pursuant to the terms of the Registration Rights Agreement, dated May 12, 2015 (the “Registration Rights Agreement”), entered into in connection with the May Private Placement, the Issuer will register the IRA Shares and the Trust Shares issued to the Reporting Persons in connection with the May Private Placement, on a registration statement to be filed with the Securities and Exchange Commission (the “Registration Statement”) within 60 days after the closing of the May Private Placement (the “Filing Date”) and use its commercially reasonable efforts to cause the Registration Statement to be declared effective within 90 days after the closing of the May Private Placement (the “Effectiveness Date”) and to keep the Registration Statement effective until all of the shares issued in the May Private Placement have been sold, or may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Issuer to be in compliance with the current public information requirement under Rule 144. If the Issuer (i) does not file the Registration Statement by the Filing Date, (ii) does not obtain effectiveness of the Registration Statement by the Effectiveness Date or (iii) allows certain lapses in effectiveness (each an “Event”), the Issuer is obligated to pay to the Investors liquidated damages equal to 1.5% of the original subscription amount paid by each of the investors in the May Private Placement upon the occurrence of an Event and for every 30 days after the occurrence of an Event until cured.
Pursuant to the terms of the Registration Rights Agreement, dated November 20, 2015 (the “Second Registration Rights Agreement”), entered into in connection with the November Private Placement, the Issuer will register the Additional IRA Shares and the Additional Trust Shares issued to the Reporting Persons in connection with the November Private Placement on a registration statement to be filed with the Securities and Exchange Commission (the “Second Registration Statement”) within 60 days after the closing of the November Private Placement (the “Filing Date”) and use its commercially reasonable efforts to cause the Second Registration Statement to be declared effective within 90 days after the closing of the November Private Placement (the “Effectiveness Date”) and to keep the Second Registration Statement effective until all of the shares issued in the Private Placement have been sold, or may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Issuer to be in compliance with the current public information requirement under Rule 144. If the Issuer (i) does not file the Registration Statement by the Filing Date, (ii) does not obtain effectiveness of the Registration Statement by the Effectiveness Date or (iii) allows certain lapses in effectiveness (each an “Event”), the Issuer is obligated to pay to the Investors liquidated damages equal to 1.5% of the original subscription amount paid by each of the investors in the November Private Placement upon the occurrence of an Event and for every 30 days after the occurrence of an Event until cured.
Item 7. Material to be Filed as Exhibits.
Exhibit 99.1 Joint Filing Agreement, among the IRA, the Trust, and Mr. Atkinson.*
Exhibit 99.2 Securities Purchase Agreement dated May 12, 2015 between the Issuer and the purchasers on the signature pages thereto. (1)
Exhibit 99.3 Registration Rights Agreement dated May 12, 2015, between the Issuer and the purchasers on the signature pages thereto. (1)
Exhibit 99.4 Warrant for the Purchase of Common Stock issued to James Atkinson.*
Exhibit 99.5 Securities Purchase Agreement dated November 20, 2015 between the Issuer and the purchasers on the signature pages thereto.(2)
Exhibit 99.6 Registration Rights Agreement dated November 20, 2015 between the Issuer and the purchasers on the signature pages thereto.(2)
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*Filed herewith.
(1) Incorporated by reference to Exhibits 10.6 and 10.7 to the Issuer’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015 (SEC File No. 0001437749-15-010436), filed with the Commission by the Issuer on May 15, 2015.
(2) Incorporated by reference to Exhibits 10.1 and 10.1 to the Issuer’s Current Report on Form 8-k, filed with the Commission by the Issuer on November 25, 2015.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: December 3, 2015
CHARLES SCHWAB & CO. INC. FOR THE BENEFIT OF JAMES GREGORY ATKINSON IRA CONTRIBUTORY
Account# 1125-5459
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By: |
/s/ James Atkinson |
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By: |
James Atkinson, Beneficiary |
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ATKINSON FAMILY REVOCABLE TRUST DATED 8/26/2013
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By: |
/s/ James Atkinson |
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By: |
James Atkinson, Trustee |
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/s/ James Atkinson |
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James Atkinson, an individual |
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EXHIBIT 99.1
Agreement of Joint Filing
The undersigned hereby agree that a single Schedule 13D (or any amendment thereto) relating to the Common Stock of Viveve Medical, Inc. shall be filed on behalf of each of the undersigned and that this Agreement shall be filed as an exhibit to such Schedule 13D.
Date: December 3, 2015
CHARLES SCHWAB & CO. INC. FOR THE BENEFIT OF JAMES GREGORY ATKINSON IRA CONTRIBUTORY
Account# 1125-5459
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By: |
/s/ James Atkinson |
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By: |
James Atkinson, Beneficiary |
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ATKINSON FAMILY REVOCABLE TRUST DATED 8/26/2013
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By: |
/s/ James Atkinson |
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By: |
James Atkinson, Beneficiary |
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/s/ James Atkinson |
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James Atkinson, an individual |
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Exhibit 99.4
THESE SECURITIES AND THE UNDERLYING SHARES OF COMMON STOCK HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT.
COMMON STOCK PURCHASE WARRANT
Issue Date: May 12, 2015
To Purchase 217,733 Shares of Common Stock of
VIVEVE MEDICAL, INC.
THIS COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value received, James Atkinson (the “Holder”), is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the Issue Date (the “Initial Exercise Date”) and on or prior to the close of business on the earlier of the tenth anniversary of the Issue Date (the “Termination Date”) but not thereafter, to subscribe for and purchase from Viveve Medical, Inc., a Yukon Territory corporation (the “Company”), up to an aggregate of 217,733 shares (the “Warrant Shares”) of the Company’s common stock, no par value (the “Common Stock”) in accordance with Section 3 or Section 4 herein. The purchase price of one share of Common Stock (the “Exercise Price”) under this Warrant shall be $0.53, subject to adjustment hereunder. The Exercise Price and the number of Warrant Shares for which the Warrant is exercisable shall be subject to adjustment as provided herein.
1. Title to Warrant. Prior to the Termination Date, this Warrant and all rights hereunder are non-transferable.
2. Authorization of Shares. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
3. Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by the surrender of this Warrant and the Notice of Exercise Form annexed hereto duly executed, at the office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of such Holder appearing on the books of the Company). Upon payment of the Exercise Price of the shares thereby purchased by wire transfer or cashier’s check drawn on a United States bank, the Holder shall be entitled to receive a certificate for the number of Warrant Shares so purchased. Certificates for Warrant Shares purchased hereunder shall be delivered to the Holder within five (5) business days after the date on which this Warrant shall have been exercised as aforesaid. This Warrant shall be deemed to have been exercised and such certificate or certificates shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares for all purposes, as of the date the Warrant has been exercised by payment to the Company of the Exercise Price and all taxes required to be paid by the Holder, if any, pursuant to Section 7 prior to the issuance of such shares, have been paid. If the Company fails to deliver to the Holder a certificate or certificates representing the number of Warrant Shares exercised pursuant to this Section 3(a) by the fifth business day after the date of exercise, then the Holder will have the right to rescind such exercise by written notice to the Company.
4. Cashless Exercise. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date, by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = the VWAP on the Trading Day immediately preceding the date on which Holder elects to exercise this Warrant by means of a “cashless exercise,” as set forth in the applicable Notice of Exercise;
(B) = the Exercise Price of this Warrant, as adjusted hereunder; and
(X) = the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.
Notwithstanding anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 4.
5. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to Holder a new Warrant evidencing the rights of Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
6. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
7. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares shall be made without charge to the Holder for any issue tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder.
8. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
9. Division and Combination.
(a) This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the Holder’s and the denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. The Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice.
(b) The Company shall prepare, issue and deliver at its own expense (other than transfer taxes) the new Warrant or Warrants under this Section 7.
(c) The Company agrees to maintain, at its aforesaid office, books for the registration of this Warrant and any other new Warrants that may be issued upon the division or combination of this Warrant under this Section 7.
10. No Rights as Shareholder until Exercise. This Warrant does not entitle the Holder to any voting rights or other rights as a shareholder of the Company prior to the exercise hereof. Upon the surrender of this Warrant and the payment of the aggregate Exercise Price, the Warrant Shares so purchased shall be and be deemed to be issued to such Holder as the record owner of such shares as of the close of business on the later of the date of such surrender or payment.
11. Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
12. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday, Sunday or a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday.
13. Adjustments of Exercise Price and Number of Warrant Shares. The number and kind of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time upon the happening of any of the following. In case the Company shall (i) pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock to holders of its outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock, then in each such case the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior thereto shall be adjusted so that the Holder shall be entitled to receive the kind and number of Warrant Shares or other securities of the Company which it would have owned or have been entitled to receive had such Warrant been exercised in advance thereof. Upon each such adjustment of the kind and number of Warrant Shares or other securities of the Company which are purchasable hereunder, the Holder shall thereafter be entitled to purchase the number of Warrant Shares or other securities resulting from such adjustment at an Exercise Price per Warrant Share or other security obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares purchasable pursuant hereto immediately prior to such adjustment and dividing by the number of Warrant Shares or other securities of the Company resulting from such adjustment. An adjustment made pursuant to this paragraph shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.
14. Reorganization, Reclassification, Merger, Consolidation or Disposition of Assets. In case the Company shall reorganize its capital, reclassify its capital stock, consolidate or merge with or into another corporation (where the Company is not the surviving corporation or where there is a change in or distribution with respect to the Common Stock of the Company), or sell, transfer or otherwise dispose of all or substantially all its property, assets or business to another corporation and, pursuant to the terms of such reorganization, reclassification, merger, consolidation or disposition of assets, shares of common stock of the successor or acquiring corporation, or any cash, shares of stock or other securities or property of any nature whatsoever (including warrants or other subscription or purchase rights) in addition to or in lieu of common stock of the successor or acquiring corporation (“Other Property”), are to be received by or distributed to the holders of Common Stock of the Company, then the Holder shall have the right thereafter to receive, at the option of the Holder, upon exercise of this Warrant, the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and Other Property receivable upon or as a result of such reorganization, reclassification, merger, consolidation or disposition of assets by a Holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such event. In case of any such reorganization, reclassification, merger, consolidation or disposition of assets, the successor or acquiring corporation (if other than the Company) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be performed and observed by the Company and all the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined in good faith by resolution of the Board of Directors of the Company) in order to provide for adjustments of Warrant Shares for which this Warrant is exercisable which shall be as nearly equivalent as practicable to the adjustments provided for in this Section 12. For purposes of this Section 12, “common stock of the successor or acquiring corporation” shall include stock of such corporation of any class which is not preferred as to dividends or assets over any other class of stock of such corporation and which is not subject to redemption and shall also include any evidences of indebtedness, shares of stock or other securities which are convertible into or exchangeable for any such stock, either immediately or upon the arrival of a specified date or the happening of a specified event and any warrants or other rights to subscribe for or purchase any such stock. The foregoing provisions of this Section 12 shall similarly apply to successive reorganizations, reclassifications, mergers, consolidations or disposition of assets.
15. Voluntary Adjustment by the Company. The Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the Board of Directors of the Company.
16. Notice of Adjustment. Whenever the number of Warrant Shares or number or kind of securities or other property purchasable upon the exercise of this Warrant or the Exercise Price is adjusted, as herein provided, the Company shall give notice thereof to the Holder, which notice shall state the number of Warrant Shares (and other securities or property) purchasable upon the exercise of this Warrant and the Exercise Price of such Warrant Shares (and other securities or property) after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made.
17. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, or any right to subscribe for or purchase any evidences of its indebtedness, any shares of stock of any class or any other securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company or any consolidation or merger of the Company with, or any sale, transfer or other disposition of all or substantially all the property, assets or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases (but not in such cases if the rights of the Holder or holders of Common Stock will not be materially affected thereby), the Company shall give to Holder (i) at least 5 business days’ prior notice of the date on which a record date shall be selected for such dividend, distribution or right or for determining rights to vote in respect of any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, liquidation or winding up, and (ii) in the case of any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up, at least 5 business days’ prior notice of the date when the same shall take place. Such notice in accordance with the foregoing clause also shall specify (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or right, the date on which the holders of Common Stock shall be entitled to any such dividend, distribution or right, and the amount and character thereof, and (ii) the date on which any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up is to take place and the time, if any such time is to be fixed, as of which the holders of Common Stock shall be entitled to exchange their Warrant Shares for securities or other property deliverable upon such disposition, dissolution, liquidation or winding up. Each such written notice shall be sufficiently given if addressed to Holder at the last address of Holder appearing on the books of the Company and delivered in accordance with Section 19(c).
18. Authorized Shares. The Company covenants that during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the trading market upon which the Common Stock may be listed.
19. Miscellaneous.
(a) Jurisdiction. This Warrant shall constitute a contract under the laws of California, without regard to its conflicts of laws principles or rules.
(b) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions upon resale imposed by state and federal securities laws.
(c) Notices. Any notice, request or other document required or permitted to be given or delivered pursuant to this Warrant shall be deemed to have been sufficiently given and received for all purposes when delivered by hand or by telecopy that has been confirmed as received by 5:00 P.M. on a business day, one (1) business day after being sent by nationally recognized overnight courier or received by telecopy after 5:00 P.M. on any day, or five (5) business days after being sent by certified or registered mail, postage and charges prepaid, return receipt requested, to the following addresses:
If to the Company: Viveve Medical, Inc.
150 Commercial Street
Sunnyvale, CA 94086
Attn: Scott C. Durbin
Fax: (408) 530-1919
If to the Holder: At the Holder’s address in the Company’s Warrant register.
(d) Limitation of Liability. No provision hereof, in the absence of any affirmative action by Holder to exercise this Warrant or purchase Warrant Shares, and no enumeration herein of the rights or privileges of Holder, shall give rise to any liability of Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
(e) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of all Holders from time to time of this Warrant and shall be enforceable by any such Holder or holder of Warrant Shares.
(f) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Holder and the Company.
(g) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(h) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized.
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Dated: May 27, 2015 |
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/s/ Patricia Scheller |
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Name: Patricia Scheller |
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Title: Chief Executive Officer |
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NOTICE OF EXERCISE
To: VIVEVE MEDICAL, INC.
(1) The undersigned hereby elects to purchase ________ Warrant Shares of VIVEVE MEDICAL, INC. pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other name as is specified below:
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The Warrant Shares shall be delivered to the following:
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