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): December 6, 2019
Nuo Therapeutics, Inc.
(Exact name of Registrant as Specified in Charter)
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Delaware |
001-32518 |
23-3011702 |
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(State or Other Jurisdiction |
(Commission |
(IRS Employer |
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of Incorporation) |
File Number) |
Identification No.) |
8285 El Rio, Suite 150, Houston, TX 77006
(Address of Principal Executive Offices) (Zip Code)
(240) 499-2680
(Registrant’s telephone number, including area code)
N/A
(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:
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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)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
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. ☐
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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None |
Item 1.01 Entry into a Material Definitive Agreement
December 6, 2019 Issuance of Secured Notes
As previously disclosed in a Current Report on Form 8-K filed with the Securities and Exchange Commission on November 20, 2019, which is incorporated herein by reference, Nuo Therapeutics, Inc. (the “Company”) entered into note purchase agreements with certain investors for the issuance of 12% senior secured promissory notes (the “Notes”) and issued Notes totaling $50,000 as of November 15, 2019. The note purchase agreements provide for a cap of $500,000 on the aggregate amount of Notes that may be issued. On December 6, 2019, the Company entered into additional note purchase agreements with certain individual accredited investors (the “Investors”) for the issuance and sale to the Investors of additional Notes in the aggregate principal amount of $235,000. The note purchase agreements require that the proceeds from the Notes (up to a cap) be used to repay the Company’s obligations to the Convertible Noteholders (as defined below). The Notes have a maturity date of June 30, 2020 and accrue interest at a rate of 12% per year. The Company may prepay the Notes, in whole or in part, at any time.
Pursuant to the December 6, 2019 note purchase agreements, the Company also issued to the Investors warrants to purchase an aggregate of 352,500 shares of the Company’s common stock, subject to adjustment as referenced below. The warrants are exercisable at any time, at an exercise price per share equal to $0.40, subject to certain adjustments and price protection provisions (including full ratchet anti-dilution protection) contained in the warrants. The warrants have five-year terms.
In conjunction with issuance of the Notes, the Company granted a first priority security interest in all the assets of the Company but fundamentally consisting of the Aurix asset, including all regulatory files and approvals and relevant intellectual property. The note purchase agreements contain certain representations, warranties and covenants by, among and for the benefit of the respective parties. The purchase agreements also provide for customary indemnification of the Investors by the Company.
The issuance of the Notes and the related warrants was exempt from the registration requirements of the Securities Act, pursuant to the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). In making this determination, the Company relied on the representations of each of the Investors in the relevant note purchase agreement. Should the warrant be exercised for shares of common stock, the issuance of such shares of common stock is expected to be exempt from the registration requirements of the Securities Act pursuant to Section 4(a)(2) and/or the exemption for exchange transactions under Section 3(a)(9) of the Securities Act.
December 10, 2019 Amendments to September 2018 Convertible Notes
On December 10, 2019, the Company entered into fifth amendments to the convertible promissory notes issued to the Company’s convertible note holders Auctus Fund LLC and EMA Financial LLC (together the “Convertible Noteholders”) on September 17, 2018, pursuant to which the Company’s obligations under such notes will be extinguished in their entirety upon receipt by each Convertible Noteholder of (i) a cash payment of $110,000 and (ii) 175,000 unrestricted shares of the Company’s common stock no later than February 10, 2020. The Company made the required cash payments totaling $220,000 by wire transfer on December 10, 2019.
The above description of the convertible note amendments does not purport to be complete and is qualified in its entirety by the full text of each amendment, attached as Exhibits 10.1 and 10.2, respectively, which are 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
As described in Item 1.01 above, on December 6, 2019, the Company issued to the Investors Notes in the aggregate principal amount of $235,000.
The descriptions of the Notes, their issuance, and the note purchase agreements contained in Item 1.01 are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
As described in Item 1.01 above, the Company on December 6, 2019 issued to the Investors Notes in the aggregate principal amount of $235,000 and warrants exercisable to purchase an aggregate of 352,500 shares of the Company’s common stock.
The descriptions of the Notes and warrants, their issuance, and the note purchase agreements contained in Item 1.01 are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
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Exhibit No. |
Exhibit Description |
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10.1 |
Convertible Promissory Note Fifth Amendment with Auctus Fund LLC dated December 10, 2019 |
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10.2 |
Convertible Promissory Note Fifth Amendment with EMA Financial LLC dated December 10, 2019 |
SIGNATURES
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.
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Nuo Therapeutics, Inc. |
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By: |
/s/ David E. Jorden |
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David E. Jorden |
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Chief Executive Officer and
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Date: December 12, 2019 |
Exhibit 10.1
FIFTH AMENDMENT TO THE CONVERTIBLE PROMISSORY NOTE ISSUED ON SEPTEMBER 17, 2018
THIS FIFTH AMENDMENT TO THE CONVERTIBLE PROMISSORY NOTE ISSUED ON September 17, 2018
(the “Amendment”) is made effective as of December 10, 2019 (the “Effective Date”), by and between NUO THERAPUETICS, INC., a Delaware corporation (the “Company”), and Auctus Fund LLC a Delaware limited liability company (the “Holder”) (each the Company and the Holder a “Party” and collectively the “Parties”).
BACKGROUND
A. The Company and Holder are the parties to that certain securities purchase agreement (the “SPA”) dated September 17, 2018 pursuant to which the Company issued to Holder a convertible note on even date, in the original principal amount of $175,000.00 (as amended from time to time, the “Note”); and
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B. |
The Parties desire to amend the Note as set forth expressly below. |
NOW THEREFORE, in consideration of the execution and delivery of the Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. On the Effective Date, the Company shall pay to the Holder by wire transfer an amount equal to $110,000.00 (the “Cash Payment”).
2. On or before February 10, 2020 (the “Share Delivery Deadline”), the Company shall deliver 175,000 shares of the Company’s common stock without any restrictive legend (the “Shares”) to the Holder pursuant to a conversion as of the Effective Date by the Holder under the Note.
3. The Holder’s sale of the Shares in a public market shall be limited to 12% of the daily volume of the Common Stock during each respective trading day.
4. The Company shall, on or before the Share Delivery Deadline, provide to the Holder copies of amendments that are substantially similar to this Amendment which have been signed by the Company and all of the Company’s other convertible noteholders.
5. If the Company fails to comply with Sections 1, 2, and/or 4 of this Amendment, then this Amendment shall automatically be null and void and of no further force or effect.
6. If the Company complies with Sections 1, 2, and 4 of this Amendment, then the Note shall be extinguished in its entirety and the Holder will cancel the share reservation held by the Company’s transfer agent with respect to the Note.
7. This Amendment shall be deemed part of but shall take precedence over and supersede any provisions to the contrary contained in the Note. Except as specifically modified hereby, all of the provisions of the Note, which are not in conflict with the terms of this Amendment, shall remain in full force and effect.
8. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. Any signature transmitted by facsimile, e-mail, or other electronic means shall be deemed to be an original signature.
[Signature page to follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
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Nuo Therapeutics
By: /s/ David Jorden Name: David E. Jorden Title: CEO |
Auctus Fund LLC
By: /s/ Lou Posner Name: Lou Posner Title: Managing Director |
Exhibit 10.2
FIFTH AMENDMENT TO THE CONVERTIBLE PROMISSORY NOTE ISSUED ON SEPTEMBER 17, 2018
THIS FIFTH AMENDMENT TO THE CONVERTIBLE PROMISSORY NOTE ISSUED ON September 17, 2018
(the “Amendment”) is made effective as of December 10, 2019 (the “Effective Date”), by and between NUO THERAPUETICS, INC., a Delaware corporation (the “Company”), and EMA Financial LLC a Delaware limited liability company (the “Holder”) (each the Company and the Holder a “Party” and collectively the “Parties”).
BACKGROUND
A. WHEREAS, The Company and Holder are the parties to that certain securities purchase agreement (the “SPA”) dated September 17, 2018 pursuant to which the Company issued to Holder a convertible note on even date, in the original principal amount of $175,000.00 (as amended from time to time, the “Note”); and
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WHEREAS, the Parties desire to amend the Note as set forth expressly below. |
NOW THEREFORE, in consideration of the execution and delivery of the Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. On the Effective Date, the Company shall pay to the Holder by wire transfer an amount equal to $110,000.00 (the “Cash Payment”).
2. On or before February 10, 2020 (the “Share Delivery Deadline”), the Company shall deliver 175,000 shares of the Company’s common stock without any restrictive legend (the “Shares”) to the Holder pursuant to a conversion as of the Effective Date by the Holder under the Note.
3. The Holder’s sale of the Shares in a public market shall be limited to 12% of the daily volume of the Common Stock during each respective trading day.
4. The Company shall, on or before the Share Delivery Deadline, provide to the Holder copies of amendments that are substantially similar to this Amendment which have been signed by the Company and all of the Company’s other convertible noteholders.
5. If the Company fails to comply with Sections 1, 2, and/or 4 of this Amendment, then this Amendment shall automatically be null and void and of no further force or effect.
6. If the Company complies with Sections 1, 2, and 4 of this Amendment, then the Note shall be extinguished in its entirety and the Holder will cancel the share reservation held by the Company’s transfer agent with respect to the Note.
7. This Amendment shall be deemed part of but shall take precedence over and supersede any provisions to the contrary contained in the Note. Except as specifically modified hereby, all of the provisions of the Note, which are not in conflict with the terms of this Amendment, shall remain in full force and effect.
8. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. Any signature transmitted by facsimile, e-mail, or other electronic means shall be deemed to be an original signature.
[Signature page to follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
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Nuo Therapeutics
By: /s/ David Jorden Name: David E. Jorden Title: CEO |
EMA Financial LLC
By: /s/ Felicia Preston Name: Felicia Preston Title: Director |