UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

FORM 8-K/A

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): June 8, 2021 (November 5, 2020)

 

ABVC BIOPHARMA, INC.

(Exact name of registrant as specified in its charter)

 

Nevada   333-91436   26-0014658
(State or other jurisdiction
of incorporation) 		  (Commission File Number)   (IRS Employer
Identification No.)

 

44370 Old Warm Springs Blvd.

Fremont, CA

  94538
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number including area code: (510) 668-0881

 

 

(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:

 

  ☐ 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: None

 

Indicate by check mark whether the registrant is an emerging growth company as defined in 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

 

On November 5, 2020, American BriVision Corporation (the “Company”) filed the initial Current Report on form 8-K to disclose that the Company entered into a Securities Purchase Agreement (the “SPA”) with one accredited investor (the “Investor”) on October 23, 2020. Pursuant to the Securities Purchase Agreement, the Company sold and issued a convertible promissory note (the “Note”) in principal amount of $2,500,000 to the Investor and received the payment from such Investor on October 31, 2020.

 

The maturity date of the Note is the twenty-four (24) month anniversary from the Issuance Date (the “Maturity Date”). The Note bears an interest rate of ten percent (10%) per annum and was initially only convertible into shares of the Company’s common stock at a fixed conversion price of $2.25 per share at the holder’s option.

 

On June 3, 2021, the parties to the SPA signed Amendment No. 1 to Promissory Note (the “Amendment”). Pursuant to the Amendment, the Note shall now also automatically convert into shares of the Company’s common stock immediately following the Company’s receipt of conditional approval to list its common stock on the NASDAQ stock market, if and when we receive such approval, which cannot be guaranteed, at a conversion price equal to the then current conversion price.

  

The foregoing description of the SPA, Note and Amendment is qualified by reference to the full text of the forms of SPA, Note and Amendment, which are filed as Exhibits 10.1, 10.2 and 10.3 hereto respectively, and incorporated herein by reference.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

 

The disclosures set forth in Item 1.01 of this Current Report are incorporated by reference herein.

 

Item 9.01 Financial Statements and Exhibits.

 

  (d) Exhibits

The exhibit listed in the following Exhibit Index is filed as part of this Current Report on Form 8-K.

 
Exhibit No.   Description
10.1   Form of Securities Purchase Agreement (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on November 5, 2020.)
10.2   Form of Convertible Promissory Note (Incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed on November 5, 2020.)
10.3   Amendment No. 1 to Promissory Note

 

1

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

  

  ABVC BIOPHARMA, INC.
     
June 8, 2021 By: /s/ Andy An
    Andy An
    Chief Financial Officer

 

 

2

 

 

Exhibit 10.3

 

AMENDMENT NO. 1 TO PROMISSORY NOTE

 

This AMENDMENT NO. 1 (the “Amendment”) dated as of May 17, 2021, (the “Effective Date”) to that certain Promissory Note dated as of October 23, 2020 (the “Note”) issued to Eternal Genius Consulting Company Limited (“Holder”) by American Brivision (Holding) Corporation (the “Company”).

 

WITNESSETH:

 

WHEREAS, the Company and Holder are parties to that certain Securities Purchase Agreement, dated as of October 23, 2020 (the “Purchase Agreement”);

 

WHEREAS, pursuant to the Purchase Agreement, the Company issued the Holder the Note, in the principal amount of $2,500,000;

 

WHEREAS, pursuant to the original terms of the Note, the Holder can convert the Note at any time into shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), at a conversion price of $2.25 per share;

 

WHEREAS, terms otherwise not defined herein shall have the meaning set forth in the Purchase Agreement and Note;

 

WHEREAS, subject to the terms and conditions of this Amendment, the parties have agreed to amend the Note on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto agree as follows:

 

I.        Amendment to the Note.

 

(a) Section 5(b) of the Note is hereby deleted in its entirety and replaced with the following:

 

b. “Conversion.

 

i. Voluntary Conversion: At any time during the Conversion Period as defined below, the Holder may convert the unpaid and outstanding Principal into shares of the Company’s common stock at a fixed conversion price equal to $2.25 per share of Common Stock (the “Conversion Price”). The Conversion Period shall commence on the Issuance Date and end on the Maturity Date of this Note.

 

ii. Mandatory Conversion: Subject to Section 7 hereof, the Note and all amounts due hereunder shall automatically be converted into shares of Common Stock, without any further action on the part of the Holder, immediately following receipt of a conditional approval to list the Common Stock on the NASDAQ stock market (the “NASDAQ Listing Event”). In connection with any mandatory conversion pursuant to this Section 5(b)(ii), the conversion price shall be equal to the Conversion Price”

 

(b) Section 5(c) of the Note is hereby deleted in its entirety and replaced with the following:

 

 

 

 

c. Mechanics of Conversion.

 

i.      Conversion Shares Issuable Upon Voluntary Conversion. The number of shares issuable upon a conversion (the “Conversion Shares”) pursuant to Section 5(b)(i) hereunder shall be determined by the quotient obtained by dividing the outstanding principal amount of this Note and accrued but unpaid interest thereon to be converted by (y) the Conversion Price.

 

ii.      Conversion Shares Issuable Upon Mandatory Conversion. The number of Conversion Shares issuable upon a conversion pursuant to Section 5(b)(ii) hereunder shall be determined by the quotient obtained by dividing the outstanding principal amount of this Note and accrued but unpaid interest thereon to be converted by (y) the Conversion Price.

 

iii.      Delivery of Certificate Upon Conversion. Not later than seven (7) Business Days after each conversion date (the “Share Delivery Date”), the Company shall deliver, or cause to be delivered, to the Holder a certificate or certificates representing the Conversion Shares being acquired upon the conversion of this Note, in whole or in part.

 

iv.      Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the Holder would otherwise be entitled to receive upon such conversion, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share.”

 

III.       Full Force and Effect; References. Except as expressly amended hereby, all of the provisions of the Note are hereby affirmed and shall continue in full force and effect in accordance with their respective terms. Upon the effectiveness of this Amendment, each reference in the Note to “this Note,” “hereunder,” or words of like or similar import shall mean and be a reference to the Note, as modified and amended by this Amendment. Additionally, upon the effectiveness of this Amendment, each reference in the Purchase Agreement to “the Note,” “the Promissory Note,” or words of like or similar import shall mean and be a reference to the Note, as modified and amended by this Amendment.

 

IV.       Entire Agreement. The Company and Holder acknowledge that there are no agreements or understandings, written or oral, between the Company and Holder with respect to the matters set forth in the Note and in this Amendment, other than as set forth in the Note, as amended by this Amendment and the Purchase Agreement. The Company and Holder further acknowledge that the Note, as amended by this Amendment, contains the entire agreement between the Company and Holder with respect to the subject matter hereof and thereof, and that no covenant, condition, or other term or provision may be waived or modified orally.

 

V.       Applicable Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to its conflict of laws principles.

 

VI.       Counterparts and Electronic Transmission. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparties shall, together, constitute only one instrument. This Amendment may be executed and delivered by facsimile or electronic transmission.

 

VII. Dual Language. This Amendment is written in both English and Chinese. Shall there be any conflicts between the English and Chinese versions, the English version shall prevail.

 

 

 

 

IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.

 

  American BriVision (Holding) Corp
   
   
  By: /s/
  Name: Howard Doong
  Title: Chief Executive Officer
     
     
  Holder:
   
  Eternal Genius Consulting Company Limited
   
     
  By: /s/
  Name:  
  Title: