Item 1.01 Entry into a Material Definitive Agreement
On
In consideration for entering into the Purchase Agreement, the Company agreed to issue 75,000 shares of Common Stock (the "Initial Commitment Shares") to Lincoln Park as an initial commitment fee. In addition, the Company agreed to issue to Lincoln Park up to an additional 50,000 shares of Common Stock (the "Additional Commitment Shares" and together with the Initial Commitment Shares, the "Commitment Shares") as an additional commitment fee based on a pro-rata percentage of the Purchase Shares issued to Lincoln Park under the Purchase Agreement. The Company will not receive any cash proceeds from the issuance of the Commitment Shares.
Upon execution of the Purchase Agreement and the Registration Rights Agreement
on
In addition to the
If the Company directs Lincoln Park to purchase the maximum number of shares of Common Stock that the Company may sell in a Regular Purchase, then in addition to such Regular Purchase, and subject to certain conditions and limitations in the Purchase Agreement, the Company may direct Lincoln Park to purchase additional shares of Common Stock in an "accelerated purchase" and an "additional accelerated purchase" (including multiple additional accelerated purchases on the same trading day) as provided in the Purchase Agreement. The purchase price per share for each accelerated purchase and additional accelerated purchase will be based on market prices of the Common Stock on the applicable purchase date therefor.
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The Purchase Agreement prohibits the Company from directing Lincoln Park to
purchase any shares of Common Stock if those shares, when aggregated with all
other shares of Common Stock then beneficially owned by Lincoln Park (as
calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Rule 13d-3 thereunder), would result in
Under applicable rules of the Nasdaq Capital Market, the Company may not issue or sell to Lincoln Park under the Purchase Agreement more than 19.99% of the shares of the Common Stock outstanding immediately prior to the execution of the Purchase Agreement (the "Exchange Cap") (or 3,266,177 shares, based on 16,339,061 shares outstanding immediately prior to the execution of the Purchase Agreement), unless (i) we obtain stockholder approval to issue shares of Common Stock in excess of the Exchange Cap to Lincoln Park under the Purchase Agreement in accordance with applicable Nasdaq rules or (ii) the average price of all applicable sales of our Common Stock to Lincoln Park under the Purchase Agreement equals or exceeds the lower of (A) the official closing price of the Company's Common Stock on Nasdaq on the date of the Purchase Agreement and (B) the average official closing price of our Common Stock on Nasdaq for the five consecutive trading days ending on the date of the Purchase Agreement, adjusted such that the transactions contemplated by the Purchase Agreement are exempt from the Exchange Cap limitation under applicable Nasdaq rules.
The Purchase Agreement does not limit the Company's ability to raise capital from other sources at its sole discretion, except that, subject to certain exceptions, for a period set forth in the Purchase Agreement, the Company may not enter into any equity line of credit or similar continuous offering other than with the Investor, excluding an "at the market offering" of Common Stock exclusively through one or more registered broker dealers.
The Purchase Agreement and Registration Rights Agreement each contain customary representations, warranties, and agreements of the Company and Lincoln Park, indemnification rights and other obligations of the parties. The Offering of Common Stock pursuant to the Purchase Agreement will terminate on the date that all shares offered by the Purchase Agreement have been sold or, if earlier, the expiration or termination of the Purchase Agreement. The Company has the right to terminate the Purchase Agreement at any time, without fee, penalty or cost to the Company.
Lincoln Park has covenanted not to cause or engage in any manner whatsoever, any direct or indirect short selling or hedging of Common Stock.
The net proceeds under the Purchase Agreement to the Company will depend on the frequency and prices at which shares of Common Stock are sold to Lincoln Park. Actual sales of shares of Common Stock to Lincoln Park under the Purchase Agreement and the amount of such net proceeds will depend on a variety of factors to be determined by the Company from time to time, including (among others) market conditions, the trading price of the Common Stock and determinations by the Company as to other available and appropriate sources of funding for the Company. The Company expects to use the proceeds from the Offering for general corporate purposes and working capital.
The Offering is being made pursuant to the Company's effective Registration
Statement on Form S-3 (SEC File No. 333-249426) (the "Registration Statement"),
which was previously filed with the
Copies of the Purchase Agreement and the Registration Rights Agreement are attached hereto as Exhibit 10.1 and Exhibit 10.2 respectively, and are incorporated herein by reference.
The Company is filing the opinion of its counsel,
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description of Exhibit 5.1 Opinion ofWilson Sonsini Goodrich & Rosati, P.C. 10.1 Purchase Agreement, dated as ofMarch 29, 2021 , by and betweenBioCardia, Inc. andLincoln Park Capital Fund, LLC . 10.2 Registration Rights Agreement, dated as ofMarch 29, 2021 , by and betweenBioCardia, Inc. andLincoln Park Capital Fund, LLC . 23.1 Consent ofWilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1).
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