Amendment: Tenon Medical Inc. filed SEC Form 8-K: Entry into a Material Definitive Agreement, Unregistered Sales of Equity Securities, Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year, Financial Statements and Exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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Explanatory Note
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Item 1.01. Entry into a Material Definitive Agreement.
On September 5, 2024 (the “Closing Date”), Tenon Medical, Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain investors (the “Investors”), pursuant to which the Company agreed to sell, issue and deliver to the Investors, in a private placement offering (the “Offering”), a total of 86,454 shares of the Company’s Series B Preferred Stock (the “Series B Preferred Stock”) and warrants (the “Warrants”) to purchase 16,214 shares of common stock, par value $0.001 per share, of the Company (“Common Stock”) at an exercise price equal to $4.2756 per share for an aggregate offering price of $550,000. Under the Securities Purchase Agreement, each Investor paid $6.3625 for each share of Series B Preferred Stock and along with their shares of Series B Preferred Stock, received Warrants equal to 15% of the number of shares of the Company’s common stock initially underlying such shares of Series B Preferred Stock.
The Certificate of Designations, Rights, and Preferences of the Series B Preferred Stock (the “Series B Certificate of Designations”) was filed in Delaware on the Closing Date and contains the terms of the Series B Preferred Stock. The Series B Preferred Stock is convertible, at any time, at the option of the holder into shares of Common Stock. Each share of Series B Preferred Stock shall be convertible, at any time after the date of issuance, at the option of the holder thereof (or, upon a Required Conversion (as defined below), at the option of the Corporation), into that number of shares of Common Stock determined by dividing the Stated Value (as defined below) for such share of Series B Preferred Stock by the Conversion Price (as defined below). “Stated Value” means for any share of Series B Preferred Stock, an amount equal to the product of (x) $6.3625 multiplied by (y) the sum of 1 plus the product of (A) 0.06 multiplied by (B) a fraction equal to the number of days that such share of Series B Preferred Stock has been issued divided by 365. “Conversion Price” means $5.09 per share, subject to adjustment as set forth herein. On any date that ten out the last 15 daily VWAPs of the Common Stock is 250% higher than the Conversion Price on such date, then the Company will have the right to require 50% of the Preferred Stock to be converted into shares of Common Stock. Additionally, on and after the time on which the Company has $2.25 million in revenues in any single financial quarter, the Company will have the right to require 50% of the Preferred Stock to be converted into shares of Common Stock (a “Required Conversion”). No dividends are payable on the Series B Preferred Stock. The Series B Preferred Stock will vote together with the Common Stock on all matters other than as required by law; provided however that any additional shares underlying the Series B Preferred Stock as a result of the anti-dilution provision described below shall not vote on an “as converted” basis and shall only vote when issued upon conversion. Notwithstanding the foregoing, the vote of an individual holder of Series B Preferred Stock (and underlying Common Stock) shall be capped at 9.99% (or 4.99% if selected by the holder). The Conversion Price is subject to anti-dilution adjustment as the result of any subdivision, combination of shares or recapitalization, stock dividends, stock splits and similar transactions affecting the Common Stock. In addition, the Series B Preferred Stock will have weighted average anti-dilution protection providing for adjustment of the Conversion Price in the event of issuance of, or commitments to issue, Common Stock for less than the Conversion Price then in effect immediately prior to such issue or sale (a “Dilutive Issuance”), subject to customary exceptions; provided however the anti-dilution for Dilutive Issuances shall not be operative until the stockholders of the Company have approved the terms of the Series B Preferred Stock. Upon any liquidation or winding up of the Company (a “Liquidation”), the holders of Series B Preferred Stock will be entitled to receive in preference to any other class or series of the Company’s equity securities the greater of (i) the Stated Value plus accrued and unpaid dividends and (ii) what would be paid if the Series B Preferred Stock plus accrued and unpaid dividends had been converted into Common Stock. A consolidation or merger of the Company or sale or transfer of all or substantially all of its assets, or any transaction which results in the stockholders of the Company owning less than 50% of the equity or voting power of the surviving entity (excluding the issuance of Common Stock in any financing transaction unless more than 50% of the Company’s shares are issued to one stockholder or a number of stockholders who act as a one group) shall be deemed a Liquidation (a “Deemed Liquidation”) with respect to the shares of Series B Preferred Stock of any holder who opts to have such occurrence treated as a Deemed Liquidation; provided that if the liquidation preference payable on a Deemed Liquidation is less than 110% of the stated value of the Series B Preferred Stock, the dividend rate on any accrued and unpaid dividends payable with respect to such Deemed Liquidation will increase to 10%. All liquidation preferences payable in respect of a Deemed Liquidation will be payable in shares of Common Stock based on the closing price of the Common Stock on the date of such Deemed Liquidation. Consent of the majority of the holders will be required to (i) amend the Certificate of Incorporation or Bylaws of the Company so as to adversely alter the rights, preferences, privileges of the Series B Preferred Stock, (ii) create any new class of shares pari passu or senior to the Series B Preferred Stock or increase or decrease the number of authorized shares of Common Stock or preferred stock, (iii) pay or declare any dividend on Common Stock or other junior securities, or incur indebtedness in any single transaction in excess of $1 million or (iv) redeem, purchase or otherwise acquire any share or shares of preferred stock or Common Stock (other than (a) the repurchase of shares of Common Stock pursuant to a written benefit plan or employment or consulting agreement, or (b) the repurchase of any equity securities in connection with the Company’s right of first offer with respect to those securities contained in any written agreement with the Company)
The Warrants have an initial exercise price of $4.2756 per share and a five (5) year term. Each Warrant will contain a “cashless exercise” feature and the same anti-dilution rights as the Series B Preferred Stock.
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Under the Securities Purchase Agreement the Company will be required to file a registration statement in respect of the Common Stock underlying the Series B Preferred Stock and the Warrants that will be effective within 120 days of the Closing Date.
In connection with the issuance of the Series B Preferred Stock, a majority of the holders of our Series A Preferred Stock (the “Series A Preferred Stock”) consented to the amendment (the “Amendment”) of the Certificate of Designations, Rights, and Preferences of the Series A Preferred Stock (“Series A Certificate of Designations”). The Amendment provided for (i) the Series B Preferred Stock to be issued on a pari pasu basis with the Series A Preferred Stock and (ii) the decrease of the conversion price of the Series A Preferred Stock to equal the conversion price of the Series B Preferred Stock, subject to adjustment as provided for in the Series A Certificate of Designations. The Amendment was effective as of the Closing Date.
The foregoing summaries of the Securities Purchase Agreement, the Series B Certificate of Designations, the Warrants and the Amendment do not purport to be complete and are subject to, and qualified in their entirety by, such form of documents attached as Exhibits 10.1, 10.2, 10.3, and 10.4, respectively, to this Current Report on Form 8-K (this “Report”), which are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
The Company offered and sold the Series B Preferred Stock and Warrants to the purchasers in reliance on the exemption from registration provided by Section 4(a)(2) and Regulation 506(b) under the Securities Act of 1933, as amended (the “Securities Act”).
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information set forth under Item 1.01 of this Current Report on Form 8-K with respect to the Amendment and the Series B Certificate of Designations is incorporated herein by reference
Item 9.01. Financial Statement and Exhibits.
(d) Exhibits.
| Exhibit No. | Description | |
| 10.1 | Form of Securities Purchase Agreement. | |
| 10.2 | Certificate of Designations, filed in Delaware on September 5, 2024. | |
| 10.3 | Form of Warrant. | |
| 10.4 |
Amendment to Certificate of Designations, filed in Delaware on September 5, 2024. | |
| 104 | Cover Page Interactive Data File (formatted in Inline XBRL). |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: September 9, 2024 | TENON MEDICAL, INC. | |
| By: | /s/ Steven M. Foster | |
| Name: | Steven M. Foster | |
| Title: | Chief Executive Officer and President | |
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