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
Date of Report (Date of earliest event reported)
August 24, 2021 (
(Exact name of registrant as specified in its charter)
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(I.R.S. Employer Identification No.) |
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(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(s) | Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company 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 August 23, 2021, NRX Pharmaceuticals, Inc. (the “Company”) consummated the closing of a private placement (the “Private Placement”), pursuant to the terms and conditions of the Securities Purchase Agreement, dated as of August 19, 2021 (the “Purchase Agreement”), by and among the Company and certain purchasers named on the signature pages thereto (the “Purchasers”). At the closing of the Private Placement, the Company issued 2,727,273 shares of common stock for a purchase price of $11.00 per share and preferred investment options (the “Investment Options”, and, collectively with the shares of common stock issued under the Private Placement, the “Securities”) to purchase up to an aggregate of 2,727,273 shares of common stock for a purchase price of $12.00 per share. The aggregate gross proceeds to the Company from the Private Placement were approximately $30.0 million, before deducting placement agent fees and other offering expenses. H.C. Wainwright & Co., LLC (the “Placement Agent”) acted as the exclusive placement agent for the Private Placement.
Securities Purchase Agreement
The Purchase Agreement contains customary representations, warranties, and covenants of the Company and Purchasers and customary closing conditions, indemnification rights, and other obligations of the parties. Under the Purchase Agreement, the Company agreed to use the net proceeds from the sale of the Securities for working capital purposes and to not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any common stock or Common Stock Equivalents (as defined in the Purchase Agreement), (c) for the settlement of any outstanding litigation, or (d) in violation of the Foreign Corrupt Practices Act of 1977, as amended, or the regulations promulgated by the Office of Foreign Assets Control of the U.S. Treasury Department. The Purchase Agreement is governed by the laws of the State of New York.
The foregoing summary of the Purchase Agreement is qualified in its entirety by reference to the Purchase Agreement, the form of which is filed herewith as Exhibit 10.1 and is incorporated by reference herein.
Preferred Investment Options
Each Preferred Investment Option, dated as of August 23, 2021, between the Company and the undersigned holder thereto (the “Preferred Investment Option”) may be exercised at any time on or after August 23, 2021 to purchase the number of shares of common stock of the Company stated therein for an exercise price of $12.00 per share, subject to certain adjustments, including with respect to stock dividends, splits, subsequent rights offerings and a Fundamental Transaction (as defined in the Preferred Investment Option). If, at any time on or after May 28, 2022, there is no effective registration statement registering the shares issuable pursuant to the exercise of the Investment Options, or the prospectus contained therein is not available for the resale of such shares, the Investment Options may be exercised by means of a cashless exercise, in which the holder is entitled to receive a number of shares of common stock to be determined by a formula contained in the Preferred Investment Option. No fractional shares or scrip representing fractional shares may be issued upon the exercise of the Investment Options.
The foregoing summary of the Preferred Investment Options is qualified in its entirety by reference to the Preferred Investment Options, the form of which is filed herewith as Exhibit 10.2 and is incorporated by reference herein.
Registration Rights Agreement
In connection with the Private Placement, the Company entered into a Registration Rights Agreement with the Purchasers, dated as of August 19, 2021 (the “Registration Rights Agreement”). The Registration Rights Agreement provides that the Company shall file a registration statement covering the resale of all of the Registrable Securities (as defined in the Registration Rights Agreement) with the Securities and Exchange Commission (the “SEC”) and have the registration statement declared effective by the SEC as promptly as possible after the filing thereof, but in any event no later than the 30th calendar day with following the date of the Registration Rights Agreement.
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Upon the occurrence of any Event (as defined in the Registration Rights Agreement), which, among others, prohibits the Purchasers from reselling the Securities for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days during any 12-month period, the Company is obligated to pay to each Purchaser, on each monthly anniversary of each such Event, an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 2.0% multiplied by the aggregate subscription amount paid by such Purchaser pursuant to the Purchase Agreement. The maximum aggregate liquidated damages payable to a Purchaser under the Registration Rights Agreement is 18.0% of the aggregate subscription amount paid by such Purchaser.
Subject to certain exceptions, neither the Company nor any of its securityholders (other than the Purchasers in such capacity pursuant thereto) may include any securities of the Company in any registration statements other than the Securities. The Company may not file any other registration statements until all Securities are registered pursuant to a registration statement that is declared effective by the SEC, provided that the Company may file amendments to registration statements filed prior to the date of the Registration Rights Agreement so long as no new securities are registered on any such existing registration statements.
All fees and expenses incident to the performance of or compliance with, the Registration Rights Agreement by the Company will be borne by the Company, whether or not any Securities are sold pursuant to a registration statement.
The foregoing summary of the Registration Rights Agreement is qualified in its entirety by reference to the Registration Rights Agreement, the form of which is filed herewith as Exhibit 10.3 and is incorporated by reference herein.
Lock-Up Agreement
In connection with the Private Placement, the Company entered into a Lock-Up Agreement with Jonathan Javitt and Daniel Javitt (collectively, the “Javitt Stockholders”), dated as of August 19, 2021 (the “Lock-Up Agreement”), pursuant to which the Javitt Stockholders agreed not to transfer, directly or indirectly, any common stock of the Company owned by them for sixty (60) days following the Effective Date (as defined in the Purchase Agreement) (the “Restriction Period”). Subject to certain conditions, the Javitt Stockholders may transfer shares of common stock provided that: (1) the Company receives a signed lock-up letter agreement for the balance of the Restriction Period from each transferee, prior to such transfer, (2) the transfer does not involve a disposition for value, (3) the transfer is not required to be reported with the SEC in accordance with the Securities Exchange Act of 1934, as amended, and no report of such transfer is made voluntarily, and (4) neither the Javitt Stockholders nor any transferee, as the case may be, otherwise voluntarily effects any public filing or report regarding such transfer, with respect to certain specified transfers under the Lock-Up Agreement.
The foregoing summary of the Lock-Up Agreement is qualified in its entirety by reference to the Lock-Up Agreement, the form of which is filed herewith as Exhibit 10.4 and is incorporated by reference herein.
The Private Placement
The Securities have not been registered for sale under the Securities Act of 1933, as amended (the “Securities Act”), and may not be offered or sold in the United States absent registration under the Securities Act or an applicable exemption from the registration requirements. The issuance and sale of the Securities are made in reliance upon the exemption provided in Section 4(a)(2) of the Securities Act and Rule 506 promulgated thereunder. No form of general solicitation or general advertising was conducted in connection with the issuance. The Securities contain (or will contain, where applicable) restrictive legends preventing the sale, transfer, or other disposition of such securities, unless registered under the Securities Act, or pursuant to an exemption therefrom. The disclosure contained in this Current Report on Form 8-K does not constitute an offer to sell or a solicitation of an offer to buy any securities of the Company, and is made only as required under applicable rules for filing current reports with the SEC.
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Each Purchaser in the Private Placement was required to represent that, at the time of the applicable closing, it was an accredited investor as defined in Rule 501(a) under the Securities Act or a qualified institutional buyer as defined in Rule 144A(a) under the Securities Act.
| Item 8.01 | Other Events. |
On August 24, 2021, the Company issued a press release announcing the closing of the Private Placement. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
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Exhibit No. |
Description | |
| 10.1 | Form of Securities Purchase Agreement, dated as of August 19, 2021, by and among the Company and the Purchasers. | |
| 10.2 | Form of Preferred Investment Options, dated as of August 23, 2021, by and among the Company and the Purchasers. | |
| 10.3 | Form of Registration Rights Agreement, dated as of August 19, 2021, by and among the Company and the Purchasers. | |
| 10.4 | Form of Lock-Up Agreement, dated as of August 19, 2021, by and among the Company, Jonathan Javitt and Daniel Javitt. | |
| 99.1 | Press release, dated August 24, 2021. | |
| 104 | Cover page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURE
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.
| NRX PHARMACEUTICALS, INC. | ||||
| Date: | August 24, 2021 |
By: | /s/ Alessandra Daigneault | |
| Name: | Alessandra Daigneault | |||
| Title: | General Counsel and Corporate Secretary | |||
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