VIVEVE MEDICAL, INC. (NASDAQ:VIVE) Files An 8-K Amendments to Articles of Incorporation or Bylaws; Change in Fiscal YearItem 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 : 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 |
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 : 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 |
VIVEVE MEDICAL, INC. ExhibitEX-3.1 2 ex3-1.htm EXHIBIT 3.1 ex3-1.htm Exhibit 3.1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF VIVEVE MEDICAL,…To view the full exhibit click here
About VIVEVE MEDICAL, INC. (NASDAQ:VIVE)
Viveve Medical, Inc., formerly PLC Systems, Inc., designs, develops, manufactures and markets medical devices for the non-invasive treatment of vaginal laxity. The Company’s Viveve Treatment is a non-invasive solution for vaginal laxity that is performed in approximately 30 minutes, in a physician’s office. The Viveve System uses monopolar radiofrequency (RF) energy to generate low temperature heat. The vaginal mucosa is simultaneously cooled while this non-ablative heat is delivered into the submucosal layer. The RF energy stimulates the formation of collagen and causes the collagen fibers to remodel thereby tightening the submucosal tissue of the vaginal introitus. The RF stimulation causes subtle alterations in the collagen that can renew the tissue and further tighten the vaginal tissue over the next 1 to 3 months following treatment (the Viveve Treatment) and lead to increased sexual function.