Current Report Filing (8-k)
31 Août 2022 - 02:16PM
Edgar (US Regulatory)
0001453593
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0001453593
2022-08-25
2022-08-25
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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): August 25, 2022
XTANT
MEDICAL HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-34951 |
|
20-5313323 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
664
Cruiser Lane
Belgrade,
Montana |
|
59714 |
(Address
of principal executive offices) |
|
(Zip
Code) |
(406)
388-0480
(Registrant’s
telephone number, including area code)
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:
☐ |
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
stock, par value $0.000001 per share |
|
XTNT |
|
NYSE
American 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 ☐
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 3.02 Unregistered Sales of Equity Securities.
On
August 25, 2022, Xtant Medical Holdings, Inc. (the “Company”) closed the first tranche of its previously announced private
placement (the “First Closing”) with several accredited investors (the “Private Placement”). At the First Closing,
the Company sold approximately 14.1 million shares of common stock of the Company (collectively, the “Shares”) and warrants
to purchase approximately 3.5 million shares of common stock (collectively, the “Warrants”) for an aggregate purchase price
of approximately $6.75 million.
The
closing of the second tranche of the Private Placement (the “Second Closing”) is expected to occur in early October 2022
after the filing and mailing of a definitive information statement to the Company’s stockholders informing them of the receipt
of stockholder approval in favor of the second tranche of the Private Placement under the continued listing requirements of the NYSE
American and satisfaction of other customary closing conditions. A preliminary information statement was filed by the Company with the
Securities and Exchange Commission (the “SEC”) on August 30, 2022. The investors agreed to purchase approximately 6.2 million
shares of common stock and warrants to purchase approximately 1.6 million shares of common stock at the Second Closing for an aggregate
purchase price of approximately $3.0 million.
The
offering and sale of the Shares, the Warrants and the shares of common stock to be issued upon any exercise of the Warrants (collectively,
the “Securities”) were and will be exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended
(the “Securities Act”) and Rule 506 of Regulation D as promulgated by SEC. The sale of the Securities did not involve a public
offering and was made without general solicitation or general advertising. Each investor in the Private Placement represented that it
is an accredited investor, as such term is defined in Rule 501(a) of Regulation D under the Securities Act, and that it was acquiring
the Securities for investment purposes only and not with a view to any resale, distribution or other disposition of the Securities in
violation of the United States federal securities laws. Neither this Current Report on Form 8-K nor any exhibit attached hereto is an
offer to sell or the solicitation of an offer to buy shares of common stock of the Company or other securities of the Company.
Item
5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
Also
as previously announced, in connection with the Private Placement, the Board of Directors (the “Board”) of the Company increased
the size of the Board from six directors to seven directors and elected Stavros Vizirgianakis to the Board to fill the vacancy created
by such increase, in each case effective upon completion of the First Closing. Additionally, the Board elected Mr. Vizirgianakis as Chairman
of the Board, effective upon completion of the First Closing, to replace Jeffrey Peters, who previously served as Chairman of the Board
and intends not to stand for re-election at the Company’s next annual meeting of stockholders, which as described in more detail
under Item 8.01 below, is scheduled to be held on October 26, 2022.
Also
as previously disclosed, in connection with the Private Placement, the Company and Mr. Vizirgianakis entered into a letter agreement
pursuant to which the Company agreed to provide Mr. Vizirgianakis certain director nomination rights (the “Lead Investor Agreement”).
Pursuant to the terms of the Lead Investor Agreement, the Company agreed to expand the size of the Board by one position and elect Mr.
Vizirgianakis as a director to fill the vacancy created as a result of the increase, effective upon completion of the First Closing.
In addition, the Company agreed to elect Mr. Vizirgianakis as Chairman of the Board, effective upon completion of the First Closing.
The director nomination rights set forth in the Lead Investor Agreement will terminate on the earlier of (i) the date on which the Lead
Investor ceases to hold at least 75% of the Shares to be purchased by him in the Private Placement; (ii) the second anniversary of the
date of the Second Closing; or (iii) upon written notice of the Lead Investor to the Company.
Also
as previously disclosed, in connection with the Private Placement, the Company and the Investors, including Mr. Vizirgianakis, entered
into a Securities Purchase Agreement and at the First Closing entered into a Registration Rights Agreement, each as previously described
in the Current Report on Form 8-K filed by the Company with the SEC on August 24, 2022. The Securities Purchase Agreement, form of Warrant,
Lead Investor Agreement and Registration Rights Agreement are filed as Exhibits 10.1, 4.1, 10.2 and 10.3, respectively, to this Current
Report on Form 8-K and incorporated herein by reference. There are no other arrangements or understandings between Mr. Vizirgianakis
and any other person pursuant to which he was selected as a director, and there have been no other transactions since the beginning of
the Company’s last fiscal year, or transactions currently proposed, regarding Mr. Vizirgianakis that are required to be disclosed
by Item 404(a) of SEC Regulation S-K.
As
a member of the Board, Mr. Vizirgianakis will receive customary non-employee director compensation and participate in plans and policies
on the same basis as the other non-employee directors of the Company. The Company and Mr. Vizirgianakis entered into a customary Indemnification
Agreement, in substantially the same form that the Company has entered into with its other non-employee directors, pursuant to which
the Company will agree to provide indemnification and advancement of expenses to the fullest extent permitted by Delaware law and the
Company’s Second Amended and Restated Bylaws and coverage under directors’ and officers’ liability insurance policy
or policies maintained by the Company to maximum extent available for any other director in accordance with its or their terms. The Company’s
standard Form of Indemnification Agreement for Directors and Officers is filed as Exhibit 10.4 to this Current Report on Form 8-K.
Item 7.01 Regulation FD Disclosure.
On
August 31, 2022, the Company issued a press release announcing the First Closing, which is attached as Exhibit 99.1 to this Current Report
on Form 8-K and incorporated herein by reference.
The
information in Item 7.01 of this report (including Exhibit 99.1) 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 provided by specific reference in such a filing.
Item 8.01 Other Events.
On
August 31, 2022, the Company also announced that the Board established October 26, 2022 as the date of the Company’s 2022 Annual
Meeting of Stockholders (the “2022 Annual Meeting”). The exact time and location of the 2022 Annual Meeting will be specified
in the Company’s proxy statement for the 2022 Annual Meeting, which it anticipates will be printed on or about September 16, 2022
and sent or made available to stockholders commencing on or about September 20, 2022.
Since
the date of the Company’s 2022 Annual Meeting has changed by more than 30 days from the date of last year’s Annual Meeting
of Stockholders, stockholders who, in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended, wish to present
proposals for inclusion in the proxy materials relating to the 2022 Annual Meeting must submit their proposals so that they are received
by the Company at its principal executive offices no later than the close of business on September 12, 2022, which the Company believes
is a reasonable time before it prints and mails its proxy materials. The proposals must satisfy the requirements of the proxy rules promulgated
by the SEC and as the rules of the SEC make clear, simply submitting a proposal does not guarantee that it will be included.
The
Company’s Second Amended and Restated Bylaws also establish an advance notice procedure with regard to nominations of persons for
election to the Board and stockholder proposals to be brought before an annual meeting. Pursuant to the terms of the Company’s
Second Amended and Restated Bylaws, any other stockholder proposals, including director nominations, to be presented at the 2022 Annual
Meeting (other than a matter brought pursuant to SEC Rule 14a-8) are required to be given in writing to the Company’s Corporate
Secretary and delivered to or mailed and received by the Company no later than the close of business on September 10, 2022, the 10th
day following the date of this Current Report on Form 8-K announcing the date of the 2022 Annual Meeting, and must contain information
specified in the Company’s Second Amended and Restated Bylaws.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No. |
|
Description |
4.1 |
|
Form of Warrant (filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K as filed with the SEC on August 24, 2022 (SEC File No. 0001-34951) and incorporated by reference herein) |
|
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|
10.1 |
|
Securities Purchase Agreement, dated as of August 23, 2022, by and among Xtant Medical Holdings, Inc. and the investors party thereto (filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K as filed with the SEC on August 24, 2022 (SEC File No. 0001-34951) and incorporated by reference herein) |
|
|
|
10.2 |
|
Registration Rights Agreement by and among Xtant Medical Holdings, Inc. and the investors party thereto (filed herewith) |
|
|
|
10.3 |
|
Letter Agreement by and between Xtant Medical Holdings, Inc. and Stavros Vizirgianakis (filed herewith) |
|
|
|
10.4 |
|
Form of Indemnification Agreement for Directors and Officers (filed as Exhibit 10.6 to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2017 (SEC File No. 001-34951) and incorporated by reference herein) |
|
|
|
99.1 |
|
Press Release of Xtant Medical Holdings, Inc., dated August 31, 2022, entitled “Xtant Medical Announces Closing of First Tranche of $9.75 Million Private Investment (filed herewith) |
|
|
|
104 |
|
Cover
Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
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.
|
XTANT
MEDICAL HOLDINGS, INC. |
|
|
|
By:
|
/s/
Sean E. Browne |
|
|
Sean
E. Browne |
|
|
President
and Chief Executive Officer |
|
|
|
Date: August
31, 2022 |
|
|
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