ProSomnus Inc. filed SEC Form 8-K: Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation, Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing, Unregistered Sales of Equity Securities, Financial Statements and Exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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| TheStock Market LLC (1) |
(1) On April 24, 2024, the Nasdaq Stock Market LLC filed a Form 25 to delist the Company’s common stock and warrants and remove such securities from registration under Section 12(b) of the Securities Exchange Act of 1934, as amended. Effective April 18, 2024, the Company’s common stock and warrants have been traded on the over-the-counter market under the symbols “OSAP” and “OSAPW”, respectively.
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Item 1.01. Entry into a Material Definitive Agreement
On April 29, 2024, ProSomnus, Inc. (the “Company”) issued and sold to certain existing ProSomnus investors an additional $2,000,000 aggregate principal amount of the Company’s Senior Secured Convertible Notes due December 6, 2025 (the “Additional Notes”) related to that certain Indenture, dated December 6, 2022, as supplemented by the First Supplemental Indenture entered into on June 29, 2023 (the “First Supplemental Indenture”) and the Second Supplemental Indenture entered into on September 20, 2023 (the “Second Supplemental Indenture”), by and among the Company, ProSomnus Holdings, Inc. and ProSomnus Sleep Technologies, Inc., as guarantors (the “Subsidiary Guarantors”), and Wilmington Trust, National Association, as trustee and collateral agent (as so supplemented, the “Indenture”). The Company previously issued $2,000,000 aggregate principal amount of Additional Notes on April 19, 2024. In connection with the issuance of the Additional Notes, the Company entered into agreements with certain of the holders of its other series of existing convertible notes, including the holders of the Existing Notes (as defined below) to, among other things, consent to the issuance of such Additional Notes.
Subject to certain modifications, the terms of the Additional Notes are substantially identical to the Company’s Senior Secured Convertible Notes due December 6, 2025 previously issued under the Indenture (the “Existing Notes”). The Additional Notes bear interest at a rate of 9% per annum and interest on the Additional Notes is payable in cash quarterly in arrears on January 1, April 1, July 1 and October 1 of each year, commencing on October 1, 2024. Consistent with the terms of the Existing Notes, the Additional Notes will mature on December 6, 2025, subject to earlier conversion, redemption or repurchase, are guaranteed by the Subsidiary Guarantors and are secured, on a pari passu first lien basis with the Existing Notes and the Company’s Senior Secured Convertible Exchange Notes due December 6, 2025 issued on October 11, 2023, by substantially all of the tangible and intangible assets (other than certain excluded assets) of the Company and the Subsidiary Guarantors, as set forth in the Senior Security Agreement, dated December 6, 2022, by and among the Company, the Subsidiary Guarantors and Wilmington Trust, National Association, as collateral agent.
The description of the Additional Notes is qualified in its entirety by reference to the text of the Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, and the Additional Notes, which are filed as Exhibits 4.1, 4.2, 4.3 and 4.4 hereto, respectively, and are incorporated by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As previously disclosed on the Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on April 18, 2024, the Nasdaq Stock Market LLC (“Nasdaq”) has suspended the trading of the common stock and warrants of the Company, because the Company was not in compliance with Nasdaq’s minimum market value of listed securities of $50,000,000, Nasdaq’s minimum market value of publicly held shares of $15,000,000, or Nasdaq’s minimum bid price requirement of $1.00, each of which was required for continued listing on Nasdaq. The Company’s securities were suspended from trading on Nasdaq on April 18, 2024 and have not traded on Nasdaq since that time.
On April 25, 2024, Nasdaq filed a Form 25 with the SEC notifying the SEC of Nasdaq’s determination to remove the Company’s securities from listing on Nasdaq. The delisting will become effective ten days after the Form 25 was filed.
The Company’s common stock and warrants have been traded on the over-the-counter market under the symbols “OSAP” and “OSAPW”, respectively, following the suspension from Nasdaq. The Company expects that the final delisting action by Nasdaq will have no practical effect on the trading of its securities on the over-the-counter market.
Item 3.02. Unregistered Sales of Equity Securities.
The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.
The offering of the Additional Notes was not registered under the Securities Act of 1933, as amended (the “Securities Act”). The offer and sale of the Additional Notes was made in reliance on an exemption from registration under the Securities Act pursuant to Section 4(a)(2) promulgated thereunder.
Item 9.01. Financial Statements and Exhibits.
d) Exhibits.
SIGNATURE
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: April 30, 2024 | PROSOMNUS, INC. | |
| By: | /s/ Brian B. Dow | |
| Name: | Brian B. Dow | |
| Title: | Chief Financial Officer | |