UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 12, 2020
Tyme Technologies, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-38169 | 45-3864597 | ||
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(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1 Pluckemin Way, Suite 103,
Bedminster, NJ 07921
(Address of principal executive offices, including zip code)
(212) 461-2315
(Registrant’s telephone number, including area code)
(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 (see General Instruction A.2. below):
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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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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
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| Common Stock, $0.0001 par value | TYME | Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1934 (§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. ☐
Introductory Comment – Use of Terminology
Throughout this Current Report on Form 8-K, the terms “the Company,” “we” and “our” refer to Tyme Technologies, Inc., a Delaware corporation, together with its subsidiaries (“TYME”).
Item 1.01 Entry into a Material Definitive Agreement.
Amendment to Open Mark Sale AgreementSM
On August 12, 2020, the Company entered into an amendment (the “Amendment”) to the Open Market Sale AgreementSM, dated October 18, 2019 (the “Sale Agreement”), it entered into with Jefferies LLC, as sales agent. The Amendment will be effective when our shelf registration statement on Form S-3 (File No. 333-245033) (the “New Registration Statement”) becomes effective.
Before being amended, the Sale Agreement provided for the sale and issuance of shares of our common stock, par value $0.0001 per share (the “Shares”), in an “at-the-market” offering (the “ATM Offering”) pursuant to our shelf registration statement on Form S-3 (File No. 333- 211489) (the “Prior Registration Statement”), which includes a base prospectus, dated August 16, 2017, and a prospectus supplement, dated October 18, 2019, providing for the sale of up to $30.0 million of our Shares in the ATM Offering. To date, we have issued and sold 2,548,303 Shares under the Sale Agreement for gross proceeds of approximately $3.4 million. Shares may continue to be sold under the Sale Agreement pursuant to the Prior Registration Statement until the effective date of the New Registration Statement.
The Amendment to the Sale Agreement provides for the issuance and sale of our Shares in the ATM Offering pursuant to the New Registration Statement. The issuance and sale of our Shares in the ATM Offering will be made under the New Registration Statement, once it is effective, pursuant to a prospectus, which consists of a base prospectus and a prospectus supplement, each dated August 12, 2020, and each of which has been filed with the New Registration Statement. The prospectus supplement provides for the sale of up to $26,575,559 of our Shares in the ATM Offering under the New Registration Statement.
The foregoing description of the Sale Agreement and the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Sale Agreement and the Amendment, copies of which are filed herewith as Exhibits 1.1 and 1.2, and are incorporated herein by reference.
This Current Report on Form 8-K does not constitute an offer to sell the Shares or a solicitation of an offer to buy the Shares, nor shall there be any sale of the Shares 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 jurisdiction.
Item 9.01 Financial Statements and Exhibits.
Set forth below is a list of the exhibits to this Current Report on Form 8-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.
| Tyme Technologies, Inc. | ||||||
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Dated: August 12, 2020 |
By: |
/s/ Ben R. Taylor |
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| Ben R. Taylor, President and Chief Financial Officer | ||||||
Exhibit 1.2
AMENDMENT NO. 1 TO OPEN MARKET SALE AGREEMENT SM
August 12, 2020
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Tyme Technologies, Inc., a Delaware corporation (the “Company”), and Jefferies LLC (the “Agent”) are parties to that certain Open Market Sale AgreementSM, dated October 18, 2019, (the “Original Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The parties, intending to be legally bound, hereby amend the Original Agreement as follows:
1. Reference to the “Registration Statement” in the Original Agreement shall refer to the registration statement on Form S-3 (File No. 333-245033), originally filed with the Commission on August 12, 2020 (as the same may be amended from time to time, the “New Registration Statement”), when the New Registration Statement is declared effective by the Commission.
2. References to the date of the Original Agreement in the form of Issuance Notice included as Exhibit A to the Original Agreement and the Form of Officer’s Certificate Pursuant to Section 4(o) appended to the Original Agreement are hereby revised to read, “October 18, 2019, as amended by Amendment No. 1 to the Open Market Sale AgreementSM, dated August 12, 2020.”
3. Except as specifically set forth herein, all other provisions of the Original Agreement shall remain in full force and effect.
4. This Amendment No. 1 to the Original Agreement (this “Amendment”) shall become effective upon the date that the New Registration Statement is declared effective under the Securities Act.
5. Entire Agreement; Amendment; Severability. This Amendment together with the Original Agreement (including all schedules and exhibits attached hereto and thereto and Issuance Notices issued pursuant hereto and thereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement as amended by this Amendment; provided, however, that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement.
6. Governing Law Provisions. This Amendment shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Amendment or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the Specified Courts, and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a Related Judgment, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
7. Counterparts. This Amendment may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and may be delivered by facsimile transmission or by electronic delivery of a portable document format (PDF) file or via DocuSign electronic signature.
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding amendment to the Original Agreement.
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Very truly yours, |
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TYME TECHNOLOGIES, INC. |
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By: |
/s/ Ben R. Taylor |
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Name: |
Ben R. Taylor | |
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Title: |
President and Chief Financial Officer |
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The foregoing amendment is hereby confirmed and accepted by the Agent in New York, New York as of the date first above written.
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JEFFERIES LLC |
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By: |
/s/Michael Magarro |
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Name: |
Michael Magarro | |
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Title: |
Managing Director |
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