UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): August 15, 2017

 

VIVEVE MEDICAL, INC.

(Exact Name of Registrant as Specified in Charter)

 

 

Delaware

  

1-11388

  

04-3153858

(State or Other Jurisdiction of

Incorporation)

  

(Commission File Number)

  

(I.R.S. Employer

Identification No.)

 

 

345 Inverness Drive South, Building B, Suite 250,

Englewood, Colorado

  

80112

(Address of Principal Executive Offices)

  

(Zip Code)

 

Registrant’s telephone number, including area code: (720) 696-8100

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.

 

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 13(a) of the Exchange Act.     ☐

 

 
 

 

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

 

On August 16, 2017, Viveve Medical, Inc. (the “Company”) filed with the Secretary of State of Delaware an amended and restated certificate of incorporation (the “Restated Certificate”), incorporating the amendments to the Company’s certificate of incorporation, as amended, approved by the stockholders at the Company’s annual meeting of the stockholders held on August 15, 2017 (the “Annual Meeting”), which include (i) authorizing the Board of Directors of the Company (the “Board”) exclusively to fill any vacancies occurring in the Board; (ii) eliminating the ability of stockholders to act by written consent; (iii) eliminating the ability of the stockholders to call special meetings; (iv) granting the Board exclusive authority to change the size of the Board; (v) implementing a classified Board of Directors; (vi) implementing supermajority voting for amendments to the Company’s bylaws adopted by the Company’s stockholders; and (vii) implementing supermajority voting to amend certain certificate of incorporation provisions. The Company’s stockholders approved the Restated Certificate at the Annual Meeting, as more specifically described under Item 5.07 below. The Restated Certificate was previously approved by the Board, subject to stockholder approval. The foregoing summary of the Restated Certificate does not purport to be complete and is qualified in its entirety by reference to the Restated Certificate, a copy of which is attached as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference herein.

 

Effective August 15, 2017, the Board adopted an amended and restated bylaws (the “Restated Bylaws”) incorporating the amendments to the Company’s bylaws approved by the stockholders at the Company’s Annual Meeting, which include (i) eliminating the ability of stockholders to act by written consent; (ii) eliminating the ability of the stockholders to call special meetings; (iii) requiring advance notice for stockholder nominations of directors and proposals for matters to be raised at stockholder meetings; (iv) granting the Board exclusive authority to change the size of the Board; and (v) providing for a forum for adjudication of disputes. The Board previously approved the Restated Bylaws subject to stockholder approval of the Restated Certificate and Restated Bylaws. The foregoing summary of the Restated Bylaws does not purport to be complete and is qualified in its entirety by reference to the Restated Bylaws, a copy of which is attached as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated by reference herein.

 

Item 5.07. Submission of Matters to a Vote of Security Holders.

 

At the Annual Meeting, the Company’s stockholders voted to: (1) elect six directors to the Company’s Board; (2) ratify the appointment of BPM LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2017; (3) approve, on an advisory basis, the compensation of the Company’s named executive officers; (4) participate in an advisory vote every year on the frequency of future advisory votes on the compensation of the Company’s named executive officers; (5) approve the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company, which (i) authorize the Board of Directors exclusively to fill any vacancies occurring in the Board; (ii) eliminate the ability of stockholders to act by written consent; (iii) eliminate the ability of the stockholders to call special meetings; (iv) require advance notice for stockholder nominations of directors and proposals for matters to be raised at stockholder meetings; (v) grant the Board exclusive authority to change the size of the Board; (vi) implement a classified Board of Directors; (vii) implement supermajority voting for amendments to the Company’s bylaws adopted by the Company’s stockholders; (viii) implement supermajority voting to amend certain certificate of incorporation provisions; and (ix) provide for a forum for adjudication of disputes; (6) approve the Company’s 2017 Employee Stock Purchase Plan; and (7) approve an increase to the number of shares available for awards under the Viveve Medical, Inc. 2013 Stock Option and Incentive Plan, as amended, and an increase to the number of shares available for issuance as incentive stock options under the Viveve Medical, Inc. 2013 Stock Option and Incentive Plan, as amended.

 

 
 

 

 

The proposals are described in detail in the Company’s definitive proxy statement for the Annual Meeting filed with the Securities and Exchange Commission on July 7, 2017.

 

The number of shares of common stock entitled to vote at the Annual Meeting was 19,400,633. The number of shares of common stock present or represented by valid proxy at the Annual Meeting was 16,460,283. All matters submitted to a vote of the Company’s stockholders at the Annual Meeting were approved and all director nominees were elected.

 

The votes cast with respect to each matter voted upon are set forth below:

 

Proposal 1: Elect six directors to serve until the Company’s next annual meeting or until the election and qualification of their successors.

 

Director Nominee

Votes For

Votes Withheld

Broker Non-Votes

Lori Bush

12,235,096

269,771

3,955,416

Daniel Janney

12,234,514

270,353

3,955,416

Debora Jorn

12,484,822

20,045

3,955,416

Arlene Morris

12,235,093

269,774

3,955,416

Jon Plexico

12,469,569

35,298

3,955,416

Patricia Scheller

12,484,764

20,103

3,955,416

 

Proposal 2: Ratify the appointment of BPM LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2017.

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

16,311,454

122,963

25,866

0

 

Proposal 3: Approve, on an advisory basis, the compensation of the Company’s named executive officers.

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

12,443,570

19,223

42,074

3,955,416

  

 
 

 

 

Proposal 4: Participate in an advisory vote on the frequency of future advisory votes on the compensation of the Company’s named executive officers.

 

1 Year  

2 Years

3 Years

Abstentions

Broker Non-Votes

12,383,854

7,166

75,544

38,303

3,955,416

 

Proposal 5: Approve the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company to:

 

 

(i)

authorize the Board of Directors exclusively to fill any vacancies occurring in the Board;

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

10,723,423

1,757,902

23,542

3,955,416

 

 

(ii)

eliminate the ability of stockholders to act by written consent;

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

10,660,274

1,827,395

17,198

3,955,416

 

 

(iii)

eliminate the ability of the stockholders to call special meetings;

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

10,538,134

1,950,336

16,397

3,955,416

 

 

(iv)

require advance notice for stockholder nominations of directors and proposals for matters to be raised at stockholder meetings;

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

10,660,115

1,830,423

14,329

3,955,416

 

 

(v)

grant the Board exclusive authority to change the size of the Board;

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

10,652,235

1,836,949

15,683

3,955,416

 

 

(vi)

implement a classified Board of Directors;

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

10,595,553

1,877,832

31,482

3,955,416

  

 
 

 

 

 

(vii)

implement supermajority voting for amendments to the Company’s bylaws adopted by our stockholders;

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

10,545,972

1,943,134

15,761

3,955,416

 

 

(viii)

implement supermajority voting to amend certain certificate of incorporation provisions;

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

10,545,342

1,942,219

17,306

3,955,416

 

 

(ix)

     provide for a forum for adjudication of disputes.

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

10,934,381

1,556,261

14,225

3,955,416

 

Proposal 6: Approve the Company’s 2017 Employee Stock Purchase Plan.

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

12,455,634

26,083

23,150

3,955,416

 

Proposal 7: Approve an increase to the number of shares available for awards under the Viveve Medical, Inc. 2013 Stock Option and Incentive Plan, as amended, and an increase to the number of shares available for issuance as incentive stock options under the Viveve Medical, Inc. 2013 Stock Option and Incentive Plan, as amended.

 

Votes For

Votes Against

Abstentions

Broker Non-Votes

11,527,435

951,454

25,978

3,955,416

 

 

 Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.

 

Description

 

 

 

3.1

 

Amended and Restated Certificate of Incorporation of Viveve Medical, Inc., dated August 16, 2017

 

 

 

3.2

 

Amended and Restated Bylaws of Viveve Medical, Inc., adopted August 15, 2017

  

 
 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date: August 16, 2017 

Viveve Medical, Inc.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Scott Durbin

 

 

 

Scott Durbin

Chief Financial Officer

 

 

 
 

 

 

 Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.

 

Description

 

 

 

3.1

 

Amended and Restated Certificate of Incorporation of Viveve Medical, Inc., dated August 16, 2017

 

 

 

3.2

 

Amended and Restated Bylaws of Viveve Medical, Inc., adopted August 15, 2017