UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported):
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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):
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Securities registered pursuant to Section 12(b) of the Act:
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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
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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 3.02. | Unregistered Sales of Equity Securities. |
On March 13, 2024, the Company entered into subscription agreements (each, a “Series B Subscription Agreement”) and exchange agreements (each, an “Exchange Agreement”) with certain accredited investors (collectively, the “Series B Investors”), which agreements provided for (i) the sale to the Series B Investors of 12,495 shares of the Company’s newly designated Series B Convertible Preferred Stock, par value $0.001 per share (the “Series B Preferred Stock”), at a purchase price of $1,000 per share, and (ii) the exchange by the Series B Investors of 13,625 shares of the Company’s Series A Convertible Preferred Stock, par value $0.001 per share (the “Series A Preferred Stock”), and 10,670 shares of the Company’s Series A-1 Convertible Preferred Stock, par value $0.001 per share (the “Series A-1 Preferred Stock”), held by them for 31,790 shares of Series B Preferred Stock (collectively, the “Series B Offering and Exchange”). Prior to the execution of the Series B Subscription Agreements and the Exchange Agreements, the Company entered into subscription agreements with certain of the Series B Investors providing for the sale to such investors of 5,670 shares of Series A-1 Preferred Stock, at a purchase price of $1,000 per share, which shares the investors immediately agreed to exchange for shares of Series B Preferred Stock pursuant to the Exchange Agreements (and are included in the 10,670 shares of Series A-1 Preferred Stock set forth above).
The aggregate gross proceeds to the Company of the Series B Offering and Exchange was $18.16 million (inclusive of $5.67 million of aggregate gross proceeds from the sale of the Series A-1 Preferred Stock that was immediately exchanged for Series B Preferred Stock in the Series B Offering and Exchange).
The closing of the transactions occurred on March 13, 2024. On such date (the “Effective Date”), the Company filed with the Secretary of State of the State of Delaware: (i) a Certificate of Designation of Preferences, Rights and Limitations of the Series B Preferred Stock (the “Series B Certificate of Designation”), in order to designate the shares of Series B Preferred Stock, and (ii) a Certificate of Amendment to the Certificate of Designation of Preferences, Rights and Limitations of the Series A-1 Preferred Stock (the “Series A-1 Certificate of Amendment”), in order to increase by 5,670 the number of shares designated as Series A-1 Preferred Stock. Immediately after the transactions, the Company had no shares of Series A Preferred Stock or Series A-1 Preferred Stock outstanding and had 44,285 shares of Series B Preferred Stock outstanding.
The key terms of the Series B Preferred Stock are as follows:
Conversion. Each share of Series B Preferred Stock is convertible at the option of the holder, from and after the six-month anniversary of its issuance, subject to the beneficial ownership and primary market limitations described below, into such number of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), as is equal to the number of shares of Series B Preferred Stock to be converted, multiplied by the stated value of $1,000 (the “Stated Value”), divided by the conversion price in effect at the time of the conversion. The initial conversion price will be $1.2444, subject to adjustment in the event of stock splits, stock dividends, and similar transactions. In addition, the Series B Preferred Stock will automatically convert into shares of Common Stock, subject to the beneficial ownership and primary market limitations described below, (i) on March 13, 2026, (ii) upon the consummation of certain fundamental transactions, or (iii) with respect to the shares of Series B Preferred Stock initially issued under the Exchange Agreements (the “Exchanged Series B Preferred Stock”), at the election of the Company at any time after the six-month anniversary of the issuance of such shares of Series B Preferred Stock, upon written notice given to the holders of such shares, if the VWAP of the Common Stock has been at least $8.00 per share (subject to adjustment in the event of stock splits, stock dividends, and similar transactions) on 20 out of 30 consecutive trading days ending within 15 trading days prior to the date on which such notice is given (subject to certain limited exceptions) (a “VWAP-Based Mandatory Conversion Event”).
Rank. The Series B Preferred Stock will be senior to the Common Stock and any other class of the Company’s capital stock that is not by its terms senior to or pari passu with the Series B Preferred Stock.
Dividends. The holders of Series B Preferred Stock will be entitled to dividends payable as follows: (i) a number of shares of Common Stock equal to 20% of the number of shares of Common Stock issuable upon conversion of the Series B Preferred Stock then held by such holder on March 13, 2025, and (ii) a number of shares of Common Stock equal to 20% of the number of shares of Common Stock issuable upon conversion of the Series B Preferred Stock then held by such Holder on March 13, 2026. A holder that converts its Series B Preferred Stock prior to March 13, 2025 or March 13, 2026, as the case may be, will not receive the dividend that accrues on such date with respect to such converted Series B Preferred Stock, other than, with respect to the Exchanged Series B Preferred Stock, in the case where a VWAP-Based Mandatory Conversion Event is triggered during the 90-day period preceding any dividend date. In that case, the holders of shares of Exchanged Series B Preferred Stock subject to the VWAP-Based Mandatory Conversion Event will be treated as owning such shares on the dividend date and will participate in the dividend with respect to such shares. In addition, the dividends will be accelerated and paid (to the extent not previously paid) upon the consummation of certain fundamental transactions. The holders of the Series B Preferred Stock also will be entitled to dividends equal, on an as-if-converted to shares of Common Stock basis, to and in the same form as dividends actually paid on shares of the Common Stock when, as, and if such dividends are paid on shares of the Common Stock.
Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company (or any Deemed Liquidation Event as defined in the Certificate of Designation), the holders of shares of Series B Preferred Stock then outstanding will be entitled to be paid out of the assets of the Company available for distribution to its stockholders, before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount per share equal to the greater of (i) the Stated Value, plus any dividends accrued but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of Series B Preferred Stock been converted into Common Stock immediately prior to such event.
Voting. On any matter to be acted upon or considered by the stockholders of the Company, each holder shall be entitled to vote on an “as converted” basis (after applying the beneficial ownership and primary market limitations described below).
Beneficial Ownership Limitation. The Company will not effect any conversion of the Series B Preferred Stock, and a holder will not have the right to receive dividends or convert any portion of the Series B Preferred Stock, to the extent that, after giving effect to the receipt of dividends or the conversion, the holder (together with such holder’s affiliates, and any persons acting as a group together with such holder or any of the holder’s affiliates) would beneficially own in excess of 4.99% of the Company’s outstanding common stock (or, upon election of the holder, 9.99% of the Company’s outstanding common stock).
Primary Market Limitation. Unless the approval of the Company’s stockholders is not required by the applicable rules of The Nasdaq Stock Market LLC for issuances of Common Stock in excess of 19.99% of the outstanding Common Stock as of March 13, 2024 (or, if earlier, the date of the definitive agreement for any transaction aggregated with the sale of the Series B Preferred Stock) (the “Market Limit”), or unless the Company has obtained such approval, the Company shall not effect any conversion of the Series B Preferred Stock, including, without limitation, any automatic conversion, and a holder shall not have the right to receive dividends on or convert any portion of the Series B Preferred Stock, to the extent that, after giving effect to the receipt of Common Stock in connection with such dividends or conversion, the holder would have received in excess of its pro rata share of the Market Limit.
The Company and the Series B Investors also executed a registration rights agreement (the “Registration Rights Agreement”), pursuant to which the Company agreed to file a registration statement covering the resale of the shares of Common Stock issuable pursuant to the Series B Preferred Stock.
A summary of the key terms of the newly issued Series A-1 Preferred Stock that was immediately exchanged for Series B Preferred Stock in the Series B Offering and Exchange is set forth in the Company’s Current Report on Form 8-K filed on October 18, 2023, which summary is incorporated herein by reference.
The offer and sale of the shares of the Series A-1 Preferred Stock and Series B Preferred Stock, and the shares of Common Stock issuable upon conversion of, and in payment of dividends on, the Series A-1 Preferred Stock and Series B Preferred Stock, are exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), pursuant to Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder because, among other things, the transaction did not involve a public offering, the investors are accredited investors, the investors are taking the securities for investment and not resale and the Company took appropriate measures to restrict the transfer of the securities.
The securities have not been registered under the Securities Act and may not be offered or sold in United States absent registration or an exemption from registration. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these Securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
The forgoing description of the Series B Certificate of Designation, the Exchange Agreements, the Registration Rights Agreement and the Series A-1 Certificate of Amendment is qualified in its entirety by reference to the full text of the forms of such documents, copies of which are filed as Exhibit 3.1, 10.1, 10.2 and 3.2, respectively, to this Current Report on Form 8-K.
| Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth under Item 3.02 and Item 5.03 is incorporated herein by reference.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information set forth under Item 3.02 is incorporated herein by reference. The Amended and Restated Certificate of Incorporation of the Company authorizes the issuance of up to 20,000,000 shares of preferred stock, par value $0.001 per share, and further authorizes the Board of the Company to fix and determine the designation, preferences, conversion rights, or other rights, including voting rights, qualifications, limitations, or restrictions of the preferred stock. The Series B Certificate of Designation designates up to 56,000 of the shares of preferred stock as Series B Preferred Stock and the Series A-1 Certificate of Amendment increases the number of shares designated as Series A-1 Preferred Stock by 5,670 shares.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits:
| Exhibit No. | Description | |
| 3.1 | Form of Certificate of Designation of Preferences, Rights and Limitations of Series B Preferred Stock. | |
| 3.2 | Form of Certificate of Amendment to Certificate of Designation of Preferences, Rights and Limitations of Series A-1 Preferred Stock. | |
| 10.1 | Form of Exchange Agreement. | |
| 10.2 | Form of Registration Rights Agreement. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURE
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 14, 2024 | LUCID DIAGNOSTICS INC. | |
| By: | /s/ Dennis McGrath | |
| Dennis McGrath | ||
| Chief Financial Officer | ||