BioVie Inc. filed SEC Form 8-K: Entry into a Material Definitive Agreement, Regulation FD Disclosure, Financial Statements and Exhibits
UNITED STATES
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Item 1.01 Entry Into a Material Definitive Agreement
On September 23, 2024, BioVie Inc. (the “Company”) entered into a placement agent agreement (the “Agreement”) with ThinkEquity LLC, as the placement agent (the “Placement Agent”), in connection with the issuance and sale (the “Offering”) directly to various investors (the “Investors”) of up to 1,960,800 shares (the “Shares”) of the Company’s class A common stock, par value $0.0001 per share (the “Common Stock”), at a public offering price to the Investors of $1.53 per share (the “Share Offering Price”) and/or pre-funded warrants (the “Pre-Funded Warrants”) to purchase shares of Common Stock (the “Pre-Funded Warrant Shares”), at a public offering price to the Investors of $1.5299 per Pre-Funded Warrant, together with class A common stock purchase warrants (“Common Warrants”) to purchase up to 1,960,800 shares of Common Stock. Each Pre-Funded Warrant is exercisable for one share of Common Stock at an exercise price of $0.0001 per share. Each Common Warrant is exercisable for one share of Common Stock at an exercise price of $1.53 per share. All of the Shares, Pre-Funded Warrants, and Common Warrants in the Offering are being offered and sold by the Company. The Company also issued a warrant to the Placement Agent (the “Placement Agent’s Warrant”), exercisable to purchase 98,040 shares of Common Stock, representing 5% of the Shares and Pre-Funded Warrants purchased at the Closing, for an aggregate purchase price of $100.00, at an exercise price of $1.9125 per share, which is equal to 125% of the Share Offering Price.
The gross proceeds from the Offering are expected to be approximately $3,000,000 before deducting placement agent fees and other offering expenses payable by the Company. The Offering expected to close on September 25, 2024.
The Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Placement Agent, including for liabilities under the Securities Act of 1933, as amended (the “Securities Act”), other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement and may be subject to limitations agreed upon by such parties.
The Offering was made pursuant to the Company’s effective registration statement on Form S-3 (File No. 333-274083) (the “Registration Statement”) and a related prospectus and prospectus supplement, in each case filed with the Securities and Exchange Commission (the “SEC”).
The legal opinion and consent of Fennemore Craig, P.C. addressing the validity of the Shares and the Pre-Funded Warrant Shares and the legal opinion and consent of Reed Smith LLP addressing the validity of the Pre-Funded Warrants and the Common Warrants are filed as Exhibit 5.1 and Exhibit 23.1 and Exhibit 5.2 and Exhibit 23.2, respectively, to this Current Report on Form 8-K and are incorporated into the Registration Statement.
The foregoing descriptions of the terms of the Pre-Funded Warrants, the Common Warrant, the Placement Agent’s Warrant and the Agreement do not purport to be complete and are each qualified in their entirety by reference to the form of Pre-Funded Warrant, the form of Common Warrant, the form of Placement Agent’s Warrant, and the Agreement, respectively, which are filed as Exhibit 4.1, Exhibit 4.2, Exhibit 4.3 and Exhibit 10.1 hereto, and are incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On September 23, 2024, the Company issued a press release announcing the Offering. A copy of the press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.
On September 23, 2024, the Company issued a press release announcing the pricing of the Offering. A copy of the press release is attached hereto as Exhibit 99.2 and incorporated by reference herein.
The information in this Item 7.01, including Exhibits 99.1 and 99.2 attached hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, and shall not be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Forward-Looking Statements
Certain of the statements made in this report are forward looking, such as those, among others, relating to the Company’s expectations regarding the timing and completion of the Offering. Actual results or developments may differ materially from those projected or implied in these forward-looking statements. Factors that may cause such a difference include risks and uncertainties related to completion of the public offering on the anticipated terms or at all, market conditions and the satisfaction of customary closing conditions related to the Offering. More information about the risks and uncertainties faced by the Company is contained under the caption “Risk Factors” in the Company’s preliminary prospectus supplement on Form 424B5 filed with the SEC on September 23, 2024. The Company disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
| * | Certain portions of this Exhibit have been omitted pursuant to Regulation S-K Item 601(a)(6) promulgated under the Exchange Act. The Registrant agrees to furnish supplementally a copy of any omitted schedule to the SEC upon request. |
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.
Dated: September 24, 2024
| BIOVIE INC. | |||
| By: | /s/ Joanne Wendy Kim | ||
| Name: | Joanne Wendy Kim | ||
| Title: | Chief Financial Officer | ||