UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
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Item 1.01. | Entry into a Material Definitive Agreement. |
On November 22, 2024, Indaptus Therapeutics, Inc., a Delaware corporation (the “Company”), entered into securities purchase agreements (the “Purchase Agreements”) with certain institutional and accredited investors (the “Purchasers”). The Purchase Agreements provide for the sale and issuance by the Company of an aggregate of: (i) 1,817,017 shares (the “Shares”) of the Company’s common stock, $0.01 par value (the “Common Stock”) in a registered direct offering and (ii) warrants to purchase 1,817,017 shares of Common Stock in a private placement (the “Warrants”). The Shares and Warrants are being sold on a combined basis for consideration of $1.175 for one Share and a Warrant to purchase one share of Common Stock. The exercise price of the Warrants is $1.05 per share. One of the Purchasers is the Company’s Chief Executive Officer, who has agreed to purchase 42,553 Shares and Warrants to purchase 42,553 shares of Common Stock (the “Affiliate Securities”) at the same price and upon the same terms as the other Purchasers.
The Shares are being offered pursuant to an effective shelf registration statement on Form S-3 (Registration No. 333-267236) and a related prospectus supplement filed with the Securities and Exchange Commission on November 22, 2024. The Warrants and the shares of Common Stock issuable upon the exercise of the Warrants (the “Warrant Shares”) were not registered under the Securities Act of 1933, as amended (the “Securities Act”), and were offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and/or Rule 506(b) promulgated thereunder.
The Warrants are immediately exercisable upon issuance and will expire five years following the date of issuance. The Warrants contain standard adjustments to the exercise price including for stock splits, stock dividends and reorganizations. In lieu of making the cash payment otherwise contemplated to be made upon exercise in payment of the aggregate exercise price, the holder may, in the event the Warrant Shares are not registered under the Securities Act, elect instead to receive upon such exercise (either in whole or in part) the net number of shares of Common Stock determined according to a formula set forth in the Warrants. Under the terms of the Warrants, a holder (together with its affiliates) may not exercise any portion of its Warrant to the extent that the holder would beneficially own more than 4.99% or 9.99%, depending on the individual investor, of the outstanding Common Stock immediately after exercise (the “Beneficial Ownership Limitation”), except that upon at least 61 days’ prior notice from the holder to the Company, the holder may increase the Beneficial Ownership Limitation, provided that the Beneficial Ownership Limitation in no event exceeds 19.99%.
Pursuant to the Purchase Agreements, the Company has agreed to file a registration statement within 60 days of the date of the Purchase Agreements to register the Warrant Shares for resale. The Company has also agreed to use commercially reasonable efforts to cause such registration statement to become effective within 90 days following the closing date of the offering and to use commercially reasonable efforts to keep such registration statement effective at all times until the earlier of (i) the date that no Purchaser owns any Warrants or Warrant Shares issuable upon exercise thereof and (ii) the two year anniversary of the closing date.
The foregoing description of the Purchase Agreements and Warrant is not complete and is qualified in its entirety by reference to the full text of the Purchase Agreements and Warrants, a form of each of which is filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K (“Form 8-K”) and are incorporated by reference herein.
Latham & Watkins LLP, counsel to the Company, has issued an opinion to the Company, dated November 22, 2024, regarding the validity of the Shares. A copy of the opinion is filed as Exhibit 5.1 to this Form 8-K.
Paulson Investment Company, LLC (“Paulson”) served as the exclusive placement agent for the issuance and sale of securities of the Company pursuant to a Placement Agency Agreement (the “PAA”) between the Company and Paulson. As compensation for such placement agent services, the Company has agreed to pay Paulson an aggregate cash fee equal to 7.0% of the gross proceeds received by the Company from the offering (excluding the Affiliate Securities), and a non-accountable expense of $25,000. In addition, Paulson is entitled to certain tail rights for a period of one year following the termination or expiration of the PAA. As additional compensation to Paulson, the Company issued to the Placement Agent (or its designees) a warrant (the “Placement Agent Warrants”) to purchase an aggregate of 124,212 shares of Common Stock (the “Placement Agent Warrant Shares”) at an exercise price per share equal to $1.3125. The Placement Agent Warrants are exercisable six months from the date of issuance and expires on the fifth anniversary of the issue date. The PAA contains certain customary representations and warranties and indemnification obligations of the Company and Paulson.
The foregoing description of the PAA and Placement Agent Warrants are not complete and are qualified in their entirety by reference to the full text of the PAA and the form of Placement Agent Warrant, which are filed as Exhibits 1.1 and 4.3 to this Form 8-K, respectively, and are incorporated by reference herein.
This Form 8-K shall not constitute an offer to sell or the solicitation of any offer to buy the securities discussed herein, nor shall there be any offer, solicitation or sale of the securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
| Item 3.02. | Unregistered Sales of Equity Securities. |
The information contained above in Item 1.01 relating to the Warrants, Warrant Shares, Placement Agent Warrants and Placement Agent Warrant Shares are incorporated by reference into this Item 3.02 in its entirety. Based in part upon the representations of the Purchasers in the Purchase Agreements and Paulson in the PAA, the offering and sale of the Warrants and Placement Agent Warrants will be exempt from registration under Section 4(a)(2) of the Securities Act and/or Rule 506 of Regulation D promulgated under the Securities Act. The sales of the Warrants and the shares of Common Stock issuable upon exercise of the Warrants and Placement Agent Warrants will not be registered under the Securities Act or any state securities laws, and the Warrants and the shares of Common Stock issuable upon exercise of the Warrants and Placement Agent Warrants may not be offered or sold in the United States absent registration with the Securities and Exchange Commission or an applicable exemption from the registration requirements.
| Item 8.01. | Other Events. |
On November 22, 2024, the Company issued a press release announcing the pricing of the registered direct offering and private placement described above in Item 1.01.
A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit No. | Description | |
| 1.1 | Placement Agent Agreement, dated as of October 29, 2024, by and between Indaptus Therapeutics, Inc. and Paulson Investment Company, LLC, and Amendment No. 1 to Placement Agent Agreement, dated as of November 20 2024 | |
| 5.1 | Opinion of Latham & Watkins LLP | |
| 10.1 | Form of Securities Purchase Agreement | |
| 10.2 | Form of Warrant | |
| 10.3 | Form of Placement Agent Warrant | |
| 23.1 | Consent of Latham & Watkins LLP (contained in Exhibit 5.1) | |
| 99.1 | Press Release of the Company dated November 22, 2024 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
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.
Date: November 22, 2024
| INDAPTUS THERAPEUTICS, INC. | ||
| By: | /s/ Nir Sassi | |
| Name: | Nir Sassi | |
| Title: | Chief Financial Officer | |