Biora Therapeutics Inc. filed SEC Form 8-K: Unregistered Sales of Equity Securities, Entry into a Material Definitive Agreement
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Explanatory Note
On October 18, 2024, Biora Therapeutics, Inc. (the “Company”) effected a 1-for-10 reverse stock split of its shares of common stock, par value $0.001 per share (the “Common Stock”). All share and per share information included in this Current Report on Form 8-K has been retroactively adjusted to reflect such reverse stock split.
| Item 1.01 | Entry into a Material Definitive Agreement. |
Registered Direct Offering
On October 28, 2024, the Company entered into a securities purchase agreement with certain institutional and accredited investors (the “Purchase Agreement”) relating to (1) the offering and sale of an aggregate of 745,342 shares (the “Shares”) of Common Stock at an offering price of $4.025 per share in a registered direct offering (the “Offering”) and (2) the issuance of unregistered warrants to purchase up to 745,342 shares of Common Stock (the “Warrants”) with an exercise price of $3.90 to certain accredited investors in a concurrent private placement (the “Private Placement”). The Offering and the Private Placement closed on October 29, 2024 (the “Closing Date”).
The Company received gross proceeds from the Offering of approximately $3 million before deducting placement agent fees and estimated offering expenses.
The Shares are being offered and sold to the public pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-279539) initially filed with the Securities and Exchange Commission (the “Commission”) on May 20, 2024 and declared effective on May 31, 2024. A prospectus supplement relating to the Offering was filed with the Commission on October 29, 2024 (the “Prospectus Supplement”). The Warrants and shares of Common Stock issuable upon exercise of the Warrants were offered pursuant to an exemption provided under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506(b) promulgated thereunder. Each purchaser was an “accredited investor” as such term is defined in Rule 501(a) under the Securities Act.
Pursuant to an engagement letter dated as of October 22, 2024, between the Company and H.C. Wainwright & Co., LLC (the “Placement Agent”), the Company agreed to pay the Placement Agent a total cash fee equal to 6.0% of the aggregate gross proceeds from the Offering. The Company also agreed to pay the Placement Agent $25,000 for non-accountable expenses, up to $50,000 of legal counsel and other out-of-pocket expenses and up to $15,950 for closing costs.
The Purchase Agreement contains customary representations, warranties and agreements by the Company and customary conditions to closing. In addition, until 45 days after the Closing Date (the “Restricted Period”), the Company has agreed not to issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock or file any registration statement or amendment or supplement thereto, other than (i) the Prospectus Supplement; (ii) a registration statement for the registration for resale all shares of Common Stock issuable upon conversion or exercise of, or otherwise issuable pursuant to, the notes or the warrants issued pursuant to the convertible notes exchange agreement, dated August 12, 2024, between the Company and the holders named therein, or the convertible notes purchase agreement, dated August 12, 2024, between the Company and the holders named therein, including, for the avoidance of doubt, in respect of interest amounts payable on the notes in accordance with the terms thereof; (iii) a registration statement on Form S-8 in connection with any employee benefit plan; and (iv) any filings pursuant to the Warrant Amendment Agreements (as defined below). Notwithstanding the foregoing, during the Restricted Period the Company may issue (a) shares of Common Stock or options to current employees, officers or directors pursuant to a stock or option plan duly adopted for such purpose; (b) securities upon the exercise or exchange of or conversion of any securities issued pursuant to the Purchase Agreement, warrants to the Placement Agent in connection with the transactions pursuant to the Purchase Agreement and any shares of Common Stock upon exercise of the warrants to the Placement Agent, if applicable; (c) shares of Common Stock upon the exercise or exchange of or conversion of securities exercisable or exchangeable for or convertible into shares of Common Stock issued or outstanding as of the date of the Purchase Agreement; (d) securities issued pursuant to certain acquisitions or strategic transactions; (e) shares of Common Stock or Common Stock equivalents to holders of the Company’s 7.25% Convertible Senior Notes due 2025 and/or 11.00% / 13.00% Convertible Senior Secured Notes due 2028 (collectively, the “Notes”) in connection with refinancing or restructuring of the Notes, provided that such securities are issued as “restricted securities” (as defined in Rule 144) or are restricted from transfer during the Restricted Period pursuant to a written agreement with the Company and carry no registration rights during the Restricted Period; or (f) securities pursuant to the Warrant Amendment Agreements.
The Company agreed to indemnify the Placement Agent against certain liabilities relating to or arising out of the Placement Agent’s activities under the engagement letter and to contribute to payments that the Placement Agent may be required to make in respect of such liabilities.
The foregoing description of the Purchase Agreement is qualified in its entirety by reference to the full text of the form of Purchase Agreement, which is attached to this Current Report on Form 8-K as Exhibit 10.1 and incorporated herein by reference in its entirety.
The Company notes that the representations, warranties and covenants made by the Company in any agreement that is filed as an exhibit to any document that is incorporated by reference in the Prospectus Supplement or the accompanying base prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to or in favor of any stockholder or potential stockholder of the Company other than the parties thereto. In addition, the assertions embodied in any representations, warranties and covenants contained in such agreements may be subject to qualifications with respect to knowledge and materiality different from those applicable to security holders generally. Moreover, such representations, warranties or covenants were accurate only as of the date when made, except where expressly stated otherwise. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of the Company’s affairs at any time.
The Prospectus Supplement relating to the Offering was filed with the Commission and is available on the Commission’s web site at http://www.sec.gov. Copies of the Prospectus Supplement may also be obtained from the web site maintained by the Placement Agent, and the Placement Agent may distribute the Prospectus Supplement electronically.
An opinion of Gibson, Dunn & Crutcher LLP regarding the validity of the Shares is filed as Exhibit 5.1.
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy, and these securities cannot be sold in any state or jurisdiction in which this offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any state or jurisdiction. Any offer will be made only by means of a prospectus, including a prospectus supplement, forming a part of the effective registration statement.
Warrants
The Warrants have an exercise price of $3.90 per share and are exercisable at any time on or after the date of issuance until October 29, 2029. The Warrants are subject to certain exercise limitations, including a limitation on the ability to exercise if the holder’s beneficial ownership of Common Stock (together with its affiliates and certain attribution parties) would exceed certain beneficial ownership limitations up to 9.99%.
The foregoing description of the Warrants is qualified in its entirety by reference to the full text of the form of Warrant, which is attached to this Current Report on Form 8-K as Exhibit 4.1 and incorporated herein by reference in its entirety.
Warrant Amendments
In addition, on October 28, 2024, the Company entered into Warrant Amendment Agreements (the “Warrant Amendment Agreements”) with the institutional investors participating in the Offering to amend outstanding warrants previously issued in (i) November 2022 to purchase up to 98,490 shares of Common Stock with an exercise price of $82.20 per share, which were subsequently amended in March 2024 to lower the exercise price to $11.00 per share; (ii) January 2023 to purchase up to 9,000 shares of Common Stock with an exercise price of $82.20 per share, which were subsequently amended in March 2024 to lower the exercise price to $11.00 per share; (iii) June 2023 to purchase 150,944 shares of Common Stock with an exercise price of $50.50 per share, which were subsequently amended in March 2024 to lower the exercise price to $11.00 per share; and (iv) April 2024 to purchase 272,728 shares of Common Stock with an exercise price of $11.00 per share.
Accordingly, the Company agreed to (i) lower the exercise price of such existing warrants to $3.90 per share and (ii) extend the original expiration date of such existing warrants to October 29, 2029.
| Item 3.02 | Unregistered Sales of Equity Securities |
To the extent required by Item 3.02 of Form 8-K, the information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| 4.1 | Form of October 2024 Private Placement Warrant | |
| 5.1 | Opinion of Gibson, Dunn & Crutcher LLP | |
| 10.1 | Form of Securities Purchase Agreement | |
| 23.1 | Consent of Gibson, Dunn & Crutcher, LLP (contained in Exhibit 5.1) | |
| 104 | Cover Page Interactive Data File (formatted in Inline XBRL and contained in Exhibit 101) | |
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 thereunto duly authorized.
| Biora Therapeutics, Inc. | ||||||
| Date: October 29, 2024 | By: | /s/ Eric d’Esparbes | ||||
| Eric d’Esparbes | ||||||
| Chief Financial Officer | ||||||