UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry Into a Material Definitive Agreement.
As previously reported, on October 30, 2023, Vivos Therapeutics, Inc., a Delaware corporation (the “Company”), entered into a Securities Purchase Agreement (the “Purchase Agreement”) with an institutional investor (the “Holder”) pursuant to which the Company sold an aggregate of approximately $4.0 million of securities of the Company in a private placement, such securities consisting of shares (each, a “Share”) of the Company’s common stock, par value $0.0001 (the “Common Stock”) (or, in lieu of a Share, a pre-funded warrant to purchase one share of Common Stock), (ii) a Series A Common Stock Purchase Warrant to purchase up to 980,393 shares of Common Stock and (iii) a Series B Common Stock Purchase Warrant to purchase up to 980,393 shares of Common Stock (the “Series B Warrant”) with an exercise price of $3.83 per share. The private placement closed on November 2, 2023.
On February 14, 2024, the Company entered into a warrant inducement letter agreement (the “Inducement Agreement”) with the Holder pursuant to which the Holder agreed to exercise for cash the entirety of the Series B Warrant at an exercise price of $4.02 per share (with such exercise price being established for purposes of compliance with the listing rules of the Nasdaq Stock Market), resulting in gross proceeds to the Company of approximately $4.0 million. The resale of the shares of Common Stock underlying the Series B Warrant has been registered pursuant to a Registration Statement on Form S-1 (File No. 333-275726), which became effective with the Securities and Exchange Commission (“SEC”) on December 1, 2023.
Pursuant to the Inducement Agreement, in consideration for the immediate exercise of the Series B Warrant in full, the Company agreed to issue to the Holder, in a new private placement transaction (the “Inducement Transaction”): (i) a 5-year, Series B-1 Common Stock Purchase Warrant to purchase 735,296 shares of Common Stock at an exercise price of $5.05 per share, and (ii) an 18-month, Series B-2 Common Stock Purchase Warrant to purchase 735,296 shares of Common Stock at an exercise price of $5.05 per share (collectively, the “Inducement Warrants” and such aggregate 1,470,592 shares of Common Stock underlying the Inducement Warrants, the “Inducement Warrant Shares”). The Inducement Warrants are identical to each other, other than their dates of expiration, and are substantially identical to the Series B Warrant.
A.G.P./Alliance Global Partners (“AGP”) acted the Company’s exclusive financial advisor in connection with the Inducement Transaction. Pursuant to a financial advisory agreement dated February 14, 2024, between the Company and AGP (the “Financial Advisory Agreement”), the Company agreed to pay to AGP a cash fee equal to 7.0% of the gross proceeds received by the Company in the Inducement Transaction, and reimbursement of up to $30,000 in legal expenses. The Financial Advisory Agreement contains customary representations, warranties, terms and conditions, including the indemnification by the Company of AGP and its related parties.
The Inducement Transaction is expected to close no later than February 20, 2024, subject to the satisfaction of customary closing conditions. The Company intends to use these net proceeds received from the Inducement Transaction for general working capital and general corporate purposes.
The terms of the Inducement Agreement require the Company to file a registration statement registering the Inducement Warrant Shares for resale (“Resale Registration Statement”) no later than April 5, 2024 and to use commercially reasonable best efforts to cause the Resale Registration Statement to be effective within 60 calendar days following the filing thereof.
The Company further agreed that until forty-five (45) days after the closing date of the Inducement Transaction, it will not (other than in connection with limited enumerated exceptions) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock equivalents or file any registration statement or any amendment or supplement (other than the Resale Registration Statement). The Company is further prohibited from entering into any “variable rate transaction” for a period of six months from the effective date of the Resale Registration Statement.
The Inducement Agreement also contains customary representations and agreements, including a provision for liquidated damages owed by the Company in the event that the Inducement Warrant Shares are not timely delivered upon future exercises of the Inducement Warrants.
The Inducement Warrants contain (i) customary stock-based anti-dilution protection, (ii) a cashless exercise provision in the event the Inducement Warrant Shares are not registered for resale at the time of exercise, (iii) beneficial ownership limitations that may be waived at the option of the Holder upon 61 days’ notice to the Company, (iv) a put right granting the Holder the right to require the Company or its successor to redeem the Inducement Warrants in cash for their Black-Scholes value in the event of a Fundamental Transaction (as defined in the Inducement Warrants) and (v) other customary provisions for warrants of this type.
The foregoing descriptions of the Inducement Agreement, the Inducement Warrants, and the Financial Advisory Agreement do not purport to be complete and are qualified by reference to the full text of such agreements, which are filed with this Current Report on Form 8-K as Exhibits 10.1, 4.1, 4.2 and 99.1 respectively, and are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosures set forth in Item 1.01 above related to the Inducement Transaction are incorporated by reference into this Item 3.02. The Inducement Warrants and the Inducement Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) and are instead being offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and/or Rule 506(b) promulgated thereunder.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Exhibit | |
| 4.1 | Form of Series B-1 Common Stock Purchase Warrant | |
| 4.2 | Form of Series B-2 Common Stock Purchase Warrant | |
| 10.1 | Warrant Inducement Agreement, dated February 14, 2024, by and between the Company and the Holder | |
| 99.1 | Financial Advisory Agreement, dated February 14, 2024, by and between the Company and the Placement Agent | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURE
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.
| VIVOS THERAPEUTICS, INC. | ||
| Dated: February 15, 2024 | By: | /s/ R. Kirk Huntsman |
| R. Kirk Huntsman | ||
| Chief Executive Officer | ||