Delaware
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68-0533453
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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12988 Valley View Road
(Address of principal executive offices) (Zip Code)
(Registrant’s telephone number, including area code)
Not Applicable
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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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.
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Item 1.01
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Entry into a Material Definitive Agreement.
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On
June 29, 2018, CHF Solutions, Inc. (the
“Company”) entered into an
Underwriting Agreement (the
“Underwriting Agreement”) with Ladenburg Thalmann & Co. Inc., as representative (the
“Representative”) of the underwriters identified therein (collectively, the
“Underwriters”), pursuant to which
the Company agreed to issue and sell 2,214,930 shares of its common stock, $0.0001 par value per share, at a public offering price of $2.12 per share (the
“Offering”). Under the terms of the
Underwriting Agreement,
the
Company granted the Underwriters a 45-day option to purchase up to an additional 332,239 shares of
the Company’s common stock.
The Company expects to receive approximately $4.1 million in net proceeds from the Offering (assuming the option to purchase additional shares is not exercised), after underwriting discounts and commissions and estimated Offering expenses payable by
the Company. The Offering is scheduled to close on or about
July 3, 2018, subject to customary closing conditions.
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 Underwriters 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 agreements providing that
the Company and each of these persons may not, without the prior written approval of the Representative, subject to limited exceptions, offer, sell, transfer or otherwise dispose of
the Company’s securities for a period of 90 days following the Offering.
The Offering was made pursuant to
the Company’s Registration Statement on Form S-3 (Registration No.
333-224881), filed with the Securities and Exchange Commission (the
“SEC”) on
May 11, 2018 and declared effective by the SEC on
May 23, 2018, and the related prospectus supplement filed with the SEC pursuant to Rule 424(b) on
June 29, 2018.
The opinion of
the Company’s counsel regarding the legality of the shares issued pursuant to the Offering is also filed as
Exhibit 5.1 to this Current Report.
Warrant Repricing Agreements
In connection with the Offering, and to induce certain institutional investors who participated in
the Company’s November 2017 public offering of Series F Convertible Preferred Stock and warrants (
“November 2017 Warrants”) to participate in this Offering, concurrently with the execution of the
Underwriting Agreement for this Offering,
the Company entered into letter agreements with such institutional investors (collectively, the
“Warrant Reprice Agreements”). Pursuant to the terms of the Warrant Reprice Agreements, in consideration for participation in the Offering,
the Company agreed to (a) reduce
the per share exercise price of the November 2017 Warrants held by such institutional investors (the
“Repriced Warrants”) to $2.12 and (b) extend the expiration date of the Repriced Warrants that currently expire on
November 27, 2018 to
November 27, 2019, with such amendments to be effective concurrently with the closing of the Offering. The number of shares underlying the Repriced Warrants after the price reduction will not change. The Repriced Warrants are exercisable for 7,760,400 shares of common stock in the aggregate, of which, following such amendment, half expire on
November 27, 2019 and half expire on
November 27, 2024. Following the closing of the Offering,
the Company
intends to issue the Repriced Warrants, substantially in the form
incorporated by reference as Exhibit 4.1 to this Current Report, reflecting the amended exercise price.
The form of Warrant Reprice Agreement is filed as
Exhibit 10.1 to this Current Report and is
incorporated herein by reference. The foregoing description of the Warrant Reprice Agreements does not purport to be complete and is qualified in its entirety by reference to such exhibit. The Warrant Reprice 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 Warrant Reprice Agreement were made only for purposes of the Warrant Reprice Agreement as of specific dates indicated therein, were solely for the benefit of the parties to the Warrant Reprice
Agreement, and may be subject to limitations agreed upon by the parties, including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Warrant Reprice Agreement.
This Current Report contains forward-looking statements that involve risk and uncertainties, such as statements related to the anticipated closing of the Offering and effectiveness of the warrant repricing and the amount of net proceeds expected from the Offering. The risks and uncertainties involved include
the Company’s ability to satisfy certain conditions to closing on a timely basis or at all, as well as other risks detailed from time to time in
the Company’s SEC filings.
Item 3.03
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Material Modification to Rights of Security Holders.
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To the extent required, the information included in Items 1.01 and 8.01 of this Current Report is hereby
incorporated by reference into this Item 3.03.
Pursuant to the terms of
the Company’s outstanding Series F Convertible Preferred Stock (the
“Preferred Stock”) set forth in the Certificate of Designations of Preferences, Rights and Limitations for such series, which Preferred Stock is subject to full-ratchet anti-dilution protection in the event
the Company sells any common stock at a price lower than the then-conversion price of the Preferred Stock, as a result of the Offering, the conversion price of the Preferred Stock has been reduced from $4.50 to $2.12, the per share price to public in the Offering, which reduction will be effective upon the closing of the Offering. 610 shares of Preferred Stock were outstanding as of
June 27, 2018 and are convertible into 287,920 shares
of common stock, following such conversion price adjustment.
Item 9.01
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Financial Statements and Exhibits.
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The following exhibits are filed as part of this report:
No.
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Description
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Form of Underwriting Agreement by and between CHF Solutions, Inc. and Ladenburg Thalmann & Co. Inc., as the Representative of the several underwriters named in Schedule I thereto.
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Opinion of Honigman Miller Schwartz and Cohn LLP.
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Form of Warrant Reprice Agreement.
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Consent of Honigman Miller Schwartz and Cohn LLP (contained in Exhibit 5.1).
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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.
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CHF SOLUTIONS, INC.
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By:
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Name:
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Title:
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Chief Financial Officer
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