POLARITYTE, INC. (Form: 8-K, Received: 11/23/2020 08:06:26)

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): November 19, 2020

POLARITYTE, INC.

(Exact name of registrant as specified in its charter)

Delaware

001-32404

06-1529524

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)

1960 S. 4250 West, Salt Lake City, UT 84104

(Address of principal executive offices and zip code)

Registrant’s telephone number, including area code: (800) 560-3983

(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:

Title of each class		Trading Symbol		Name of each exchange on which registered
Common Stock, Par Value $0.001		PTE		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 5.07 Submission of Matters to a Vote of Security Holders

PolarityTE, Inc. (the “Company”) held its 2020 Annual Meeting of Stockholders on November 19, 2020. At the Annual Meeting the stockholders voted on the following four proposals:

1.	The election of one Class III director nominated by the Board of Directors for a three-year term;
2.	Approval, by a non-binding advisory vote, of the compensation of the Company’s named executive officers;
3.	The ratification of the appointment of EisnerAmper LLP as the Company’s independent public accountant for the fiscal year ending December 31, 2020; and
4.	Approval of an amendment to the 2020 Stock Option and Incentive Plan to add 2,000,000 common shares to the number of shares available for awards.

At the meeting the stockholders elected the nominee and approved the remaining proposals by the following vote:

Proposal No. 1

Election of Class III Director

		Votes For				Votes Withheld				Broker Non-Votes
Peter A. Cohen			6,736,407				2,224,206				13,494,391

Proposal No. 2

Advisory Vote on the Compensation of the Company’s Named Executive Officers

Votes For			Votes Against				Abstain				Broker Non-Votes
5,066,136				3,764,727				190,712				13,494,391

Proposal No. 3

Ratify the Appointment of EisnerAmper LLP as the Company’s Independent Public Accountant

Votes For			Votes Against				Abstain				Broker Non-Votes
21,428,772				163,064				863,168				-0-

Proposal No. 4

Approve the Amendment to the 2020 Stock Option and Incentive Plan

Votes For			Votes Against				Abstain				Broker Non-Votes
4,721,072				4,048,156				191,385				13,494,391

Item 8.01. Other Information.

Warrant Repricing and Exercise

On February 14, 2020, PolarityTE, Inc. (the “Company”), issued in a public offering warrants to purchase 10,638,298 shares of its common stock (the “Warrants”). On November 19, 2020, the Company reduced the exercise price of the Warrants from $2.80 per share to $0.10 per share effective November 20, 2020.

Concurrently with the reduction of the Warrant exercise price the Company entered into a repricing letter agreement with the holders of 10,063,298 Warrants pursuant to which the Company agreed that it will not sell equity securities for a period of 30 days, except for equity securities issued under the Company’s equity incentive plans established for employees, directors, and consultants and equity securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company. The foregoing description of the repricing letter agreement is qualified in its entirety by the full text of the form of that agreement attached hereto as Exhibit 99.1.

Patent Allowance

On November 18, 2020, the US Patent and Trademark Office updated the status of the Company’s patent application 14/954,335 to “allowed – notice of allowance not yet mailed.” This patent application is related to methods of making compositions for regenerating functional skin tissue.

Litigation Update

On June 26, 2018, a class action complaint alleging violations of the Federal securities laws was filed in the United States District Court, District of Utah, by Jose Moreno against the Company and two directors of the Company, Case No. 2:18-cv-00510-JNP (the “Moreno Complaint”). On July 6, 2018, a similar complaint was filed in the same court against the same defendants by Yedid Lawi, Case No. 2:18-cv-00541-PMW (the “Lawi Complaint”). On November 28, 2018, the Court consolidated the Moreno and Lawi cases under the caption In re PolarityTE, Inc. Securities Litigation with Case No. 2:18-cv-00510 (the “Consolidated Securities Litigation”). The gravamen of the consolidated complaint in the Consolidated Securities Litigation was that defendants made statements or disseminated information to the public through reports filed with the Securities and Exchange Commission and other channels that contained material misstatements or omissions in violation of Sections 10 and 20(a) of the Exchange Act and Rule 10b-5 adopted thereunder, specifically that the defendants misrepresented the status of one of the Company’s patent applications while touting the unique nature of the Company’s technology and its effectiveness. The Company filed a motion to dismiss the consolidated complaint on June 3, 2019. Plaintiffs’ opposition to the Company’s motion to dismiss was filed on August 2, 2019, and the Company filed a reply to the opposition on September 13, 2019. Following a hearing on the Company’s motion to dismiss the Court issued an order on November 22, 2020, dismissing the complaint in the Consolidated Securities Litigation with prejudice.

In November 2018, a shareholder derivative lawsuit was filed in the United States District Court, District of Utah, with the caption Monther v. Lough, et al., case no. 2:18-cv-00791-TC, alleging violations of the Exchange Act, breach of fiduciary duty, and unjust enrichment on the part of certain officers and directors based on the facts and circumstances recited in the Consolidated Securities Litigation. On November 26, 2018, the court issued an order staying all proceedings until after the disposition of motions to dismiss the Consolidated Securities Litigation. The shareholder derivative lawsuit remains pending and the Company intends to file a motion dismiss on the basis of the disposition of the Consolidated Securities Litigation described above.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.		Description
99.1		Form of Repricing Letter Agreement

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.

	POLARITYTE, INC.

Dated: November 23, 2020	/s/ Jacob Patterson
	Jacob Patterson
	Interim Chief Financial Officer

Exhibit 99.1

November ___, 2020

Holders of Warrants Issued on February 14, 2020

Re:

Reprice of Common Stock Warrants

To Whom It May Concern:

PolarityTE, Inc. (the “Company”) is pleased to notify you that, subject to the terms of his letter agreement, the Company is reducing the exercise price of all of the Common Stock Warrants (“Warrants”) issued to you (the “Holder”) on February 14, 2020 pursuant to the Company’s Registration Statement on Form S-3, File No. 333-0229584 (the “Registration Statement”). The Registration Statement is currently effective and, upon exercise of the Warrants, will be effective for the issuance of the Warrant Shares. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Form of Common Stock Warrant Certificate representing the Warrants.

Effective immediately, the Company hereby unilaterally and irrevocably reduces the exercise price of the Warrants to $0.10.

Additionally, the Company agrees to the representations, warranties and covenants set forth on Annex A attached hereto.

Other than an Exempt Issuance (as defined below) and provided that the Company receives Exercise Notices (as defined in the Warrant) for the exercise of not less than ___ Warrant Shares, from the date hereof until 30 days following the date hereof, (i) the Company shall not issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or any securities convertible or exchangeable into Common Stock, (ii) other than pursuant to any Other Warrant Exercise Agreement, the Company shall not enter into any agreement to amend, exchange or otherwise provide any incentive to exercise any of the warrants originally issued pursuant to the Registration Statement, and (iii) the Company shall not file any registration statement or any amendment or supplement thereto. “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the board of directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company or to new employees of the Company, (b) securities upon the exercise or exchange of securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, other than any such automatic increase, decrease or extension in accordance with the terms of such securities and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth hereunder, and provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.

On or before 9:00 a.m. (New York City time) on the Trading Day immediately following the date that the reduction to the Warrant exercise price is effective, the Company shall file a Current Report on Form 8-K with the Securities and Exchange Commission disclosing all material terms of the transactions contemplated hereunder, including this agreement as an exhibit thereto (“8-K Filing”). The Company shall file a prospectus supplement to the Registration Statement with the Securities and Exchange Commission disclosing the reduced exercise price of the Warrants within one trading day following the date hereof. From and after the issuance of the 8-K Filing, the Company represents to the Holder that it shall not be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries or any of their respective officers, directors, employees or agents, that is not disclosed in the 8-K Filing. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, employees or agents, on the one hand, and the Holder or any of its affiliates, on the other hand, shall terminate.

***************

Please do not hesitate to call me if you have any questions.

	Sincerely yours,

	PolarityTE, Inc.

	By:
	Name:
	Title:

Annex A

Representations, Warranties and Covenants of the Company. The Company hereby makes the following representations and warranties to the Holder:

(a) Registration Statement. The Warrant Shares are registered for issuance on a Registration Statement on Form S-1 (File No. 333-0229584) (the “Registration Statement”) and the Company knows of no reasons why such registration statement shall not remain available for the issuance and resale of such Warrant Shares for the foreseeable future. The Company shall use commercially reasonable efforts to keep the Registration Statement effective and available for use by the Holder until all Warrant Shares underlying the Warrants are sold by the Holder.

(b) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this letter agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, its board of directors or its stockholders in connection therewith. This letter agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(c) No Conflicts. The execution, delivery and performance of this letter agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s certificate or articles of incorporation, bylaws or other organizational or charter documents; or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company in connection with, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material agreement, credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other material understanding to which such Company is a party or by which any property or asset of the Company is bound or affected; or (iii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected.

(d) Effect of Warrant Adjustment. Pursuant to Section 2(b), effective upon the reduction of the Exercise Price of the Warrant, the exercise price of the Warrants shall be automatically adjusted to the new exercise price of the Warrants.

(e) Nasdaq Corporate Governance. The transactions contemplated under this letter agreement, comply with all rules of the Nasdaq Stock Market.