Vivos Therapeutics Inc. filed SEC Form 8-K: Entry into a Material Definitive Agreement, Unregistered Sales of Equity Securities, Financial Statements and Exhibits
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Item 1.01 Entry Into a Material Definitive Agreement
On September 18, 2024, Vivos Therapeutics Inc. (the “Company”) entered into a securities purchase agreement (the “Purchase Agreement”) with certain institutional investors in connection with a registered direct offering (the “Offering”), priced at-the-market under Nasdaq Stock Market rules, to purchase 1,363,812 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”) at a purchase price of $3.15 per Share. No common stock purchase warrants were offered or issued to investors in the Offering.
H.C. Wainwright & Co., LLC, pursuant an engagement agreement with the Company, dated May 2, 2024 and amended on August 2, 2024 (as amended, the “Engagement Agreement”), acted as the exclusive placement agent (the “Placement Agent”) for the Offering. Pursuant to the Engagement Agreement, the Company has agreed to (i) pay the Placement Agent a cash fee equal to 7.0% of the aggregate gross proceeds of the Offering, (ii) pay the Placement Agent a management fee of 1.0% of the aggregate gross proceeds of the Offering, and (iii) reimburse the Placement Agent for certain expenses and legal fees. In addition, the Company has also agreed to issue to the Placement Agent or its designees warrants (the “Placement Agent Warrants”) to purchase up to 95,467 shares of Common Stock (or 7% of the number of Shares sold in the Offering) at an exercise price of $3.9375 per share of Common Stock, exercisable beginning upon issuance until five years from the commencement of sales in the Offering.
The gross proceeds to the Company from the Offering are expected to be approximately $4.3 million, before deducting the Placement Agent’s fees and other offering expenses payable by the Company. The Company currently intends to use the net proceeds from the offering for working capital and general corporate purposes.
The Shares will be issued pursuant to an effective shelf registration statement on Form S-3 that was filed with the Securities and Exchange Commission (“SEC”) (File No. 333-262554) on February 7, 2022 and declared effective on February 14, 2022. A prospectus supplement relating to the Offering has been filed with the SEC. The closing of the Offering is expected to take place on September 20, 2024, subject to satisfaction of customary closing conditions.
The Purchase Agreement contains customary representations, warranties and agreements of the Company and the investors and customary indemnification rights and obligations of the parties. Pursuant to the terms of the Purchase Agreement, the Company has agreed to certain restrictions on the issuance and sale of its shares of Common Stock and securities convertible into shares of Common Stock for a period of 30 days following the closing of the Offering. The Company has also agreed not to effect or agree to effect any Variable Rate Transaction (as defined in the Purchase Agreement) until one year following the closing of the Offering, subject to certain exceptions.
The foregoing descriptions of the Purchase Agreement and the Placement Agent Warrants are not complete and are qualified in their entirety by reference to the full text of the form of Purchase Agreement and the form of Placement Agent Warrant, copies of which are filed herewith as Exhibit 10.1 and Exhibit 4.1, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
A copy of the opinion of Ellenoff Grossman & Schole LLP relating to the validity of the Shares is filed herewith as Exhibit 5.1.
Item 3.02 Unregistered Sales of Equity Securities
The information contained above in Item 1.01 related to the issuance of the Placement Agent Warrants is hereby incorporated by reference into this Item 3.02. The Placement Agent Warrants and the shares of Common Stock issuable upon exercise of the Placement Agent have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and are instead being offered pursuant to the exemption from registration provided in Section 4(a)(2) under the Securities Act.
Item 8.01. Other Events.
On September 19, 2024, the Company issued a press release (the “Press Release”) announcing the pricing of the Offering. A copy of the Press Release has been filed as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K, the Press Release and statements of the Company’s management made in connection therewith contain “forward-looking statements” (as defined in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended) concerning future events, including statements related to the completion of the Offering, the satisfaction of customary closing conditions related to the Offering and the intended use of proceeds from the Offering. Words such as “may”, “should”, “expects”, “projects,” “intends”, “plans”, “believes”, “anticipates”, “hopes”, “estimates”, “goal” and variations of such words and similar expressions are intended to identify forward-looking statements. These statements involve significant known and unknown risks and are based upon several assumptions and estimates, which are inherently subject to significant uncertainties and contingencies, many of which are beyond Company’s control. Actual results may differ materially and adversely from those expressed or implied by such forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited to: (i) the risk that the Company may be unable to implement revenue, sales and marketing strategies that increase revenues, (ii) the risk that some patients may not achieve the desired results from using the Company’s products, (iii) risks associated with regulatory scrutiny of and adverse publicity in the sleep apnea treatment sector; (iv) the risk that the Company may be unable to secure additional financings on reasonable terms when needed, if at all or maintain its Nasdaq listing and (v) other risk factors described in the Company’s filings with the SEC. The Company’s filings can be obtained free of charge on the SEC’s website at www.sec.gov. Except to the extent required by law, any forward-looking statements contained in this Current Report on Form 8-K and the Press Release attached hereto speak only as of the date hereof, and the Company expressly disclaims any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description | |
| 5.1 | Opinion of Ellenoff Grossman & Schole LLP with respect to the Shares | |
| 10.1 | Form of Purchase Agreement | |
| 10.2 | Form of Placement Agent Warrant | |
| 99.1 | Press Release dated September 19, 2024 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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.
| VIVOS THERAPEUTICS, INC. | ||
| Dated: September 20, 2024 | By: | /s/ Bradford Amman |
| Name: | Bradford Amman | |
| Title: | Chief Financial Officer | |