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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): October 31, 2022
____________________
Exicure, Inc.
(Exact Name of Registrant as Specified in its Charter)
____________________
| | | | | | | | |
| Delaware | 001-39011
| 81-5333008 |
(State or other jurisdiction
of incorporation) | (Commission
File Number) | (IRS Employer
Identification No.) |
2430 N. Halsted St.
Chicago, IL 60614
(Address of Principal Executive Offices)
Registrant’s telephone number, including area code: (847) 673-1700
____________________
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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o 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 $0.0001 per share | | XCUR | | The Nasdaq Stock Market LLC |
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 x
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. x
Item 1.01 Entry Into a Material Definitive Agreement
Side Letter to Securities Purchase Agreement
As previously announced, on September 26, 2022, Exicure, Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with CBI USA, Inc. (“CBI USA”), pursuant to which the Company agreed to issue and sell to CBI USA in a private placement an aggregate of 3,400,000 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), at a purchase price of $1.60 per share (the “Private Placement”). On October 31, 2022, the Company and CBI USA entered into a Side Letter to Securities Purchase Agreement (“Side Letter”), pursuant to which the parties further confirmed and clarified certain agreements between the parties under the Securities Purchase Agreement, including, among other things, CBI USA’s rights to designate a majority of the Board of Directors of the Company immediately after the closing of the Private Placement and CBI USA’s ability to exercise such director designation rights together with its affiliates as a group, provided that such director designation rights are in compliance with Nasdaq Listing Rule 5640.
The foregoing description of the Side Letter is qualified in its entirety by reference to the Side Letter, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| | | | | | | | |
Exhibit
No. | | Description |
| 10.1 | | |
| 104 | | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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.
| | | | | | | | |
Date: October 31, 2022 | EXICURE, INC. |
| | |
| By: | /s/ Elias D. Papadimas |
| | Elias D. Papadimas |
| | Chief Financial Officer |
October 31, 2022
Exicure, Inc.
2430 N. Halsted St.
Chicago, IL 60614
Re: Securities Purchase Agreement
To Whom It May Concern:
Reference is made to the Securities Purchase Agreement (the “Agreement”), dated as of September 26, 2022, by and between Exicure, Inc. (the “Company”) and CBI USA, Inc. (the “Purchaser”). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
In connection with the transaction contemplated by the Agreement, the Purchaser would like to confirm and clarify certain agreements with the Company.
With respect to director designation rights provided by Section 4.2 of the Agreement, the parties will reasonably cooperate to determine the composition of the Board as of the Closing and agree that, so long as the Purchaser has not sold any shares of Common Stock causing it to not hold a majority of outstanding shares of Common Stock as of the Closing, the Purchaser Designees will constitute a majority of the Board as of immediately after the Closing. The parties further agree that the director designation rights provided by Section 4.2 may be exercised by Purchaser acting together with its Affiliates and any “group” (within the meaning of Rule 13d-5 under the Exchange Act) of which it or they are then a member, with the number of Purchaser Designees proportional to the beneficial ownership of Purchaser and its Affiliates and any such group. For the purposes of clarity, it is the parties’ intentions that any director designation rights provided by Section 4.2 of the Agreement will be in compliance with Nasdaq Listing Rule 5640 (the “Voting Rights Rule”).
In addition, the Company will keep the Purchaser reasonably informed as to the nature of its communications with Nasdaq with respect to the Company’s plan to regain compliance with Nasdaq’s continued listing standards or any discussions with Nasdaq that would reasonably be expected to impact the Company’s ability to satisfy the closing condition set forth in Section 5.1(d) of the Agreement. The Company will use its reasonable best efforts to ensure the Company (1) is listed on Nasdaq at the time of the Closing and (2) achieves material compliance with Nasdaq’s continued listing standards immediately after giving effect to the Closing.
[Signature page follows]
Please acknowledge your agreement with the foregoing by signing this letter agreement where indicated below.
Sincerely,
| | | | | |
| CBI USA, Inc. |
| |
| By: /s/ Kyungwon Oh |
| Name: Kyungwon Oh |
| Title: Chief Executive Officer |
Accepted and agreed to as
of the date set forth above:
Exicure, Inc.
| | |
By: /s/ Matthias Schroff |
| Name: Matthias Schroff |
| Title: Chief Executive Officer |