S-1MEF

As filed with the Securities and Exchange Commission on January 13, 2021.

Registration No. 333-       

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

VIVEVE MEDICAL, INC.

(Exact name of registrant as specified in its charter)

Delaware	3841	04-3153858
(State or other jurisdiction of	(Primary Standard Industrial	(I.R.S. Employer
incorporation or organization)	Classification Code Number)	Identification Number)

345 Inverness Drive South

Building B, Suite 250

Englewood, CO 80112

Telephone: (720) 696-8100

(Address, including zip code, and telephone number, including

area code, of registrant’s principal executive office)

Scott Durbin

345 Inverness Drive South

Building B, Suite 250

Englewood, CO 80112

Telephone: (720) 696-8100

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Mitchell S. Bloom, Esq. Heidi Mayon, Esq. Goodwin Procter LLP 601 Marshall Street Redwood City, CA 94063 (650) 752-3100 Aron Izower, Esq. Wendy Grasso, Esq. Reed Smith LLP 599 Lexington Avenue New York, NY 10022 (212) 521-5400

Approximate date of commencement of proposed sale to the public:

As soon as practicable after this registration statement is declared effective.

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 check the following box: ☐

If this Form 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.  ☒ 333-251517

If this Form 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.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) 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.  ☐

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 “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ☐	Accelerated filer ☐	Non-accelerated filer ☒	Smaller reporting company ☒
			Emerging growth company ☐

If an emerging growth company, indicate by check mark if the 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 to be Registered(1)	Proposed Maximum Aggregate Offering Price(1)(2)		Amount of Registration Fee
Class A Units consisting of:
(i) Shares of common stock, par value $0.0001 per share	$4,600,000		$501.86
(ii) Warrants to purchase common stock	-		-
Class B Units consisting of:
(i) Series C Preferred Stock, par value $0.0001 per share	-		-
(ii) Common stock issuable upon conversion of Series C Preferred Stock	-		-
(iii) Warrants to purchase common stock	-		-
Common Stock issuable upon exercise of warrants	$4,600,000		$501.86
Total		$9,200,000		$1,003.72

(1) Represents only the additional dollar amount of securities being registered and includes the additional dollar amount of securities that the underwriters have the option to purchase to cover over-allotments, if any. Does not include the securities that the registrant previously registered on the registration statement on Form S-1 (File No. 333-251517).

(2) Calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. Based on the public offering price per share.

THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE 462(B) UNDER THE SECURITIES ACT.

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE

This Registration Statement is being filed pursuant to Rule 462(b) as promulgated under the Securities Act of 1933, as amended, and includes the registration statement facing page, this page, the signature page, an exhibit index and the required opinion and consents solely to register up to an aggregate of $9,200,000 in (i) additional Class A Units, with each Class A 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 Common Stock, (ii) additional Class B Units, with each Class B Unit consisting of one share of the Company’s Series C preferred stock, par value $0.0001 per share (the “Series C Preferred Stock”), and one warrant to purchase one share of Common Stock, (iii) shares of Common Stock issuable upon conversion of the additional shares of Series C Preferred Stock and (iv) shares of Common Stock issuable upon exercise of the warrants included in the additional Class A Units and Class B Units. The contents of the Registration Statement on Form S-1 (File No. 333-251517), as amended, including the exhibits and power of attorney thereto, which was declared effective by the Securities and Exchange Commission on January 13, 2021, are incorporated by reference in this Registration Statement.

 EXHIBIT INDEX

Exhibit No.	Description
5.1	Opinion of Goodwin Procter LLP.
23.1	Consent of BPM LLP, independent registered public accounting firm.
23.2	Consent of Goodwin Procter LLP (See Exhibit 5.1 hereto).
24.1	Power of Attorney (included on the signature page to the Registration Statement on Form S-1 (File No. 333-251517) filed by the Registrant on December 18, 2020).

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Englewood, State of Colorado, on January 13, 2021.

VIVEVE MEDICAL, INC.
By:	/s/ Scott Durbin
	Name:	Scott Durbin
	Title:	Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

Signature	Title	Date
/S/ Scott Durbin	Chief Executive Officer, President and Director	January 13, 2021
Scott Durbin	(Principal Executive Officer)
/S/ Jim Robbins	Vice President of Finance and Administration	January 13, 2021
Jim Robbins	(Principal Financial and Accounting Officer)
*	Chairman and Director	January 13, 2021
Steven Basta
*	Director	January 13, 2021
Arlene Morris
*	Director	January 13, 2021
Debora Jorn
*	Director	January 13, 2021
Sharon Collins Presnell

*By:	/s/ Scott Durbin
	Scott Durbin, Attorney-in-Fact

EX-5.1

Exhibit 5.1

January 13, 2021                            

Viveve Medical, Inc.

345 Inverness Drive South, Building B, Suite 250

Englewood, Colorado 80112

Re:       Securities Registered under Registration Statement on Form S-1

Ladies and Gentlemen:

We have acted as counsel to you in connection with your filing of (i) a Registration Statement on Form S-1 (File No. 333-251517) (as amended or supplemented, the "Initial Registration Statement") pursuant to the Securities Act of 1933, as amended (the “Securities Act”) and (ii) a second Registration Statement on Form S-1 filed pursuant to Rule 462(b) promulgated under the Securities Act (the “462(b) Registration Statement,” and together with the Initial Registration Statement, the “Registration Statement”). This opinion letter is being furnished to you in connection with your filing of the 462(b) Registration Statement relating to the registration of the offering by Viveve Medical, Inc., a Delaware corporation (the “Company”) of up to $9,200,000 in the aggregate of (i) shares (the “Common Shares”) of the Company’s Common Stock, par value $0.0001 per share (the “Common Stock”), (ii) shares (the “Preferred Shares”) of the Company’s Series C Convertible Preferred Stock, par value $0.0001 per share (the “Preferred Stock”), (iii) warrants to purchase shares of Common Stock (the “Warrants”), (iv) shares (the “Conversion Shares”) of Common Stock issuable upon conversion of the Preferred Shares, and (v) shares (the “Warrant Shares”) of Common Stock issuable upon exercise of the Warrants (collectively, the “Securities”), including Securities purchasable by the underwriter upon its exercise of an over-allotment option granted to the underwriter by the Company. The Securities are being sold to the underwriter named in, and pursuant to, an underwriting agreement among the Company and such underwriter (the "Underwriting Agreement").

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.

The opinion set forth below is limited to the Delaware General Corporation Law and the law of New York.

Based on the foregoing, we are of the opinion that:

(i) the Common Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Underwriting Agreement, the Common Shares will be validly issued, fully paid and non-assessable;

(ii) upon the execution, acknowledgement and filing with the Secretary of State of the State of Delaware, and the effectiveness of, a certificate of designation (the “Certificate of Designation”) to the amended and restated certificate of incorporation of the Company (the “Charter”) establishing the terms of Series C Preferred Stock in accordance with the Charter and applicable law, the Preferred Shares will be duly authorized, and, upon issuance and delivery against payment therefor in accordance with the terms of the Underwriting Agreement, the Preferred Shares will be validly issued, fully paid and non-assessable;

(iii) the Warrants have been duly authorized and, upon execution and delivery against payment therefor in accordance with the terms of the Underwriting Agreement, the Warrants will be valid and binding obligations of the Company;

(iv) assuming sufficient authorized but unissued shares of Common Stock are available for issuance when the Preferred Shares are converted, the Conversion Shares, when issued upon conversion of the Preferred Shares in accordance with the terms of the Certificate of Designation, will be validly issued, fully paid and non-assessable; and

(v) assuming sufficient authorized but unissued shares of Common Stock are available for issuance when the Warrants are exercised, the Warrant Shares, when issued upon exercise of the Warrants in accordance with the terms of the Warrants, will be validly issued, fully paid and non-assessable.

We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the 462(b) Registration Statement and to the references to our firm under the caption "Legal Matters" in the Initial Registration Statement.  In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

Very truly yours,

/s/ Goodwin Procter LLP

GOODWIN PROCTER LLP

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-1 of our report (which contains an explanatory paragraph relating to Viveve Medical, Inc.’s ability to continue as a going concern as described in Note 1 to the consolidated financial statements) dated March 19, 2020, relating to the consolidated financial statements of Viveve Medical, Inc., which appears in the Annual Report on Form 10-K of Viveve Medical, Inc. for the year ended December 31, 2019.

/s/ BPM LLP

San Jose, California

January 13, 2021