UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 3, 2021
SYNTHETIC BIOLOGICS, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 001-12584 | 13-3808303 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File No.) |
(IRS Employer Identification No.) |
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
(Address of principal executive offices and zip code)
(301) 417-4364
Registrant’s telephone number, including area code
N/A
(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 (see General Instruction A.2. below):
| ¨ | 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 |
| Common stock, par value $0.001 per share | SYN | NYSE American |
Indicate by check mark whether the registrant is an emerging growth company as defined in in Rule 405 of the Securities Act of 1933 (17 CFR §230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by checkmark 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 May 3, 2021, Synthetic Biologics, Inc. (the “Company”) entered into Amendment No. 1 (“Amendment No. 1”) to the amended and restated at market issuance sales agreement (the “Original Sales Agreement” and together with Amendment No. 1, the “Sales Agreement”), dated February 9, 2021, with B. Riley Securities, Inc. and A.G.P./Alliance Global Partners, as sales agents (the “Sales Agents”), pursuant to which sales may occur under the Company’s New Registration Statement (as defined below). Amendment No. 1 will be effective on the date that the New Registration Statement (as defined below) is declared effective by the U.S. Securities and Exchange Commission (the “Commission”). Pursuant to the Sales Agreement, the Company may offer and sell, from time to time, at its option, shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), through the Sales Agents in an “at the market” offering. As of April 29, 2021, the Company has issued and sold an aggregate of 91,487,681 shares of Common Stock for aggregate gross proceeds of approximately $83.6 million pursuant to the Original Agreement under the Company’s Registration Statement on Form S-3 (File No. 333-224728)(the “Existing Registration Statement”), utilizing a prior prospectus and related prospectus supplements thereto.
The description of the Sales Agreement and Amendment No. 1 does not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agreement and Amendment No. 1, copies of which are included herewith as Exhibits 1.1. and 1.2, and are incorporated herein by reference.
Item 8.01. Other Events.
On May 3, 2021, the Company will file a new shelf Registration Statement on Form S-3 (the “New Registration Statement”), which will replace the Existing Registration Statement once it is declared effective by the Commission. The New Registration Statement contains: (i) a base prospectus, which covers the offering, issuance and sales by the Company of up to $300,000,000 in the aggregate of the Company’s shares of Common Stock, shares of preferred stock, debt securities, in one or more series, warrants and units from time to time in one or more offerings; and (ii) an “at the market offering” prospectus covering the offer, issuance and sale by the Company of up to a maximum aggregate offering price of up to $75,000,000 of Common Stock that may be issued and sold from time to time under the Sales Agreement with Sales Agents.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any security nor shall there be any sale of these 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 9.01. Financial Statements and Exhibits.
| (d) | Exhibits. |
The following exhibits are filed with this Current Report on Form 8-K.
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.
| Dated: May 3, 2021 | SYNTHETIC BIOLOGICS, INC. | |||
| By: | /s/ Steven A. Shallcross | |||
| Name: | Steven A. Shallcross | |||
| Title: |
Chief Executive Officer and Chief Financial Officer |
|||
Exhibit 1.2
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
AT MARKET ISSUANCE SALES AGREEMENT
May 3, 2021
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, NY 10171
A.G.P./Alliance Global Partners
590 Madison Ave.
New York, NY 10022
Ladies and Gentlemen:
Synthetic Biologics, Inc. (the “Company”), B. Riley Securities, Inc. and A.G.P./Alliance Global Partners (together, the “Agents”) are parties to that certain Amended and Restated At Market Issuance Sales Agreement dated February 9, 2021 (the “Original Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The parties, intending to be legally bound, hereby amend the Original Agreement as follows:
1. With respect to issuances of Placement Shares that occur on or after the date this amendment becomes effective, reference to the “Registration Statement” in the Original Agreement shall refer to the shelf registration statement on Form S-3, originally filed with the Securities and Exchange Commission on May 3, 2021 (as the same may be amended from time to time, “New Registration Statement”).
2. All references to “February 9, 2021” set forth in Schedule 1 of the Original Agreement are revised to read “February 9, 2021 (as amended by Amendment No. 1 to Amended and Restated At Market Issuance Sales Agreement, dated May 3, 2021)”.
3. Except as specifically set forth herein, all other provisions of the Original Agreement shall remain in full force and effect.
4. This Amendment No. 1 to the Original Agreement shall become effective upon the date that the New Registration Statement is declared effective under the Securities Act.
5. Entire Agreement; Amendment; Severability. This Amendment No. 1 to the Original Agreement together with the Original Agreement (including all schedules and exhibits attached hereto and thereto and Placement Notices issued pursuant hereto and thereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement as amended by this Amendment No. 1; provided, however, that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement.
6. Applicable Law; Consent to Jurisdiction. This amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in effect for notices to it under this amendment and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
7. Waiver of Jury Trial. The Company and the Agent each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this amendment or any transaction contemplated hereby.
8. Counterparts. This amendment may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. Delivery of an executed amendment by one party to the other may be made by facsimile transmission.
[Remainder of Page Intentionally Blank]
If the foregoing correctly sets forth the understanding among the Company and the Agents, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding amendment to the Original Agreement between the Company and the Agents.
| Very truly yours, | |||
| SYNTHETIC BIOLOGICS, INC. | |||
| By: | /s/ Steven A. Shallcross | ||
| Name: | Steven A. Shallcross | ||
| Title: | Chief Executive Officer and Chief Financial Officer | ||
| B. RILEY SECURITIES, INC. | |||
| By: | /s/ Patrice McNicoll | ||
| Name: | Patrice McNicoll | ||
| Title: | Co-Head of Investment Banking | ||
| A.G.P./ALLIANCE GLOBAL PARTNERS | |||
| By: | /s/ Thomas J. Higgins | ||
| Name: | Thomas J. Higgins | ||
| Title: | Managing Director | ||