UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
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| Item 1.01 | Entry into a Material Definitive Agreement. |
On May 31, 2021, Baudax Bio, Inc., (the “Company”), entered into a Securities Purchase Agreement (the “Purchase Agreement”) with institutional investors named therein (the “Purchasers”), pursuant to which the Company agreed to issue and sell, in a registered direct offering (the “Offering”), 14,028,520 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”) and warrants exercisable for an aggregate of 14,028,520 shares of Common Stock (the “Warrants,” and together with the Shares and the shares of Common Stock underlying the Warrants, the “Securities”) at a combined offering price of $0.85 per share. The Warrants have an exercise price of $0.90 per share. Each Warrant is exercisable for one share of Common Stock and will be exercisable upon the later of (i) the six-month anniversary of the closing date of this offering, and (ii) the date of approval by the Company’s shareholders of an increase in the number of shares of the Company’s authorized common stock. The Warrants will expire on December 1, 2026.
The Purchase Agreement contains customary representations and warranties and agreements of the Company and the Purchasers and customary indemnification rights and obligations of the parties. In addition, certain of the Purchasers have agreed to vote all shares of Common Stock issued or issuable to such Purchaser pursuant to the Purchase Agreement, over which the Purchaser or its affiliates have voting control, in favor of any resolution presented to the shareholders of the Company for the purpose of amending the Company’s articles of incorporation to increase the number of authorized shares of Common Stock from 100,000,000 shares of Common Stock to up to 190,000,000 shares of Common Stock. The closing of the Offering is expected to occur on June 1, 2021. The Company is expected to receive gross proceeds of approximately $11.9 million in connection with the Offering, before deducting placement agent fees and related offering expenses.
As compensation to H.C. Wainwright & Co., LLC (the “Placement Agent”) as placement agent in connection with the Offering, the Company agreed to pay to the Placement Agent a cash fee of 6.0% of the aggregate gross proceeds raised in the Offering, plus a management fee equal to 1.0% of the gross proceeds raised in the Offering and reimbursement of certain expenses and legal fees. The Company will also issue to designees of the Placement Agent warrants to purchase up to 6.0% of the aggregate number of shares of Common Stock sold in the transactions, or warrants to purchase up to 841,711 shares of Common Stock (the “Placement Agent Warrants”). The Placement Agent Warrants have substantially the same terms as the Warrants, except that the Placement Agent Warrants have an exercise price equal to 125% of the offering price per share (or $1.0625 per share). The Placement Agent Warrants will expire on May 31, 2026.
The foregoing summaries of the Purchase Agreement, the Warrants and the Placement Agent Warrants do not purport to be complete and are subject to, and qualified in their entirety by, the forms of such documents attached as Exhibits 10.1, 4.1 and 4.2, respectively, to this Current Report on Form 8-K (the “Report”), which are incorporated herein by reference.
The Securities in the Offering and the Placement Agent Warrants were offered by the Company pursuant to a registration statement on Form S-3 (File No. 333-235408), which was filed with the Securities and Exchange Commission on December 6, 2019 and was declared effective by the Commission on December 16, 2019 (the “Registration Statement”). A copy of the opinion of Troutman Pepper Hamilton Sanders LLP relating to the legality of the issuance and sale of the Securities in the Offering and the Placement Agent Warrants is attached as Exhibit 5.1 hereto. This Report shall not constitute an offer to sell or the solicitation of an offer to buy securities, nor shall there be any sale of securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
| Item 1.02 | Termination of a Material Definitive Agreement. |
On May 27, 2021, the Company voluntarily terminated the Common Stock Sales Agreement dated February 13, 2020 (the “ATM Facility”) between the Company and JMP Securities LLC (“JMP”). Pursuant to the ATM Facility, the Company could offer and sell, from time to time, through JMP, shares of the Common Stock having an aggregate offering price of up to $25,000,000. During the term of the ATM Facility, the Company sold an aggregate of 441,967 shares of Common Stock thereunder for aggregate gross proceeds to the Company of approximately $3.6 million. The ATM Facility was terminable at will by the Company with no penalty.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
The following exhibits are being filed herewith:
| Exhibit No. |
Document | |
| 4.1 | Form of Warrant. | |
| 4.2 | Form of Placement Agent Warrant. | |
| 5.1 | Opinion of Troutman Pepper Hamilton Sanders LLP. | |
| 10.1 | Form of Securities Purchase Agreement. | |
| 23.1 | Consent of Troutman Pepper Hamilton Sanders LLP (included in Exhibit 5.1). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
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.
| Baudax Bio, Inc. | ||
| By: | /s/ Gerri A. Henwood | |
| Name: | Gerri A. Henwood | |
| Title: | President and Chief Executive Officer | |
Date: June 1, 2021