UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 12, 2023
Biora Therapeutics, Inc.
(Exact name of Registrant as Specified in Its Charter)
Delaware | 001-39334 | 27-3950390 | ||
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
4330 La Jolla Village Drive, Suite 300 | ||||
San Diego, California | 92122 | |||
(Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: (833) 727-2841
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
Common Stock, par value $0.001 per share | BIOR | The Nasdaq Global Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 | Entry into a Material Definitive Agreement. |
On June 12, 2023, Biora Therapeutics, Inc. (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 1,509,434 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”) at an offering price of $5.30 per share in a registered direct offering (the “Offering”) and (2) the issuance of unregistered warrants to purchase up to 3,018,868 shares of Common Stock (the “Warrants”) with an exercise price of $5.05 to certain accredited investors in a concurrent private placement (the “Private Placement”).
The Company received gross proceeds from the Offering of approximately $8 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. 333-258301) initially filed with the Securities and Exchange Commission (the “Commission”) on July 30, 2021 and declared effective on August 6, 2021. A prospectus supplement relating to the Offering was filed with the Commission on June 13, 2023 (the “Prospectus Supplement”).
Pursuant to an engagement letter, dated as of June 9, 2023, between the Company and H.C. Wainwright & Co., LLC (the “Placement Agent”), the Company agreed to pay the Placement Agent a cash fee of equal to $480,000. The Company also agreed to pay the Placement Agent up to $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, 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 the Prospectus Supplement or a registration statement on Form S-8 in connection with any employee benefit plan, until August 13, 2023 (the “Restricted Period”), without the prior written consent of the purchasers in the Offering. 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) 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; (c) securities issued pursuant to certain acquisitions or strategic transactions; or (d) shares of Common Stock or Common Stock equivalents to holders of the Company’s 7.25% Convertible Senior Notes due 2025 (the “Notes”) in connection with refinancing or restructuring 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.
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 agreement and to contribute to payments that the Placement Agent may be required to make in respect of such liabilities.
The foregoing descriptions of the Purchase Agreement and the Warrants are qualified in their entirety by reference to the full text of the form of Purchase Agreement and the form of Warrant, which are attached to this Current Report on Form 8-K as Exhibit 10.1 and 10.2, respectively, and incorporated herein by reference in their 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.
Item 8.01 | Other Events. |
On June 14, 2023, the Company issued a press release announcing the closing of its previously announced Offering and concurrent Private Placement. The full text of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
5.1 | Opinion of Gibson, Dunn & Crutcher LLP | |
10.1 | Form of Securities Purchase Agreement | |
10.2 | Form of Warrant | |
23.1 | Consent of Gibson, Dunn & Crutcher, LLP (contained in Exhibit 5.1) | |
99.1 | Press Release, dated June 14, 2023 | |
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: June 14, 2023 | By: | /s/ Eric d’Esparbes | ||||
Eric d’Esparbes Chief Financial Officer |