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): June 28, 2019

 

ARCA biopharma, Inc.

(Exact name of Registrant as Specified in Its Charter)

 

 

Delaware

000-22873

36-3855489

(State or Other Jurisdiction

of Incorporation)

(Commission File Number)

(IRS Employer

Identification No.)

 

 

 

11080 CirclePoint Road, Suite 140, Westminster, CO

 

80020

(Address of Principal Executive Offices)

 

(Zip Code)

Registrant’s Telephone Number, Including Area Code: (720) 940-2200

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 Instructions 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

ABIO

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.

On June 28, 2019, ARCA biopharma, Inc. (the “Company”) entered into Amendment No. 6 (the “Amendment”) to its Capital on Demand TM Sales Agreement, dated as of January 11, 2017, as amended by the Amendment No. 1, dated as of August 21, 2017, Amendment No. 2, dated as of January 25, 2019, Amendment No. 3, dated as of March 11, 2019, Amendment No. 4, dated as of May 9, 2019 and Amendment No. 5, dated as of May 20, 2019, (together, the “Sales Agreement” and, as amended by the Amendment, the “Amended Sales Agreement”), with JonesTrading Institutional Services LLC, as agent (“Agent”). The Amendment, among other things, increased the maximum aggregate offering value of shares of the Company’s common stock (the “Additional Shares”) which the Company may issue and sell from time to time under the Amended Sales Agreement (the “Offering”) by $763,820, from $ 16,759,905 to $17,523,725 .  As of June 28, 2019, the Company had sold 949,344 shares of its common stock , as adjusted for the Company’s 18-to-1 reverse stock split effected on April 3, 2019, under the Sales Agreement for an aggregate offering price of approximately $16.6 million, before deducting sales and commissions and offering expenses. The Company will file a prospectus supplement with the Securities and Exchange Commission (the “SEC”) in connection with the Offering (the “Prospectus Supplement”) under its existing Registration Statement on Form S-3 (File No 333-217459), which became effective on May 12, 2017 (the “Registration Statement”).

Under the Amended Sales Agreement, Agent may sell the Additional Shares by any method permitted by law and deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The Company may instruct Agent not to sell Additional Shares if the sales cannot be effected at or above the price designated by the Company from time to time.

The Company is not obligated to make any sales of the Additional Shares under the Amended Sales Agreement. The Offering will terminate upon the earlier of (a) the sale of all of the Additional Shares subject to the Amended Sales Agreement or (b) the termination of the Amended Sales Agreement by Agent or the Company, as permitted therein.

The Company will pay Agent a commission rate equal to 3.0% of the aggregate gross proceeds from each sale of Additional Shares and has agreed to provide Agent with customary indemnification and contribution rights. The Company will also reimburse Agent for certain specified expenses in connection with entering into the Amended Sales Agreement.

The foregoing description of the Amended Sales Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The Company previously filed the Sales Agreement as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on January 11, 2017, the Amendment No.1 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on August 21, 2017, the Amendment No.2 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on January 25, 2019, the Amendment No.3 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on March 11, 2019, the Amendment No.4 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on May 9, 2019 and the Amendment No.5 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on May 20, 2019.

Cooley LLP, counsel to the Company, has issued a legal opinion relating to the Additional Shares. A copy of such legal opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.

The Additional Shares will be sold pursuant to the Registration Statement, and offerings of the Additional Shares will be made only by means of the Prospectus Supplement and any accompanying prospectus. This Current Report on Form 8-K shall not constitute an offer to sell or solicitation of an offer to buy these securities, 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 law of such state or jurisdiction .

Item 2.02 Results of Operations and Financial Condition.

 

On June 28, 2019, the Company provided an update on its cash balance. B ased on its cash and cash equivalents balance as of March 31, 2019, together with the $3.3 million of net proceeds raised in the second quarter of 2019 from sales of its common stock, the Company believes its cash and cash equivalents will be sufficient to fund its operations, at its current cost structure, through the first quarter of 2020.

 

The information provided in this Item 2.02 of this Current Report on Form 8-K shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing.

 

 

 

Forward-Looking Statements

 

Statements in this Current Report on Form 8-K that are not historical facts are “forward-looking statements” that are made pursuant to the safe harbor provisions of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements, which may be identified by use of words such as “plan,” “may,” “might,” “believe,” “expect,” “intend,” “could,” “would,” “should,” and other words and terms of similar meaning, involve risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. Such forward-looking statements include statements relating to any future sales under the Amended Sales Agreement or the ability of the Company’s current cash balance to fund its operations. These statements are only predictions based on current information and expectations and involve a number of risks and uncertainties. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. Actual events or results may differ materially from those stated in any such statements due to various factors, some of which are discussed in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, as well as other subsequent filings by the Company with the SEC. Statements included or incorporated by reference into this Current Report on Form 8-K are based upon information known to the Company as of the date of this Current Report on Form 8-K, and the Company assumes no obligation to publicly revise or update any forward-looking statement for any reason.

Section 9 — Financial Statements and Exhibits

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

 

 

 

Exhibit Number

 

Description

 

 

5.1

 

Opinion of Cooley LLP .

10.1

 

Amendment No. 6 to Capital on Demand TM  Sales Agreement, dated June 28, 2019, by and between ARCA biopharma, Inc. and JonesTrading Institutional Services LLC .

23.1

 

Consent of Cooley LLP (included in Exhibit 5.1).

 

 

 


 

 

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.

 

Dated: June 28, 2019

 

 

 

 

ARCA biopharma, Inc.

 

(Registrant)

 

 

 

 

By:

/s/ Brian L. Selby

 

 

Name:

Brian L. Selby

 

 

Title:

Vice President, Finance and Chief Accounting Officer

 

 

 

 

Exhibit 5.1

 

 

Brent D. Fassett

+1 720 566 4025

bfassett@cooley.com

 

 

 

June 28, 2019

ARCA biopharma, Inc.
11080 CirclePoint Road, Suite 140
Westminster, CO 80020

Ladies and Gentlemen:

You have requested our opinion, as counsel to ARCA biopharma, Inc. , a Delaware corporation (the “ Company ”), with respect to certain matters in connection with the offering by the Company of the $763 ,820 of the Company’s common stock, par value $0.001 (the “ Shares ”), pursuant to a Registration Statement on Form S-3 (No. 333-217459) (the “ Registration Statement ”) , filed with the Securities and Exchange Commission (the “ Commission ” ) under the Securities Act of 1933, as amended (the “ Act ”), the prospectus included within the Registration Statement (the “ Base Prospectus ”), and the prospectus supplement dated June 28, 2019, filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations of the Act (together with the Base Prospectus, the “ Prospectus ”) The Shares are to be sold by the Company in accordance with a Capital on Demand™ Sales Agreement, dated January 11, 2017 and as amended on August 21, 2017, January 25, 2019, March 11, 2019, May 9, 2019, May 20, 2019 and June 28, 2019, between the Company and JonesTrading Institutional Services LLC (the “ Agreement ”) , as described in the Prospectus.

In connection with this opinion, we have examined and relied upon the Registration Statement and the Prospectus, the Agreement, the Company’s Amended and Restated Certificate of Incorporation, as amended, and Second Amended and Restated Bylaws, as amended, and the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents; the genuineness and authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; and the accuracy, completeness and authenticity of certificates of public officials.  We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies.  

We have assumed (i) that each sale of Shares will be duly authorized by the Board of Directors of the Company, a duly authorized committee thereof or a person or body pursuant to an authorization granted in accordance with Section 152 of the General Corporation Law of the State of Delaware (the “ DGCL ”), (ii) that no more than 763,820 Shares will be sold under the Agreement and (iii) that the price at which the Shares are sold will equal or exceed the par value of the Shares.  We express no opinion to the extent that future issuances of securities of the Company and/or anti-dilution adjustments to outstanding securities of the Company cause the number of shares of the Company’s common stock outstanding or issuable upon conversion or exercise of outstanding securities of the Company to exceed the number of Shares then issuable under the Agreement.

Our opinion herein is expressed solely with respect to the DGCL.  Our opinion is based on these laws as in effect on the date hereof.  We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

Cooley LLP   380 Interlocken Crescent   Suite 900   Broomfield, CO   80021-8023
t: (720) 566-4000  f: (720) 566-4099  cooley.com

 

 

 

 

June 28, 2019

Page Two

 

 

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued against payment therefor in accordance with the Agreement, the Registration Statement and the Prospectus, will be validly issued, fully paid and non - assessable.

We consent to the reference to our firm under the caption “ Legal Matters ” in the Prospectus and to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K to be filed with the Commission for incorporation by reference into the Registration Statement.

Very truly yours,

Cooley LLP

 

By:

/s/ Brent D. Fassett

 

 

Brent D. Fassett

 

Cooley LLP   380 Interlocken Crescent   Suite 900   Broomfield, CO   80021-8023
t: (720) 566-4000  f: (720) 566-4099  cooley.com

 

Exhibit 10.1

 


AMENDMENT NO. 6 TO Capital on Demand™ SALES AGREEMENT

June 28, 2019

 

JonesTrading Institutional Services LLC

757 Third Avenue, 23 rd Floor

New York, NY 10017

 

Ladies and Gentlemen:

 

ARCA biopharma, Inc., a Delaware corporation (the “ Company ”), and JonesTrading Institutional Services LLC (the “ Agent ”), are parties to that certain Capital on Demand™ Sales Agreement dated January 11, 2017, as amended on August 21, 2017, January 25, 2019, March 11, 2019, May 9, 2019 and May 20, 2019 (together, the “ Original Agreement ”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement.  The parties, intending to be legally bound, hereby amend the Original Agreement pursuant to the terms of this amendment No. 6 to the Original Agreement (this “ Amendment No. 6 ”) as follows:

1. The first paragraph of Section 1 of the Original Agreement are hereby deleted in their entirety and replaced with the following :

 

“ Issuance and Sale of Shares .  The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, as sales agent or principal, shares (the “ Placement Shares ”) of common stock of the Company, $0.001 par value per share (the “ Common Stock ”) having an aggregate offering price of up to $17,523,725, provided, however, that in no event shall the Company issue or sell through Agent such number of Placement Shares that (a) exceeds the number or dollar amount of shares of Common Stock that may be sold pursuant to the Registration Statement (as defined below), or (b) exceeds the number of authorized but unissued shares of Common Stock of the Company (the “ Maximum Amount ”). Pursuant to this Agreement, shares of Common Stock were previously sold for $16,600,281 in aggregate gross proceeds under a separate prospectus and prospectus supplement. Under this Agreement, as amended by Amendment No. 1 to Capital on Demand™ Sales Agreement, dated August 21, 2017, Amendment No. 2 to Capital on Demand™ Sales Agreement, dated January 25, 2019, Amendment No. 3 to Capital on Demand™ Sales Agreement, dated March 11, 2019, Amendment No. 4 to the Capital on Demand™ Sales Agreement, dated May 9, 2019, Amendment No. 5 to the Capital on Demand™ Sales Agreement, dated May 20, 2019 and Amendment No. 6 to the Capital on Demand™ Sales Agreement, dated June 28, 2019, the Company, through the Agent, may offer and sell further shares of Common Stock having an aggregate offering price of up to $763,820 pursuant to the Prospectus (as defined below).  Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this

 

 

Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and at no earlier time than such time as the Registration Statement shall have been declared effective by the Securities and Exchange Commission (the “ Commission ”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Placement Shares . ”

 

2. Section 6(s) of the Original Agreement is hereby deleted in its entirety and replaced with the following:

 

“Market Capitalization .  The aggregate market value of the outstanding voting and non-voting common equity (as defined in Securities Act Rule 405) of the Company held by persons other than affiliates of the Company (pursuant to Securities Act Rule 144, those that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common control with, the Company)  (the “ Non-Affiliate Shares ”), was equal to $21,841,969 (calculated by multiplying (x) the highest price at which the common equity of the Company closed on the Exchange within 60 days of the date of Amendment No. 6 to Capital on Demand™ Sales Agreement times (y) the number of Non-Affiliate Shares).  The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months previously and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.”

 

3. All references to “January 11, 2017 (as amended by Amendment No. 1 to Capital on Demand™ Sales Agreement, dated August 21, 2017 and as further amended by Amendment No. 2 to Capital on Demand™ Sales Agreement, dated January 25, 2019, Amendment No. 3 to Capital on Demand™ Sales Agreement, dated March 11, 2019, Amendment No. 4 to Capital on Demand™ Sales Agreement, dated May 9, 2019 and Amendment No. 5 to Capital on Demand™ Sales Agreement, dated May 20, 2019)” set forth in Schedule I and Exhibit 7(l) of the Original Agreement are revised to read “January 11, 2017 (as amended by Amendment No. 1 to Capital on Demand™ Sales Agreement, dated August 21, 2017, Amendment No. 2 to Capital on Demand™ Sales Agreement, dated January 25, 2019, Amendment No. 3 to Capital on Demand™ Sales Agreement, dated March 11, 2019, Amendment No. 4 to Capital on Demand™ Sales Agreement, dated May 9, 2019, Amendment No. 5 to Capital on Demand™ Sales Agreement, dated May 20, 2019 and Amendment No. 6 to Capital on Demand™ Sales Agreement, dated June 28, 2019)”.

 

4. Except as specifically set forth herein, all other provisions of the Original Agreement shall remain in full force and effect.

 

2

 

 

5. In addition to the requirements under Section 5 of the Original Agreement, the Company agrees to pay the reasonable fees and disbursements of JonesTrading’s counsel in an amount not to exceed $8,000 in connection with this Amendment No. 6 to Sales Agreement .

 

6. This Amendment No. 6 together with the Original Agreement (including all schedules and exhibits attached hereto and thereto and Placement Notices issued pursuant hereto and thereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement as amended by this Amendment No. 6; provided, however , that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement.

 

7. 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. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.  Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in effect for notices to it under this Amendment and agrees that such service shall constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.

 

8. The Company and the Agent each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this Amendment or any transaction contemplated hereby.

 

9. 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.

 

 

[Remainder of Page Intentionally Blank]

 

3

 

 

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

Very truly yours,

 

JONESTRADING INSTITUTIONAL SERVICES LLC

 

 

By:      _/s/ Burke Cook _____________

Name:  Burke Cook

Title:   General Counsel

 

 

ACCEPTED as of the date

first-above written:

 

ARCA BIOPHARMA, INC.

 

 

By:     _/s/ Brian Selby ______________

Name:  Brian Selby

Title:  Vice President, Finance

 

[ Signature Page to Amendment No. 6 ]