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 28, 2020

 

Commission File No. 000-16929

 

Soligenix, Inc.

(Exact name of small business issuer as specified in its charter)

 

DELAWARE   41-1505029
(State or other jurisdiction of
incorporation or organization) 		  (I.R.S. Employer
Identification Number)
     
29 Emmons Drive,
Suite B-10
Princeton, NJ 		 


08540
(Address of principal
executive offices) 		  (Zip Code)

 

(609) 538-8200
(Issuer’s telephone number, including area code)

 

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))

  

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 $.001 per share   SNGX   The Nasdaq Capital Market
Common Stock Purchase Warrants   SNGXW   The 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 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 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.  ☐

  

 

 

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

To the extent applicable, the information in Item 8.01 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01.

 

Item 8.01. Other Events.

 

As previously disclosed, on August 11, 2017, Soligenix, Inc. (the “Company”) and FBR Capital Markets & Co. (now known as B. Riley FBR, Inc.) (“FBR”) entered into an At Market Issuance Sales Agreement (the “Original Sales Agreement”), pursuant to which the Company may sell from time to time, at its option, shares of its common stock through FBR, as sales agent. On August 28, 2020, the Company and FBR entered into Amendment No. 1 to At Market Issuance Sales Agreement (the “Amendment”) to amend the Original Sales Agreement (as amended, the “Sales Agreement”) (a) to update the reference to the registration statement pursuant to which the shares of common stock may be sold and (b) to extend the expiration date of the Original Sales Agreement to December 31, 2023.

 

Sales of common stock made pursuant to the Sales Agreement, if any, will be made in “at the market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended, on or through The NASDAQ Capital Market (“Nasdaq”), pursuant to the Company’s effective shelf registration statement on Form S-3 (File No. 333-239928) filed on August 14, 2020 with the U.S. Securities and Exchange Commission (the “SEC”), the base prospectus filed as part of such registration statement, and the prospectus supplement dated August 28, 2020 filed by the Company with the SEC. In accordance with the terms of the Sales Agreement, under the prospectus supplement dated August 28, 2020, the Company may offer and sell shares of the Company’s common stock having an aggregate offering price of up to $20 million, from time to time.

 

On April 10, 2020, the Company filed a prospectus supplement for sale of up to $10.2 million of shares of common stock pursuant to the Original Sales Agreement. No additional shares will be offered or sold pursuant to the prospectus supplement dated April 10, 2020.

 

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any security nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.

 

Additional information with respect to the Sales Agreement is available under “Item 5 – Other Information” in the Company’s Quarterly Report on Form 10-Q filed on August 11, 2017 and is incorporated herein by reference. The description of the Sales Agreement presented here does not purport to be complete and is qualified in its entirety by reference to the Original Sales Agreement which is filed as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on August 11, 2017 and the Amendment which is filed herewith as Exhibit 10.2. The opinion of the Company’s counsel regarding the validity of the shares that will be issued pursuant to the Sales Agreement under the prospectus supplement filed on August 28, 2020 is filed herewith as Exhibit 5.1.

 

This report contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainties and reflect the Company’s judgment as of the date of this report. Such forward-looking statements include statements regarding the ability to sell shares and raise additional funds pursuant to the Sales Agreement. Such forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from predicted or expected results. The inclusion of forward-looking statements should not be regarded as a representation by the Company that any of these results will be achieved. Actual results may differ from those set forth in this report due to the risks and uncertainties associated with market conditions and the satisfaction of pre-sale conditions under the Sales Agreement, as well as risks and uncertainties inherent in the Company’s business, including those described in the Company’s periodic filings with the SEC. These forward-looking statements are made only as the date hereof, and, except as required by law, the Company undertakes no obligation to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise. All forward-looking statements are qualified in their entirety by this cautionary statement.

  

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Item 9.01.     Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.   Description
5.1   Opinion of Duane Morris LLP
10.1   At Market Issuance Sales Agreement dated August 11, 2017 between Soligenix, Inc. and FBR Capital Markets & Co. (1)
10.2   Amendment No. 1 to At Market Issuance Sales Agreement dated August 28, 2020 between Soligenix, Inc. and B. Riley FBR, Inc.
23.1   Consent of Duane Morris LLP (included in Exhibit 5.1)

  

 

(1) Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on August 11, 2017.

  

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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.

 

 

Soligenix, Inc.

 

August 28, 2020  By: /s/ Christopher J. Schaber 
   

Christopher J. Schaber, Ph.D.

President and Chief Executive Officer

(Principal Executive Officer)

 

 

3

 

Exhibit 5.1

 

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ALLIANCES IN MEXICO
AND SRI LANKA

 

August 28, 2020

 

Soligenix, Inc.
Attn: Board of Directors

29 Emmons Drive, Suite B-10
Princeton, NJ 08540

 

Re: Soligenix, Inc. (the “Corporation”)
  Form S-3 (Registration File No. 333-239928) (the “Registration
  Statement”), as supplemented by the Prospectus Supplement
  dated August 28, 2020 (the “Prospectus Supplement”)

 

Ladies and Gentlemen:

 

We have acted as special counsel to the Corporation in connection with the preparation and filing with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of the Registration Statement as supplemented by the Prospectus Supplement, relating to the offer and sale by the Corporation of shares of common stock, $0.001 par value, of the Corporation having an aggregate gross sales price of up to $20 million (the “Shares”), pursuant to the terms of the At Market Issuance Sales Agreement dated as of August 11, 2017, as amended by Amendment No. 1 to At Market Issuance Sales Agreement dated as of August 28, 2020, between the Corporation and FBR Capital Markets & Co. (now known as B. Riley FBR, Inc.), as sales agent (as amended, the “Agreement”).

 

As counsel to the Corporation, we have supervised all corporate proceedings in connection with the preparation and filing of the Registration Statement as supplemented by the Prospectus Supplement.

 

Duane Morris llp 
1875 NW Corporate blvd., suite 300 boca Raton, Fl 33431-8561       PHONE: 561.962.2100 FAX: 561.962.2101

 

 

 

 

August 28, 2020

Page 2

 

For purposes of rendering this opinion, we have examined originals or copies (certified or otherwise identified to our satisfaction) of:

 

a. the Registration Statement, in the form filed and to be filed with the Commission, and the exhibits filed or to be filed in connection therewith, including the Prospectus Supplement;

 

b. the Agreement;

 

c. the Second Amended and Restated Certificate of Incorporation of the Corporation, as amended, as certified by the Secretary of the Corporation;

 

d. the Bylaws of the Corporation, as certified by the Secretary of the Corporation; and

 

e. resolutions of the Board of Directors of the Corporation, as attested to by the Secretary of the Corporation.

 

We have also examined such other certificates of public officials, such certificates of executive officers of the Corporation and such other records, agreements, documents and instruments as we have deemed relevant and necessary as a basis for the opinions hereafter set forth.

 

In such examination, we have assumed (i) the genuineness of all signatures, (ii) the legal capacity of all natural persons, (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity to original documents of all documents submitted to us as certified, conformed or other copies and the authenticity of the originals of such documents and (v) that all records and other information made available to us by the Corporation on which we have relied are complete in all material respects. As to all questions of fact material to the opinion expressed herein, we have relied solely upon the above-referenced certificates or comparable documents and upon the representations and warranties contained in the Agreement and other documents delivered pursuant thereto, have not performed or had performed any independent research of public records and have assumed that certificates of or other comparable documents from public officials dated prior to the date hereof remain accurate as of the date hereof.

 

Based on the foregoing, we are of the opinion that the Shares, when issued pursuant to the terms of the Agreement against receipt by the Corporation of the consideration specified therein, will be validly issued, fully paid and non-assessable.

 

The foregoing opinion is limited to the laws of the State of Delaware, and we do not express any opinion herein concerning any other law.

 

The opinion expressed herein is rendered as of the date hereof and is based on existing law, which is subject to change. Where our opinion expressed herein refers to events to occur at a future date, we have assumed that there will have been no changes in the relevant law or facts between the date hereof and such future date. We do not undertake to advise you of any changes in the opinion expressed herein from matters that may hereafter arise or be brought to our attention or to revise or supplement such opinions should the present laws of any jurisdiction be changed by legislative action, judicial decision or otherwise.

 

 

 

 

August 28, 2020

Page 3

 

Our opinion expressed herein is limited to the matters expressly stated herein and no opinion is implied or may be inferred beyond the matters expressly stated.

 

We hereby consent to the use of this letter as an exhibit to the Registration Statement and to any and all references to our firm in the Prospectus which is a part of the Registration Statement. In giving this consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required under Section 7 of the Securities Act.

 

  Sincerely,
   
  /s/ Duane Morris LLP

 

 

 

 

Exhibit 10.2

 

SOLIGENIX, INC.

 

Common Stock

(par value $0.001 per share)

 

Amendment No. 1 to 

At Market Issuance Sales Agreement

 

August 28, 2020

 

B. Riley FBR, Inc.

1300 North 17th Street

Suite 1400

Arlington, Virginia 22209

 

Ladies and Gentlemen:

 

Reference is hereby made to that certain At Market Issuance Sales Agreement, dated as of August 11, 2017 (the “Sales Agreement”), by and between Soligenix, Inc., a Delaware corporation (the “Company”), and FBR Capital Markets & Co., now known as B. Riley FBR, Inc. (“FBR”). By this Amendment No. 1 to At Market Issuance Sales Agreement (this “Amendment”), the Company and FBR hereby agree that the Sales Agreement shall be amended as hereinafter set forth. All capitalized terms used but not defined herein have the meanings assigned to such terms in the Sales Agreement.

 

1. Amendments.

 

(a) The first sentence of the second paragraph of Section 1 of the Sales Agreement is hereby amended and restated as follows:

 

“The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended and the rules and regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-239928), including a base prospectus, relating to certain securities including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended and the rules and regulations thereunder (the “Exchange Act”).”

 

(b) Section 13.d. is hereby amended and restated as follows:

 

“Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the earlier to occur of (i) December 31, 2023 and (ii) the issuance and sale of all of the Placement Shares through FBR on the terms and subject to the conditions set forth herein, except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.”

 

2. Representations and Warranties. The Company hereby confirms that all of representations and warranties set forth in Section 6 of the Sales Agreement are true and correct in all material respects as of the date hereof.

 

1

 

 

3. Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this the Agreement, as amended by the Amendment, without duplication, including (i) the preparation, filing, including any fees required by the Commission, and printing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment and supplement thereto and each Issuer Free Writing Prospectus, in such number as FBR shall deem reasonably necessary, (ii) the printing and delivery to FBR of this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates, if any, for the Placement Shares to FBR, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to FBR or the purchaser thereof, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the reasonable and documented out-of-pocket fees and disbursements of counsel to FBR up to $20,000, (vi) the fees and expenses of the transfer agent and registrar for the Common Stock, (vii) the filing fees incident to any review by FINRA of the terms of the sale of the Placement Shares, and (viii) the fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange.

 

4. Other Terms and Conditions. Save and except to the extent that the Sales Agreement is varied and modified by this Amendment, all other terms and conditions of the Sales Agreement shall continue unchanged and remain in full force and effect. The Sales Agreement shall be read and construed in conjunction with this Amendment and the same shall be treated as varied and modified accordingly. In the event of conflict between the terms of this Amendment and the terms of the Sales Agreement, the provisions of this Amendment shall prevail in relation to the matters set out herein. This Amendment shall be effective from the date set forth above irrespective of the date of its execution.

 

5. GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. THE COMPANY AND FBR EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

6. 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 transmission or email of a .pdf attachment.

 

[Remainder of the page intentionally left blank]

 

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If the foregoing correctly sets forth the understanding between the Company and FBR, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company and FBR.

 

  Very truly yours,
   
  SOLIGENIX, INC.
     
  By: /s/ Christopher J. Schaber
  Name:  Christopher J. Schaber, PhD
  Title: President and Chief Executive Officer
     
  ACCEPTED as of the date first written above:
   
  B. RILEY FBR, INC.
     
  By: /s/ Matthew Feinberg
  Name: Matthew Feinberg
  Title: Managing Director

 

[Signature Page to Amendment No. 1 to At Market Issuance Sales Agreement]