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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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark 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 July 12, 2022, Allena Pharmaceuticals, Inc. (the “Company”) entered into a Subscription and Investment Representation Agreement (the “Subscription Agreement”) with a single accredited investor (the “Subscriber”), pursuant to which the Company agreed to issue and sell one hundred (100) shares of the Company’s Series F Non-Convertible Preferred Stock, par value $0.001 per share (the “Series F Non-Convertible Preferred Stock”), to the Purchaser for $100.00 in cash. The sale was completed and settled on July 12, 2022. The Subscription Agreement contains customary representations and warranties and certain indemnification rights and obligations of the parties.
Additional information regarding the rights, preferences, privileges and restrictions applicable to the Series F Non-Convertible Preferred Stock is set forth under Item 5.03 of this Current Report on Form 8-K and is incorporated herein by reference.
The foregoing summary of the Subscription Agreement does not purport to be complete and is subject to, and qualified in its entirety by, such document, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
The disclosure required by this Item is included in Item 1.01 of this Current Report on Form 8-K and is incorporated herein by reference. Based in part upon the representations of the Subscriber in the Subscription Agreement, the offering and sale of the Series F Non-Convertible Preferred Stock was exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended.
Item 3.03 Material Modifications to Rights of Security Holders
The disclosure required by this Item is included in Item 5.03 of this Current Report on Form 8-K and is incorporated herein by reference.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Certificate of Elimination
On May 4, 2022, the Company issued and sold to a single purchaser shares of Series D Convertible Preferred Stock, par value $0.001 per share (“Series D Preferred Stock”), and Series E Convertible Preferred Stock, par value $0.001 per share (“Series E Preferred Stock”). In connection therewith, the Company filed a Certificate of Designation with the Secretary of State of the State of Delaware designating 1,436.0688 shares out of the Company’s authorized but unissued shares of its preferred stock as Series D Convertible Preferred Stock, and a Certificate of Designation with the Secretary of State of the State of Delaware designating 1,436.0688 shares out of the Company’s authorized but unissued shares of its preferred stock as Series E Convertible Preferred Stock. As of the date of this Current Report on Form 8-K all of these shares have been converted into shares of the Company’s common stock, par value $0.001 per share, and are no longer outstanding.
On July 12, 2022, immediately prior to filing the Certificate of Designation referenced below, the Company filed a Certificate of Elimination (the “Certificate of Elimination”) with the Secretary of State of the State of Delaware which, effective upon filing, eliminated all matters set forth in the Certificate of Designation of Series D Convertible Preferred Stock and Certificate of Designation of Series E Convertible Preferred Stock previously filed by the Company.
The foregoing description of the Certificate of Elimination does not purport to be complete and is qualified in its entirety by reference to the Certificate of Elimination, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Series F Non-Convertible Preferred Stock
On July 12, 2022, the Company filed a certificate of designation (the “Certificate of Designation”) with the Secretary of State of the State of Delaware designating, effective as of the time of filing, the rights, preferences, privileges and restrictions of one hundred (100) shares of Series F Non-Convertible Preferred Stock. The Certificate of Designation provides that each share of Series F Non-Convertible Preferred Stock will have 80,000,000 votes and will vote together with the outstanding shares of the Company’s common stock as a single class exclusively with respect to any proposal to amend the Company’s amended and restated certificate of incorporation, as amended, to effect a reverse stock split of the Company’s common stock, and on any proposal to adjourn any meeting of stockholders called for the purpose of voting on such proposal. The Series F Non-Convertible Preferred Stock will be voted, automatically and without action by the holder, on any such proposals in the same proportion as shares of common stock are voted. The Series F Non-Convertible Preferred Stock otherwise has no voting rights except as otherwise required by the General Corporation Law of the State of Delaware.
The Series F Non-Convertible Preferred Stock is not convertible into shares of the Company’s common stock or any other class or series of stock of the Company. In the event of any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, the holders of Series F Non-Convertible Preferred Stock shall be entitled to receive, in priority to any distributions to the holders of Common Stock, out of the assets, whether capital or surplus, of the Company an amount equal to $0.01 per share, or $1.00 in the aggregate. The holder of the Series F Non-Convertible Preferred Stock will not be entitled to receive dividends of any kind.
Unless prohibited by Delaware law by virtue of a lack of sufficient surplus, legally available funds or otherwise and subject to the fiduciary duties of the Board of Directors of the Company, the outstanding shares of Series F Non-Convertible Preferred Stock may be redeemed at any time following the effectiveness of the reverse stock split upon the order of the Board of Directors in its sole discretion. Upon such redemption, the holders of the Series F Non-Convertible Preferred Stock will receive consideration of $1.00 per share in cash.
The foregoing summary of the Certificate of Designation does not purport to be complete and is subject to, and qualified in its entirety by, such document, which is filed as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 8.01. | Other Events. |
Rescheduled Special Meeting to Approve Reverse Stock Split
On July 5, 2022, the Company announced that it had rescheduled its special meeting to, among other things, consider and vote on a proposed amendment to its amended and restated certificate of incorporation, as amended, in order to effect a reverse stock split of its issued and outstanding common stock.
The Company has rescheduled the special meeting to August 4, 2022 and declared a new record date of the close of business on July 12, 2022 for the special meeting. Only stockholders of record holding shares of our Common Stock or Series F Non-Convertible Preferred Stock as of the close of business on the new record date are entitled to notice of, and to vote at, the special meeting or any adjournments thereof. The Company will mail a notice of meeting, original proxy statement and proxy statement supplement to stockholders of record and stockholders who hold shares in street name through a bank, broker or other institution, in each case as of the new record date.
The Company issued a press release announcing the rescheduled special meeting. A copy of the press release is filed as Exhibit 99.1 to this Current Report and incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit Number |
Description | |
| 3.1 | Certificate of Elimination dated July 12, 2022 | |
| 3.2 | Certificate of Designation of Series F Non-Convertible Preferred Stock dated July 12, 2022 | |
| 10.1 | Form of Subscription and Investment Representation Agreement dated July 12, 2022 | |
| 99.1 | Press Release dated July 12, 2022 | |
| 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: July 12, 2022 | Allena Pharmaceuticals, Inc. | |||||
| By: | /s/ Richard Katz | |||||
| Richard Katz, M.D. | ||||||
| Chief Financial Officer | ||||||
Exhibit 3.1
CERTIFICATE OF ELIMINATION
OF
SERIES D CONVERTIBLE PREFERRED STOCK AND
SERIES E CONVERTIBLE PREFERRED STOCK,
EACH A SERIES OF PREFERRED STOCK
OF
ALLENA PHARMACEUTICALS, INC.
(Pursuant to Section 151(g) of the
Delaware General Corporation Law)
ALLENA PHARMACEUTICALS, INC., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), does hereby certify that the following resolutions respecting Series D Convertible Preferred Stock, par value $0.001 per share (the “Series D Convertible Preferred Stock”), and Series E Convertible Preferred Stock, par value $0.001 per share (the “Series E Convertible Preferred Stock”), each a series of preferred stock of the Corporation, were duly adopted by the Corporation’s Board of Directors (the “Board of Directors”):
| WHEREAS: | On May 4, 2022, the Corporation filed a Certificate of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock (the “Series D Certificate of Designation”) with the Secretary of State of the State of Delaware pursuant to Section 151(g) of the Delaware General Corporation Law (the “DGCL”) designating 1,436.0688 shares of the Corporation’s authorized preferred stock as Series D Convertible Preferred Stock. | |
| WHEREAS: | On May 4, 2022, the Corporation filed a Certificate of Designation of Preferences, Rights and Limitations of Series E Convertible Preferred Stock (the “Series E Certificate of Designation”) with the Secretary of State of the State of Delaware pursuant to Section 151(g) of the Delaware General Corporation Law (the “DGCL”) designating 1,436.0688 shares of the Corporation’s authorized preferred stock as Series E Convertible Preferred Stock. | |
| RESOLVED: | That no shares of the Series D Convertible Preferred Stock are outstanding and that no shares of the Series D Convertible Preferred Stock will be issued subject to the Series D Certificate of Designation. | |
| RESOLVED: | That no shares of the Series E Convertible Preferred Stock are outstanding and that no shares of the Series E Convertible Preferred Stock will be issued subject to the Series E Certificate of Designation. | |
| RESOLVED: | That pursuant to the authority conferred upon the Board of Directors by the provisions of the Corporation’s Amended and Restated Certificate of Incorporation (as amended, the “Charter”) and by Section 151(g) of the DGCL, the Board of Directors hereby eliminates the Series D Convertible Preferred Stock authorized by the Corporation, none of which is currently outstanding and none of which will be issued in the future, and that all matters set forth in the Series D Certificate of Designation be eliminated from the Charter. | |
| RESOLVED: | That pursuant to the authority conferred upon the Board of Directors by the provisions of the Charter and by Section 151(g) of the DGCL, the Board of Directors hereby eliminates the Series E Convertible Preferred Stock authorized by the Corporation, none of which is currently outstanding and none of which will be issued in the future, and that all matters set forth in the Series E Certificate of Designation be eliminated from the Charter. | |
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| RESOLVED: | That the Corporation’s officers be, and each of them hereby is, authorized and directed to execute and file with the Secretary of State of the State of Delaware a certificate pursuant to Sections 103 and 151(g) of the DGCL setting forth these resolutions in order to eliminate from the Charter all matters set forth in the Series D Certificate of Designation and the Series E Certificate of Designation and all such other documents, supplements, exhibits and further information with respect thereto, in such form and with respect to such matters as the officer or officers so acting (individually or by power of attorney) may deem necessary or desirable. |
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Elimination to be executed to be signed by its duly authorized officer this 12th day of July, 2022.
| ALLENA PHARMACEUTICALS, INC. | ||||
| By: | /s/ Louis Brenner, M.D. | |||
| Name: | Louis Brenner, M.D. | |||
| Title: | Chief Executive Officer | |||
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Exhibit 3.2
ALLENA PHARMACEUTICALS, INC.
CERTIFICATE OF DESIGNATION OF PREFERENCES
RIGHTS AND LIMITATIONS
OF
SERIES F NON-CONVERTIBLE PREFERRED STOCK
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
THE UNDERSIGNED DOES HEREBY CERTIFY, on behalf of Allena Pharmaceuticals, Inc., a Delaware corporation (the “Corporation”), that the following resolution was duly adopted by the board of directors of the Corporation (the “Board of Directors”), in accordance with the provisions of Section 151 of the General Corporation Law of the State of Delaware, as amended (the “DGCL”), via unanimous written consent on July 12, 2022, which resolution provides for the creation of a series of the Corporation’s preferred stock, par value $0.001 per share, which is designated as “Series F Non-Convertible Preferred Stock,” with the rights, preferences, privileges and restrictions set forth therein.
WHEREAS, the Amended and Restated Certificate of Incorporation of the Corporation (as amended, the “Certificate of Incorporation”), provides for a class of capital stock of the Corporation known as undesignated preferred stock, consisting of 5,000,000 shares, par value $0.001 per share (the “Preferred Stock”), issuable from time to time in one or more series, and further provides that the Board of Directors is expressly authorized to fix the number of shares of any series of Preferred Stock, and the designations, powers, including voting powers, full or limited, or no voting powers, preferences and the relative, participating, optional or other special rights of the shares of each series and any qualifications, limitations and restrictions thereof.
NOW, THEREFORE, BE IT RESOLVED, that, pursuant to authority conferred upon the Board of Directors by the Certificate of Incorporation, (i) a series of Preferred Stock be, and hereby is, authorized by the Board of Directors, (ii) the Board of Directors hereby authorizes the issuance of one hundred (100) shares of Series F Non-Convertible Preferred Stock and (iii) the Board of Directors hereby fixes the rights, powers, preferences, privileges and restrictions of such shares of Preferred Stock, in addition to any provisions set forth in the Certificate of Incorporation that are applicable to all series of the Preferred Stock, as follows:
TERMS OF PREFERRED STOCK
1. Designation, Amount and Par Value. The series of Preferred Stock created hereby shall be designated as the Series F Non-Convertible Preferred Stock (the “Series F Non-Convertible Preferred Stock”), and the number of shares so designated shall be one hundred (100). The shares of Series F Non-Convertible Preferred Stock shall have a par value of $0.001 per share and will be uncertificated and represented in book-entry form.
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2. Dividends. The holder of Series F Non-Convertible Preferred Stock, as such, shall not be entitled to receive dividends of any kind.
3. Voting Rights. Except as otherwise provided by the Certificate of Incorporation or required by law, the holders of the shares of Series F Non-Convertible Preferred Stock shall have the following voting rights:
3.1 Except as otherwise provided herein, each outstanding share of Series F Non-Convertible Preferred Stock shall have 80,000,000 votes per share. The outstanding shares of Series F Non-Convertible Preferred Stock shall vote together with the outstanding shares of common stock, par value $0.001 per share (the “Common Stock”), of the Corporation as a single class exclusively with respect to the Reverse Stock Split (as defined below) and any proposal to adjourn any meeting of stockholders called for the purpose of voting on the Reverse Stock Split and shall not be entitled to vote on any other matter except to the extent required under the DGCL. As used herein, the term “Reverse Stock Split” means any proposal to adopt an amendment to the Certificate of Incorporation to reclassify the outstanding shares of Common Stock into a smaller number of shares of Common Stock at a ratio specified in or determined in accordance with the terms of such amendment.
3.2 The shares of Series F Non-Convertible Preferred Stock shall be voted, automatically and without action by the holder, on the Reverse Stock Split in the same proportion as shares of Common Stock are voted (excluding any shares of Common Stock that are not voted) on the Reverse Stock Split and any proposal to adjourn any meeting of stockholders called for the purpose of voting on the Reverse Stock Split (and, for purposes of clarity, such voting rights shall not apply on any other resolution or proposal presented to the stockholders of the Corporation except to the extent required under the DGCL).
4. Rank; Liquidation and Other. Subject to the preferential rights of the holders of any series or class of shares of the Corporation hereafter created specifically ranking by its terms in priority to the Series F Non-Convertible Preferred Stock, and in priority to any distributions of any of the assets or surplus funds of the Corporation to the holders of Common Stock and pari passu with any distributions of any of the assets or surplus funds of the Corporation to the holders of any series or class of shares of the Corporation hereafter created specifically ranking by its terms pari passu with the Series F Non-Convertible Preferred Stock, upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the holders of Series F Non-Convertible Preferred Stock shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation an amount equal to $0.01 per share.
5. Transfer. The Series F Non-Convertible Preferred Stock may not be Transferred (as defined below) at any time without the prior written consent of the Board of Directors. “Transferred” means, directly or indirectly, whether by merger, consolidation, share exchange, division, or otherwise, the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of the shares of Series F Non-Convertible Preferred Stock (or any right, title or interest thereto or therein) or any agreement, arrangement or understanding (whether or not in writing) to take any of the foregoing actions.
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6. Redemption.
6.1 Unless prohibited by Delaware law by virtue of a lack of sufficient surplus, legally available funds or otherwise and subject to the fiduciary duties of the Board of Directors of the Corporation, the outstanding shares of Series F Non-Convertible Preferred Stock may be redeemed in whole, but not in part, at any time following the effectiveness of the amendment to the Certificate of Incorporation implementing the Reverse Stock Split upon the order of the Board of Directors in its sole discretion (any such redemption pursuant to this Section 6.1, the “Redemption). Such Redemption shall be effective on such time and date specified by the Board of Directors in its sole discretion. As used herein, the “Redemption Time” shall mean the effective time of the Redemption. If Delaware law prevents the Corporation from redeeming all shares of Series F Non-Convertible Preferred Stock, the Corporation shall ratably redeem the maximum number of shares that it may redeem consistent with such law, and thereafter shall redeem the remaining shares as soon as it may lawfully do so under such law (which time shall be deemed the Redemption Time for purposes of this Section 6). If any shares of Series F Non-Convertible Preferred Stock are not redeemed for any reason, all such unredeemed shares shall remain outstanding and entitled to all the rights and preferences provided herein.
6.2 The shares of Series F Non-Convertible Preferred Stock redeemed in the Redemption pursuant to this Section 6 shall be redeemed in consideration for the right to receive an amount equal to $1.00 (the “Redemption Price”) per share of Series F Non-Convertible Preferred Stock that is owned of record as of immediately prior to the applicable Redemption Time and redeemed pursuant to the Redemption, payable upon the applicable Redemption Time.
6.3 From and after the time at which the shares of Series F Non-Convertible Preferred Stock are redeemed (whether automatically or otherwise) in accordance with Section 6.1, such shares of Series F Non-Convertible Preferred Stock shall cease to be outstanding, and the only right of the former holder(s) of such shares of Series F Non-Convertible Preferred Stock, as such, will be to receive the applicable Redemption Price. The shares of Series F Non-Convertible Preferred Stock Redeemed by the Corporation pursuant to this Certificate of Designation shall resume the status of authorized but unissued shares of Preferred Stock, upon such Redemption.
7. Severability. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, then such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Allena Pharmaceuticals, Inc. has caused this Certificate of Designation of Series F Non-Convertible Preferred Stock to be duly executed by the undersigned duly authorized officer as of this 12th day of July, 2022.
| ALLENA PHARMACEUTICALS, INC. | ||||
| By: | /s/ Louis Brenner, M.D. | |||
| Name: | Louis Brenner, M.D. | |||
| Title: | Chief Executive Officer | |||
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Exhibit 10.1
Allena Pharmaceuticals, Inc.
Series F Non-Convertible Preferred Stock
SUBSCRIPTION AND INVESTMENT REPRESENTATION AGREEMENT
THIS AGREEMENT, dated as of July 12, 2022, is by and between Allena Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and the undersigned subscriber (the “Subscriber”). In consideration of the mutual promises contained herein, and other good, valuable and adequate consideration, the parties hereto agree as follows:
1. Agreement of Sale; Closing. The Company agrees to sell to Subscriber, and Subscriber agrees to purchase from the Company, one hundred (100) shares of the Company’s Series F Non-Convertible Preferred Stock, par value $0.001 per share (the “Securities”), which Securities shall have the rights, preferences, privileges and restrictions set forth in the Certificate of Designation attached hereto as Exhibit A (the “Certificate of Designation”). Subscriber hereby acknowledges and agrees to the entire terms of the Certificate of Designation, including, without limitation, the voting rights in Section 3, the restrictions on transfer of the Securities in Section 5 and the redemption of the Securities pursuant to Section 6 of the Certificate of Designation. The purchase price will be paid by the Subscriber to the Company in cash at the price of $1.00 per share, or $100.00 in the aggregate.
2. Representations and Warranties of Subscriber. In consideration of the Company’s offer to sell the Securities, and in addition to the purchase price to be paid, Subscriber hereby covenants, represents and warrants to the Company as follows:
a. Information About the Company.
i. Subscriber is aware that the Company has limited cash and cash equivalents and there is substantial doubt about its ability to continue as a going concern.
ii. Subscriber has had an opportunity to ask questions of, and receive answers from, the Company concerning the business, management, and financial and compliance affairs of the Company and the terms and conditions of the purchase of the Securities contemplated hereby. Subscriber has had an opportunity to obtain, and has received, any additional information deemed necessary by the Subscriber to verify such information in order to form a decision concerning an investment in the Company.
b. Information on Subscriber. Subscriber is not an employee, officer, director, contractor, agent, representative, beneficiary, and/or affiliate of the Company.
c. Restrictions on Transfer. Subscriber covenants, represents and warrants that the Securities are being purchased for Subscriber’s own personal account and for Subscriber’s individual investment and without the intention of reselling or redistributing the same, that Subscriber has made no agreement with others regarding any of such Securities, and that Subscriber’s financial condition is such that it is not likely that it will be necessary to dispose of any of the Securities in the foreseeable future. Moreover, Subscriber acknowledges that any of the aforementioned actions may require the prior written consent of the Company’s board of directors pursuant to the Certificate of Designation. Subscriber is aware that, in the view of the Securities and Exchange Commission, a purchase of the Securities with an intent to resell by reason of any foreseeable specific contingency or anticipated change in market values, or any change in the condition of the Company, or in connection with a contemplated liquidation or settlement of any loan obtained by Subscriber for the acquisition of the Securities and for which the Securities were pledged as security, would represent an intent inconsistent with the covenants, warranties and representations set forth above. Subscriber understands that the Securities have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state or foreign securities laws in reliance on exemptions from registration under these laws, and that, accordingly, the Securities may not be resold by the undersigned (i) unless they are registered under both the Securities Act and applicable state or foreign securities laws or are sold in transactions which are exempt from such registration, and (ii) except in compliance with Section 5 of the Certificate of Designation, which may require the prior written consent of the Company’s board of directors. Subscriber therefore agrees not to sell, assign, transfer or otherwise dispose of the Securities (i) unless a registration statement relating thereto has been duly filed and become effective under the Securities Act and applicable state or foreign securities laws, or unless in the opinion of counsel satisfactory to the Company no such registration is required under the circumstances, and (ii) except in compliance with Section 5 of the Certificate of Designation. There is not currently, and it is unlikely that in the future there will exist, a public market for the Securities; and accordingly, for the above and other reasons, Subscriber may not be able to liquidate an investment in the Securities for an indefinite period.
d. High Degree of Economic Risk. Subscriber realizes that an investment in the Securities involves a high degree of economic risk to the Subscriber, including the risks of receiving no return on the investment and/or of losing Subscriber’s entire investment in the Company. Subscriber is able to bear the economic risk of investment in the Securities, including the total loss of such investment. The Company can make no assurance regarding its future financial performance or as to the future profitability of the Company.
e. Suitability. Subscriber has such knowledge and experience in financial, legal and business matters that Subscriber is capable of evaluating the merits and risks of an investment in the Securities. Subscriber has obtained, to the extent deemed necessary, Subscriber’s own personal professional advice with respect to the risks inherent in, and the suitability of, an investment in the Securities in light of Subscriber’s financial condition and investment needs. Subscriber believes that the investment in the Securities is suitable for Subscriber based upon Subscriber’s investment objectives and financial needs, and Subscriber has adequate means for providing for Subscriber’s current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Securities. Subscriber understands that no federal or state agency has made any finding or determination as to the fairness for investment, nor any recommendation or endorsement, of the Securities.
f. Tax Liability. Subscriber has reviewed with Subscriber’s own tax advisors the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement, and has and will rely solely on such advisors and not on any statements or representations of the Company or any of its agents, representatives, employees or affiliates or subsidiaries. Subscriber understands that Subscriber (and not the Company) shall be responsible for Subscriber’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement. Under penalties of perjury, Subscriber certifies that Subscriber is not subject to back-up withholding either because Subscriber has not been notified that Subscriber is subject to back-up withholding as a result of a failure to report all interest and dividends, or because the Internal Revenue Service has notified Subscriber that Subscriber is no longer subject to back-up withholding.
g. Limitation Regarding Representations. Except as set forth in this Agreement, no covenants, representations or warranties have been made to Subscriber by the Company or any agent, representative, employee, director or affiliate or subsidiary of the Company and in entering into this transaction, Subscriber is not relying on any information, other than that contained herein and the results of independent investigation by Subscriber without any influence by Company or those acting on Company’s behalf. Subscriber agrees it is not relying on any oral or written information not expressly included in this Agreement, including but not limited to the information which has been provided by the Company, its directors, its officers or any affiliate or subsidiary of any of the foregoing.
h. Authority.
i. Entity. If the undersigned is not an individual but an entity, the individual signing on behalf of such entity and the entity jointly and severally agree and certify that (a) the undersigned was not organized for the specific purpose of acquiring the Securities and (b) this Agreement has been duly authorized by all necessary action(s) on the part of the undersigned, has been duly executed by an authorized officer, agent or representative of the undersigned, and is a legal, valid and binding obligation of the undersigned enforceable in accordance with its terms.
ii. Individual. If the undersigned is an individual, the undersigned is of legal age.
3. Legend. Subscriber consents to the notation of the Securities with the following legend reciting restrictions on the transferability of the Securities:
The Securities represented hereby have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and have not been registered under any state securities laws. These Securities may not be sold, offered for sale or transferred, without first obtaining (i) an opinion of counsel satisfactory to the Company that such sale or transfer lawfully is exempt from registration under the Securities Act and under the applicable state securities laws or (ii) such registration. Moreover, these Securities may be transferred only in accordance with the terms of the Company’s Certificate of Designation of Series F Non-Convertible Preferred Stock, a copy of which is on file with the Secretary of the Company.
PARAGRAPH 4 IS REQUIRED IN CONNECTION WITH THE EXEMPTIONS FROM THE SECURITIES ACT AND STATE LAWS BEING RELIED ON BY THE COMPANY WITH RESPECT TO THE OFFER AND SALE OF THE SECURITIES HEREUNDER. ALL OF SUCH INFORMATION WILL BE KEPT CONFIDENTIAL AND WILL BE REVIEWED ONLY BY THE COMPANY AND ITS COUNSEL. THE UNDERSIGNED AGREES TO FURNISH ANY ADDITIONAL INFORMATION THAT THE COMPANY AND ITS COUNSEL DEEM NECESSARY TO VERIFY THE RESPONSES SET FORTH BELOW.
4. Accredited Status. Subscriber covenants, represents and warrants that it qualifies as an “accredited investor” as that term is defined in Regulation D under the Securities Act. The information provided under this section of the Agreement is required in connection with the exemptions from the Securities Act and state securities laws being relied on by the Company with respect to the offer and sale of the Securities. The undersigned agrees to furnish any additional information which the Company or its legal counsel deem necessary in order to verify the responses set forth above.
5. Holding Status. Subscriber desires that the Securities be held as set forth on the signature page hereto.
6. Confidentiality. Subscriber will make no written or other public disclosures regarding the Company and its business, the terms or existence of the proposed or actual sale of Securities or regarding the parties to the proposed or actual sale of Securities to any individual or organization without the prior written consent of the Company, except as may be required by law.
7. Notice. Correspondence regarding the Securities should be directed to Subscriber at the address provided by Subscriber to the Company in writing.
8. No Assignment or Revocation; Binding Effect. Neither this Agreement, nor any interest herein, shall be assignable or otherwise transferable, restricted or limited by Subscriber without prior written consent of the Company. Subscriber hereby acknowledges and agrees that Subscriber is not entitled to cancel, terminate, modify or revoke this Agreement in any way and that the Agreement shall survive the death, incapacity or bankruptcy of Subscriber. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective heirs, legal representatives, successors and assigns.
9. Indemnification. The Company agrees to indemnify and hold harmless the Subscriber and each current and future officer, director, employee, agent, representative and shareholder, if any, of the Subscriber from and against any and all costs, expenses, loss, damage, judgments or liability associated with this Agreement and the issuance and voting of the Securities.
10. Modifications. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise amended, in whole or in part, except by an instrument in writing, signed by the Subscriber and the Company. No delay or failure of the Company in exercising any right under this Agreement will be deemed to constitute a waiver of such right or of any other rights.
11. Entire Agreement. This Agreement and the exhibits hereto are the entire agreement between the parties with respect to the subject matter hereto and thereto. This Agreement, including the exhibits, supersede any previous oral or written communications, representations, understandings or agreements with the Company or with any officers, directors, agents or representatives of the Company.
12. Severability. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable in any jurisdiction, such paragraph or provision shall, as to that jurisdiction, be adjusted and reformed, if possible, in order to achieve the intent of the parties hereunder, and if such paragraph or provision cannot be adjusted and reformed, such paragraph or provision shall, for the purposes of that jurisdiction, be voided and severed from this Agreement, and the entire Agreement shall not fail on account thereof but shall otherwise remain in full force and effect.
13. Governing Law. This Agreement shall be governed by, subject to, and construed in accordance with the laws of the State of Delaware without regard to conflict of law principles.
14. Survival of Covenants, Representations and Warranties. Subscriber understands the meaning and legal consequences of the agreements, covenants, representations and warranties contained herein, and agrees that such agreements, covenants, representations and warranties shall survive and remain in full force and effect after the execution hereof and payment by Subscriber for the Securities.
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For good, valuable and adequate consideration, the receipt and sufficiency of which is hereby acknowledged, Subscriber hereby agrees that by signing this Subscription and Investment Representation Agreement, and upon acceptance hereof by the Company, that the terms, provisions, obligations and agreements of this Agreement shall be binding upon Subscriber, and such terms, provisions, obligations and agreements shall inure to the benefit of and be binding upon Subscriber and its successors and assigns.
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The Company hereby accepts the subscription evidenced by this Subscription and Investment Representation Agreement:
| Allena Pharmaceuticals, Inc. |
| By: |
| Louis Brenner, M.D. |
| Chief Executive Officer |
Exhibit A
Certificate of Designation
Exhibit 99.1
Allena Pharmaceuticals Announces
New Meeting Date and New Record Date for
Special Meeting to Approve Reverse Stock Split
NEWTON, Mass., July 12, 2022 (GLOBE NEWSWIRE) — Allena Pharmaceuticals, Inc. (NASDAQ: ALNA), a late-stage, biopharmaceutical company dedicated to developing and commercializing first-in-class, oral enzyme therapeutics to treat patients with rare and severe metabolic and kidney disorders, today announced that it has rescheduled its special meeting to, among other things, consider and vote on a proposed amendment to its amended and restated certificate of incorporation, as amended, in order to effect a reverse stock split of its issued and outstanding common stock.
The Special Meeting will now be held on August 4, 2022, at 9:00 a.m., local time via live webcast. The new record date for the meeting is July 12, 2022.
Allena will shortly begin mailing a copy of a new notice of special meeting, the original proxy statement for the special meeting and a proxy statement supplement to stockholders of record and stockholders who hold shares in street name through a bank, broker or other institution, in each case as of the new record date.
About Allena Pharmaceuticals, Inc.
Allena Pharmaceuticals, Inc. is a biopharmaceutical company dedicated to discovering, developing and commercializing first-in-class, oral biologic therapeutics to treat patients with rare and severe metabolic and kidney disorders.
Additional Information and Where to Find It
In connection with the special meeting described above the Company filed a definitive proxy statement with the Securities and Exchange Commission on May 24, 2022 and in connection with the rescheduled meeting the Company will file with the Securities and Exchange Commission a supplement to the definitive proxy statement. This press release does not contain all the information that should be considered concerning the matters to be considered at the special meeting, including the proposed reverse stock split, and is not intended to form the basis of any investment decision or any other decision in respect of such matters
The Company’s stockholders and other interested persons are advised to read the definitive proxy statement and, when available, the proxy supplement, and any amendments thereto, and any other documents filed in connection with the matters to be considered at the special meeting, including the proposed reverse stock split, as these materials will contain important information about the Company and such matters. The Company’s stockholders will also be able to obtain copies of these documents filed with the SEC, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to the Company’s corporate secretary c/o Allena Pharmaceuticals, Inc., One Newton Executive Park, Suite 202, Newton, MA 02462.
Appointment of Proxy Solicitor & Participants in Solicitation
The Company has engaged Saratoga Proxy Consulting LLC (“Saratoga”) to assist us with the solicitation of proxies in connection with the special meeting. We expect to pay Saratoga a fee of $25,000, plus reimbursement for certain expenses related to its services.
The Company and its directors and executive officers may also be deemed participants in the solicitation of proxies from the Company’s stockholders with respect to the special meeting. A list of the names of those directors and executive officers and a description of their interests in the Company is contained in the Company’s Annual Report for the year ended December 31, 2021 on Form 10-K, as amended, which was filed with the SEC and is available free of charge at the SEC’s web site at www.sec.gov. To the extent such holdings of the Company’s securities may have changed since that time, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Additional information regarding the interests of such participants will be contained in the definitive proxy statement, proxy supplement and any amendments thereto and any other documents filed in connection with the rescheduled special meeting when available.
Forward Looking Statements
Certain information contained in this press release includes “forward-looking statements” within the meaning of The Private Securities Litigation Reform Act of 1995, including statements related to the rescheduled special meeting. We may, in some cases, use terms such as “predicts,” “believes,” “potential,” “continue,” “anticipates,” “estimates,” “expects,” “plans,” “intends,” “may,” “could,” “might,” “will,” “should” or other words that convey uncertainty of the future events or outcomes to identify these forward-looking statements. Our forward-looking statements are based on current beliefs and expectations of our management team that involve risks, potential changes in circumstances, assumptions, and uncertainties. Any or all of the forward-looking statements may turn out to be wrong or be affected by inaccurate assumptions we might make or by known or unknown risks and uncertainties, including, among other, the failure to obtain stockholder approval of the proposed reverse stock split, and various other factors. For a more detailed description of the risks and uncertainties that could cause actual results to differ from those expressed in these forward-looking statements, as well as risks relating to our business in general, please refer to our most recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q. You are cautioned not to place undue reliance on these forward-looking statements, which are made only as of the date of this press release. We undertake no obligation to publicly update such forward-looking statements to reflect subsequent events or circumstances.
Document and Entity Information |
Jul. 12, 2022 |
|---|---|
| Cover [Abstract] | |
| Entity Incorporation State Country Code | DE |
| Amendment Flag | false |
| Entity Central Index Key | 0001624658 |
| Current Fiscal Year End Date | --12-31 |
| Document Type | 8-K |
| Document Period End Date | Jul. 12, 2022 |
| Entity Registrant Name | Allena Pharmaceuticals, Inc. |
| Entity File Number | 001-38268 |
| Entity Tax Identification Number | 45-2729920 |
| Entity Address, Address Line One | One Newton Executive |
| Entity Address, Address Line Two | Park |
| Entity Address, Address Line Three | Suite 202 |
| Entity Address, City or Town | Newton |
| Entity Address, State or Province | MA |
| Entity Address, Postal Zip Code | 02462 |
| City Area Code | (617) |
| Local Phone Number | 467-4577 |
| Written Communications | false |
| Soliciting Material | false |
| Pre Commencement Tender Offer | false |
| Pre Commencement Issuer Tender Offer | false |
| Security 12b Title | Common Stock, par value $0.001 per share |
| Trading Symbol | ALNA |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | true |
| Entity Ex Transition Period | true |
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