| Item 2.02 | Results of Operations and Financial Condition. |
On May 10, 2023, Biocept, Inc. (the “Company”) issued a press release announcing its financial results for the three months ended March 31, 2023. A copy of the press release and accompanying information is attached as Exhibit 99.1 to this current report.
The information in this Item 2.02, and Exhibit 99.1 attached hereto, is being furnished and shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that Section. The information in this current report shall not be incorporated by reference into any registration statement or other document filed with the Securities and Exchange Commission, whether filed before or after the date hereof regardless of any general incorporation language in any such filing, unless the Company expressly sets forth in such filing that such information is to be considered “filed” or incorporated by reference therein.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
As reported in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, as filed with the Securities and Exchange Commission on May 10, 2023, the Company’s stockholders’ equity as of March 31, 2023 was $2.4 million. As a result, the Company does not satisfy one of The Nasdaq Capital Market continued listing requirements set forth in Nasdaq Stock Market Rule 5550(b) (the “Rule”).
The Company expects to receive a formal notice (the “Notice”) from The Nasdaq Stock Market LLC (“Nasdaq”) on or about May 15, 2023 to formally notify the Company of non-compliance with the Rule. The Company discussed the noncompliance with the Rule with Nasdaq on May 12, 2023.
Pursuant to the Notice and Nasdaq rules, the Company will have 45 calendar days after receipt of the Notice to submit a plan to regain compliance with the Rule. If the plan is accepted, Nasdaq may grant an extension of up to 180 calendar days from the date of the Notice for the Company to provide evidence of compliance. There can be no assurance that the Company will be able to regain compliance with the Rule.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
On May 11, 2023, the Company held a Special Meeting of Stockholders (the “Special Meeting”). The following is a brief description of each matter voted upon at the Special Meeting, as well as the number of votes with respect to each matter. Voting results are, when applicable, reported by rounding fractional share voting down to the nearest whole number.
Proposal 1. Approval of a Series of Alternate Amendments to our Amended and Restated Certificate of Incorporation to Authorize the Board of Directors to Implement a Reverse Stock Split of our Common Stock
The Company’s stockholders approved a series of alternate amendments to the Company’s Amended and Restated Certificate of Incorporation to effect, at the option of the Company’s Board of Directors (the “Board”), a reverse stock split of the Company’s common stock at a ratio between 1-for-15 and 1-for-30, inclusive as determined by the Board in its sole discretion. The final voting results, including 300,000,000 votes represented by the share of Series B Preferred Stock voted in the same proportion as the votes cast by shares of common stock on Proposal 1, are as follows:
| | | | | | |
Votes For | | Votes Against | | Abstentions | | Broker Non-Votes |
186,084,407 | | 116,708,364 | | 73,495 | | 0 |
