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 27, 2020 (November 25, 2020)

 

 

 

Inspyr Therapeutics, Inc.

(Exact name of registrant as specified in Charter)

 

Delaware   0001421204   20-0438951

(State or other jurisdiction of

incorporation or organization)

  (Commission File No.)   (IRS Employee Identification No.)

 

2629 Townsgate Road, Suite 215
Westlake Village CA 91362

(Address of Principal Executive Offices)

 

818-661-6302

(Issuer Telephone number)

 

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 Instruction 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 Class   Trading Symbol   Name of Each Exchange on
Which Registered
N/A   N/A   N/A

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). 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 25, 2020, Inspyr Therapeutics, Inc. (the “Company”) entered into a conversion price adjustment agreement (the “Agreement”) with Sabby Healthcare Master Fund, Ltd. and Sabby Volatility Warrant Master Fund, Ltd. (collectively, “Sabby”). Pursuant to the Agreement, approximately $2,383,150 in outstanding senior convertible debentures (the “Debentures”) held by Sabby were amended such that their conversion prices into common stock (“Common Stock”) of the Company are equal to the lesser of (i) $0.33 and (ii) 85% of the lowest volume-weighted average price during the five trading days immediately prior to the date of conversion.

 

The information set forth herein is qualified in its entirety by the terms contained in the Agreement, a copy of which is attached to this report as Exhibit 10.01.

 

Item 5.03     Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year.

 

As previously disclosed in the Definitive Information Statement filed by the Company on November 4, 2020, pursuant to a joint written consent of the Board of Directors and a majority of the voting power of the Company’s stockholders, the Company’s shareholders approved amending and restated the Company’s Certificate of Incorporation to (i) increase the Company’s authorized Common Stock from 150,000,000 shares to 1,000,000,000 shares and (ii) increase or decrease (but not below the number of shares of such class outstanding) the number of authorized shares of the class of Common Stock or Preferred Stock by the affirmative vote of the holders of a majority in voting power of the outstanding shares of capital stock of the Company irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation Law.

 

The Company filed the Amended and Restated Certificate of Incorporation (“Amended and Restated Certificate”) with Delaware’s Secretary of State reflecting the foregoing changes with an effective date and time of November 27, 2020.

 

The information set forth herein is qualified in its entirety by the terms contained in the Amended and Restated Certificate, a copy of which is attached to this report as Exhibit 3.01(i).

 

Item 9.01    Financial Statement and Exhibits.

 

Exhibit

No.

 

  

Description

 
3.01(i)   Amended and Restated Certificate of Incorporation  
10.01   Conversion Price Adjustment Agreement  

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.

 

Dated: November 27, 2020

 

  Inspyr Therapeutics, Inc.
     
  By:

/s/ Michael Cain

   

Michael Cain

Chief Executive Officer

 

 

 

 

INDEX OF EXHIBITS

 

Exhibit

No.

 

  

Description

 
3.01(i)   Amended and Restated Certificate of Incorporation  
10.01   Conversion Price Adjustment Agreement  

 

 

 

Exhibit 3.01(i)

 

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF INSPYR THERAPEUTICS, INC.

 

ARTICLE I

 

The name of this Corporation is Inspyr Therapeutics, Inc. (this “Corporation”).

 

ARTICLE II

 

The address of the registered office of the corporation in the State of Delaware is 850 New Burton Road, Suite 201, Dover, Delaware, county of Kent, 19904 and the name of its registered agent is COGENCY GLOBAL INC.

 

ARTICLE III

 

The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

 

ARTICLE IV

 

The authorized capital stock of the Corporation shall consist of: (i) One Billion (1,000,000,000) shares of Common Stock having a par value of $0.0001 per share, and (ii) Thirty Million (30,000,000) shares of “blank check” Preferred Stock having a par value of $0.0001 per share of which: (a) 134 shares of Series A 0% Convertible Preferred Stock are issued and outstanding with such rights and preferences as contained in the Certificate of Designation filed with the Secretary of State of Delaware on December 23, 2015, (b) 71 shares of Series B 0% Convertible Preferred Stock are issued and outstanding with such rights and preferences as contained in the Certificate of Designation filed with the Secretary of State of Delaware on December 9, 2016, (c) 290 shares of Series C 0% Convertible Preferred Stock are issued and outstanding with such rights and preferences as contained in the Certificate of Designation filed with the Secretary of State of Delaware on March 4, 2017, (d) 5,000 shares of Series D 0% Convertible Preferred Stock are issued and outstanding with such rights and preferences as contained in the Certificate of Designation filed with the Secretary of State of Delaware on January 28, 2019, (e) 5,000 shares of Series E 0% Convertible Preferred Stock are issued and outstanding with such rights and preferences as contained in the Certificate of Designation filed with the Secretary of State of Delaware on May 1, 2020, and (f) 8,000 shares of Series F 0% Convertible Preferred Stock are issued and outstanding with such rights and preferences as contained in the Certificate of Designation filed with the Secretary of State of Delaware on October 7, 2020 . Authority is hereby expressly granted to the board of directors (“Board”) of the Corporation to fix by resolution or resolutions any of the designations, power, preferences and rights, and any of the qualifications, limitations or restrictions which are permitted by the DGCL in respect of any class or classes of Preferred Stock or any series of any class of Preferred Stock of the Corporation. Except as otherwise provided in any certificate of designations of any series of Preferred Stock, the number of authorized shares of the class of Common Stock or Preferred Stock may from time to time be increased or decreased (but not below the number of shares of such class outstanding) by the affirmative vote of the holders of a majority in voting power of the outstanding shares of capital stock of the Corporation irrespective of the provisions of Section 242(b)(2) of the DGCL.

 

ARTICLE V

 

The Board shall have the power to adopt, amend or repeal the Bylaws.

 

 

 

 

ARTICLE VI

 

No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director, provided that this provisions shall not eliminate or limit the liability of a director under applicable law: (i) for any breach of the director’s loyalty to the Corporation or its stockholders; (ii) for acts or omissions not in good faith which involve intentional misconduct or a knowing violation of the law; (iii) for unlawful payment of dividend or unlawful stock purchase or redemption as such liability is imposed under Section 174 of the DGCL; or (iv) for any transaction from which the officer or director derived an improper personal benefit. No amendment to repeal of this Article VI shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 

 

 

Exhibit 10.01

 

CONVERSION PRICE ADJUSTMENT AGREEMENT

 

This conversion price adjustment agreement (“Agreement”) dated as of November 25, 2020 is by and among Sabby Healthcare Master Fund, Ltd., Sabby Volatility Warrant Master Fund, Ltd. (collectively, “Sabby”) and Inspyr Therapeutics, Inc., a Delaware corporation (the “Company”). Any terms not specifically defined herein shall have the definition ascribed to them in the Securities Purchase Agreement, dated as of December 13, 2018, by and among the Company and Sabby.

 

WHEREAS, Sabby holds, in the aggregate, $2,383,150.23 principal amount of convertible debentures and notes in the Company which have been issued from time to time since September 2017 (the (“Loan Instruments”), which Loan Instruments are summarized and set forth on Annex A attached hereto;

 

WHEREAS, the Loan Instruments consist of convertible and non-convertible debt obligations of the Company;

 

WHEREAS, the parties which to make all of the Loan Instruments convertible on the same conversion terms;

 

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

 

1. Conversion Terms. The Loan Instruments are hereby amended to have a “Conversion Price” equal to the lesser of (i) $0.33 (“Set Conversion Price”) and (ii) 85% of the lowest VWAP during the five Trading Days immediately prior to the Conversion Date, subject to adjustment herein (the “Conversion Price”). In the event that a Loan Instrument does not currently have a conversion feature, such Loan Instrument is hereby amended such that Sections 4 and 5 of the convertible Loan Instruments are incorporated by reference therein.

 

2. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. Except as expressly set forth above, all of the other terms and conditions of the Transaction Documents and Loan Instruments shall continue in full force and effect after the execution of this Agreement and shall not be in any way changed, modified or superseded by the terms set forth herein, including, but not limited to, any other obligations the Company may have to the undersigned under the Transaction Documents.

 

3. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the state of New York.

 

[SIGNATURE PAGE TO FOLLOW]

 

1 

 

 

The undersigned hereby executes this Agreement as of the date first set forth above.  

 

  Inspyr Therapeutics, Inc.
     
  By:              
  Name: Michael Cain
  Title: Chief Executive Officer

  

SABBY HEALTHCARE MASTER FUND, LTD:
     
By:               
Name: Robert Grundstein  
Title: Chief Operating Officer and General Counsel  
     
SABBY VOLATILITY WARRANT MASTER FUND, LTD
     
By:    
Name: Robert Grundstein  
Title: Chief Operating Officer and General Counsel  

 

 

 

 

ANNEX A