As filed with the Securities and Exchange Commission on August 29, 2024.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S‑1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIOCARDIA, INC.
(Exact name of Registrant as specified in its charter)
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Delaware
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2836
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23-2753988
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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320 Soquel Way
Sunnyvale, California 94085
(650) 226-0120
(Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices)
Peter Altman
President and Chief Executive Officer
320 Soquel Way
Sunnyvale, California 94085
(650) 226-0120
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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Michael J. Danaher
Austin D. March
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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Ron Ben-Bassat
Eric Victorson
Sullivan & Worcester LLP
1251 Avenue of the Americas
New York, NY 10020
(212) 660-3000
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, or Securities Act, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☒
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act of 1934, or the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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 7(a)(2)(B) of the Securities Act. ☐
The Registration Statement shall become effective upon filing in accordance with Rule 462(b) promulgated under the Securities Act of 1933, as amended.
EXPLANATORY NOTE AND INCORPORATION
BY REFERENCE
BioCardia, Inc. (the “Company”) is filing this registration statement with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 462(b) under the Securities Act of 1933, as amended.
This registration statement relates to the public offering of securities contemplated by the registration statement on Form S-1, as amended (File No. 333-281448) (the “Prior Registration Statement”) which was originally filed with the SEC on August 9, 2024 and declared effective on August 29, 2024.
This registration statement covers the registration of an additional $1.2 million worth of Common Stock, or Pre-Funded Warrants, and accompanying Common Warrants, including an additional $1.2 million worth of shares of Common Stock underlying the Common Warrants, each as defined in the Prior Registration Statement.
The information set forth in the Prior Registration Statement, including all exhibits thereto, is incorporated by reference in this filing.
The required opinion and consents are listed on an Exhibit Index attached hereto and filed herewith.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale, State of California, on August 29, 2024.
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BIOCARDIA, INC.
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By:
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/s/ Peter Altman, Ph.D.
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Peter Altman, Ph.D.
President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
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Signature
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Title
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Date
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/s/ Peter Altman, Ph.D.
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President and Chief Executive Officer and Director
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August 29, 2024
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Peter Altman, Ph.D.
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(Principal Executive Officer)
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/s/ David McClung
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Chief Financial Officer
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August 29, 2024
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David McClung
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(Principal Financial and Accounting Officer)
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*
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Director
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August 29, 2024
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Andrew Blank
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*
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Director
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August 29, 2024
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Jim Allen
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*
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Director
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August 29, 2024
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Bill Facteau
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*
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Director
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August 29, 2024
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Richard Krasno, Ph.D.
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*
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Director
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August 29, 2024
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Jay M. Moyes
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*
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Director
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August 29, 2024
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Simon Stertzer, M.D.
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*Pursuant to power of attorney
By: /s/ Peter Altman
Peter Altman, Ph.D.
Attorney-in-fact
Exhibit 5.1
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Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
o: 650.493.9300
f: 650.493.6811
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August 29, 2024
BioCardia, Inc.
320 Soquel Way
Sunnyvale, California 94085
Re: Registration Statement on Form S-1 (File No. 333-281448) and Registration Statement filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended
Ladies and Gentlemen:
We have acted as counsel to BioCardia, Inc., a Delaware corporation (the “Company”), in connection with the registration of the offer and sale of up to $1,200,000 of (i) shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (“Common Stock”), (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase shares of Common Stock (the “Pre-Funded Warrant Shares”) and(iii) warrants (the “Common Warrants” and, together with the Pre-Funded Warrants, the “Warrants”) to purchase shares of Common Stock (the “Common Warrant Shares” and, together with the Pre-Funded Warrant Shares, the “Warrant Shares”) and $1,200,000 of the Warrant Shares issuable upon exercise of the Warrants, each pursuant to the Company’s Registration Statement on Form S-1 (the “Registration Statement”) filed by the Company pursuant to Rule 462(b). The Shares, the Warrants and the Warrant Shares are collectively referred to herein as the “Securities.” The Registration Statement incorporates by reference the Registration Statement on Form S-1, as amended (File No. 333-281448) (the “Prior Registration Statement”), which was declared effective on August 29, 2024, including the prospectus which forms part of the Registration Statement.
We understand that the Shares and the Warrants are to be sold to the purchasers as described in the Prior Registration Statement and pursuant to a securities purchase agreement, substantially in the form filed as an exhibit to the Prior Registration Statement, to be entered into by and among the Company and the purchasers named therein (the “Purchase Agreement”).
In our capacity as counsel to the Company, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such instruments, documents, certificates and records that we have deemed relevant and necessary for the basis of our opinions hereinafter expressed. As to questions of fact material to this opinion, we have relied on certificates or comparable documents of public officials and of officers and representatives of the Company. In our examination, we have assumed: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; (c) the truth, accuracy and completeness of the information, representations and warranties contained in the instruments, documents, certificates and records we have reviewed; (d) the legal competence of all signatories to such documents; and (e) any certificates representing the Securities will be duly executed and delivered.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set out below, we are of the opinion that:
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1.
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The Shares have been duly authorized and, when issued and delivered against payment therefor in the circumstances contemplated by the Purchase Agreement, will be validly issued, fully paid and non-assessable.
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2.
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When the Warrants have been duly executed and delivered by the Company and duly delivered to the purchasers thereof against payment therefor in the circumstances contemplated by the Purchase Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
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3.
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The Warrant Shares, when issued and delivered against payment therefor upon the exercise of the applicable Warrant in accordance with the terms therein, will be duly authorized, validly issued, fully paid and non-assessable.
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August 29, 2024
Page 2
We express no opinion as to the laws of any other jurisdiction other than the federal laws of the United States of America and the General Corporation Law of the State of Delaware and, solely as to the Warrants constituting valid and binding obligations of the Company, the laws of the State of New York.
Our opinion that any document constitutes a valid and binding obligation is qualified as to:
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a)
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limitations imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights of creditors generally;
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b)
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rights to indemnification and contribution, which may be limited by applicable law or equitable principles; and
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c)
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the effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, whether considered in a proceeding in equity or at law.
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We hereby consent to the use of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus contained in the Prior Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Sections 7 and 11 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
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Very truly yours,
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/s/ Wilson Sonsini Goodrich & Rosati, P.C.
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WILSON SONSINI GOODRICH & ROSATI
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Professional Corporation
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
BioCardia, Inc.:
We consent to the incorporation by reference in the Amendment No. 1 to the registration statement on Form S-1 pursuant to Rule 462(b) of the Securities Act of 1933 of BioCardia, Inc. of our report dated March 27, 2024, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to the consolidated balance sheets of BioCardia, Inc. as of December 31, 2023 and 2022, the related consolidated statements of operations, stockholders’ equity, and cash flows for the years ended December 31, 2023 and 2022, and the related notes, which report appears in the December 31, 2023 annual report on Form 10-K of BioCardia, Inc. We also consent to the reference to us under the heading “Experts” in such registration statement (No. 333-281448).
/s/PKF San Diego, LLP
San Diego, California
August 29, 2024
Exhibit 107
Calculation of Filing Fee Table
FORM S-1
Registration Statement Under the Securities Act of 1933
(Form Type)
BioCardia, Inc.
(Exact Name of the Registrant as Specified in its Charter)
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Table 1: Newly
Registered Securities
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Security
Type
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Security Class
Title
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Fee
Calculation
Rule
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Amount
Registered
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Proposed
Maximum
Offering
Price Per
Unit
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Maximum
aggregate
offering
price(1)
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Fee Rate
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Amount of
registration
fee
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Fees to be Paid
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Equity
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Common stock, par value $0.001 per share (“Common Stock”)
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Rule 457(o)
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$1,200,000.00(2)
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0.00014760
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$177.12
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Fees Previously Paid
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Equity
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Pre-Funded Warrants to purchase one share of Common Stock (“Pre-Funded Warrants”)(3)(4)(5)
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Rule 457(g)
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—
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—
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—
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—
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—
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Fees Previously Paid
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Equity
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Common Stock,
issuable upon the exercise of the Pre-Funded Warrants (4)(5)
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Rule 457(o)
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—
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—
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—
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—
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—
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Fees Previously Paid
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Equity
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Warrants to purchase one share of Common Stock (“Warrants”) (4)
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Rule 457(g)
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—
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—
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—
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—
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—
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Fees to be Paid
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Equity
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Common Stock,
issuable upon the exercise of the Warrants(6)
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Rule 457(o)
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$1,200,000.00(2)
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0.00014760
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$177.12
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Total Offering Amounts
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$2,400,000.00
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$354.24
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Total Fee Offsets
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$0.00
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Net Fee Due
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$354.24
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(1)
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Pursuant to Rule 416, there are also being registered an indeterminable number of additional securities as may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”).
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(3)
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The proposed maximum aggregate offering price of the shares of Common Stock proposed to be sold in the offering will be reduced on a dollar-for-dollar basis based on the aggregate offering price of the Pre-Funded Warrants offered and sold in the offering (plus the aggregate exercise price of the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants), and as such the proposed aggregate maximum offering price of the shares of Common Stock and Pre-Funded Warrants (including shares of Common Stock issuable upon exercise of the Pre-Funded Warrants), if any, is $1,200,000.
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(4)
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No separate registration fee required pursuant to Rule 457(g) under the Securities Act.
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(5)
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The registrant may issue Pre-Funded Warrants to purchase shares of Common Stock in the offering. The purchase price of each Pre-Funded Warrant will equal the price per share at which shares of Common Stock are being sold to the public in this offering, minus $0.001, which constitutes the pre-funded portion of the exercise price, and the remaining unpaid exercise price of the Pre-Funded Warrants will equal $0.001 per share of Common Stock.
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(6)
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The registration fee is calculated in accordance with Rule 457(o) under the Securities Act, based on an estimate of the proposed maximum aggregate offering price, representing the assumed exercise price of the Common Stock included in the registration statement.
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