Item 1.01. Entry into a Material Definitive Agreement
2022 Private Placement
On
The gross proceeds to the Company from the 2022 Private Placement are expected
to be
The Stock Purchase Agreement contains customary representations, warranties and agreements by the Company, indemnification obligations of the Company, including for liabilities under the Securities Act of 1933, as amended (the "Securities Act"), and other obligations of the parties. The representations, warranties, and covenants contained in the Stock Purchase Agreement were made only for purposes of such agreement and are made as of specific dates; are solely for the benefit of the parties (except as specifically set forth therein); may be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of the Stock Purchase Agreement, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties, instead of establishing matters as facts; and may be subject to standards of materiality and knowledge applicable to the contracting parties that differ from those applicable to the investors generally. Investors should not rely on the representations, warranties, and covenants or any description thereof as characterizations of the actual state of facts or condition of the Company.
The securities issued by the Company under the Stock Purchase Agreement and to
be issued upon conversion of the shares of Voting Preferred Stock have not been
registered under the Securities Act and may not be offered or sold in
Under the terms of the Stock Purchase Agreement, the Company and the Investors
entered into an amendment and restatement to the Registration Rights Agreement,
dated
The foregoing description of the Stock Purchase Agreement and the A&R Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Stock Purchase Agreement and the A&R Registration Rights Agreement, respectively, copies of which are filed herewith as Exhibits 10.1 and 10.2.
Item 3.02. Unregistered Sales of
The information contained in Items 1.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.
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Item 5.03 Amendment to Articles of Incorporation of Company or Bylaws; Change in
Fiscal Year.
Voting Preferred Certificate of Designations
On
The Voting Preferred Certificate of Designations authorizes the issuance of up
to 4,100,000 shares of Voting Preferred Stock. The Voting Preferred Stock will
convert into shares of Common Stock on a one for ten basis (i) at the option of
an Investor upon delivery of a valid conversion notice to the Company or (ii) at
the option of the Company within 30 days following the earlier to occur of (a)
the date on which the volume-weighted average price of the Common Stock has been
greater than or equal to
Each share of Voting Preferred Stock carries a liquidation preference, senior to
the Common Stock and Nonvoting Preferred Stock, in an amount equal to the
greater of (a)
The Voting Preferred Stock votes with the Common Stock on an as-converted basis. Further, as long as any shares of Voting Preferred Stock are outstanding, the Company will not, without the affirmative vote of the holders of a majority of the then outstanding shares of the Voting Preferred Stock, (a) increase the authorized number of shares of Voting Preferred Stock; (b) enter any agreement, contract or understanding or otherwise incur any obligation which by its terms would violate or be in conflict in any material respect with, or significantly and adversely affect, the powers, rights or preferences of the Voting Preferred Stock designated hereunder; (c) amend the Certificate of Incorporation or By-laws of the Company, if such amendment would significantly and adversely alter, change or affect the powers, preferences or rights of the holders; or (d) amend or waive any provision of the Voting Preferred Certificate of Designations applicable to the holders or the Voting Preferred.
The foregoing description of the Voting Preferred Certificate of Designations does not purport to be complete and is qualified in its entirety by reference to the full text of the Voting Preferred Certificate of Designations, which is filed herewith as Exhibit 3.1 and is incorporated herein by reference.
Amendment to Nonvoting Preferred Certificate of Designations
On
The Certificate of Amendment eliminates the provision in the Nonvoting Preferred Certificate of Designations which provided that the Company is not permitted to issue any shares of Common Stock upon conversion of the Nonvoting Preferred Stock to the extent that the issuance of such shares of Common Stock would result in the Holder exceeding 9.99% of the Company's then-outstanding shares of Common Stock.
The foregoing description of the Certificate of Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Certificate of Amendment, which is filed herewith as Exhibit 3.2 and is incorporated herein by reference.
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Item 8.01. Other Events.
On
Item 9.01. Financial Statements and Exhibits.
Exhibit No. Description 3.1 Certificate of Designations of Voting Convertible Preferred Stock. 3.2 Certificate of Amendment to Certificate of Designations of Nonvoting Convertible Preferred Stock. 10.1 Stock Purchase Agreement, datedNovember 18, 2022 , by and amongVenus Concept Inc. , and certain investors listed therein. 10.2 Amended and Restated Registration Rights Agreement, datedNovember 18, 2022 , by and betweenVenus Concept Inc. and certain investors listed therein. 99.1 Press release datedNovember 18, 2022 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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