BIOLARGO, INC. Item 1.01 Entry into a Material Definitive Agreement
On
Under the Purchase Agreement, the Company has the right, but not the obligation,
to sell to Lincoln Park, and Lincoln Park is obligated to purchase up to
From and after the Commencement Date, on any business day selected by the
Company, the Company may, by written notice delivered by to Lincoln Park, direct
Lincoln Park to purchase up to 100,000 shares of Common Stock on such business
day, at a purchase price per share that will be determined and fixed in
accordance with the Purchase Agreement at the time such written notice is
delivered to Lincoln Park (each, a "Regular Purchase"), provided, however, that
the maximum number of shares the Company may sell to Lincoln Park in a Regular
Purchase may be increased to (i) up to 125,000 shares, provided that the closing
sale price of the Common Stock on the applicable purchase date is not below
In addition to Regular Purchases, provided that we have directed Lincoln Park to
purchase the maximum amount of shares that we are then able to sell to Lincoln
Park in a Regular Purchase, and provided that the closing sale price of the
Common Stock on the applicable purchase date for such Regular Purchase is not
below
The Company will control the timing and amount of any sales of Common Stock to Lincoln Park pursuant to the Purchase Agreement. Lincoln Park has no right to require the Company to sell any shares of Common Stock to Lincoln Park, but Lincoln Park is obligated to make purchases as the Company directs, subject to certain conditions.
Actual sales of shares of Common Stock to Lincoln Park will depend on a variety of factors to be determined by the Company from time to time, including, among others, market conditions, the trading price of the Company's Common Stock and determinations by the Company as to the appropriate sources of funding for the Company and its operations. The net proceeds under the Purchase Agreement to the Company will depend on the frequency and prices at which the Company sells shares of its stock to Lincoln Park. The Company expects that any proceeds received by the Company from such sales to Lincoln Park will be used for working capital and general corporate purposes.
The Purchase Agreement prohibits the Company from directing Lincoln Park to
purchase any shares of Common Stock if those shares, when aggregated with all
other shares of Common Stock then beneficially owned by Lincoln Park (as
calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Rule 13d-3 thereunder), would result in
There are no restrictions on future financings, rights of first refusal, participation rights, penalties or liquidated damages in the Purchase Agreement or Registration Rights Agreement other than a prohibition (with certain limited exceptions) on entering into a "Variable Rate Transaction," as defined in the Purchase Agreement. Lincoln Park has agreed not to engage in or effect, directly or indirectly, for its own principal account or for the principal account of any of its affiliates, any short sales of the Common Stock or hedging transaction that establishes a net short position in the Common Stock during the term of the Purchase Agreement.
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As consideration for Lincoln Park's commitment to purchase shares of the
Company's Common Stock from time to time at the Company's direction upon the
terms of and subject to satisfaction of the conditions set forth in the Purchase
Agreement, has agreed (i) to issue to Lincoln Park 1,250,000 shares of Common
Stock (the "Commitment Shares") upon the execution of the Purchase Agreement and
(ii) to pay to Lincoln Park a cash fee of
The Purchase Agreement and the Registration Rights Agreement contain customary representations, warranties, conditions and indemnification obligations of the parties. The Company has the right to terminate the Purchase Agreement at any time with one business days' notice, at no cost or penalty. During any "event of default" under the Purchase Agreement, Lincoln Park does not have the right to terminate the Purchase Agreement; however, the Company may not initiate any regular or other purchase of shares by Lincoln Park, until such event of default is cured.
The foregoing descriptions of the Registration Rights Agreement and the Purchase Agreement are qualified in their entirety by reference to the full text of such agreements, copies of which are attached hereto as Exhibits 4.1 and 10.1, respectively, and each of which is incorporated herein in its entirety by reference. The representations, warranties and covenants contained in such agreements were made only for purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements and may be subject to limitations agreed upon by the contracting parties.
This current report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any shares of common stock in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Item 3.02. Unregistered Sales of
The information contained above in Item 1.01 is hereby incorporated by reference into this Item 3.02.
In the Purchase Agreement, Lincoln Park represented to the Company, among other things, that it is an "accredited investor" (as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the "Securities Act")). The securities referred to in this current report on Form 8-K are being offered and sold by the Company to Lincoln Park in reliance upon the exemptions from the registration requirements of the Securities Act afforded by Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D thereunder.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 4.1 Registration Rights Agreement, dated as ofDecember 13, 2022 , by and betweenBioLargo, Inc. andLincoln Park Capital Fund, LLC . 10.1 Purchase Agreement, dated as ofDecember 13, 2022 , by and betweenBioLargo, Inc. andLincoln Park Capital Fund, LLC . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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