SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM i 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
i Nuwellis, Inc.
(Exact Name of Registrant as Specified in its Charter)
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i Delaware
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No. i 68-0533453
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(State or Other Jurisdiction of Incorporation or Organization)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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(Address of Principal Executive Offices) (Zip Code)
( i 952) i 345-4200
(Registrant’s Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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i Common Stock, par value $0.0001 per share
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i NUWE
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Nasdaq Capital Market
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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:
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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 i ☐
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
October 12, 2023, Nuwellis, Inc. (the “
Company”) entered into a Placement Agency Agreement (the “
Placement Agency Agreement”) with Lake
Street Capital Markets, LLC and Maxim Group LLC (the “
Placement Agents”), pursuant to which
the Company issued and sold, in a
best efforts registered public offering by
the Company (the “
Offering”), 150,000 units (each a “
Unit” and collectively, the “
Units”),
with each Unit consisting of (A) one share of
the Company’s Series J Convertible Redeemable Preferred Stock, par value $0.0001 per share (the “
Series J Convertible Preferred Stock”), and (B) one warrant (each, a “
Warrant” and collectively, the “
Warrants”) to purchase one-half of one (0.50) share of Series J Convertible Preferred Stock, at a price to the public of $15.00 per
Unit, less placement agent fees and commissions. The public offering price of $15.00 per Unit reflects the issuance of the Series J Convertible Preferred Stock with an original issue discount (“
OID”) of 40%.
The Company is also registering under the Registration Statement (as defined below) an additional 362,933 shares of Series J Convertible Preferred Stock (“
PIK Dividend Shares”) that will be issued, if and when
the Company’s Board of Directors declares such dividends, as paid in-kind
dividends (“
PIK dividends”) and the shares of Common Stock issuable upon conversion of the Series J Convertible Preferred Stock
issued as PIK dividends (the “
PIK Conversion Shares”).
The Units, the shares of Series J Convertible Preferred Stock, the Warrants, the PIK Dividend Shares, the PIK Conversion Shares as well as the
shares of Series J Convertible Preferred Stock issuable upon exercise of the Warrants and the shares of
the Company’s common stock, par value $0.0001 per share (the “
Common Stock”), issuable upon conversion of the Series J Convertible Preferred Stock, were offered and sold by
the Company pursuant to an effective registration statement on Form S-1, as amended (File
No.
333-274610) (the “
Registration Statement”), which was initially filed with the Securities Exchange Commission (“
SEC”) on
September 21, 2023, as amended on
September 29, 2023, and declared effective by the SEC on
September 29, 2023 with an
additional registration statement on Form S-1 filed on
October 6, 2023 pursuant to Rule 462(c). A final prospectus relating to the Offering was filed with the SEC on
October 13, 2023. The closing of the Offering contemplated by the Placement Agency
Agreement occurred on
October 17, 2023 (the “
Closing Date”).
The Placement Agency Agreement contains customary representations, warranties and covenants by
the Company, customary conditions to closing,
indemnification obligations of
the Company and the Placement Agents, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. The representations, warranties and covenants
contained in the Placement Agency Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting
parties. Lake Street Capital Markets, LLC and Maxim Group LLC acted as placement agents for this Offering.
The foregoing description of the material terms of the Placement Agency Agreement is qualified in its entirety by reference to the full text
thereof, a copy of which is attached to this Current Report on Form 8-K as
Exhibit 1.1 and is
incorporated by reference herein.
On
October 17, 2023,
the Company also entered into a warrant agency agreement with
the Company’s transfer agent, Equiniti Trust Company, LLC,
who will act as warrant agent for
the Company, setting forth the terms and conditions of the Warrants sold in this Offering (the “
Warrant
Agency Agreement”). A copy of the form of Warrant and the Warrant Agency Agreement are attached to this Current Report on Form 8-K as Exhibits 4.1 and 4.2, respectively, and are
incorporated by reference herein.
Each Warrant has an exercise price of $7.50 per one-half of one (0.5) share of Series J Convertible Preferred Stock, is immediately
exercisable and will expire three (3) years from the date of issuance.
There is no established trading market for the Series J Convertible Preferred Stock or the Warrants and we do not expect a market to develop.
In addition, we do not intend to list the Series J Convertible Preferred Stock or the Warrants on The Nasdaq Capital Market or any other national securities exchange or any other nationally recognized trading system.
The gross proceeds to
the Company from this Offering are expected to be approximately $2.25 million, assuming no exercise of the Warrants and
before deducting placement agent fees and commissions and Offering expenses payable by
the Company.
The Company intends to use the net proceeds from the Offering for working capital and for general corporate purposes.
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Item 3.03
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Material Modification to Rights of Security Holders.
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On
October 16, 2023,
the Company filed a Certificate of Designation of Preferences, Rights and Limitations of Series J Convertible Redeemable
Preferred Stock (the “
Certificate of Designation”) with the Secretary of State of the State of Delaware designating 600,000
shares of
the Company’s authorized preferred stock as Series J Convertible Preferred Stock, with a liquidation preference of $25.00 per share plus any accrued and unpaid dividends, and further establishing the number of shares of Series J Convertible
Preferred Stock, and to fix the designation, powers, preferences and rights of the shares of Series J Convertible Preferred Stock and the qualifications, limitations or restrictions thereof.
The Series J Convertible Preferred Stock will not have voting rights, except as required by Delaware law and other limited circumstances.
Dividends on the Series J Convertible Preferred Stock shall be
paid in-kind (PIK dividends) in additional shares of Series J Convertible Preferred Stock based on the stated value of $25.00 per share at the dividend rate of 5.0% (the “Dividend Rate”). The PIK dividends will be paid on a quarterly basis for
three (3) years following the Closing Date to holders of the Series J Convertible Preferred Stock of record at the close of business on October 31, January 31, April 30, and July 31 of each year (each a “Dividend Record Date”). PIK dividends on each share of Series J Convertible Preferred Stock shall be paid three business days after the applicable Dividend Record Date in additional fully paid and
nonassessable, registered shares of Series J Convertible Preferred Stock in a number equal to the quotient obtained by dividing (A) the product obtained by multiplying (i) the Dividend Rate and (ii) the stated value of $25.00 per share, by (B) the
public offering price per Unit (equal to $15.00).
The Series J Convertible Preferred Stock has a term of three (3) years and is convertible at the option of the holder at any time into shares
of our common stock at a fixed conversion price of $1.01, which fixed conversion price is based on the closing price of our common stock on
October 12, 2023, and is subject to adjustment.
If any shares of our Series J Convertible Preferred Stock are outstanding at the
end of the three-year term, then the Company will promptly redeem all of such outstanding shares of Series J Convertible Preferred Stock on a pro rata basis among all of the holders of Series J Convertible Preferred Stock commencing on the third-year anniversary of the closing date of this Offering (the “Mandatory Redemption Date”) in cash, to the extent
legally permissible under Delaware law, or, if redemption for cash is not legally permissible in duly authorized, validly issued, fully paid and non-assessable shares of the Company’s common stock equal in number to the quotient obtained by
dividing such unpaid amount by the closing price of the Company’s common stock on the Nasdaq on the Mandatory Redemption Date.
The terms of the Series J Convertible Preferred Stock are more fully described in the Certificate of Designation, a copy of which is filed as
Exhibit 3.1 to this Current Report on Form 8-K and is
incorporated by reference herein.
On
October 16, 2023,
the Company filed the Certificate of Designation with the Secretary of State of the State of Delaware to establish the
powers, preferences and rights of the shares of the Series J Convertible Preferred Stock and the qualifications, limitations or restrictions thereof.
The terms of the Certificate of Designation are more fully described in the Certificate of Designation, a copy of which is included as Exhibit
3.1 to this Current Report on Form 8-K and is
incorporated by reference herein.
This Current Report on Form 8-K and Exhibits 99.1 and 99.2 hereto contain forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. These forward looking statements are based on current expectations and assumptions and are not guarantees of future performance. Further, the forward-looking statements are subject to the limitations listed
in Exhibits 99.1 and 99.2 and in the other reports of
the Company filed with the Securities and Exchange Commission, including that actual events or results may differ materially from those in the forward-looking statements. Forward-looking
statements speak only as of the date when made.
The Company does not assume any obligation to publicly update or revise any forward-looking statements, whether due to new information, future events or otherwise.
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Item 9.01
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Financial Statements and Exhibits.
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Exhibit
Number
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Exhibit Description
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Placement Agency Agreement dated as of October 12, 2023, by and between Nuwellis, Inc., Lake Street Capital Markets, LLC and Maxim
Group LLC. |
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Certificate of Designation of Preferences, Rights and Limitations, filed with the Delaware Secretary of State on October 16, 2023,
with respect to the Series J Convertible Preferred Stock. |
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104
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Cover Page Interactive Data File (embedded within Inline XBRL document).
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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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NUWELLIS, INC.
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By:
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Name:
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Title:
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President and Chief Executive Officer
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