UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
CURRENT REPORT
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Introductory Comment
Throughout this Current Report on Form 8-K, the terms “we,” “us,” “our” and “Company” refer to BioSpecifics Technologies Corp.
| Item 1.01 | Entry into a Material Definitive Agreement |
On August 31, 2020, the Company entered into an At-The-Market Equity Offering Sales Agreement (the “Agreement”) with Stifel, Nicolaus & Company, Incorporated (“Stifel”) and Oppenheimer & Co. Inc. (“Oppenheimer” and, together with Stifel, the “Agents”), pursuant to which the Company may issue and sell, from time to time, at its option, shares of its common stock, $0.001 par value per share, having an aggregate offering price of up to $75,000,000 (the “Shares”) through the Agents, as its sales agents.
Subject to the terms and conditions of the Agreement, the Agents will use their commercially reasonable efforts to sell the Shares from time to time, based upon the Company’s instructions, by methods deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The Company has agreed to pay the Agents commissions for their services in acting as the Company’s agents in the sale of the Shares in the amount of 3.0% of gross proceeds from the sale of the Shares pursuant to the Agreement. The Company also has agreed to provide the Agents with customary indemnification and contribution rights. The offering of the Shares will terminate upon the earliest of (a) the sale of the maximum number or amount of the Shares permitted to be sold under the Agreement and (b) the termination of the Agreement by the parties thereto.
The foregoing description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Agreement, which is attached hereto as Exhibit 1.1 and incorporated by reference herein.
Morgan, Lewis & Bockius LLP, counsel to the Company, has issued a legal opinion relating to the legality of the issuance and the sale of the Shares (the “Opinion”). A copy of the Opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.
The Shares to be sold under the Agreement, if any, will be issued and sold pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-239484), previously filed with the Securities and Exchange Commission (the “Commission”) on June 26, 2020, as amended by the pre-effective amendment filed on July 15, 2020, and declared effective by the SEC on July 17, 2020.
A prospectus supplement related to the offering is being filed with the Commission on August 31, 2020. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Shares, nor shall there be any sale of the Shares 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 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
See the Exhibit Index below, which is incorporated by reference herein.
Exhibit Index
| Exhibit |
Description | |
| 1.1 | At-The-Market Equity Offering Sales Agreement, dated August 31, 2020, among the Company, Stifel, Nicolaus & Company, Incorporated and Oppenheimer & Co. Inc. | |
| 5.1 | Opinion of Morgan, Lewis & Bockius LLP. | |
| 23.1 | Consent of Morgan, Lewis & Bockius LLP (contained in Exhibit 5.1). | |
| 104 | The cover page from the Company’s Current Report on Form 8-K, formatted in Inline XBRL | |
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.
| BioSpecifics Technologies Corp. | ||
| By: | /s/ Carl Valenstein | |
| Carl Valenstein | ||
| Corporate Secretary | ||
Dated: August 31, 2020