As filed with the Securities and Exchange Commission on April 29,May 5, 2020
Registration No. 333- 333-237911
Delaware | | | 3845 | | | 68-0533453 |
(State of Incorporation) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) |
Large accelerated filer ☐ | | | Accelerated filer ☐ | | | Non-accelerated filer ☒ | | | Smaller reporting company ☒ |
| | | | | | Emerging growth company ☐ |
Title of Each Class of Securities to be Registered | | | Amount to be Registered(1) | | | Proposed Maximum Offering Price Per Share(2) | | | Proposed Maximum Aggregate Offering Price(2) | | | Amount of Registration Fee | | | Amount to be Registered(1) | | | Proposed Maximum Offering Price Per Share(2) | | | Proposed Maximum Aggregate Offering Price(2) | | | Amount of Registration Fee |
Shares of Common Stock, par value $0.0001 per share, issuable upon exercise of warrants issued on March 23, 2020(3) | | | 4,161,392 | | | $0.42 | | | $1,747,785 | | | $226.86 | | | 4,161,392 | | | $0.42 | | | $1,747,785 | | | $226.86 |
Shares of Common Stock, par value $0.0001 per share, issuable upon exercise of warrants issued on April 1, 2020(4) | | | 2,565,114 | | | $0.42 | | | $1,077,348 | | | $139.84 | | | 2,565,114 | | | $0.42 | | | $1,077,348 | | | $139.84 |
Total: | | | 6,726,506 | | | | | $2,825,133 | | | $366.70 | | | 6,726,506 | | | | | $2,825,133 | | | $366.70(5) |
(1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares offered hereby also include an indeterminate number of additional shares of common stock as may from time to time become issuable by reason of stock splits, stock dividends, recapitalizations or other similar transactions. |
(2) | Estimated solely for the purpose of calculating the registration pursuant to Rule 457(c) under the Securities Act, based upon the average of the high and low prices reported on the Nasdaq Capital Market on April 27, 2020. |
(3) | Represents shares of common stock issuable upon exercise of certain warrants to purchase common stock, at an exercise price currently fixed at $0.3726 per share, to be offered and sold by the selling stockholders identified in this registration statement. |
(4) | Represents shares of common stock issuable upon exercise of certain warrants to purchase common stock, at an exercise price currently fixed at $0.3715 per share, to be offered and sold by the selling stockholders identified in this registration statement. |
(5) | Previously paid with the original filing of this registration statement. |
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 5, 2020; |
• | our Current Reports on Form 8-K filed with the SEC on January 29, 2020, March 20, 2020, March 30, 2020, April 23, 2020 and |
• | the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2019 from our definitive proxy statement for the annual meeting of stockholders to be held on May 20, 2020, filed with the SEC on April 13, 2020. |
• | the description of our common stock in our registration statement on Form 10 filed with the SEC on September 30, 2011, including any amendment or report filed for the purpose of updating such description; and |
• | the description of our Series A Junior Participating Preferred Stock, par value $0.0001 per share, in our registration statement on Form 8-A filed with the SEC on June 14, 2013. |
• | Removes isotonic fluid (extracts sodium while sparing potassium and magnesium)2; |
• | Following ultrafiltration, neurohormonal activation is reset toward a more physiological condition and diuretic efficacy is restored3; |
• | Decreased hospital readmissions and duration4 resulting in cost savings at 90 days5. |
1 | SAFE Trial: Jaski BE, et al. J Card Fail. 2003 Jun; 9(3): 227-231; RAPID Trial: Bart BA, et al. J Am Coll Cardiol. 2005 Dec 6; 46(11): 2043-2046 |
2 | Ali SS, et al. Congest Heart Fail. 2009; 15(1):1-4. |
3 | Marenzi G, et al. J Am Coll Cardiol. 2001 Oct; 38(4): 963-968. |
4 | Costanzo MR, et al. J Am Coll Cardiol. 2005 Dec 6; 46(11): 2047-2051. |
5 | Costanzo MR, et al. Ultrafiltration vs. Diuretics for the Treatment of Fluid Overload in Patients with Heart Failure: A Hospital Cost Analysis. |
• | on or subsequent to that date, the business combination is approved by our board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 662∕3% of the outstanding voting stock that is not owned by the interested stockholder. |
| | Beneficial Ownership Before This Offering | | | Beneficial Ownership After This Offering | ||||||||||
Selling Stockholder(1) | | | Number of Shares Owned | | | Percentage of Outstanding Shares(2) | | | Shares Offered Hereby | | | Number of Shares Owned | | | Percentage of Outstanding Shares |
Anson Investments Master Fund LP(3) | | | 6,268,123 | | | 17.24% | | | 3,363,253 | | | 4,985,566 | | | 12.97% |
Empery Asset Master, LTD(4) | | | 3,421,935 | | | 9.58% | | | 1,648,117 | | | 2,116,835 | | | 5.66% |
Empery Tax Efficient, LP(5) | | | 560,579 | | | 1.54% | | | 315,177 | | | 315,177 | | | * |
Empery Tax Efficient II, LP(6) | | | 2,414,571 | | | 6.79% | | | 1,399,959 | | | 1,399,959 | | | 4.38% |
Total: | | | 12,665,208 | | | 35.15% | | | 6,726,506 | | | 8,817,537 | | | 23.01% |
* | Represents beneficial ownership of less than one percent (1%) of the outstanding shares of our common stock. |
(1) | This table and the information in the notes below are based upon information supplied by the Selling Stockholders and are based on shares of common stock outstanding as of April 24, 2020. Only those shares issuable upon exercise of the Warrants are being registered for resale pursuant to this registration statement, and not any other securities held by the Selling Stockholders. Beneficial ownership is determined in accordance with Rule 13d-3 under the Securities Act, and includes any shares as to which the Selling Stockholder has sole or shared voting power or investment power, and also any shares which the Selling Stockholder has the right to acquire within 60 days of the date hereof, whether through the exercise or conversion of any stock option, convertible security, warrant or other right. The indication herein that shares are beneficially owned is not an admission on the part of the Selling Stockholder that he, she or it is a direct or indirect beneficial owner of those shares. |
(2) | All convertible securities of the Company held by the Selling Stockholders are subject to beneficial ownership limitations such that the shares of warrants may not be converted or exercised, respectively, if it would result in the holder exceeding the beneficial ownership limitation. The beneficial ownership limitation is either 4.99% or 9.99% for each Selling Stockholder. |
(3) | Includes 339,756 shares of common stock disclosed on a 13G filed by Anson Funds Management LP on February 14, 2020 with the Securities and Exchange Commission and excludes 432,398 of warrants that are not currently exercisable due to a beneficial ownership limitation of 4.99%. Represents (i) 2,080,696 shares of common stock purchased in the Company’s registered direct offering on March 23, 2020, (ii) 2,080,696 warrants to purchase common stock purchased pursuant to the Company’s private placement of shares on March 23, 2020, (iii) 2,565,114 shares of common stock purchased in the Company’s registered direct offering on April 1, 2020 and (iv) 1,282,557 warrants to purchase common stock purchased to the Company’s private placement of shares on April 1, 2020. |
(4) | Includes 468,718 shares of common stock disclosed on a 13G filed by Empery Asset Management, LP on February 3, 2020 with the Securities and Exchange Commission and excludes 1,302,511 shares of common stock issued upon conversion of preferred stock of the Company and 1,771,229 shares of common stock issuable upon exercise of certain warrants issued by the Company, each of which are subject to beneficial ownership limitations and are disclosed on the 13G filed on February 3, 2020. Represents (i) 995,567 shares of common stock purchased in the Company’s registered direct offering on March 23, 2020, (ii) 995,567 warrants to purchase common stock purchased pursuant to the Company’s private placement of shares on March 23, 2020, (iii) 1,305,100 shares of common stock purchased in the Company’s registered direct offering on April 1, 2020 and (iv) 652,550 warrants to purchase common stock purchased to the Company’s private placement of shares on April 1, 2020. The percentage in this table reflects that the reporting persons may not exercise the warrants to the extent such exercise would cause the reporting persons to beneficially own a number of shares of common stock that would exceed 4.99% of our then outstanding common stock following such exercise; provided, however, that upon prior notice to us, such holder may increase its ownership, provided that in no event will the ownership exceed 9.99%. |
(5) | Represents (i) 192,476 shares of common stock purchased in the Company’s registered direct offering on March 23, 2020, (ii) 192,476 warrants to purchase common stock purchased pursuant to the Company’s private placement of shares on March 23, 2020, (iii) 245,402 shares of common stock purchased in the Company’s registered direct offering on April 1, 2020 and (iv) 122,701 warrants to purchase common stock purchased to the Company’s private placement of shares on April 1, 2020. The percentage in this table reflects that the reporting persons may not exercise the warrants to the extent such exercise would cause the reporting persons to beneficially own a number of shares of common stock that would exceed 4.99% of our then outstanding common stock following such exercise; provided, however, that upon prior notice to us, such holder may increase its ownership, provided that in no event will the ownership exceed 9.99%. |
(6) | Represents (i) 892,653 shares of common stock purchased in the Company’s registered direct offering on March 23, 2020, (ii) 892,653 warrants to purchase common stock purchased pursuant to the Company’s private placement of shares on March 23, 2020, (iii) 1,014,612 shares of common stock purchased in the Company’s registered direct offering on April 1, 2020 and (iv) 507,306 warrants to purchase common stock purchased to the Company’s private placement of shares on April 1, 2020. The percentage in this table reflects that the reporting persons may not exercise the warrants to the extent such exercise would cause the reporting persons to beneficially own a number of shares of common stock that would exceed 4.99% of our then outstanding common stock following such exercise; provided, however, that upon prior notice to us, such holder may increase its ownership, provided that in no event will the ownership exceed 9.99%. |
Item 13. | Other Expenses of Issuance and Distribution. |
| | Amount to be Paid | |
SEC registration fee | | | $367 |
Legal fees and expenses | | | $20,000 |
Printing expenses | | | $5,000 |
Accounting fees and expenses | | | $15,000 |
Transfer agent and registrar fees | | | $7,500 |
Miscellaneous expenses | | | $2,133 |
Total | | | $50,000 |
Item 14. | Indemnification of Directors and Officers. |
Item 15. | Recent Sales of Unregistered Securities. |
Item 16. | Exhibits and Financial Statement Schedules. |
| | | | Incorporated By Reference | | | | | ||||||||||
Exhibit Number | | | Exhibit Description | | | Form | | | File Number | | | Date of First Filing | | | Exhibit Number | | | Filed Herewith |
| | Asset Purchase Agreement between Sunshine Heart, Inc. and Gambro UF Solutions, Inc. dated August 5, 2016 | | | 8-K | | | 001-35312 | | | August 8, 2016 | | | 2.1 | | | ||
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| | Fourth Amended and Restated Certificate of Incorporation | | | 10 | | | 001-35312 | | | February 1, 2012 | | | 3.1 | | | ||
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| | Certificate of Amendment to the Fourth Amended and Restated Certificate of Incorporation | | | 8-K | | | 001-35312 | | | January 13, 2017 | | | 3.1 | | | ||
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| | Certificate of Amendment to Fourth Amended and Restated Certificate of Incorporation | | | 8-K | | | 001-35312 | | | May 23, 2017 | | | 3.1 | | | ||
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| | Certificate of Amendment to Fourth Amended and Restated Certificate of Incorporation | | | 8-K | | | 001-35312 | | | October 12, 2017 | | | 3.1 | | | ||
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| | Certificate of Amendment to Fourth Amended and Restated Certificate of Incorporation | | | 8-K | | | 001-35312 | | | January 2, 2019 | | | 3.1 | | | ||
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| | Second Amended and Restated Bylaws | | | 8-K | | | 001-35312 | | | May 23, 2017 | | | 3.2 | | | ||
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| | Form of Certificate of Designation of Series A Junior Participating Preferred Stock | | | 8-K | | | 001-35312 | | | June 14, 2013 | | | 3.1 | | | ||
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| | Form of Certificate of Designation of Preferences, Rights and Limitations of Series F Convertible Preferred Stock | | | S-1/A | | | 333-221010 | | | November 17, 2017 | | | 3.7 | | | ||
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| | Certificate of Designation of Preferences, Rights and Limitations of Series G Convertible Preferred Stock | | | 8-K | | | 001-35312 | | | March 13, 2019 | | | 3.1 | | | ||
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| | Certificate of Designation of Preferences, Rights and Limitations of Series H Convertible Preferred Stock | | | 8-K | | | 001-35312 | | | January 29, 2020 | | | 3.1 | | | ||
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| | Warrant to Purchase Stock, dated February 18, 2015, issued to Silicon Valley Bank | | | 8-K | | | 001-35312 | | | February 19, 2015 | | | 4.1 | | | ||
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| | Warrant to Purchase Stock, dated February 18, 2015, issued to Life Science Loans, LLC | | | 8-K | | | 001-35312 | | | February 19, 2015 | | | 4.2 | | | ||
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| | | | Incorporated By Reference | | | | | ||||||||||
Exhibit Number | | | Exhibit Description | | | Form | | | File Number | | | Date of First Filing | | | Exhibit Number | | | Filed Herewith |
| | Form of common stock Purchase Warrant issued pursuant to the Securities Purchase Agreement, dated July 20, 2016, among the Company and the purchasers signatory thereto | | | 8-K | | | 001-35312 | | | July 22, 2016 | | | 4.2 | | | ||
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| | Form of common stock Purchase Warrant issued to Northland Securities, Inc. | | | 8-K | | | 001-35312 | | | July 22, 2016 | | | 4.3 | | | ||
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| | Registration Rights Agreement between Sunshine Heart, Inc. and Gambro UF Solutions, Inc. dated August 5, 2016 | | | 8-K | | | 001-35312 | | | August 8, 2016 | | | 4.1 | | | ||
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| | Form of common stock Purchase Warrant issued pursuant to the Securities Purchase Agreement, dated October 30, 2016, among the Company and the purchasers signatory thereto | | | 8-K | | | 001-35312 | | | October 31, 2016 | | | 4.1 | | | ||
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| | Form of common stock Purchase Warrant issued pursuant to the Letter Agreement between the Company and the purchasers signatory thereto, dated February 15, 2017 | | | 8-K | | | 001-35312 | | | February 16, 2017 | | | 4.1 | | | ||
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| | Form of common stock Purchase Warrant issued pursuant to the Underwriting Agreement between the Company and Ladenburg Thalmann & Co. Inc., dated April 19, 2017 | | | S-1/A | | | 333-216841 | | | April 4, 2017 | | | 4.8 | | | ||
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| | Form of Warrant to purchase shares of common stock | | | S-1/A | | | 333-221010 | | | November 17, 2017 | | | 4.9 | | | ||
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| | Form of Series 1 and Series 2 Warrant to Purchase Shares of Common Stock | | | S-1/A | | | 333-209102 | | | February 25, 2019 | | | 4.10 | | | ||
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| | Common Stock Purchase Warrant, dated May 30, 2019, between the Company and Redington, Inc. | | | 10-Q | | | 001-35312 | | | August 8, 2019 | | | 4.1 | | | ||
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| | Form of common stock Purchase Warrant issued pursuant to the Securities Purchase Agreement, dated October 23, 2019, among the Company and the purchasers signatory thereto | | | 8-K | | | 001-35312 | | | October 23, 2019 | | | 4.1 | | | ||
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| | Form of common stock Purchase Warrant issued pursuant to the Securities Purchase Agreement, dated November 4, 2019, among the Company and the purchasers signatory thereto | | | 8-K | | | 001-35312 | | | November 4, 2019 | | | 4.1 | | | ||
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| | | | Incorporated By Reference | | | | | ||||||||||
Exhibit Number | | | Exhibit Description | | | Form | | | File Number | | | Date of First Filing | | | Exhibit Number | | | Filed Herewith |
| | Form of common stock Pre-Funded Purchase Warrant issued pursuant to the Securities Purchase Agreement, dated November 4, 2019, among the Company and the purchasers signatory thereto | | | 8-K | | | 001-35312 | | | November 4, 2019 | | | 4.2 | | | ||
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| | Form of Common Stock Purchase Warrant | | | S-1/A | | | 333-235385 | | | January 23, 2020 | | | 4.15 | | | ||
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| | Form of common stock Purchase Warrant issued pursuant to the Securities Purchase Agreement, dated March 19, 2020, among the Company and the purchasers identified on the signature pages thereto | | | 8-K | | | 001-35312 | | | March 20, 2020 | | | 4.1 | | | ||
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| | Form of common stock Purchase Warrant issued pursuant to the Securities Purchase Agreement, dated March 30, 2020, among the Company and the purchasers identified on the signature pages thereto | | | 8-K | | | 001-35312 | | | March 30, 2020 | | | 4.1 | | | ||
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| | Opinion of Honigman LLP | | | | | | | | | | | X | |||||
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| | Patent License Agreement between Sunshine Heart, Inc. and Gambro UF Solutions, Inc. dated August 5, 2016 | | | 8-K | | | 001-35312 | | | August 8, 2016 | | | 10.1 | | | ||
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| | Loan and Security Agreement between Sunshine Heart, Inc. and Silicon Valley Bank dated August 5, 2016 | | | 8-K | | | 001-35312 | | | August 8, 2016 | | | 10.2 | | | ||
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| | Amended and Restated 2002 Stock Plan† | | | 10 | | | 001-35312 | | | December 16, 2011 | | | 10.2 | | | ||
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| | Form of Notice of Stock Option Grant and Option Agreement for Amended and Restated 2002 Stock Plan† | | | 10 | | | 001-35312 | | | September 30, 2011 | | | 10.3 | | | ||
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| | Second Amended and Restated 2011 Equity Incentive Plan, as amended† | | | 14A | | | 001-35312 | | | July 27, 2012 | | | App. A | | | ||
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| | Form of Stock Option Grant Notice and Option Agreement for 2011 Equity Incentive Plan† | | | 10 | | | 001-35312 | | | September 30, 2011 | | | 10.5 | | | ||
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| | Form of Stock Option Grant Notice and Option Agreement (Senior Management) for 2011 Equity Incentive Plan† | | | 10 | | | 001-35312 | | | September 30, 2011 | | | 10.6 | | | ||
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| | Form of Stock Option Grant Notice and Option Agreement (Director) for 2011 Equity Incentive Plan† | | | 8-K | | | 001-35312 | | | September 18, 2012 | | | 10.1 | | | ||
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| | | | Incorporated By Reference | | | | | ||||||||||
Exhibit Number | | | Exhibit Description | | | Form | | | File Number | | | Date of First Filing | | | Exhibit Number | | | Filed Herewith |
| | Form of Stock Grant Notice and Award Agreement for 2011 Equity Incentive Plan† | | | 8-K | | | 001-35312 | | | September 10, 2013 | | | 10.1 | | | ||
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| | Form of Restricted Stock Unit Grant Notice and Agreement for 2011 Equity Incentive Plan† | | | 8-K | | | 001-35312 | | | September 10, 2013 | | | 10.2 | | | ||
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| | 2013 Non-Employee Directors’ Equity Incentive Plan† | | | 14A | | | 001-35312 | | | April 5, 2013 | | | App. A | | | ||
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| | Form of Stock Option Grant Notice and Option Agreement for 2013 Non-Employee Directors’ Equity Incentive Plan† | | | 10-K | | | 001-35312 | | | May 29, 2013 | | | 10.2 | | | ||
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| | Form of Restricted Stock Unit Award Grant Notice and Agreement for 2013 Non-Employee Directors’ Equity Incentive Plan† | | | 10-K | | | 001-35312 | | | March 20, 2015 | | | 10.11 | | | ||
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| | New-Hire Equity Incentive Plan† | | | 10-Q | | | 001-35312 | | | August 8, 2013 | | | 10.1 | | | ||
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| | First Amendment to New-Hire Equity Incentive Plan† | | | 10-Q | | | 001-35312 | | | November 12, 2013 | | | 10.1 | | | ||
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| | Second Amendment to New-Hire Equity Incentive Plan† | | | S-8 | | | 333-202904 | | | March 20, 2015 | | | 99.12 | | | ||
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| | Third Amendment to New-Hire Equity Incentive Plan† | | | S-8 | | | 333-210215 | | | March 15, 2016 | | | 99.13 | | | ||
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| | Fourth Amendment to New-Hire Equity Incentive Plan† | | | 8-K | | | 001-35312 | | | May 30, 2017 | | | 10.4 | | | ||
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| | Fifth Amendment to New-Hire Equity Incentive Plan† | | | 8-K | | | 001-35312 | | | January 18, 2018 | | | 10.1 | | | ||
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| | Form of Stock Option Grant Notice and Option Agreement for New-Hire Equity Incentive Plan† | | | 10-Q | | | 001-35312 | | | November 12, 2013 | | | 10.2 | | | ||
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| | 2017 Equity Incentive Plan† | | | 8-K | | | 001-35312 | | | May 30, 2017 | | | 10.1 | | | ||
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| | Form of Stock Option Grant Notice and Option Agreement for 2017 Equity Incentive Plan† | | | 8-K | | | 001-35312 | | | May 30, 2017 | | | 10.2 | | | ||
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| | Form of Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement for 2017 Equity Incentive Plan† | | | 8-K | | | 001-35312 | | | May 30, 2017 | | | 10.3 | | | ||
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| | Form of Indemnity Agreement for the Company’s executive officers and directors† | | | 10 | | | 001-35312 | | | September 30, 2011 | | | 10.1 | | | ||
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| | Form of Change in Control Agreement for the Company’s executive officers† | | | 10-K | | | 001-35312 | | | March 20, 2015 | | | 10.16 | | | ||
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| | | | Incorporated By Reference | | | | | ||||||||||
Exhibit Number | | | Exhibit Description | | | Form | | | File Number | | | Date of First Filing | | | Exhibit Number | | | Filed Herewith |
| | Non-Employee Director Compensation Policy† | | | 10-Q | | | 001-35312 | | | November 8, 2019 | | | 10.12 | | | ||
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| | Lease Agreement dated October 21, 2011 by and between the Company and Silver Prairie Crossroads, LLC | | | 10 | | | 001-35312 | | | December 16, 2011 | | | 10.18 | | | ||
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| | Second Amendment to Lease, dated as of April 20, 2015, by and between the Company and Capital Partners Industrial Fund I, LLLP dba Prairie Crossroads Business Center | | | 8-K | | | 001-35312 | | | April 23, 2015 | | | 10.1 | | | ||
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| | Third Amendment to Lease, dated as of August 3, 2018, by and between the Company and Capital Partners Industrial Fund I, LLLP | | | 10-Q | | | 001-35312 | | | November 7, 2018 | | | 10.2 | | | ||
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| | Executive Employment Agreement between Sunshine Heart, Inc. and John L. Erb, dated March 1, 2016† | | | 8-K | | | 001-35312 | | | March 2, 2016 | | | 10.1 | | | ||
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| | Claudia Drayton Retention Bonus Letter, dated as of December 12, 2016† | | | 8-K | | | 001-35312 | | | December 16, 2016 | | | 10.1 | | | ||
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| | Letter Agreement dated February 15, 2017 among the Company, Sabby Volatility Warrant Master Fund, Ltd. and Sabby Healthcare Master Fund, Ltd. | | | 8-K | | | 003-35312 | | | February 16, 2017 | | | 10.1 | | | ||
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| | Warrant Agency Agreement between the Company and American Stock Transfer & Trust Company, LLC dated April 24, 2017 | | | 8-K | | | 001-35312 | | | April 25, 2017 | | | 10.1 | | | ||
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| | Warrant Agency Agreement, by and between CHF Solutions, Inc. and American Stock Transfer & Trust Company, LLC dated November 27, 2017 | | | 8-K | | | 001-35312 | | | November 28, 2017 | | | 10.1 | | | ||
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| | Form of Warrant Reprice Agreement | | | 8-K | | | 001-35312 | | | June 29, 2018 | | | 10.1 | | | ||
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| | Consulting Agreement, dated as of January 28, 2019, between CHF Solutions, Inc. and Steve Brandt† | | | 10-K | | | 001-35312 | | | February 21, 2019 | | | 10.44 | | | ||
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| | Warrant Agency Agreement, dated as of March 12, 2019, between the Company and American Stock Transfer & Trust Company, LLC | | | 8-K | | | 001-35312 | | | March 13, 2019 | | | 4.2 | | | ||
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| | Underwriting Agreement, dated as of March 8, 2019, by and between the Company and Ladenburg Thalmann & Co. Inc. | | | 8-K | | | 001-35312 | | | March 13, 2019 | | | 1.1 | | | ||
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| | | | Incorporated By Reference | | | | | ||||||||||
Exhibit Number | | | Exhibit Description | | | Form | | | File Number | | | Date of First Filing | | | Exhibit Number | | | Filed Herewith |
| | Form of Employee Proprietary Information, Inventions Assignment and Non-Competition Agreement for the Company’s employees, including executive officers† | | | 10-Q | | | 001-35312 | | | May, 9, 2019 | | | 10.3 | | | ||
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| | Offer Letter, by and between the Company and Claudia Drayton, dated December 9, 2014† | | | 10-Q | | | 001-35312 | | | May 9, 2019 | | | 10.4 | | | ||
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| | Offer Letter, by and between the Company and Nestor Jaramillo, dated May 7, 2019† | | | 10-Q | | | 001-35312 | | | May 9, 2019 | | | 10.5 | | | ||
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| | Sixth Amendment to New-Hire Equity Incentive Plan† | | | 10-Q | | | 001-35312 | | | August 8, 2019 | | | 10.2 | | | ||
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| | Placement Agency Agreement, dated as of October 23, 2019, by and between the Company and Ladenburg Thalmann & Co. Inc. | | | 8-K | | | 001-35312 | | | October 23, 2019 | | | 1.1 | | | ||
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| | Form of Securities Purchase Agreement, dated as of October 23, 2019, by and among the Company and the purchasers identified on the signature pages thereto | | | 8-K | | | 001-35312 | | | October 23, 2019 | | | 10.1 | | | ||
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| | Placement Agency Agreement, dated as of November 4, 2019, by and between the Company and Ladenburg Thalmann & Co. Inc. | | | 8-K | | | 001-35312 | | | November 4, 2019 | | | 1.1 | | | ||
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| | Form of Securities Purchase Agreement, dated as of November 4, 2019, by and among the Company and the purchasers identified on the signature pages thereto | | | 8-K | | | 001-35312 | | | November 4, 2019 | | | 10.1 | | | ||
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| | Non-Employee Director Compensation Policy† | | | 10-Q | | | 001-35312 | | | November 8, 2019 | | | 10.1 | | | ||
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| | Seventh Amendment to New-Hire Equity Incentive Plan† | | | 8-K | | | 001-35312 | | | December 6, 2019 | | | 10.1 | | | ||
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| | Underwriting Agreement dated as of January 24, 2020, by and between the Company and Ladenburg Thalmann & Co. Inc. | | | 8-K | | | 001-35312 | | | January 29, 2020 | | | 1.1 | | | ||
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| | Warrant Agency Agreement, dated as of January 28, 2020, between the Company and American Stock Transfer & Trust Company, LLC | | | 8-K | | | 001-35312 | | | January 29, 2020 | | | 4.2 | | | ||
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| | Placement Agency Agreement, dated as of March 19, 2020, by and between the Company and Ladenburg Thalmann & Co. Inc. | | | 8-K | | | 001-35312 | | | March 20, 2020 | | | 1.1 | | | ||
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| | | Incorporated By Reference | | | | | | | Incorporated By Reference | | | | |||||||||||||||||||||||
Exhibit Number | | Exhibit Description | | Form | | File Number | | Date of First Filing | | Exhibit Number | | Filed Herewith | | Exhibit Description | | Form | | File Number | | Date of First Filing | | Exhibit Number | | Filed Herewith | ||||||||||||
| Form of Securities Purchase Agreement, dated as of March 19, 2020, by and among the Company and the purchasers identified on the signature pages thereto | | 8-K | | 001-35312 | | March 20, 2020 | | 10.1 | | | Form of Securities Purchase Agreement, dated as of March 19, 2020, by and among the Company and the purchasers identified on the signature pages thereto | | 8-K | | 001-35312 | | March 20, 2020 | | 10.1 | | |||||||||||||||
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| Placement Agency Agreement, dated as of March 30, 2020, by and between the Company and Ladenburg Thalmann & Co. Inc. | | 8-K | | 001-35312 | | March 30, 2020 | | 1.1 | | | Placement Agency Agreement, dated as of March 30, 2020, by and between the Company and Ladenburg Thalmann & Co. Inc. | | 8-K | | 001-35312 | | March 30, 2020 | | 1.1 | | |||||||||||||||
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| Form of Securities Purchase Agreement, dated as of March 30, 2020, by and among the Company and the purchasers identified on the signature pages thereto | | 8-K | | 001-35312 | | March 30, 2020 | | 10.1 | | | Form of Securities Purchase Agreement, dated as of March 30, 2020, by and among the Company and the purchasers identified on the signature pages thereto | | 8-K | | 001-35312 | | March 30, 2020 | | 10.1 | | |||||||||||||||
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| List of Subsidiaries | | 10-K | | 001-35312 | | March 5, 2020 | | 21 | | | List of Subsidiaries | | 10-K | | 001-35312 | | March 5, 2020 | | 21 | | |||||||||||||||
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| Consent of Baker Tilly Virchow Krause, LLP | | | | | | X | | Consent of Baker Tilly Virchow Krause, LLP | | | | | | X | |||||||||||||||||||||
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| Consent of Honigman LLP | | | | | | Included in Exhibit 5.1 | | Consent of Honigman LLP | | | | | | Included in Exhibit 5.1 | |||||||||||||||||||||
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| Power of Attorney (included on signature page) | | | | | | X | | Power of Attorney (included on signature page) | | S-1 | | 333-237911 | | April 29, 2020 | | 24.1 | |
† | Indicates management compensatory plan, contract or arrangement. |
Item 17. | Undertakings. |
1. | The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
2. | The undersigned registrant hereby undertakes to remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering. |
3. | The undersigned registrant hereby undertakes that, for the purposes of determining liability to any purchaser: |
4. | Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the undersigned registrant according the foregoing provisions, or otherwise, the undersigned registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the |
| | CHF SOLUTIONS, INC. | ||||
| | | | |||
| | By: | | | /s/ John L. Erb | |
| | | | John L. Erb | ||
| | | | Chief Executive Officer and Chairman of the Board |
Signature | | | Title | | | Date |
| | | | |||
/s/ John L. Erb | | | Principal Executive Officer and Chairman of the Board | | | |
John L. Erb | | | ||||
| | | | |||
/s/ Claudia Drayton | | | Principal Financial Officer and Principal Accounting Officer | | | |
Claudia Drayton | | | ||||
| | | | |||
| | Director | | | ||
Steve Brandt | | | | | ||
| | | | |||
| | Director | | | ||
Maria Rosa Costanzo | | | | | ||
| | | | |||
| | Director | | |||
Jon W. Salveson | | | | | ||
| | | | |||
| | Director | | | ||
Gregory Waller | | | | | ||
| | | | |||
| | Director | | | ||
Warren Watson | | | | |
*By: | | | | | /s/ John L. Erb | | | ||
| | | | John L. Erb Attorney-in-Fact | | |