Sec Form 13G Filing - Lincoln Park Capital Fund LLC filing for VIVEVE MED INC PAR $ (VIVE) - 2021-01-15

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13G

Under the Securities Exchange Act of 1934
(Amendment No.   )*

Check the appropriate box to designate the rule pursuant to which this Schedule is filed:

o            Rule 13d-1(b)

x            Rule 13d-1(c)

o            Rule 13d-1(d)

(Page 1 of 13 Pages)

*      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 the 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).

SCHEDULE 13G

*As of January 14, 2021 and includes 260,000 shares of common stock underlying currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC.  Excludes an additional 374,064 shares of common stock of the Issuer underlying currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC as a result of a 9.99% beneficial ownership cap included therein that prohibits the issuance of common stock underlying such warrants to the extent such issuance would cause the holder’s beneficial ownership of common stock to exceed 9.99% of the outstanding common stock of the Issuer.

**Based on 6,779,256 shares of the Issuer’s common stock outstanding as of January 14, 2021 immediately following the completion of the Issuer’s registered public offering, as reported in the Issuer’s final Prospectus on Form 424B4 filed with the Securities and Exchange Commission in connection with the offering on January 14, 2021, assuming no exercise of the underwriter’s over-allotment option to purchase additional shares of common stock granted to the underwriter by the Issuer in connection with such offering.

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SCHEDULE 13G

*As of January 14, 2021 and includes 260,000 shares of common stock underlying currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC.  Excludes an additional 374,064 shares of common stock of the Issuer underlying currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC as a result of a 9.99% beneficial ownership cap included therein that prohibits the issuance of common stock underlying such warrants to the extent such issuance would cause the holder’s beneficial ownership of common stock to exceed 9.99% of the outstanding common stock of the Issuer.

**Based on 6,779,256 shares of the Issuer’s common stock outstanding as of January 14, 2021 immediately following the completion of the Issuer’s registered public offering, as reported in the Issuer’s final Prospectus on Form 424B4 filed with the Securities and Exchange Commission in connection with the offering on January 14, 2021, assuming no exercise of the underwriter’s over-allotment option to purchase additional shares of common stock granted to the underwriter by the Issuer in connection with such offering.

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SCHEDULE 13G

*As of January 14, 2021 and includes 260,000 shares of common stock underlying currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC. All of such currently exercisable warrants include a 9.99% beneficial ownership cap that prohibits the issuance of common stock underlying such warrants to the extent such issuance would cause the holder’s beneficial ownership of common stock to exceed 9.99% of the outstanding common stock of the Issuer.  Accordingly, such number excludes an additional 374,064 shares of common stock of the Issuer underlying such currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC because the issuance of such additional shares to Lincoln Park Capital Fund, LLC as of such date is prohibited pursuant to the 9.99% beneficial ownership cap included in such warrants.

**Based on 6,779,256 shares of the Issuer’s common stock outstanding as of January 14, 2021 immediately following the completion of the Issuer’s registered public offering, as reported in the Issuer’s final Prospectus on Form 424B4 filed with the Securities and Exchange Commission in connection with the offering on January 14, 2021, assuming no exercise of the underwriter’s over-allotment option to purchase additional shares of common stock granted to the underwriter by the Issuer in connection with such offering.

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SCHEDULE 13G

*As of January 14, 2021 and includes 260,000 shares of common stock underlying currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC. All of such currently exercisable warrants include a 9.99% beneficial ownership cap that prohibits the issuance of common stock underlying such warrants to the extent such issuance would cause the holder’s beneficial ownership of common stock to exceed 9.99% of the outstanding common stock of the Issuer.  Accordingly, such number excludes an additional 374,064 shares of common stock of the Issuer underlying such currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC because the issuance of such additional shares to Lincoln Park Capital Fund, LLC as of such date is prohibited pursuant to the 9.99% beneficial ownership cap included in such warrants.

**Based on 6,779,256 shares of the Issuer’s common stock outstanding as of January 14, 2021 immediately following the completion of the Issuer’s registered public offering, as reported in the Issuer’s final Prospectus on Form 424B4 filed with the Securities and Exchange Commission in connection with the offering on January 14, 2021, assuming no exercise of the underwriter’s over-allotment option to purchase additional shares of common stock granted to the underwriter by the Issuer in connection with such offering.

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SCHEDULE 13G

*As of January 14, 2021 and includes 260,000 shares of common stock underlying currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC. All of such currently exercisable warrants include a 9.99% beneficial ownership cap that prohibits the issuance of common stock underlying such warrants to the extent such issuance would cause the holder’s beneficial ownership of common stock to exceed 9.99% of the outstanding common stock of the Issuer.  Accordingly, such number excludes an additional 374,064 shares of common stock of the Issuer underlying such currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC because the issuance of such additional shares to Lincoln Park Capital Fund, LLC as of such date is prohibited pursuant to the 9.99% beneficial ownership cap included in such warrants.

**Based on 6,779,256 shares of the Issuer’s common stock outstanding as of January 14, 2021 immediately following the completion of the Issuer’s registered public offering, as reported in the Issuer’s final Prospectus on Form 424B4 filed with the Securities and Exchange Commission in connection with the offering on January 14, 2021, assuming no exercise of the underwriter’s over-allotment option to purchase additional shares of common stock granted to the underwriter by the Issuer in connection with such offering.

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SCHEDULE 13G

*As of January 14, 2021 and includes 260,000 shares of common stock underlying currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC. All of such currently exercisable warrants include a 9.99% beneficial ownership cap that prohibits the issuance of common stock underlying such warrants to the extent such issuance would cause the holder’s beneficial ownership of common stock to exceed 9.99% of the outstanding common stock of the Issuer.  Accordingly, such number excludes an additional 374,064 shares of common stock of the Issuer underlying such currently exercisable warrants owned directly by Lincoln Park Capital Fund, LLC because the issuance of such additional shares to Lincoln Park Capital Fund, LLC as of such date is prohibited pursuant to the 9.99% beneficial ownership cap included in such warrants.

**Based on 6,779,256 shares of the Issuer’s common stock outstanding as of January 14, 2021 immediately following the completion of the Issuer’s registered public offering, as reported in the Issuer’s final Prospectus on Form 424B4 filed with the Securities and Exchange Commission in connection with the offering on January 14, 2021, assuming no exercise of the underwriter’s over-allotment option to purchase additional shares of common stock granted to the underwriter by the Issuer in connection with such offering.

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SCHEDULE 13G

CUSIP NO.  92852W303

Item 1.

(a)                                 Name of Issuer:

Viveve Medical, Inc., a Delaware corporation (“Issuer”)

(b)                                 Address of Issuer’s Principal Executive Offices:

345 Inverness Drive South

Building B, Suite 250

Englewood, Colorado 80112

Item 2.

(a)                                 Name of Person Filing:

Lincoln Park Capital Fund, LLC (“LPC Fund”)

Lincoln Park Capital, LLC (“LPC”)

Rockledge Capital Corporation (“RCC”)

Joshua B. Scheinfeld (“Mr. Scheinfeld”)

Alex Noah Investors, Inc. (“Alex Noah”)

Jonathan I. Cope (“Mr. Cope” and, collectively with LPC Fund, LPC, RCC, Mr. Scheinfeld and Alex Noah, the “Reporting Persons”)

(b)                                 Address of Principal Business Office, or if None, Residence:

The address of the principal business office of each of the Reporting Persons is:

440 North Wells, Suite 410

Chicago, Illinois 60654

(c)                                  Citizenship:

LPC Fund is an Illinois limited liability company

LPC is an Illinois limited liability company

RCC is a Texas corporation

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SCHEDULE 13G

CUSIP NO.  92852W303

Mr. Scheinfeld is a United States citizen

Alex Noah is an Illinois corporation

Mr. Cope is a United States citizen

(d)                                 Title of Class of Securities:

Common Stock, $0.0001 par value (“Common Stock”)

(e)                                  CUSIP Number:

92852W303

Item 3.

If this statement is filed pursuant to §§240.13d-1(b), or 240.13d-2(b) or (c), check whether the person filing is a:

If filing as a non-U.S. institution in accordance with §240.13d-1(b)(1)(ii)(J), please specify the type of institution _____________

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SCHEDULE 13G

CUSIP NO.  92852W303

(1)         Represents (i) 441,000 shares of Common Stock purchased by LPC Fund directly from the Issuer in a registered public offering of Common Stock on January 14, 2021 (the “January 2021 Public Offering”), (ii) up to 441,000 shares of Common Stock issuable upon exercise of Common Stock purchase warrants purchased by LPC Fund directly from the Issuer in the January 2021 Public Offering (the “January 2021 Warrants”), which are currently exercisable at a price of $3.40 per share (subject to adjustment as provided in the January 2021 Warrants) and expire on January 14, 2026, (iii) up to 129,032 shares of Common Stock issuable upon exercise of Common Stock purchase warrants purchased by LPC Fund directly from the Issuer in April 2020 (the “April 2020 Warrants”), which are currently exercisable at a price of $6.371 per share (subject to adjustment as provided in the April 2020 Warrants) and expire on April 21, 2025, and (iv) up to 64,032 shares of Common Stock issuable upon exercise of Common Stock purchase warrants purchased by LPC Fund directly from the Issuer in November 2019 (the “November 2019 Warrants”), which are currently exercisable at a price of $6.10 per share (subject to adjustment as provided in the November 2019 Warrants) and expire on November 22, 2024. Each of the January 2021 Warrants, the April 2020 Warrants and the November 2019 Warrants includes a 9.99% beneficial ownership cap that prohibits the issuance of shares of Common Stock upon exercise of the warrants to the extent such issuance would cause the holder’s beneficial ownership of Common Stock (as calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 13d-3 promulgated thereunder) to exceed 9.99% of the outstanding Common Stock. In addition, each of the January 2021 Warrants, the April 2020 Warrants and the November 2019 Warrants includes a customary “cashless” exercise provision, which may be used to acquire underlying shares of Common Stock if at the time of exercise an effective registration statement registering the resale of such shares under the Securities Act of 1933, as amended (the “Securities Act”), is not available to the warrant holder.

(2)         Based on information contained in the Issuer’s final Prospectus dated January 14, 2021 filed with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 424(b)(4) under the Securities Act on January 14, 2021, there were a total of 6,779,256 shares of Common Stock outstanding as of January 14, 2021, immediately following the completion of the Issuer’s January 2021 Public Offering, assuming no exercise of the underwriter’s over-allotment option granted by the Issuer to the underwriter in connection with the January 2021 Public Offering, which number of outstanding shares includes the 441,000 shares of

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SCHEDULE 13G

CUSIP NO.  92852W303

Common Stock purchased by LPC Fund directly from the Issuer in the January 2021 Public Offering, and excludes (i) the 441,000 shares of Common Stock issuable upon exercise of the January 2021 Warrants, (ii) the 129,032 shares of Common Stock issuable upon exercise of the April 2020 Warrants, and (iii) the 64,032 shares of Common Stock issuable upon exercise of the November 2019 Warrants, as set forth in Footnote 1 above. The percentage is calculated as of January 14, 2021 and includes the 441,000 shares of Common Stock purchased by LPC Fund directly from the Issuer in the January 2021 Public Offering, which shares were issued and outstanding as of January 14, 2021, and also assumes that 260,000 shares of Common Stock underlying currently exercisable warrants owned directly by LPC Fund were issued and outstanding as of January 14, 2021.  The percentage does not assume that an additional 374,064 shares of Common Stock underlying currently exercisable warrants owned directly by LPC Fund were issued and outstanding as of January 14, 2021, because the issuance of such shares to LPC Fund as of such date would cause the Reporting Persons’ beneficial ownership of Common Stock (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) to exceed 9.99% of the outstanding Common Stock, and so such issuance is therefore prohibited under the 9.99% beneficial ownership cap provision contained in such warrants.

As of January 14, 2021, LPC Fund beneficially owned, directly, an aggregate of 701,000 shares of Common Stock (representing approximately 9.99% of the outstanding shares of Common Stock as of January 14, 2021), consisting of (i) the 441,000 shares of Common Stock purchased by LPC Fund directly from the Issuer in the January 2021 Public Offering, and (ii) an additional 260,000 shares of Common Stock underlying currently exercisable warrants owned directly by LPC Fund, which warrants include a 9.99% beneficial ownership cap that prohibits the issuance of shares of Common Stock upon exercise of the warrants to the extent such issuance would cause the holder’s beneficial ownership of Common Stock (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) to exceed 9.99% of the outstanding Common Stock. Accordingly, pursuant to Rule 13d-3(d)(1)(i) under the Exchange Act, as of January 14, 2020, LPC Fund does not beneficially own an additional 374,064 shares of common stock underlying such currently exercisable warrants because the issuance of such shares to LPC Fund as of such date would cause the Reporting Persons’ beneficial ownership of Common Stock (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) to exceed 9.99% of the outstanding Common Stock and, therefore, the issuance of such additional shares to LPC Fund as of such date is prohibited under the terms of such warrants. Each of the January 2021 Warrants, the April 2020 Warrants and the November 2019 Warrants include a customary “cashless” exercise provision, which may be used to acquire underlying shares of Common Stock if at the time of exercise an effective registration statement registering the resale of such shares under the Securities Act is not available to the warrant holder.

LPC is the Managing Member of LPC Fund.  RCC and Alex Noah are the Managing Members of LPC.  Mr. Scheinfeld is the president and sole shareholder of RCC, as well as a principal of LPC.  Mr. Cope is the president and sole shareholder of Alex Noah, as well as a principal of LPC. As a result of the foregoing, Mr. Scheinfeld and Mr. Cope have shared voting and shared investment power over the shares of Common Stock of the Issuer held directly by LPC Fund. Pursuant to Section 13(d) of the Securities Act and the rules thereunder, each of LPC, RCC, Mr. Scheinfeld, Alex Noah, and Mr. Cope may be deemed to be a beneficial owner of the shares of Common Stock of the Issuer beneficially owned directly by LPC Fund.

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SCHEDULE 13G

CUSIP NO.  92852W303

Pursuant to Rule 13d-4 of the Securities Act, each of LPC, RCC, Mr. Scheinfeld, Alex Noah, and Mr. Cope disclaims beneficial ownership of the shares of Common Stock of the Issuer held directly by LPC Fund.

If this statement is being filed to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the following £.

Not applicable.

Not applicable.

Not applicable.

Not applicable.

By signing below I certify that, to the best of my knowledge and belief, the securities referred to above were not acquired and are not held for the purpose of or with the effect of changing or influencing the control of the issuer of the securities and were not acquired and are not held in connection with or as a participant in any transaction having that purpose or effect.

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SCHEDULE 13G

CUSIP NO.  92852W303

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.

Dated:  January 14, 2021

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LIST OF EXHIBITS

EXHIBIT 1

Joint Filing Agreement

The undersigned hereby agree that they are filing this statement jointly pursuant to Rule 13d-1(k)(1). Each of them is responsible for the timely filing of such Schedule 13G, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate.

In accordance with Rule 13d-1(k)(1) promulgated under the Securities and Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with each other on behalf of each of them of such Schedule 13G with respect to the Common Shares of the Issuer, beneficially owned by each of them. This Joint Filing Agreement shall be included as an exhibit to such Schedule 13G.

[Signature Page Follows]

IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of January 14, 2021.