UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of
earliest event reported): January 17, 2024 (
(Exact name of registrant as specified in its charter)
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(Commission File Number) | (IRS Employer Identification No.) |
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| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number including area
code: (
(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 | Name of each exchange on which registered | ||
| The
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Indicate by check mark whether the registrant is an emerging growth company as defined in 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 November 20, 2023, ABVC BioPharma, Inc. (the “Company”) reported in the initial Current Report on Form 8-K that it entered into a securities purchase agreement (the “Securities Purchase Agreement”) with Lind Global Fund II, LP (“Lind”), pursuant to which the Company issued Lind a secured, convertible note in the principal amount of $1,200,000 (the “Offering”), for a purchase price of $1,000,000 (the “Note”), on November 17, 2023 (the “Initial 8K”). Pursuant to the Offering, Lind also received a 5-year, common stock purchase warrant (the “Warrant”) to purchase up to 1,000,000 shares of the Company’s common stock at an initial exercise price of $2 per share, subject to adjustment.
The Initial 8K further noted that Allele Capital Partners, LLC (“Allele”) together with its executing broker dealer, Wilmington Capital Securities, LLC (together with its affiliates, “Wilmington”), served as the exclusive placement agent (the “Placement Agent”) of the Offering and that the Company agreed to pay certain expenses of the placement agent in connection with the Offering.
We are filing this amendment to disclose the following:
| ● | Placement Agent Warrants: that the Company also issued Allele warrants to purchase up to 30,000 shares of our common stock, at an initial exercise price of $2.00 per share, subject to adjustment (the “PA Warrants”). The PA Warrants shall be in substantially the same form as the Warrants issued to the investors in the Offering. | |
| ● | Conversion Price: The Conversion Price of the Notes is intended
to be the lesser of (i) $3.50 (the “Fixed Price”) and (ii) 90% of the average of the three lowest VWAPs during
the 20 trading days prior to conversion (“Variable Price”), and shall be subject to adjustment as provided herein.
Notwithstanding the foregoing, provided that no Event of Default shall have occurred, conversions hereunder shall be at the Fixed Price
for the first one hundred eighty days (180) following the date hereof. The original Note inadvertently did not contain the word “average,”
so the parties entered into an amendment to clarify same. The form of amendment is filed as an Exhibit hereto and incorporated herein
by reference. The foregoing description of the PA Warrants is qualified by reference to the full text of the form of the Warrants, which is filed as an Exhibit hereto and incorporated herein by reference. Neither this Current Report on Form 8-K, nor any exhibit attached hereto, is an offer to sell or the solicitation of an offer to buy the Securities described herein. Such disclosure does not constitute an offer to sell, or the solicitation of an offer to buy nor shall there be any sales of the Company’s securities in any state in which such offer, solicitation or sale would be unlawful. The securities mentioned herein have not been registered under the United States Securities Act of 1933, as amended, and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements under the Securities Act and applicable state securities laws. |
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit
Number |
Exhibit | |
| 10.1 | Form of Warrant (incorporated by reference to Exhibit 10.3 of the 8K filed on November 20, 2023) | |
| 10.2 | Form of Amendment | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| ABVC BioPharma, Inc. | ||
| January 17, 2024 | By: | /s/ Uttam Patil |
| Uttam Patil | ||
| Chief Executive Officer | ||
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Exhibit 10.2
AMENDMENT NO. 1 TO SECURED CONVERTIBLE PROMISSORY NOTE
This Amendment No. 1 to Senior Convertible Promissory Note (this “Amendment”) is entered into as of January 12, 2024, by and between Lind Global fund II LP, a Delaware limited partnership (“Lender”), and ABVC BioPharma, Inc., a Nevada corporation (“Borrower”). Capitalized terms used in this Amendment without definition shall have the meanings given to them in the Note (as defined below).
A. Borrower previously issued to Lender a Senior Convertible Promissory Note dated November 17, 2023 in the principal amount of $1,200,000.00 (the “Note”) pursuant to that certain Securities Purchase Agreement, dated November 17, 2023 (the “November Purchase Agreement” and, together with the Note, the “Transaction Documents”).
B. The Lender and Borrower have agreed to amend certain terms and conditions under the Note.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Recitals. Each of the parties hereto acknowledges and agrees that the recitals set forth above in this Amendment are true and accurate and are hereby incorporated into and made a part of this Amendment.
2. Amendment. Section 3.1(b) of the Note is hereby deleted and replaced in its entirety with the following:
Conversion Price. The “Conversion Price” means the lesser of (i) $3.50 (the “Fixed Price”) and (ii) 90% of the average of the three lowest VWAPs during the 20 trading days prior to conversion (“Variable Price”), and shall be subject to adjustment as provided herein. Notwithstanding the foregoing, provided that no Event of Default shall have occurred, conversions hereunder shall be at the Fixed Price for the first one hundred eighty days (180) following the date hereof.
3. Representations and Warranties. In order to induce Lender to enter into this Amendment, Borrower, for itself, and for its affiliates, successors and assigns, hereby acknowledges, represents, warrants and agrees as follows:
(a) Borrower has full power and authority to enter into this Amendment and to incur and perform all obligations and covenants contained herein, all of which have been duly authorized by all proper and necessary action. No consent, approval, filing or registration with or notice to any governmental authority is required as a condition to the validity of this Amendment or the performance of any of the obligations of Borrower hereunder.
(b) There is no fact known to Borrower or which should be known to Borrower which Borrower has not disclosed to Lender on or prior to the date of this Amendment which would or could materially and adversely affect the understanding of Lender expressed in this Amendment or any representation, warranty, or recital contained in this Amendment.
(c) Except as expressly set forth in this Amendment, Borrower acknowledges and agrees that neither the execution and delivery of this Amendment nor any of the terms, provisions, covenants, or agreements contained in this Amendment shall in any manner release, impair, lessen, modify, waive, or otherwise affect the liability and obligations of Borrower under the terms of the Transaction Documents.
(d) Borrower has no defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action of any kind or nature whatsoever against Lender, directly or indirectly, arising out of, based upon, or in any manner connected with, the transactions contemplated hereby, whether known or unknown, which occurred, existed, was taken, permitted, or begun prior to the execution of this Amendment and occurred, existed, was taken, permitted or begun in accordance with, pursuant to, or by virtue of any of the terms or conditions of the Transaction Documents. To the extent any such defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action exist or existed, such defenses, rights, claims, counterclaims, actions and causes of action are hereby waived, discharged and released. Borrower hereby acknowledges and agrees that the execution of this Amendment by Lender shall not constitute an acknowledgment of or admission by Lender of the existence of any claims or of liability for any matter or precedent upon which any claim or liability may be asserted.
4. Events of Defaults. To the extent any Event of Default has occurred prior to the date hereof under the Transaction Documents, the Lender hereby waives any such Event of Default.
5. Certain Acknowledgments. Each of the parties acknowledges and agrees that no property or cash consideration of any kind whatsoever has been or shall be given by Lender to Borrower in connection with this Amendment or any other amendment to the Note granted herein.
5. Other Terms Unchanged. The Note, as amended by this Amendment, remains and continues in full force and effect, constitutes legal, valid, and binding obligations of each of the parties, and is in all respects agreed to, ratified, and confirmed. Any reference to the Note after the date of this Amendment is deemed to be a reference to the Note as amended by this Amendment. If there is a conflict between the terms of this Amendment and the Note, the terms of this Amendment shall control. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment to, any right, power, or remedy of Lender under the Note, as in effect prior to the date hereof. For the avoidance of doubt, this Amendment shall be subject to the governing law, venue, and Arbitration Provisions, as set forth in the Note.
6. No Reliance. Borrower acknowledges and agrees that neither Lender nor any of its officers, directors, members, managers, equity holders, representatives or agents has made any representations or warranties to Borrower or any of its agents, representatives, officers, directors, or employees except as expressly set forth in this Amendment and the Transaction Documents and, in making its decision to enter into the transactions contemplated by this Amendment, Borrower is not relying on any representation, warranty, covenant or promise of Lender or its officers, directors, members, managers, equity holders, agents or representatives other than as set forth in this Amendment.
7. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
8. Further Assurances. Each party shall do and perform or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Amendment and the consummation of the transactions contemplated hereby.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date set forth above.
| LENDER: | ||
| Lind Global Fund II LP | ||
| By: | ||
| BORROWER: | ||
| ABVC BioPharma, Inc. | ||
| By: | ||
| Printed Name: | ||
| Title: | ||
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Cover |
Nov. 20, 2023 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K/A |
| Amendment Flag | true |
| Amendment Description | Amendment no. 1 to Form 8-k |
| Document Period End Date | Nov. 20, 2023 |
| Entity File Number | 001-40700 |
| Entity Registrant Name | ABVC BIOPHARMA, INC. |
| Entity Central Index Key | 0001173313 |
| Entity Tax Identification Number | 26-0014658 |
| Entity Incorporation, State or Country Code | NV |
| Entity Address, Address Line One | 44370 Old Warm Springs Blvd. |
| Entity Address, City or Town | Fremont |
| Entity Address, State or Province | CA |
| Entity Address, Postal Zip Code | 94538 |
| City Area Code | 510 |
| Local Phone Number | 668-0881 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Common Stock, par value $0.001 per share |
| Trading Symbol | ABVC |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | false |