Item 1.01 Entry into a Material Definitive Agreement.
Underwriting Agreement
On
On
The Company received net proceeds from the Public Offering of approximately
The Underwriting Agreement contains customary representations, warranties, covenants and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriter, including for liabilities under the Securities Act of 1933, as amended (the "Securities Act"), other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Underwriting 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. A copy of the Underwriting Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. The foregoing description of the Underwriting Agreement is qualified in its entirety by reference to such exhibit.
Pre-Funded Warrants
On
Duration and Exercise Price
Each pre-funded warrant has an initial exercise price per share equal to
Exercisability
The pre-funded warrants are exercisable, at the option of each holder, in whole or in part, by delivering to the Company a duly executed exercise notice accompanied by payment in full for the number of shares of common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder (together with its affiliates) may not exercise any . . .
Item 3.02 Unregistered Sales of
Pursuant to the
The Series B-2 Shares are convertible into an aggregate of 4,842,690 shares of
the Company's common stock at a conversion price equal to
The information contained Items 1.01, 5.03 and 8.01 of this Current Report on
Form 8-K with respect to the terms and conditions of the
The shares of Series B-2 Shares and the Exchange Warrants were issued in reliance on Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D of the Securities Act and in reliance on preemption or similar exemptions under applicable state laws. Each of the Holders represented, among other things, that it is an accredited investor within the meaning of Rule 501(a) of Regulation D. The Series B-2 Shares and Exchange Warrants were offered without any general solicitation by the Company or its representatives.
Any shares of the Company's common stock issuable upon conversion or exercise of the Series B-2 Shares or Exchange Warrants, as applicable, will be issued in reliance on the exemption from registration provided in Section 3(a)(9) of the Securities Act or Section 4(a)(2) of the Securities Act.
Item 3.03. Material Modifications to Rights of Security Holders.
The information contained above in Item 1.01 related to the terms of the Public Offering, the Warrants and the other transactions related thereto and below in Item 5.03 related to the Series B-2 Preferred Stock is hereby incorporated by reference into this Item 3.03.
Item 5.03. Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of the Series B-2 Convertible Preferred Stock
On
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A detailed description of the terms of the Series B-2 Certificate of Designation
is included in the Company's Current Report on Form 8-K filed with the
Item 7.01 Regulation FD Disclosure.
On
The information contained in this Item 7.01, and the press release furnished as Exhibit 99.1 shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and are not incorporated by reference into any of the Company's filings under the Securities Act, whether made before or after the date hereof, except as shall be expressly set forth by specific reference in any such filing.
Item 8.01. Other Events.
On
On
Immediately following, the closing of the Public Offering, pursuant to the terms
of the
• Exchanged (the "Exchange") approximately$31.5 million of the outstanding principal and accrued interest on the Notes for (i) the Series B-2 Shares and (ii) the Exchange Warrants; and • made a payment of approximately$30.3 million (the "Debt Payment") in partial repayment of the remaining outstanding principal and accrued interest on the Notes.
Following the completion of the Exchange and Debt Payment, the aggregate balance
of principal and accrued interest remaining outstanding under the Notes is
approximately
Upon the closing of the Exchange and related Debt Payment, the amendments to the
Facility Agreement, the Notes and the Investors' Rights Agreement, dated as of
Forward-Looking Statements
This Current Report on Form 8-K contains "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, including statements containing the words "expect," "intend," "may," "will," and similar expressions. Such statements constitute forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important factors, including: the uncertainties related to market conditions, uncertainties inherent in the operation of the Company's
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business and such other factors as are set forth in the risk factors detailed in
the Company's Quarterly Report on Form 10-Q for the quarter ended
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit Number Exhibit Description 1.1 Underwriting Agreement, dated as ofJanuary 8, 2021 , by and between the Company andRoth Capital Partners, LLC (incorporated by reference to Exhibit 1.1 of the Company's Registration Statement on Form S-1 (File No. 333-250945), as amended and declared effective by theSEC onJanuary 7, 2021 ) 3.1 Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series B-2 Convertible Preferred Stock 4.1 Form of Series B Pre-Funded Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.11 of the Company's Registration Statement on Form S-1 (File No. 333-250945), as amended and declared effective by theSEC onJanuary 7, 2021 ) 4.2 Form of Series A Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.10 of the Company's Registration Statement on Form S-1 (File No. 333-250945), as amended and declared effective by theSEC onJanuary 7, 2021 ) 4.3 Form of Common Stock Purchase Warrant and schedule of holders 4.4 Series A Common Stock Purchase Warrant for Underwriter 10.1 Amendment to Senior Secured Convertible Notes and Amendment to Warrant, dated as ofJanuary 12, 2021 , by and among the Company,Deerfield Private Design Fund III, L.P. andDeerfield Special Situations Fund, L.P. 99.1 Press Release titled "KemPharm Announces Pricing of$50 Million Public Offering of Common Stock and Warrants and Uplisting to The Nasdaq Capital Market" datedJanuary 8, 2021
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