UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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| Item 1.01 | Entry Into a Material Definitive Agreement. |
On September 24, 2021, Nabriva Therapeutics plc (the “Company”) and Lincoln Park Capital Fund, LLC (“Lincoln Park”), entered into a purchase agreement (the “Purchase Agreement”), which provides that subject to the terms and conditions set forth therein, the Company may sell to Lincoln Park up to $23.0 million of its ordinary shares, nominal value $0.01 per share (the “Ordinary Shares”), from time to time during the term of the Purchase Agreement.
Additionally, on September 24, 2021, the Company and Lincoln Park entered into a registration rights agreement (the “Registration Rights Agreement”), pursuant to which the Company agreed to file a registration statement with the Securities and Exchange Commission (“SEC”) covering the resale of the Ordinary Shares that are issued to Lincoln Park under the Purchase Agreement.
Under the terms and subject to the conditions of the Purchase Agreement, the Company has the right, but not the obligation, to sell to Lincoln Park, and Lincoln Park is obligated to purchase up to $23.0 million of Ordinary Shares. Such sales of Ordinary Shares by the Company, if any, will be subject to certain limitations, and may occur from time to time, at the Company’s sole discretion, over a 24-month period commencing on the date that a registration statement covering the resale of the Ordinary Shares that are issued under the Purchase Agreement, which the Company agreed to file with the SEC pursuant to the Registration Rights Agreement, is declared effective by the SEC and a final prospectus in connection therewith is filed and the other conditions set forth in the Purchase Agreement are satisfied. Lincoln Park has no right to require the Company to sell any Ordinary Shares to Lincoln Park, but Lincoln Park is obligated to make purchases as the Company directs, subject to the conditions set forth in the Purchase Agreement.
In addition, under the Purchase Agreement, the Company agreed to issue to Lincoln Park as a commitment fee 632,474 Ordinary Shares (the “Commitment Shares”) as consideration for Lincoln Park entering into the Purchase Agreement and for the payment of $0.01 per Commitment Share.
Under the Purchase Agreement, the Company may from time to time, at its discretion, direct Lincoln Park to purchase on any single business day (a “Regular Purchase”) up to (i) 400,000 Ordinary Shares if the closing sale price of its Ordinary Shares is not below $0.25 per share on Nasdaq, (ii) 600,000 Ordinary Shares if the closing sale price of its Ordinary Shares is not below $2.00 per share on Nasdaq or (iii) 800,000 Ordinary Shares if the closing sale price of its Ordinary Shares is not below $3.00 per share on Nasdaq. In any case, Lincoln Park’s commitment in any single Regular Purchase may not exceed $2,500,000 absent a mutual agreement between the Company and Lincoln Park to increase such amount. The foregoing share amounts and per share prices will be adjusted for any reorganization, recapitalization, non-cash dividend, share split, reverse share split or other similar transaction occurring after the date of the Purchase Agreement.
The purchase price per share for each such Regular Purchase will be based on prevailing market prices of the Ordinary Shares immediately preceding the time of sale as computed under the Purchase Agreement. Under the Purchase Agreement, the Company may not effect any sales of Ordinary Shares on any purchase date that the closing sale price of its Ordinary Shares on Nasdaq is less than the floor price of $0.25 per share.
In addition to Regular Purchases, the Company may also direct Lincoln Park to purchase other amounts as accelerated purchases or as additional accelerated purchases on the terms and subject to the conditions set forth in the Purchase Agreement.
Under applicable rules of Nasdaq, in no event may the Company issue or sell to Lincoln Park under the Purchase Agreement Ordinary Shares in excess of 10,372,556 Ordinary Shares (including the Commitment Shares), which represents 19.99% of the Ordinary Shares that were outstanding immediately prior to the execution of the Purchase Agreement (the “Exchange Cap”), unless (i) the Company obtains shareholder approval to issue Ordinary Shares in excess of the Exchange Cap or (ii) the average price of all applicable sales of Ordinary Shares to Lincoln Park under the Purchase Agreement equals or exceeds $1.16 per share (which represents the average of the closing sales prices of the Ordinary Shares on Nasdaq for the five trading days immediately preceding the execution of the Purchase Agreement), such that the issuances and sales of Ordinary Shares to Lincoln Park under the Purchase Agreement would be exempt from the Exchange Cap limitation under applicable Nasdaq rules.
The Purchase Agreement also prohibits the Company from directing Lincoln Park to purchase any Ordinary Shares if those shares, when aggregated with all other Ordinary Shares then beneficially owned by Lincoln Park and its affiliates, would result in Lincoln Park and its affiliates having beneficial ownership, at any single point in time, of more than 9.99% of the then total outstanding Ordinary Shares of the Company.
The Purchase Agreement contains customary representations, warranties, covenants, indemnification and termination provisions. Lincoln Park has covenanted not to cause or engage in any manner whatsoever, any direct or indirect short selling or hedging of the Company’s Ordinary Shares. There are no limitations on use of proceeds, financial or business covenants, restrictions on future financings (other than restrictions on the Company’s ability to enter into an “equity line” or a substantially similar transaction whereby a specific investor is irrevocably bound pursuant to an agreement with the Company to purchase securities over a period of time from the Company at a price based on the market price of the Ordinary Shares at the time of such purchase), rights of first refusal, participation rights, penalties or liquidated damages in the Purchase Agreement. The Purchase Agreement may be terminated by the Company at any time, at the Company’s sole discretion, without any cost or penalty. During any “event of default” under the Purchase Agreement, the Company may not initiate any purchase of shares by Lincoln Park until such event of default is cured, however, Lincoln Park does not have the right to terminate the Purchase Agreement solely due to such event of default.
The net proceeds under the Purchase Agreement to the Company will depend on the frequency of sales and the number of shares sold to Lincoln Park and the prices at which the Company sells shares to Lincoln Park. The Company expects that any net proceeds received by the Company from such sales to Lincoln Park will be used for general corporate purposes.
The foregoing descriptions of the Purchase Agreement and the Registration Rights Agreement are qualified in their entirety by reference to the full text of the Purchase Agreement and the Registration Rights Agreement, each of which is attached hereto as Exhibit 10.1 and Exhibit 4.1, respectively, and each of which is incorporated herein by reference.
The Purchase Agreement and Registration Rights Agreement contain customary representations and warranties, covenants and indemnification provisions that the parties made to, and solely for the benefit of, each other in the context of all of the terms and conditions of such agreements and in the context of the specific relationship between the parties thereto. The provisions of the Purchase Agreement and Registration Rights Agreement, including any representations and warranties contained therein, are not for the benefit of any party other than the parties thereto and are not intended as documents for investors and the public to obtain factual information about the current state of affairs of the parties thereto. Rather, investors and the public should look to other disclosures contained in the Company’s annual, quarterly and current reports it files with the SEC.
This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any Ordinary Shares, nor shall there be any sale of Ordinary Shares in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
| Item 3.02. | Unregistered Sales of Equity Securities. |
The information contained above in Item 1.01 is hereby incorporated by reference into this Item 3.02.
Based in part upon the representations of Lincoln Park in the Purchase Agreement, the offering and sale of the Commitment Shares to Lincoln Park was exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). Lincoln Park represented that it is an accredited investor, as such term is defined in Rule 501(a)(3) of Regulation D under the Securities Act, and that it is acquiring the Ordinary Shares for investment purposes only and not with a view to any resale, distribution or other disposition of shares in violation of the United States federal securities laws.
Forward-Looking Statements
Any statements in this Current Report on Form 8-K about the Company’s future expectations, plans and prospects, as well as any other statements regarding matters that are not historical facts, may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements are subject to risks and uncertainties and actual results may differ materially from those expressed or implied by such forward-looking statements. Such statements include, but are not limited to, statements about the possible sales of Ordinary Shares pursuant to the Purchase Agreement; the planned use of proceeds from the sale of Ordinary Shares pursuant to the Purchase Agreement and other statements containing the words “believes,” “anticipates,” “plans,” “expects,” and similar expressions. Risks that contribute to the uncertain nature of the forward-looking statements include: whether the Company will be able to satisfy the conditions in the Purchase Agreement and sell Ordinary Shares to Lincoln Park; market and other financing conditions; fluctuations in the Company’s share price; the extent of business interruptions resulting from the infection causing the COVID-19 outbreak or similar public health crises; the sufficiency of cash resources; the need and availability of adequate additional financing; as well as other risks and uncertainties set forth in the Company’s annual and quarterly reports and other filings on file with the U.S. Securities and Exchange Commission. All forward-looking statements contained in this Current Report on Form 8-K speak only as of the date hereof, and the Company specifically disclaims any obligation to update any forward-looking statement, whether because of new information, future events or otherwise.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. | Description | |
| 4.1 | Registration Rights Agreement dated September 24, 2021 between Nabriva Therapeutics plc and Lincoln Park Capital Fund, LLC | |
| 10.1 | Purchase Agreement dated September 24, 2021 between Nabriva Therapeutics plc and Lincoln Park Capital Fund, LLC | |
| 104 | Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto, duly authorized.
| NABRIVA THERAPEUTICS PLC | ||
| Date: September 27, 2021 | By: | /s/ Daniel Dolan |
| Daniel Dolan Chief Financial Officer |
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