Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
Date of Report (Date of earliest event reported): July 6,
2020
Tenax
Therapeutics, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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001-34600
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26-2593535
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(State
or other jurisdiction of incorporation)
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(CommissionFile
Number)
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(IRS
EmployerIdentification No.)
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ONE Copley Parkway, Suite 490
Morrisville, NC 27560
(Address
of principal executive offices) (Zip Code)
919-855-2100
(Registrant’s
telephone number, including area code)
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
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Trading
Symbol(s)
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Name of
each exchange on which registered
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Common
Stock, $0.0001 par value per share
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TENX
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The
Nasdaq Stock Market LLC
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Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (17 CFR
230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17
CFR 240.12b-2).
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 July
6, 2020, Tenax Therapeutics, Inc. (the “Company”)
entered into a Securities Purchase Agreement for Class C and Class
D Units (the “RDO Purchase Agreement”) with an
institutional investor (the “Investor”) and a
Securities Purchase Agreement for Class E and Class F Units (the
“PIPE Purchase Agreement” and, together with the RDO
Purchase Agreement, the “Purchase Agreements”),
pursuant to which the Company agreed to issue in a registered
direct offering 2,523,611 shares of the Company’s common
stock, $0.0001 par value per share, at a purchase price of $1.02780
per share and pre-funded warrants (the “Registered Pre-Funded
Warrants”) to purchase up to 652,313 shares of common stock
at a purchase price of $1.02770 per Registered Pre-Funded Warrant,
and issue in a concurrent private placement unregistered pre-funded
warrants (the “Unregistered Pre-Funded Warrants”) to
purchase up to 4,607,692 shares of common stock at the same
purchase price as the Registered Pre-Funded Warrants, and
unregistered common stock warrants (the “Unregistered
Warrants”) to purchase up to 7,783,616 shares of common stock
(such registered direct offering and private placement,
collectively, the “Offerings”). The aggregate gross
proceeds to the Company of the Offerings is expected to be
approximately $8.0 million.
The
Registered Pre-Funded Warrants and the Unregistered Pre-Funded
Warrants have an exercise price of $0.0001 per share of common
stock, are immediately exercisable, may be exercised at any time
until exercised in full and are subject to customary adjustments.
The Unregistered Warrants have an exercise price of $0.903 per
share of common stock, are immediately exercisable, will expire
five and one-half years from the date of issuance and are subject
to customary adjustments.
The
Registered Pre-Funded Warrants, the Unregistered Pre-Funded
Warrants and Unregistered Warrants may not be exercised if the
aggregate number of shares of the Company’s common stock
beneficially owned by the holder (together with its affiliates)
would exceed 19.99% of the Company’s outstanding common stock
immediately after exercise. However, the holder may increase or
decrease such percentage, provided that in no event such percentage
exceeds 19.99%, upon at least 61 days’ prior notice from the
holder to the Company.
The
Company intends to use the net proceeds from the Offerings to
further its clinical trials of levosimendan, for research and
development and for general corporate purposes, including working
capital and potential acquisitions.
Also on
July 6, 2020 and in connection with the private placement, the
Company entered into a registration rights agreement (the
“Registration Rights Agreement”) with the Investor,
pursuant to which the Company agreed
to register for resale the shares of the Company’s common
stock issuable upon exercise of the
Unregistered Pre-Funded Warrants and the Unregistered
Warrants (collectively, the “Unregistered Warrant
Shares”). Under the Registration Rights Agreement, the
Company has agreed to file a registration statement covering the
resale by the Investor of the Unregistered Warrant Shares within
120 days following the date of the Registration Rights
Agreement.
Pursuant to the terms of the PIPE Purchase Agreement, the Company
has agreed to appoint to its Board of Directors two directors
designated in writing by a majority in interest of the purchasers
named therein (the “Designor”) following the closing of
the Offerings. In the event the Designor beneficially holds less
than 19.90% but more than 9.99% of the Company’s issued and
outstanding common stock, then the Designor shall have the right to
designate only one director.
Under certain circumstances, including, but not limited to,
(i) if the registration statement is not filed within the time
period specified above or (ii) if the registration
statement has not been declared effective (A) by the
120th day
after the date of the Registration Rights Agreement (or, in the
event of a “full review” by the Securities and Exchange
Commission (the “SEC”), the 150th day
after the date of the Registration Rights Agreement) or
(B) within five trading days following the date the Company is
notified by the SEC that the registration statement will not be
reviewed or is no longer subject to further review and comments
then the Company has agreed to pay the Investor, as partial
liquidated damages, an amount equal to 1.0% of the Investor’s
aggregate subscription amount paid pursuant to the PIPE Purchase
Agreement.
H.C.
Wainwright & Co., LLC (the “Placement Agent’) was
engaged by the Company to act as its exclusive agent for the
Offerings. The Company agreed to pay the Placement Agent a cash fee
equal to 7.5% of the gross proceeds received by the Company in the
Offerings, totaling approximately $600,000. The Company also has
agreed to pay the Placement Agent $35,000 for non-accountable
expenses, up to $40,000 for fees and expenses of legal counsel and
other out-of-pocket expenses, a management fee equal to 1.0% of the
gross proceeds raised in the Offerings and up to $12,900 for
clearing fees. In addition, the Company has agreed to issue to the
Placement Agent or its designees warrants to purchase up to 583,771
shares of common stock (representing 7.5% of the aggregate number
of shares of common stock (or common stock equivalents) sold in the
Offerings) (the “Placement Agent Warrants”). The
Placement Agent Warrants have substantially the same terms as the
Unregistered Warrants, except that the Placement Agent Warrants
have an exercise price equal to $1.2848, or 125% of the offering
price per share of common stock, and will be exercisable for five
years from the effective date of the Offerings.
The
Company offered the shares of common stock and Registered
Pre-Funded Warrants in the registered direct offering pursuant to
the Company’s registration statement on Form S-3 (File No.
333-224951) filed with the Securities and Exchange Commission (the
“Commission”) and declared effective by the Commission
on May 15, 2018. A prospectus supplement relating to the shares of
common stock and the Registered Pre-Funded Warrants offered
pursuant to the registered direct offering was filed with the
Commission on July 8, 2020 (the “Prospectus
Supplement”).
The
issuance and sale of the Unregistered Pre-Funded Warrants, the
Unregistered Warrants, the Placement Agent Warrants and the shares
of common stock issuable upon exercise of the Unregistered
Pre-Funded Warrants, the Unregistered Warrants and Placement Agent
Warrants are not being registered under the Securities Act of 1933,
as amended (the “Securities Act”), are not being
offered pursuant to the registration statement and are being
offered pursuant to the exemption provided in Section 4(a)(2) under
the Securities Act and Rule 506(b) promulgated
thereunder.
A copy
of the legal opinion of K&L Gates LLP relating to the shares of
common stock and the Registered Pre-Funded Warrants, and the
consent included therein, is attached to this Current Report on
Form 8-K as Exhibit 5.1.
The
Purchase Agreements and the Registration Rights Agreement include
customary representations, warranties and covenants by the Company.
The foregoing descriptions of the Registered Pre-Funded Warrants,
the Unregistered Pre-Funded Warrants, the Unregistered Warrants,
the Placement Agent Warrants, the Purchase Agreements and the
Registration Rights Agreement are qualified by reference to the
full text of such agreements, which are attached to this Current
Report on Form 8-K as Exhibits 4.1 (with respect to both the
Registered Pre-Funded Warrants and the Unregistered Pre-Funded
Warrants), 4.2, 4.3, 10.1, 10.2 and 10.3, respectively, and are
incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The
information in Item 1.01 related to the private placement of the
Unregistered Pre-Funded Warrants and the Unregistered Warrants, the
issuance of the Placement Agent Warrants and the shares of common
stock issuable upon exercise of the Unregistered Pre-Funded
Warrants, Unregistered Warrants and Placement Agent Warrants is
incorporated by reference into this Item 3.02.
Item 7.01. Regulation FD Disclosure.
On July
6, 2020, the Company issued a press release announcing the
Offerings. A copy of the press release is attached to this Current
Report on Form 8-K as Exhibits 99.1 and is incorporated herein by
reference.
In
accordance with General Instruction B.2 of Form 8-K, the
information in this Item 7.01, including Exhibit 99.1 attached
hereto, shall be deemed “furnished” and shall not be
deemed “filed” for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), nor shall such information be deemed incorporated by
reference in any filing under the Securities Act or the Exchange
Act, except as shall be expressly set forth by specific reference
in such a filing.
Item 9.01. Exhibits.
(d)
Exhibits.
Exhibit
No.
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Description
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Form
of Pre-Funded Warrant
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Form
of Unregistered Warrant
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Form
of Placement Agent Warrant
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Legal
Opinion of K&L Gates LLP
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Form
of Securities Purchase Agreement for Class C Units and Class D
Units, dated as of July 6, 2020, by and between the Company and the
Investor
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Form
of Securities Purchase Agreement for Class E Units and Class F
Units, dated as of July 6, 2020, by and between the Company and the
Investor
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Form
of Registration Rights Agreement, dated as of July 6, 2020, by and
between the Company and the Investor
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Consent
of K&L Gates LLP (included in Exhibit 5.1)
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Press
Release, dated July 6, 2020, regarding Offerings
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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.
Date: July 8, 2020
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Tenax Therapeutics, Inc.
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By: /s/ Michael B. Jebsen
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Michael
B. Jebsen
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President
and Chief Financial Officer
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