Item 1.01 Entry into a Material Definitive Agreement.

Underwriting Agreement

On January 8, 2021, KemPharm, Inc., a Delaware corporation (the "Company"), entered into an underwriting agreement (the "Underwriting Agreement") with Roth Capital Partners, LLC (the "Underwriter"), to issue and sell 6,765,463 shares of common stock of the Company, pre-funded warrants to purchase 926,844 shares of common stock and warrants to purchase 7,692,307 shares of common stock at an exercise price per share of $6.50 in an underwritten public offering (the "Public Offering") pursuant to a Registration Statement on Form S-1 (File No. 333-250945)and a related prospectus, in each case filed with the Securities and Exchange Commission (the "SEC"). The offering price to the public is $6.50 per share of common stock and accompanying warrant, representing a public offering price of $6.4999 per share of common stock and $0.0001 per related warrant. In addition, the Company granted the Underwriter an option to purchase, for a period of 45 days, up to an additional 1,153,846 shares of the Company's common stock and/or warrants to purchase up to an additional 1,153,846 shares of the Company's common stock.

On January 8, 2021, the Underwriter exercised its over-allotment option, in part, for warrants to purchase 754,035 shares of the Company's common stock.

The Company received net proceeds from the Public Offering of approximately $46.4 million after deducting underwriting discounts and commissions and other offering expenses payable by the Company. If the warrants, including the warrants issued pursuant to the partial exercise of the Underwriter's over-allotment option, but excluding the pre-funded warrants, are exercised in full, the net proceeds will increase to $101.3 million.

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 January 12, 2021, pursuant to the terms of the Underwriting Agreement, the Company issued pre-funded warrants to purchase 926,844 shares of the Company's common stock to specified investors in the Public Offering. The following summary of certain terms and provisions of the pre-funded warrants to purchase common stock offered under the Underwriting Agreement is not complete and is subject to, and qualified in its entirety by, the provisions of the pre-funded warrants, the form of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Duration and Exercise Price

Each pre-funded warrant has an initial exercise price per share equal to $0.0001. The pre-funded warrants will be immediately exercisable and will not expire prior to exercise. The exercise price and number of shares of common stock issuable upon exercise is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting the Company's common stock.

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 Equity Securities.

Pursuant to the December 2020 Exchange Agreement, on January 12, 2021, the Company issued to the holders (the "Holders") party to the December 2020 Exchange Agreement an aggregate of 31,476.98412 shares of its Series B-2 Preferred Stock (the "Series B-2 Shares") and warrants exercisable for an aggregate of 3,632,019 shares of the Company's common stock (the "Exchange Warrants").

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 $6.4999.

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 December 2020 Exchange Agreement, the Series B-2 Shares and the Exchange Warrants is hereby incorporated by reference into this Item 3.02.

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 January 11, 2021, as a condition to closing of the transactions contemplated by the December 2020 Exchange Agreement, the Company filed an Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series B-2 Convertible Preferred Stock (the "Series B-2 Certificate of Designation") with the Secretary of State of the State Delaware, setting forth the preferences, rights and limitations of the Series B-2 Preferred Stock. The Series B-2 Certificate of Designation is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.

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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 SEC on December 21, 2020, which description is incorporated herein by reference.

Item 7.01 Regulation FD Disclosure.

On January 8, 2021, the Company issued a press release to announce the pricing of the Public Offering. A copy of this press releases is furnished as Exhibit 99.1 to this Current Report on Form 8-K.

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 January 7, 2021, the Company's common stock was approved for listing on The Nasdaq Capital Market. The Company's common stock began trading on The Nasdaq Capital Market on January 8, 2021 under the ticker symbol "KMPH".

On January 12, 2021, the Company closed the Public Offering. The aggregate gross proceeds to the Company from the Public Offering totaled approximately $50.0 million, before deducting underwriting discounts and commissions and offering expenses payable by the Company.

Immediately following, the closing of the Public Offering, pursuant to the terms of the December 2020 Exchange Agreement, the Company:





     •    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 $7.6 million, based on the amount of accrued interest as of the date of this Current Report on Form 8-K.

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 February 19, 2015, by and among the Company, DPDF and the other parties signatory thereto, contemplated by the December 2020 Exchange Agreement that were conditional upon, among other things, the closing of the Public Offering, the filing of the Series B-2 Certificate of Designation and/or the approval for listing of the Company's common stock, including the shares issuable upon conversion of the Series B-2 Preferred Stock and exercise of the Exchange Warrants, on the Nasdaq Capital Market, became effective on January 12, 2021. Detailed descriptions of the December 2020 Exchange Agreement, including such amendments and conditions, are included in the Company's Current Reports on Form 8-K filed with the SEC on December 21, 2020 and December 28, 2020, which descriptions are incorporated herein by reference.

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 September 30, 2020. In addition, the forward-looking statements included in this Current Report on Form 8-K represent the Company's views as of the date hereof. The Company anticipates that subsequent events and developments will cause the Company's views to change. However, while the Company may elect to update these forward-looking statements at some point in the future, the Company specifically disclaims any obligation to do so except as required by law. These forward-looking statements should not be relied upon as representing the Company's views as of any date subsequent to the date hereof.

Item 9.01 Financial Statements and Exhibits.



(d) Exhibits



Exhibit
Number                                Exhibit Description

1.1            Underwriting Agreement, dated as of January  8, 2021, by and between
             the Company and Roth 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 the SEC on
             January 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 the SEC on January 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
             the SEC on January 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 of January  12, 2021, by and among the Company,
             Deerfield Private Design Fund III, L.P. and Deerfield 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" dated January 8, 2021

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