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 18, 2020
INMUNE BIO INC. |
(Exact name of registrant as specified in charter) |
Nevada | 001-38793 | 47-5205835 | ||
(State or other jurisdiction | (Commission | (IRS Employer | ||
of incorporation) | File Number) | Identification No.) |
1200 Prospect Street, Suite 525, La Jolla, CA 92037
(Address of Principal Executive Offices) (Zip Code)
(858) 964 3720
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(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):
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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 ☐
If an emerging growth company, indicate by check mart 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. ☐
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
Common Stock, par value $0.001 per share | INMB | The NASDAQ Stock Market LLC |
Item 1.01. Entry into a Material Definitive Agreement.
As previously reported in a Current Report on Form 8-K that was filed with the Securities and Exchange Commission on April 17, 2020, on April 16, 2020, INmune Bio Inc. (the “Company”) entered into an At-The-Market Sales Agreement (the “Sales Agreement”) with BTIG, LLC (“BTIG”), pursuant to which the Company may offer and sell, from time to time, through BTIG, as sales agent, shares of its common stock, par value $0.001 per share (the “Common Stock”), having an aggregate offering price of up to $10,000,000 (the “Aggregate Offering Price”), subject to certain limitations on the amount of Common Stock that may be offered and sold by the Company set forth in the Sales Agreement. The Company is not obligated to make any sales of Common Stock under the Sales Agreement and any determination by the Company to do so will be dependent, among other things, on market conditions and the Company’s capital raising needs. As of August 10, 2020, the Company has sold an aggregate of 178,601 shares of its common stock pursuant to the sales agreement for gross proceeds of $972,879.
On August 18, 2020 the Company and BTIG entered into Amendment No 1 to At-the-Market Sales Agreement (the “Amendment”) pursuant to which the Aggregate Offering Price was increased to $30,000,000 (inclusive of shares of Common Stock sold pursuant to the Sales Agreement prior to the date of the Amendment) from $10,000,000 subject to certain limitations on the amount of Common Stock that may be offered and sold by the Company set forth in the Sales Agreement and the Amendment.
Shares may be sold through the ATM Prospectus Supplement by any method deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended. including sales made through The Nasdaq Capital Market or any other trading market for the common stock, sales made to or through a market maker other than on an exchange or through an electronic communications network, or in negotiated transactions pursuant to terms set forth in a placement notice delivered by the Company to BTIG under the Sales Agreement, as amended by the Amendment. Upon delivery of a placement notice and subject to the terms and conditions of the Sales Agreement, as amended by the Amendment, BTIG will use commercially reasonable efforts, consistent with its normal trading and sales practices, applicable state and federal law, rules and regulations, and the rules of The Nasdaq Capital Market, to sell the Shares from time to time based upon the Company’s instructions, including any price, time or size limits specified by the Company. BTIG is not obligated to purchase any shares of Common Stock on a principal basis pursuant to the Sales Agreement, as amended by the Amendment.
Offers and sales of Common Stock by the Company under the Sales Agreement, as amended, by the Amendment, if any, will be made through a prospectus supplement to the prospectus forming a part of the Company’s shelf registration statement on Form S-3 (File No. 333-237638) declared effective by the Securities and Exchange Commission (the “SEC”) on April 2, 2020 (the “Registration Statement”). The Company filed with the SEC a prospectus supplement dated April 16, 2020 specifically relating to offers and sales of Common Stock under the Sales Agreement (the “ATM Prospectus Supplement”), together with the prospectus forming a part of the effective registration statement. On August 19, 2020, the Company will file Amendment No 1 to the ATM Prospectus Supplement to update the ATM Prospectus Supplement for the terms of the Amendment.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment. A copy of the Amendment is filed with this Current Report on Form 8-K as Exhibit 1.1 and is incorporated herein by reference.
A copy of the opinion of Sichenzia Ross Ference LLP relating to the validity of the Shares that may be offered and sold under the ATM Prospectus Supplement, as amended by Amendment No. 1 to the ATM Prospectus Supplement, is filed with this Current Report on Form 8-K as Exhibit 5.1.
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of offers to buy any securities of the Company, and shall not constitute an offer, solicitation or sale of any security in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
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Item 9.01 Financial statements and Exhibits
(d) Exhibits.
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SIGNATURE
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.
Date: August 19, 2020 | INMUNE BIO INC. | |
By: | /s/ David Moss | |
David Moss | ||
Chief Financial Officer |
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Exhibit 1.1
INMUNE BIO Inc.
AMENDMENT NO. 1 TO
At-the-market SALES AGREEMENT
August 18, 2020
BTIG, LLC
65 East 55th Street
New York, NY 10022
Ladies and Gentlemen:
Reference is made to the At-The-Market Sales Agreement, dated April 16, 2020, including the Schedules and Exhibits thereto (the “Sales Agreement”), between INmune Bio Inc., a Nevada corporation (the “Company”), and BTIG, LLC (“BTIG” and, together with the Company, the “Parties”), pursuant to which the Company agreed that it may issue and sell to or through BTIG, as sales agent and/or principal, up to that number of shares of the Company’s common stock, par value $0.001 per share, having an aggregate offering price of $10,000,000, subject to the limitations set forth in Section 5(c) of the Sales Agreement.
The Parties wish to modify and amend the Sales Agreement as provided in this Amendment No. 1, dated August 18, 2020, to the Sales Agreement between BTIG and the Company (this “Amendment”). All capitalized terms used in this Amendment and not otherwise defined herein shall have the respective meanings assigned to such terms in the Sales Agreement.
BTIG and the Company hereby agree as follows:
A. Amendments to Sales Agreement. The Sales Agreement is hereby amended, effective August 18, 2020, as follows:
1. The address of BTIG directly above the words “Ladies and Gentlemen:” on the first page of the Sales Agreement is hereby deleted in its entirety and replaced with the following:
“BTIG, LLC
65 East 55th Street
New York, NY 10022”
2. The first sentence of Section 1 of the Sales Agreement is hereby deleted in its entirety and replaced with the following:
“The Company agrees that, from time to time after August 18, 2020 and during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell to or through BTIG, as sales agent and/or principal, up to that number of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), having an aggregate offering price of $30,000,000 (inclusive of shares of Common Stock sold pursuant to this Agreement prior to the date of this Amendment for gross proceeds of $972,879) (the “Shares”), subject to the limitations set forth in Section 5(c) hereof (the “Maximum Amount”).”
3. Clause (iii) of the second sentence of Section 5(c) of the Sales Agreement is hereby deleted in its entirety and replaced with the following:
“(iii) the number or dollar amount of shares of Common Stock permitted to be offered and sold by the Company under Form S-3,”
4. The sixth sentence of Section 6(a) of the Sales Agreement is hereby deleted in its entirety and replaced with the following:
“At the time of (i) the initial filing of the Registration Statement with the Commission and (ii) the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company met the then applicable requirements for use of Form S-3 under the Securities Act.”
5. The last sentence of Section 6(z) of the Sales Agreement is hereby deleted in its entirety and replaced with the following:
“Except as disclosed in the Registration Statement and the Prospectus, (1) the Company and its Subsidiaries, considered as one enterprise, have established and currently maintain disclosure controls and procedures within the meaning of Rule 13a-15 under the Exchange Act; (2) as of June 30, 2020, the Company has determined that such disclosure controls and procedures were not effective and, therefore, not in compliance with Rule 13a-15 under the Exchange Act and (3) as of June 30, 2020 and as of the date of this Agreement, the Company’s Chief Executive Officer and its Chief Financial Officer each have determined that notwithstanding the failure of the Company’s disclosure controls and procedures to be effective in compliance with Rule 13a-15 under the Exchange Act, they were sufficient to ensure that information required to be disclosed by the Company in the reports that it files or submits to the Commission under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure.”
6. Section 6(ll) of the Sales Agreement is hereby amended by adding the following sentence immediately after the first sentence of such Section:
“At the close of trading on the Exchange on August 17, 2020, the aggregate market value of the outstanding Non-Affiliate Shares was approximately $116,521,335 (calculated by multiplying (x) the price at which the common equity of the Company was last sold on the Exchange on July 14, 2020 by (y) the number of Non-Affiliate Shares outstanding on August 17, 2020).”
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7. Section 13 of the Sales Agreement is hereby deleted in its entirety and replaced with the following:
“All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to BTIG, shall be delivered to:
BTIG, LLC
65 E 55th Street
New York, NY 10022
Attention: Equity Capital Markets
Email: BTIGUSATMTrading@btig.com
with copies (which shall not constitute notice) to:
BTIG, LLC
600 Montgomery Street, 6th Floor
San Francisco, CA 94111
Attention: General Counsel and Chief Compliance Officer
Email: BTIGcompliance@btig.com
legal@btig.com
and:
Dorsey & Whitney LLP
51 West 52nd Street
New York, NY 10019
Telephone: (212) 415-9214
Facsimile: (212) 953-7201
Attention: Anthony J. Marsico
Email: marsico.anthony@dorsey.com
and if to the Company, shall be delivered to:
INmune Bio Inc.
1200 Prospect Street, Suite 525
La Jolla, CA 92037
Attention: David J. Moss, CFO
Email: dmoss@inmunebio.com
with a copy (which shall not constitute notice) to:
Sichenzia Ross Ference LLP
1185 Avenue of the Americas, 37th Floor
New York, NY 10036
Attention: Marc Ross, Esq.
Email: mross@srf.law
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Each party may change such address for notices by sending to the other party to this Agreement written notice of a new address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.
An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives confirmation of receipt by the receiving party (other than pursuant to auto-reply). Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.”
8. Schedule 1 is hereby amended by adding the words “as amended on August 18, 2020” immediately after “April 16, 2020” in such Schedule.
9. The first sentence of the Form of Officer’s Certificate attached as Exhibit 7(m) is hereby amended by adding the words “as amended on August 18, 2020” immediately after “April 16, 2020” in such sentence.
B. Prospectus Supplement. The Company shall file a prospectus supplement to the Prospectus pursuant to Rule 424(b) under the Securities Act of 1933, as amended, reflecting this Amendment within two (2) business days of the date of this Amendment.
C. No Other Amendments. Except as amended as set forth in Part A above, all of the terms and provisions of the Sales Agreement shall continue in full force and effect and shall not be in any way changed, modified or superseded by this Amendment.
D. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile or email transmission.
E. Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws.
[Remainder of page intentionally left blank.]
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If the foregoing correctly sets forth the understanding between us, please so indicate in the space provided below for that purpose.
Very truly yours, | ||
INMUNE BIO INC. | ||
By: | /s/ David Moss | |
Name: | David Moss | |
Title: | Chief Financial Officer | |
ACCEPTED as of the date first-above written: | ||
BTIG, LLC | ||
By: | /s/ KC Stone | |
Name: | KC Stone | |
Title: | Managing Director |
Signature Page to Amendment No. 1 to Sales Agreement
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Exhibit 5.1
August 18, 2020
INmune Bio Inc.
1200 Prospect Street, Suite 525
La Jolla, California 92037
Re: Securities Registered under Registration Statement on Form S-3 (File No. 333-237368)
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection with the proposed offer and sale by INmune Bio Inc., a Nevada corporation (the “Company”), of up to an aggregate of $30,000,000 of shares of the Company’s common stock (the “Placement Shares”), pursuant to a Registration Statement on Form S-3 (File No. 333-237368) (the “Registration Statement”), which was originally filed under the Securities Act of 1933, as amended (the “Securities Act”) with the Securities and Exchange Commission (“SEC”) on March 24, 2020 and declared effective by the SEC on April 2, 2020, the base prospectus contained in the Registration Statement (the “Base Prospectus”), the prospectus supplement relating to the proposed offer and sale of the Placement Shares filed with the SEC on April 16, 2020 pursuant to Rule 424(b) of the rules and regulations under the Securities Act (the “Prospectus Supplement”, Amendment No. 1 to the Prospectus Supplement and together with the Prospectus Supplement and the Base Prospectus, the “Prospectus”). We understand that the Placement Shares are proposed to be offered and sold by the Company through BTIG, LLC. (the “Agent”) pursuant to an At-the-Market Sales Agreement by and between the Company and the Agent (the “At-the-Market Sales Agreement”) as amended by Amendment No. 1 to the At-the Market Sales Agreement between the Company and the Agent dated August __, 2020.
In connection with the preparation of this opinion, we have examined such documents and considered such questions of law as we have deemed necessary or appropriate. We have assumed the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof and the genuineness of all signatures. As to questions of fact material to our opinions, we have relied upon the certificates of certain officers of the Company without independent investigation or verification.
Further, in connection with our opinions expressed below, we have assumed that, (i) at or prior to the time of the delivery of any of the Placement Shares, there will not have occurred any change in the law or the facts affecting the validity of the Placement Shares, (ii) at the time of the offer, issuance and sale of any Placement Shares, no stop order suspending the Registration Statement’s effectiveness will have been issued and remain in effect, (iii) no future amendments will be made to the company’s Articles of Incorporation that would be in conflict with or inconsistent with the Company’s right and ability to issue the Placement Shares, (iv) at the time of each offer, issuance and sale of any Placement Shares, the Company will have a sufficient number of authorized and unissued and unreserved shares of the applicable class or series of its capital stock included in (or purchasable upon exercise or conversion of) the Placement Shares so issued and sold (after taking into account all other outstanding securities of the Company which may require the Company to issue shares of such applicable class or series) to be able to issue all such shares, and (v) all purchasers of the Placement Shares will timely pay in full to the Company all amounts they have agreed to pay to purchase such Placement Shares, as approved by the Board of Directors of the Company or a duly authorized committee thereof, and that the purchase price of any Placement Shares will not be less than the par value thereof.
1185 Avenue of the Americas | 37th Floor | New York, NY | 10036
T (212) 930 9700 | F (212) 930 9725 | WWW.SRF.LAW
We express no opinion regarding the effectiveness of any waiver or stay, extension or of unknown future rights. Further, we express no opinion regarding the effect of provisions relating to indemnification, exculpation or contribution to the extent such provisions may be held unenforceable as contrary to federal or state securities laws or public policy.
With respect to our opinion expressed below, we have assumed that, upon the issuance of any of the Placement Shares, the total number of shares of Common Stock issued and outstanding and reserved for future issuance will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under its Articles of Incorporation as then in effect.
Based on the foregoing, we are of the opinion that the Placement Shares have been duly authorized and, when issued and sold in the manner described in the Registration Statement, the Prospectus, the At-the-Market Sales Agreement, and Amendment No. 1 to the At-the Market Sales Agreement will be validly issued, fully paid and non-assessable.
We are members of the bar of the State of New York. We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York, and the federal laws of the United States of America. Insofar as the matters covered by this opinion may be governed by the laws of other states we have assumed that such laws are identical in all respects to the laws of the State of New York.
We hereby consent to the use of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed with the SEC on the date hereof, which is incorporated by reference into the Registration Statement, and further consent to the reference to us in the Registration Statement and any amendments thereto. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
This opinion is intended solely for use in connection with the offer and sale of the Placement Shares pursuant to the Registration Statement and is not to be relied upon for any other purpose or delivered to or relied upon by any other person without our prior written consent. This opinion is rendered as of the date hereof and based solely on our understanding of facts in existence as of such date after the examination described in this opinion. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein.
Very truly yours, | |
/s/ Sichenzia Ross Ference LLP | |
SICHENZIA ROSS FERENCE LLP |
1185 Avenue of the Americas | 37th Floor | New York, NY | 10036
T (212) 930 9700 | F (212) 930 9725 | WWW.SRF.LAW