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
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Item 1.01. Entry Into A Material Definitive Agreement.
On March 11, 2023, NightHawk Biosciences, Inc. (the “Company”) entered into Amendment No. 5 dated March 11, 2023 (“Amendment No. 5”) to the Rights Agreement dated March 11, 2018, as amended by Amendment No. 1 thereto (“Amendment No. 1”) dated March 8, 2019, Amendment No. 2 thereto (“Amendment No. 2”) dated March 10, 2020, Amendment No. 3 thereto (“Amendment No. 3”) dated March 8, 2021, and Amendment No. 4 thereto (“Amendment No. 4”) dated March 11, 2022 (collectively, the “Rights Agreement”) by and between the Company and Continental Stock Transfer & Trust Company, as rights agent. Under the terms of Amendment No. 5, the expiration date of the Company’s stockholder rights plan has been extended to March 11, 2024, or such earlier date that the Company redeems or exchanges the rights as described in the Rights Agreement.
A copy of Amendment No. 5 is attached as Exhibit 4.6 to this Current Report on Form 8-K and is incorporated by reference herein. A copy of the Rights Agreement as originally executed is included as Exhibit 4.1 to this Current Report on Form 8-K, Amendment No. 1 is included as Exhibit 4.2 to this Current Report on Form 8-K, Amendment No. 2 is included as Exhibit 4.3 to this Current Report on Form 8-K, Amendment No. 3 is included as Exhibit 4.4 to this Current Report on Form 8-K, and Amendment No. 4 is included as Exhibit 4.5 to this Current Report on Form 8-K and such agreements are incorporated herein by reference. The foregoing summary of Amendment No. 5 and the Rights Agreement are qualified in their entirety by reference to Exhibits 4.1, 4.2, 4.3, 4.4, 4.5 and 4.6.
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 3.03 by reference.
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: March 13, 2023 | NightHawk Biosciences, Inc. | |
| By: | /s/ Jeffrey Wolf | |
| Name: | Jeffrey Wolf | |
| Title: | Chairman, President and Chief Executive Officer | |
EXHIBIT 4.6
AMENDMENT NO. 5 TO RIGHTS AGREEMENT
This Amendment No. 5 (this “Amendment”) dated the 11th day of March, 2023 to the Rights Agreement, dated March 11, 2018, as amended by Amendment No. 1 thereto, dated March 8, 2019, as further amended by Amendment No. 2 thereto, dated March 10, 2020, Amendment No. 3 thereto, dated March 8, 2021, and Amendment No. 4 thereto, dated March 11, 2022 (the “Agreement”), by and between NightHawk Biosciences, Inc. (formerly known as Heat Biologics, Inc.) (the “Company”) and Continental Stock Transfer & Trust Company, as Rights Agent (the “Rights Agent”). Capitalized terms used herein without definition shall have the meanings assigned in the Agreement.
WHEREAS, pursuant to Section 27 of the Agreement, the Company and the Rights Agent may, for so long as the Rights are redeemable, from time to time, change or supplement the provisions under the Rights Agreement as the Company may deem necessary or desirable, without the approval of any holders of the Rights;
WHEREAS, as of the date hereof, a Flip-In Event has not occurred and, as such, the Rights are presently redeemable;
WHEREAS, the Company desires to amend the Agreement to extend the final expiration date of the Rights from the Close of Business on March 11, 2023 to the Close of Business on March 11, 2024; and
WHEREAS, pursuant to Section 27 of the Agreement, the Company hereby directs the Rights Agent that the Rights Agreement shall be amended as set forth in this Amendment.
NOW THEREFORE, the Company and the Rights Agent agree to amend the Agreement as follows:
| 1. | Section 7(a) of the Agreement is hereby amended and restated in its entirety to read as follows: |
“Except as otherwise provided herein, the Rights shall become exercisable on the Distribution Date, and thereafter the registered holder of any Right Certificate (other than Right Certificates representing Rights that have become void pursuant to Section 11(a)(ii) hereof or that have been exchanged pursuant to Section 24 hereof) may, subject to Section 11(a)(ii) hereof and except as otherwise provided herein, exercise the Rights evidenced thereby in whole or in part upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof duly executed, to the Rights Agent at the office or agency of the Rights Agent designated for such purpose, together with payment of the aggregate Purchase Price with respect to the total number of shares of Common Stock (or other securities, cash or other assets, as the case may be) as to which the Rights are exercised, at any time which is both after the Distribution Date and prior to the time (the “Expiration Date”) that is the earliest of (i) the Close of Business on March 11, 2024, (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the “Redemption Date”), (iii) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Sections 1(d)(ii)(A)(z) and 13(f) at which time the Rights are terminated, or (iv) the time at which such Rights are exchanged as provided in Section 24 hereof.”
| 2. | The Form of Rights Certificate attached as Exhibit A to the Agreement and the Summary of Rights to Purchase Shares of Common Stock of NightHawk Biosciences, Inc. attached as Exhibit B to the Agreement are each amended to replace each reference to “March 11, 2023” contained therein with “March 11, 2024”. |
| 3. | This Amendment shall be effective immediately as of the date first written above, and thereafter, all references to the Agreement shall be deemed to be references to the Agreement, as amended hereby. |
| 4. | All other terms of the Agreement shall remain in full force and effect. |
| 5. | The undersigned officer of the Company hereby certifies to the Rights Agent that the amendments to the Agreement set forth in this Amendment are in compliance with Section 27 of the Rights Agreement and the certification contained in this Section 7 shall constitute the certification required by Section 27 of the Agreement. |
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
| NIGHTHAWK BIOSCIENCES, INC. | ||
| By: | /s/ Jeffrey Wolf | |
| Name: | Jeffrey Wolf | |
| Title: | President and Chief Executive Officer | |
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Rights Agent | ||
| By: | /s/ Stacy Aqui | |
| Name: | Stacy Aqui | |
| Title: | Vice President | |
Cover |
Mar. 11, 2023 |
|---|---|
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Mar. 11, 2023 |
| Entity File Number | 001-35994 |
| Entity Registrant Name | NightHawk Biosciences, Inc. |
| Entity Central Index Key | 0001476963 |
| Entity Tax Identification Number | 26-2844103 |
| Entity Incorporation, State or Country Code | DE |
| Entity Address, Address Line One | 627 Davis Drive |
| Entity Address, Address Line Two | Suite 400 |
| Entity Address, City or Town | Morrisville |
| Entity Address, State or Province | NC |
| Entity Address, Postal Zip Code | 27560 |
| City Area Code | (919) |
| Local Phone Number | 240-7133 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Entity Emerging Growth Company | false |
| Common Stock [Member] | |
| Common Stock | Common Stock, $0.0002 par value per share |
| Trading Symbol | NHWK |
| Security Exchange Name | NYSEAMER |
| Common Stock Purchase Rights [Member] | |
| Common Stock | Common Stock Purchase Rights |
| Trading Symbol | None |
| Security Exchange Name | NYSEAMER |