8-K: Current report filing
Published on August 11, 2023
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Emerging Growth Company
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| Item 1.01 | Entry into a Material Definitive Agreement. |
On August 8, 2023, Benitec Biopharma Inc., a Delaware corporation (the “Company”), entered into an Underwriting Agreement (the “Underwriting Agreement”) with Citizens JMP Securities, LLC (the “Underwriter”), pursuant to which the Company issued and sold, in a firm commitment underwritten public offering by the Company (the “Public Offering”), (i) 875,949 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”) (including 458,134 shares of Common Stock issued and sold pursuant to the Underwriter’s exercise of its over-allotment option), (ii) 15,126,226 pre-funded warrants (the “Pre-Funded Warrants”), with each pre-funded warrant exercisable for one share of Common Stock at an exercise price of $0.0001 per share commencing on the date of original issuance until exercised in full and (iii) an aggregate of 16,002,175 common warrants (the “Common Warrants”) (including 458,134 Common Warrants issued and sold pursuant to the Underwriter’s exercise of its over-allotment option), with each Common Warrant accompanying each issued share of Common Stock and/or Pre-Funded Warrant and exercisable for one share of Common Stock at an exercise price of $3.86 per share commencing on the date of original issuance, and expiring on the fifth anniversary of such initial exercisable date. The combined purchase price for each share of Common Stock and accompanying Common Warrant is $1.93, which is allocated as $1.9299 per share of Common Stock and $0.0001 per Common Warrant. The combined purchase price for each Pre-Funded Warrant and accompanying Common Warrant is $1.9299, which is allocated as $1.9298 per Pre-Funded Warrant and $0.0001 per Common Warrant.
In addition, pursuant to the Underwriting Agreement, the Company granted the Underwriter a 30-day option to purchase up to 2,331,606 additional shares of Common Stock and/or up to 2,331,606 additional Common Warrants solely to cover over-allotments, if any. As indicated above, as of the date hereof, the Underwriter has partially exercised this over-allotment option and purchased 458,134 additional shares of Common Stock and 458,134 additional Common Warrants.
The net proceeds to the Company from the Public Offering were approximately $28.3 million (after giving effect to the 458,134 additional shares of Common Stock and 458,134 additional Common Warrants sold pursuant to the Underwriter’s partial exercise of its over-allotment option), after deducting underwriting discounts and commissions and estimated Public Offering expenses payable by the Company, and excluding any proceeds the Company may receive upon exercise of the Pre-Funded Warrants or the Common Warrants. The Company currently intends to use the net proceeds to support the clinical development of BB-301, including the natural history lead-in study and the Phase 1b/2a BB-301 treatment study, for the continued advancement of development activities for other existing and new product candidates, for general corporate purposes and for strategic growth opportunities. The Company will have broad discretion in determining how the proceeds of the Public Offering will be used, and its discretion is not limited by the aforementioned possible uses.
The shares of Common Stock, Pre-Funded Warrants and Common Warrants were offered by the Company pursuant to the Registration Statement on Form S-1 (File No. 333-273177), which was initially filed with the Securities and Exchange Commission (the “Commission”) on July 7, 2023, amended on July 31, 2023, August 3, 2023 and August 7, 2023 and declared effective by the Commission on August 8, 2023 (the “Registration Statement”). The Common Stock is listed on The Nasdaq Capital Market; however, neither the Pre-Funded Warrants nor the Common Warrants will be listed on The Nasdaq Capital Market, any other national securities exchange or any other nationally recognized trading system.
Citizens JMP Securities, LLC acted as the Company’s sole book-running manager in connection with the Public Offering. In connection with Citizens JMP Securities, LLC’s services, it received an underwriting discount equal to 7.0% of the gross proceeds of the Public Offering. The Company also agreed to pay Citizens JMP Securities, LLC an expense allowance of up to $125,000 for fees and expenses of legal counsel and other out-of-pocket expenses.
On August 11, 2023, the Public Offering closed, and the Company issued and sold (i) 875,949 shares of Common Stock, (ii) 15,126,226 Pre-Funded Warrants to purchase 15,126,226 shares of Common Stock and (iii) 16,002,175 Common Warrants to purchase 16,002,175 shares of Common Stock, pursuant to the Registration Statement and the Underwriting Agreement.
The Pre-Funded Warrants are immediately exercisable until exercised in full at a price per share of Common Stock of $0.0001. The Common Warrants are immediately exercisable at a price per share of Common Stock of $3.86 and expire on the fifth anniversary of such initial exercisable date. The exercise price and number of shares of Common Stock issuable upon exercise of a Pre-Funded Warrant or a Common Warrant is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting the Company’s Common Stock and the exercise price. No fractional shares of Common Stock will be issued upon the exercise of the Pre-Funded Warrants or the Common Warrants. In lieu of fractional shares, the Company will round down to the next whole share. The Pre-Funded Warrants and the Common Warrants also provide that in the event of a fundamental transaction, the holder of the Pre-Funded Warrant or the Common Warrant, as applicable, is entitled to receive upon exercise of the Pre-Funded Warrant or the Common Warrant, as applicable, the kind and amount of securities, cash or other property that the holder would have received had the holder exercised the Pre-Funded Warrant or the Common Warrant, as applicable, immediately prior to such fundamental transaction. In addition, the Pre-Funded Warrants and the Common Warrants will be exercisable on a cashless basis if no registration statement registering the shares of Common Stock underlying the Pre-Funded Warrants and the Common Warrants, as applicable, is effective according to the formula set forth in the Pre-Funded Warrant or the Common Warrant, as applicable.
A holder of Pre-Funded Warrants and/or Common Warrants will not have the right to exercise any portion of its Pre-Funded Warrants or Common Warrants, as applicable, if the holder (together with such holder’s affiliates, and any persons acting as a group together with such holder or any of such holder’s affiliates) would beneficially own a number of shares of Common Stock in excess of 4.99% (or, upon election by a holder prior to the issuance of any Pre-Funded Warrants or Common Warrants, as applicable, 9.99%) of the shares of Common Stock then outstanding. At the holder’s option, upon notice to the Company, the holder may increase this beneficial ownership limitation not to exceed 9.99% of the shares of Common Stock then outstanding, with any such increase becoming effective upon 61 days’ prior notice to the Company.
The Underwriting Agreement contains representations, warranties and covenants made by the Company that are customary for transactions of this type. Under the terms of the Underwriting Agreement, the Company has agreed to indemnify the Underwriter against certain liabilities, including liabilities under the Securities Act of 1933, as amended. In addition, pursuant to the terms of the Underwriting Agreement, the Company and its executive officers and directors have entered into lock-up agreements providing that the Company and each of these persons may not, without the prior written approval of the Underwriter, subject to limited exceptions, offer, sell, transfer or otherwise dispose of the Company’s securities from the date of the Underwriting Agreement until 90 days after the Closing Date (as defined in the Underwriting Agreement).
On August 11, 2023, the Company entered into a warrant agency agreement with the Company’s transfer agent, Computershare Trust Company, N.A., who will also act as the warrant agent for the Company with respect to the Pre-Funded Warrants and the Common Warrants (the “Warrant Agency Agreement”).
The foregoing summaries of the Underwriting Agreement, the Pre-Funded Warrant, the Common Warrant and the Warrant Agency Agreement do not purport to be complete and are subject to, and qualified in their entirety by, such documents attached as Exhibits 1.1, 4.1, 4.2 and 4.3, respectively, to this Current Report on Form 8-K (this “Current Report”), which are incorporated herein by reference. The Underwriting Agreement is attached hereto as an exhibit to provide interested persons with information regarding its terms but is not intended to provide any other factual information about the Company. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of the Underwriting Agreement as of specific dates indicated therein, were solely for the benefit of the parties to the Underwriting Agreement and may be subject to limitations agreed upon by the parties.
| Item 8.01 | Other Events. |
Warrants
The Company has registration statements on Form S-1 (File No. 333-266417 and 333-268763) on file with the Commission. Commission regulations permit the Company to incorporate by reference future filings made with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to the termination of the offerings covered by registration statements filed on Form S-1. The information incorporated by reference is considered to be part of the prospectus included within each of those registration statements. Information in this Item 8.01 of this Current Report is therefore intended to be automatically incorporated by reference into each of the active registration statements listed above, thereby amending them. The Company has 29,809,471 outstanding Series 2 warrants (the “Series 2 Warrants”). The Series 2 Warrants contain an exercise price adjustment mechanism providing that certain issuances of common stock (or common stock equivalents), including issuances as a result of the Public Offering, if made at a price lower than the existing exercise price of $11.22 of such Series 2 Warrants, would reset the exercise price to such lower price. As a result of the Public Offering, the exercise price of the Series 2 Warrants has been automatically reset as of the closing time of the Public Offering to $1.93.
Press Releases
On August 8, 2023, the Company issued a press release announcing that it had priced the Public Offering, a copy of which is attached as Exhibit 99.1 to this Current Report and is incorporated herein by reference.
On August 11, 2023, the Company issued a press release announcing the closing of the Public Offering, a copy of which is attached as Exhibit 99.2 to this Current Report and is incorporated herein by reference.
Forward-Looking Statements
This Current Report contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. The Company has tried to identify such forward-looking statements by use of such words as “expects,” “intends,” “hopes,” “anticipates,” “believes,” “could,” “may,” “evidences” and “estimates,” or the negative of these terms, and other similar expressions, but these words are not the exclusive means of identifying such statements. Such statements include, but are not limited to, any statements relating to the proceeds from the Public Offering and the use thereof, the Company’s pipeline of ddRNAi-based therapeutics, including the initiation, progress and outcomes of clinical trials and any other statements that are not historical facts. Actual results or events could differ materially from the plans, intentions and expectations disclosed in these forward-looking statements as a result of various important factors, including, but not limited to, risks and uncertainties relating to the difficulties or delays in the Company’s plans to develop and potentially commercialize its product candidates, the timing of the initiation and completion of pre-clinical and clinical trials, the timing of patient enrollment and dosing in clinical trials, the timing of expected regulatory filings, the clinical utility and potential attributes and benefits of ddRNAi and the Company’s product candidates, potential future out-licenses and collaborations, the Company’s intellectual property position and duration of its patent portfolio, the ability to procure additional sources of financing, unanticipated delays, further research and development and the results of clinical trials possibly being unsuccessful or insufficient to meet applicable regulatory standards or warrant continued development, the ability to enroll sufficient numbers of subjects in clinical trials, determinations made by the U.S. Food and Drug Administration and other governmental authorities, the Company’s ability to protect and enforce its patents and other intellectual property rights, the Company’s dependence on its relationships with its collaboration partners and other third parties, the efficacy or safety of the Company’s products and the products of the Company’s collaboration partners, the acceptance of the Company’s products and the products of the Company’s collaboration partners in the marketplace, market competition, sales, marketing, manufacturing and distribution requirements, greater than expected expenses, expenses relating to litigation or strategic activities, the Company’s ability to satisfy its capital needs through increasing its revenue and obtaining additional financing, the impact of COVID-19, the disease caused by the SARS-CoV-2 virus, which may adversely impact the Company’s business and pre-clinical and future clinical trials, the impact of local, regional, and national and international economic conditions and events, and other risks detailed from time to time in filings that the Company makes with the Commission, including its most recent annual report on Form 10-K, its subsequent quarterly reports on Form 10-Q and its reports on Form 8-K. Such statements are based on management’s current expectations, but actual results may differ materially due to various factors, including those risks and uncertainties mentioned or referred to in this Current Report. Accordingly, you should not rely on those forward-looking statements as a prediction of actual future results. Any forward-looking statements contained in this Current Report speak only as of the date hereof, and the Company expressly disclaims any obligation to update any forward-looking statements, whether because of new information, future events or otherwise, except as required by law.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
|
Exhibit No. |
Description |
|
| 1.1 | Underwriting Agreement, dated August 8, 2023, by and between Benitec Biopharma Inc. and Citizens JMP Securities, LLC | |
| 4.1 | Form of Pre-Funded Warrant | |
| 4.2 | Form of Common Warrant | |
| 4.3 | Warrant Agency Agreement, dated August 11, 2023, by and between Benitec Biopharma Inc. and Computershare Trust Company, N.A. | |
| 99.1 | Press Release, dated August 8, 2023 | |
| 99.2 | Press Release, dated August 11, 2023 | |
| 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, thereunto duly authorized.
| BENITEC BIOPHARMA INC. | ||||||
| Date: August 11, 2023 | /s/ Jerel A. Banks |
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| Name: | Jerel A. Banks | |||||
| Title: | Chief Executive Officer | |||||