Item 1.01. Entry into a Material Definitive Agreement.
Underwriting Agreement
On December 1, 2022, Aziyo Biologics, Inc. (the "Company") entered into an
underwriting agreement (the "Underwriting Agreement") with Cantor Fitzgerald &
Co., as underwriter (the "Underwriter"), in connection with the public offering,
issuance and sale by the Company of 2,350,000 shares of the Company's Class A
common stock, $0.001 par value per share, at a public offering price of $4.75
per share, less underwriting discounts and commissions, pursuant to an effective
shelf registration statement on Form S-3 (Registration No. 333-267197) and a
related prospectus supplement filed with the Securities and Exchange Commission
(the "Offering"). Under the terms of the Underwriting Agreement, the Company
also granted the Underwriter an option exercisable for 30 days to purchase up to
an additional 352,500 shares of its Class A common stock at the public offering
price, less underwriting discounts and commissions. The closing of the Offering
is expected to occur on or about December 5, 2022, subject to the satisfaction
of customary closing conditions.
The Company expects to receive net proceeds from the Offering of approximately
$9.84 million, after deducting underwriting discounts and commissions and
estimated offering expenses payable by the Company. In addition, the Underwriter
agreed to reimburse the Company at the closing of the Offering for certain fees,
costs and expenses and other amounts related to or in connection with the
Offering. The Company intends to use the net proceeds of the Offering to expand
its product development and clinical research activities, hire additional sales
personnel to coincide with product launches and the remainder to fund working
capital and other general corporate purposes.
The Underwriting Agreement contains customary representations, warranties and
covenants by the Company, customary conditions to closing, indemnification
obligations of the Company and the Underwriter, including for liabilities under
the Securities Act of 1933, as amended, other obligations of the parties and
termination provisions. The representations, warranties and covenants contained
in the Underwriting Agreement were made solely for the benefit of the parties
thereto and may be subject to limitations agreed upon by the contracting
parties. Accordingly, the Underwriting Agreement is incorporated herein by
reference only to provide investors with information regarding the terms of the
Underwriting Agreement and not to provide investors with any other factual
information regarding the Company or its business, and should be read in
conjunction with the disclosures in the Company's periodic reports and other
filings with the SEC.
The foregoing description of the Underwriting Agreement is not complete and is
qualified in its entirety by reference to the full text of the Underwriting
Agreement, a copy of which is filed as Exhibit 1.1 to this report and is
incorporated by reference herein.
Latham & Watkins LLP, counsel to the Company, has issued an opinion to the
Company, dated December 5, 2022, regarding the validity of the shares of common
stock to be issued and sold in the offering. A copy of the opinion is filed as
Exhibit 5.1 to this Current Report on Form 8-K.
Amendment to Credit Agreement
On November 30, 2022, the Company entered into an amendment letter (the
"Amendment Letter") to the Credit Agreement, dated as of August 10, 2022, by and
among the Company, as the Borrower, and its subsidiaries, the financial
institutions party thereto from time to time as lenders, and SWK Funding LLC, as
agent (as amended by the letter agreement dated as of October 9, 2022, the
letter agreement dated as of November 10, 2022, and the letter agreement dated
as of November 21, 2022, the "Credit Agreement"). Pursuant to the Amendment
Letter, the lenders under the Credit Agreement agreed to fund the additional
term loan of $4 million (the "Subsequent Term Loan"), notwithstanding the fact
that the specified operational and financial metrics required to be achieved by
the Company for its availability have not been satisfied, so long as (i) the
request to fund is made on or prior to December 16, 2022 (such funding date, the
"Subsequent Funding Date"), (ii) no material adverse effect, default or event of
default has occurred and is continuing or would be caused by such Subsequent
Term Loan, and (iii) the Company has issued additional equity interests
resulting in net proceeds to the Company of not less than $10 million on or
prior to the Subsequent Funding Date (this clause (iii), the "Equity Raise
Condition"). Upon the closing of the Offering, the Company expects that the
Equity Raise Condition shall be satisfied.
The foregoing summary of the Amendment Letter does not purport to be complete
and is qualified in its entirety by reference to the Amendment Letter, a copy of
which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth above in Item 1.01 of this Current Report on Form 8-K
regarding the Company's direct financial obligation under the Subsequent Term
Loan is incorporated into this Item 2.03 by reference.
Forward-Looking Statements
This current report contains "forward-looking statements" within the meaning of
the U.S. federal securities laws. Forward-looking statements can be identified
by words such as "projects," "may," "will," "could," "would," "should,"
"believes," "expects," "anticipates," "estimates," "intends," "plans,"
"potential," "promise" or similar references to future periods. Examples of
forward-looking statements in this current report include, without limitation,
statements regarding the consummation of the offering, the terms of the
offering, the satisfaction of customary closing conditions with respect to the
offering, the anticipated amount of net proceeds from the offering, and the
intended use of such net proceeds. Forward-looking statements are statements
that are not historical facts, nor assurances of future performance. Instead,
they are based on the Company's current beliefs, expectations and assumptions
regarding the future of its business, future plans, strategies, projections,
anticipated events and trends, the economy and other future conditions. Because
forward-looking statements relate to the future, they are subject to inherent
risks and uncertainties, and actual results may differ materially from those set
forth in the forward-looking statements. Important factors that could cause
actual results to differ include, without limitation: the uncertainties related
to market conditions or for other reasons; the risk that the offering will not
be consummated; the amount of and use of net proceeds from the offering may
differ from the Company's current expectations; and the important factors
described under the caption "Risk Factors" in the Company's Annual Report on
Form 10-K filed with the SEC on March 8, 2022 and in the Company's Quarterly
Reports on Form 10-Q filed with the SEC on May 10, 2022, August 15, 2022 and
November 14, 2022 and its other filings with the SEC for the offering. Any
forward-looking statement made by the Company in this current report is based
only on information currently available and speaks only as of the date on which
it is made. Except as required by applicable law, the Company expressly
disclaims any obligation to publicly update any forward-looking statements,
whether written or oral, that may be made from time to time, whether as a result
of new information, future developments or otherwise.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description
1.1 Underwriting Agreement, dated December 1, 2022, by and between Aziyo
Biologics, Inc. and Cantor Fitzgerald & Co.
5.1 Opinion of Latham & Watkins LLP.
10.1 Amendment Letter, dated as of November 30, 2022, to the Credit
Agreement, dated as of August 10, 2022, among Aziyo Biologics, Inc.,
SWK Funding LLC, as Agent, and the Lenders from time to time party
thereto (as amended).
23.1 Consent of Latham & Watkins LLP (included in Exhibit 5.1).
104 Cover Page Interactive Data File (embedded within the inline XBRL
document).
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