UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 22, 2024
VENUS CONCEPT INC.
(Exact name of registrant as specified in its charter)
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Delaware
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001-38238
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06-1681204
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification Number)
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235 Yorkland Blvd, Suite 900
Toronto, Ontario M2J 4Y8
(Address of principal executive offices, including Zip Code)
Registrant’s telephone number, including area code: (877)
848-8430
Not Applicable
(Former name or former address, if changed since last report)
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange
on which registered
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Common Stock, $0.0001 par value per share
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VERO
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The Nasdaq Capital Market
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 1.01 |
Entry into a Material Definitive Agreement.
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Registered Direct Offering
On February 22, 2024, Venus Concept Inc., a Delaware corporation (the “Company”), entered into a securities purchase agreement (the “SPA”) with certain institutional investors (each, an “Investor”), pursuant to which the Company agreed to issue and sell to the Investors (i) in a registered direct offering, an aggregate of 817,748 shares
(the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), at a price of $1.465 per share (the “Registered Direct Offering”) and (ii) in a concurrent private placement, warrants to acquire up to an aggregate of
817,748 shares of Common Stock (the “Investor Warrants”), at an initial exercise
price of $1.34 per share (the “Private Placement” and together with the Registered
Direct Offering, the “Offering”).
The Shares were offered at-the-market under Nasdaq rules and pursuant to the Company’s
shelf registration statement on Form S-3 (File 333-260267), initially filed by the Company with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), on October 15, 2021 and declared effective on October 25, 2021.
The Investor Warrants (and the shares of Common Stock issuable upon the exercise of the Investor Warrants) were not registered under the Securities
Act, and were offered pursuant to an exemption from the registration requirements of the Securities Act provided under Section 4(a)(2) of the Securities Act. The Investor Warrants are exercisable upon issuance and will expire five years from the
issuance date, and in certain circumstances may be exercised on a cashless basis. If the Company fails for any reason to deliver shares of Common Stock upon the valid exercise of the Investor Warrants within the prescribed period set forth in the
Investor Warrants, the Company is required to pay the applicable holder liquidated damages in cash as set forth in the Investor Warrants. The Investor Warrants also include customary buy-in rights in the event the Company fails to deliver shares
of Common Stock upon exercise thereof within the prescribed period as set forth in the Investor Warrants.
A holder is not be entitled to exercise any portion of an Investor Warrant, if, after giving effect to such exercise, the aggregate number of shares
of Common Stock beneficially owned by the holder (together with its affiliates and any other persons whose beneficial ownership of Common Stock would or could be aggregated with the holder’s for purposes of Section 13(d) or Section 16 of the
Securities Exchange Act of 1934, as amended) would exceed 4.99%, or at the election of the Investor 9.99%, of the Common Stock outstanding after giving effect to the exercise. Such 4.99% limitation may be increased at the holder’s election upon
61 days’ notice to the Company, provided that such percentage may not exceed 9.99%.
On February 27, 2024, the Company closed the Offering, raising gross proceeds of approximately $1.2 million before deducting placement agent fees and
other offering expenses payable by the Company. The Company intends to use the net proceeds from the Offering for working capital and general corporate purposes.
Under the SPA, no later than March 8, 2024, the Company is required to file a registration statement on Form S-3 (or other appropriate form if the
Company is not then S-3 eligible) registering the resale of the shares of Common Stock issued or issuable upon exercise of the Investor Warrants. The Company is required to use commercially reasonable efforts to cause such registration to become
effective within 45 days of the closing date of the Offering (or within 75 days following the closing of the Offering in case of “full review” of the registration statement by the SEC), and to keep the registration statement effective at all
times until no Investor owns any Investor Warrants or shares issuable upon exercise thereof.
The SPA contains customary representations, warranties and covenants by the Company, among other customary provisions. The
representations, warranties and covenants contained in the SPA were made only for purposes of such agreement; are solely for the benefit of the parties; may be subject to qualifications and limitations agreed upon by the parties in connection
with negotiating such agreement; and may be subject to materiality and knowledge qualifiers applicable to the parties that differ from those applicable to the investors generally. Investors should not rely on such representations, warranties
or covenants, or any description thereof, as characterizations of the actual state of facts or condition of the Company.
H.C. Wainwright & Co., LLC (“HCW”) acted as the Company’s placement agent in connection with Offering. The Company paid HCW consideration consisting of (i) a cash
fee equal to 7.0% of the aggregate gross proceeds in the Offering, (ii) a management fee equal to 1.0% of the aggregate gross proceeds in the Offering, (iii) reimbursement of certain expenses and (iv) warrants to acquire up to an aggregate of
57,242 shares of Common Stock (the “Placement Agent Warrants”). The Placement Agent
Warrants are similar to the Investor Warrants, except that the initial exercise price of the Placement Agent Warrants is $1.8313 per share.
The foregoing descriptions of the SPA, the Investor Warrants and the Placement Agent Warrants do not purport to be complete and are qualified in
their entirety by reference to the full text of the form of SPA, form of Investor Warrant and form of Placement Agent Warrant, copies of which are filed hereto as Exhibits 10.1, 4.1 and 4.2, respectively.
| Item 3.02 |
Unregistered Sale of Equity Securities.
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The information set forth in Item 1.01 of this Form 8-K with respect to the issuance of the Investor Warrants and the Placement Agent Warrants is
incorporated herein by reference.
Press Releases
On February 23, 2024, the Company issued a press release announcing the pricing of the Offering, a copy of which is attached hereto as Exhibit 99.1
and incorporated herein by reference.
On February 27, 2024, the Company issued a press release announcing the closing of the Offering, a copy of which is attached hereto as Exhibit 99.2
and incorporated herein by reference.
Nasdaq Update
As previously disclosed, on November 28, 2023, the Company received a written notice from the Listing Qualifications Department (the “Staff”) of the Nasdaq Stock Market LLC (“Nasdaq”), which set forth the Staff’s determination that the Company had not regained compliance with the minimum bid price
requirement set forth in Nasdaq Listing Rule 5550(a) within the prescribed period. As a result, the Staff advised the Company that its securities would be delisted at the opening of business on December 7, 2023, unless the Company timely requests
a hearing before a Nasdaq Hearings Panel (the “Panel”).
On December 5, 2023, the Company timely requested a hearing before the Panel. The hearing, which was previously-scheduled be held on February 29,
2024, is now scheduled to be held on March 5, 2024. The hearing request automatically stayed any suspension or delisting action pending the hearing and the expiration of any additional extension period granted by the Panel following the hearing.
Pursuant to the Nasdaq Listing Rules, the Panel is authorized to grant, if it deems appropriate, an additional extension period not to exceed May 28, 2024.
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K contains “forward-looking”
statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. Any statements contained herein that are not of historical facts may be deemed to be forward-looking statements. In some cases, readers can
identify these statements by words such as such as “anticipates,” “believes,” “plans,” “expects,” “projects,” “future,” “intends,” “may,” “should,” “could,” “estimates,” “predicts,” “potential,” “continue,” “guidance,” and other similar
expressions that are predictions of or indicate future events and future trends. These forward-looking statements include, but are not limited to, statements about the entry into the SPA, the issuance of the Shares and the issuance or exercise
of the Investor Warrants and Placement Agent Warrants. These forward-looking statements are based on current expectations, estimates, forecasts, and projections about the Company’s business and the industry in which the Company operates and
management’s beliefs and assumptions and are not guarantees of future performance or developments and involve known and unknown risks, uncertainties, and other factors that are in some cases beyond the Company’s control. As a result, any or all
of the Company’s forward-looking statements in this Current Report on Form 8-K may turn out to be inaccurate. Factors that could materially affect the Company’s business operations and financial performance and condition include, but are not
limited to, general economic conditions and involve risks and uncertainties that may cause results to differ materially from those set forth
in the statements and those risks and uncertainties described under Part II Item 1A-”Risk Factors” in the Company’s Quarterly Reports on Form 10-Q and Part I Item 1A-”Risk Factors” in the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2022. Readers are urged to consider these factors carefully in evaluating the forward-looking statements and are cautioned not to place undue reliance on the forward-looking statements. The forward-looking statements
are based on information available to the Company as of the date of this Current Report on Form 8-K. Unless required by law, the Company does not intend to publicly update or revise any forward-looking statements to reflect new information or
future events or otherwise.
| Item 9.01. |
Financial Statements and Exhibits.
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(d) Exhibits. The following exhibits are filed with this report:
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Exhibit No.
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Description
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Form of Investor Warrant
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Form of Placement Agent Warrant
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Opinion of Dorsey & Whitney LLP
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Form of Securities Purchase Agreement
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Consent of Dorsey & Whitney LLP (contained in Exhibit 5.1 above)
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Press Release, dated February 23, 2024
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Press Release, dated February 27, 2024
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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VENUS CONCEPT INC.
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Date: February 27, 2024
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By:
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/s/ Rajiv De Silva
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Rajiv De Silva
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Chief Executive Officer
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