Form 8-K - Current report

NONE 0001834645 false 0001834645 2023-08-14 2023-08-14

 

 

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 14, 2023

 

 

Peak Bio, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		001-39951		85-2448157
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

4900 Hopyard Road, Suite 100

Pleasanton, CA 94588

(Address of principal executive offices, including zip code)

[phone]

(Registrant’s telephone number, including area code)

(Former name or former address, if changed since last report)

 

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbols		Name of each exchange on which registered
Common stock, par value $0.0001 per share		PKBO		OTC Pink

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communication 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-commencements communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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. ☐

 

 

 

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Item 1.01.

Entry Into a Material Definitive Agreement.

As previously disclosed, on November 3, 2022, Peak Bio, Inc., a Delaware corporation (the “Company”) entered into a common stock purchase agreement (the “Common Stock Purchase Agreement”) with White Lion Capital, LLC, a Nevada limited liability company (“White Lion”). Pursuant to the Common Stock Purchase Agreement, the Company has the right, but not the obligation to require White Lion to purchase, from time to time, up to $100,000,000 in aggregate gross purchase price of newly issued shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), subject to certain limitations and conditions set forth in the Common Stock Purchase Agreement. As previously disclosed, on March 13, 2023, the Company and White Lion entered into a first amendment to the Common Stock Purchase Agreement (the “First Amendment”).

On August 14, 2023, the Company and White Lion entered into a second amendment to the Common Stock Purchase Agreement (the “Second Amendment”). The Second Amendment includes, among other things, an additional alternative for the Company to issue a Purchase Notice on an accelerated basis (defined in the Second Amendment as an “Accelerated Purchase Notice”) (which Accelerated Purchase Notice is in addition to the Company’s existing rights to issue standard Purchase Notices under the Common Stock Purchase Agreement, as previously amended), whereby the Company may request White Lion to purchase newly issued shares of Common Stock from the Company on the same day of the Accelerated Purchase Notice (subject to acceptance by White Lion), with pricing of the shares to be sold by the Company to White Lion under such Accelerated Purchase Notice determined on the date of delivery by the Company of such notice and the acceptance by White Lion thereof (the date of such notice defined as the “Accelerated Valuation Period”). The accelerated purchases will be sold to White Lion at a price, defined as an “Accelerated Purchase Price,” equal to the lower of (i) the opening price of Common Stock during the Accelerated Valuation Period, (ii) the closing price of the Common Stock during the Accelerated Valuation Period, or (iii) the volume weighted average price of the Common Stock during the Accelerated Valuation Period; provided, however, that if at the time the Company delivers an Accelerated Purchase Notice to White Lion, the price of the Common Stock is lower than the opening price of the Common Stock during the Accelerated Valuation Period, the Accelerated Purchase Price will be discounted by 20%.

In addition, the Second Amendment provides for an “Accelerated Purchase Notice Limit” equal to 200% and it amends Section 3(b) of the First Amendment to extend the date of the Company’s minimum sale threshold from September 9, 2023 to June 15, 2024, which previously required the Company to issue an aggregate of at least $1,000,000 issued Purchase Notices by such date or else pay White Lion $100,000 in shares of the Company’s Common Stock. This latter change was made in exchange for an increase in the minimum issued Purchase Notices to $1,250,000 and an increase in the amount of fees to be paid in the form of Common Stock of the Company from $100,000 to $150,000 in the event of a failure to meet the minimum sale threshold.

The foregoing description of the Second Amendment is not complete and is subject to, and qualified in its entirety by reference to, the full text of the Second Amendment, which is included as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by this reference.

 

Item 3.02

Unregistered Sales of Equity Securities.

The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.

As previously disclosed on its Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on May 1, 2023, as amended on Form 8-K/A on May 22, 2023, the Company issued to Hoyoung Huh, MD, PhD (“Dr. Huh”) warrants to purchase 1,884,625 shares of the Company’s Common Stock with an exercise price of $0.60 per share (the “Warrants”).

As previously disclosed on the Company’s Current Reports on Form 8-K filed with the SEC on June 27, 2023 and July 21, 2023, (i) on June 23, 2023, Dr. Huh exercised Warrants to purchase 666,667 shares of the Company’s Common Stock at $0.60 per share for a total purchase price of $400,000.20, and (ii) on July 20, 2023, Dr. Huh exercised Warrants to purchase 458,333 shares of the Company’s Common Stock at $0.60 per share for a total purchase price of $274,999.80.

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On August 14, 2023, Dr. Huh exercised Warrants to purchase 583,333 shares of the Company’s Common Stock at $0.60 per share for a total purchase price of $349,999.80.

 

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit Number		Description
10.1*		Second Amendment to Common Stock Purchase Agreement, dated as of August14, 2023, by and between Peak Bio, Inc. and White Lion Capital LLC.
104		Cover Page Interactive Data File (formatted as Inline XBRL)

 

*	Filed herewith.

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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.

Dated: August 15, 2023

 

PEAK BIO, INC.
By:		/s/ Stephen LaMond
Name:		Stephen LaMond
Title:		Interim Chief Executive Officer and Chief Operating Officer

Exhibit 10.1

SECOND AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT

BETWEEN PEAK BIO, INC. AND WHITE LION CAPITAL LLC

THIS SECOND AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT (this “Amendment”), effective August 14, 2023 (the “Second Amendment Effective Date”), is by and between Peak Bio, Inc. (the “Company”) and White Lion Capital, LLC (the “Investor”), and amends the Common Stock Purchase Agreement between the Company and Investor dated November 3, 2022 (the “Initial Agreement”), as amended by the Amendment to Common Stock Purchase Agreement effective March 13, 2023 (the “First Amendment” and, such First Amendment collectively with the Initial Agreement, the “Agreement”). All capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Agreement.

WHEREAS, the Agreement provides for Company’s right during the Commitment Period to issue and sell to the Investor newly issued Common Stock of the Company while the Common Stock is listed on an Eligible Market; and

WHEREAS, the parties desire to amend the Agreement to provide the Company with the right during the Commitment Period to issue and sell to the Investor newly issued Common Stock of the Company on an accelerated basis, subject to the terms and conditions set forth in this Amendment.

NOW, THEREFORE, in consideration of the premises, the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions.

Annex I to the Agreement is hereby amended as follows as of the Second Amendment Effective Date:

(a) The following new definitions are added:

“Accelerated Purchase Notice” means, with respect to a Purchase made pursuant to Section 3.1.1, an irrevocable written notice, substantially in the form of Exhibit G hereto, delivered by the Company to the Investor directing the Investor to purchase Purchase Notice Shares on an accelerated basis (such specified Purchase Notice Shares subject to adjustment as necessary to give effect to the Accelerated Purchase Notice Limit), at the Accelerated Purchase Price priced over the Accelerated Valuation Period, therefor on the applicable Accelerated Purchase Settlement Date for such Purchase in accordance with this Agreement. For clarity, in the event an Accelerated Purchase Notice is not accepted by Investor pursuant to Section 3.3.1 on the date of issuance by the Company, the Accelerated Purchase Notice shall be deemed to lapse and be of no force or effect.

“Accelerated Purchase Price” shall be equal to the lower of (i) the opening price of Common Stock during the Accelerated Valuation Period, (ii) the closing price of the Common Stock during Accelerated Valuation Period, or (iii) the volume weighted average price of the Common Stock during Accelerated Valuation Period; provided, however, that if at the time the Company delivers an Accelerated Purchase Notice to Investor the price of the Common Stock is lower than the opening price of the Common Stock during the Accelerated Valuation Period, the Accelerated Purchase Price will be discounted by 20%.

“Accelerated Valuation Period” shall mean the calendar day that is the Accelerated Purchase Date.

“Accelerated Purchase Date” shall mean the date in which the Company sends an Accelerated Purchase Notice and Investor provides written acceptance of such Accelerated Purchase Notice; provided that, for clarification, in the event Investor does not provide written acceptance of the Accelerated Purchase Notice on such date, the Accelerated Purchase Notice shall be deemed to have lapsed and be of no force or effect.

 

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“Accelerated Purchase Notice Limit” shall mean 200%.

(b) The following definitions are hereby amended in their entirety as of the Second Amendment Effective Date:

“Percentage Limit” shall mean, (i) with respect to a Purchase under the Purchase Notice 1, Percentage Limit 1, (ii) with respect to a Purchase pursuant to a Purchase Notice 2, the Percentage Limit 2, (iii) with respect to a Purchase pursuant to a Purchase Notice 3, the Percentage Limit 3, and (iv) with respect to a Purchase pursuant to an Accelerated Purchase Notice, the Accelerated Purchase Notice Limit.

“Purchase Notice” means a Purchase Notice 1, Purchase Notice 2, Purchase Notice 3, or an Accelerated Purchase Notice, as applicable.

“Purchase Price” means Purchase Price 1, Purchase Price 2, Purchase Price 3, or an Accelerated Purchase Price, as applicable.

2. Amendment to Section 3

The following Section 3.1.1 is hereby added to the Agreement immediately after Section 3.1, as follows:

“Section 3.1.1 Accelerated Purchases. Notwithstanding the foregoing, subject to the terms and conditions of this Agreement, from and after the Execution Date, in addition to purchases of Purchase Notice Shares as described in Section 3.1 above, and subject to the Accelerated Purchase Notice Limit, the Company shall also have the right, but not the obligation, to request the Investor, by its timely delivery to the Investor of an Accelerated Purchase Notice on an Accelerated Purchase Date in accordance with this Agreement, to purchase the number of Shares specified in the Accelerated Purchase Notice at the applicable Accelerated Purchase Price therefor in accordance with this Agreement (and for purposes of this Section 3.1.1, such Shares to be purchased pursuant to an Accelerated Purchase Notice shall also be referred to as “Purchase Notice Shares”, and each such purchase, an “Accelerated Purchase”); provided, however, that such Accelerated Purchase shall only become enforceable upon and be subject to the written acceptance of the Accelerated Purchase Notice through counter-signature by the Investor. The Company may deliver multiple Accelerated Purchase Notices to the Investor on an Accelerated Purchase Date. Notwithstanding Section 3.2, the wire for the Accelerated Purchase Notice shall occur five (5) Trading Days following the end of the Accelerated Valuation Period (the “Accelerated Purchase Settlement Date”). In addition, for purposes hereof, the Floor Price limitation may be waived by the Investor with respect to any Accelerated Purchase.”

3. Amendment to First Amendment

Section 3(b) of the First Amendment is hereby amended in their entirety as of the Second Amendment Effective Date:

“In addition, in the event the Company does not issue Purchase Notices to the Investor providing for the purchase of at least $1,250,000 of Purchase Shares in the aggregate by June 15, 2024, the Company will issue the Investor an additional number of fully paid, non-assessable shares of Common Stock equal to the quotient obtained by dividing (i) $150,000 and (ii) the lowest Closing Sale Price of the Common Stock of the 10 (ten) Trading Days prior to June 15, 2024.”

 

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4. Representations and Warranties.

The Company hereby:

(a) reaffirms all representations and warranties made to Investor under the Agreement and confirms that all are true and correct in all respects as of the Second Amendment Effective Date as if made on and as of the Second Amendment Effective Date, except for representations and warranties which expressly relate exclusively to an earlier date, which shall be true and correct in all respects as of such earlier date; and

(b) represents and warrants that it has the authority and legal right to execute, deliver and carry out the terms of this Amendment, that such actions were duly authorized by all necessary entity action and that the officers executing this Amendment on its behalf were similarly authorized and empowered and that this Amendment does not contravene any provisions of its articles of incorporation, bylaws, certificate of formation, limited liability company agreement or other formation documents, or of any contract or agreement to which it is a party or by which any of its properties are bound.

5. Miscellaneous.

(a) Except as modified by this Amendment, the Agreement continues in full force and effect in accordance with its terms.

(b) This Amendment shall be governed by and construed in accordance with the laws of the State of New York applied to contracts to be performed wholly within the State of New York.

(c) This Amendment may be executed in any number of counterparts and by facsimile or electronic transmission (which shall bind the parties hereto), each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officer as of the Second Amendment Effective Date.

 

PEAK BIO, INC.
By:		/s/ Steve LaMond
Name:		Steve LaMond
Title:		Interim Chief Executive Officer
By:		/s/ Tim Cunningham
Name:		Tim Cunningham
Title:		Chief Financial Officer
WHITE LION CAPITAL, LLC
By:		/s/ Nathan Yee
Name:		Nathan Yee
Title:		Managing Member

 

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EXHIBIT G

FORM OF ACCELERATED PURCHASE NOTICE

TO: WHITE LION CAPITAL LLC

We refer to the equity purchase agreement, dated as of November 3, 2022, (as amended, the “Agreement”), entered into by and between Peak Bio, Inc., and White Lion Capital LLC. Capitalized terms defined in the Agreement shall, unless otherwise defined herein, have the same meaning when used herein.

We hereby:

1) Give you notice that we require you to purchase __________ Purchase Notice Shares pursuant to the Agreement.

2) Certify that, as of the date hereof, the conditions set forth in Section 7.2 and Section 7.3 of the Agreement are satisfied.

 

PEAK BIO, INC.
By:
Name:
Title:

 

Accepted:
White Lion Capital LLC
By:
Name:
Title:

Document and Entity Information	Aug. 14, 2023
Cover [Abstract]
Document Type	8-K
Document Period End Date	Aug. 14, 2023
Entity Registrant Name	Peak Bio, Inc.
Entity Incorporation, State or Country Code	DE
Entity File Number	001-39951
Entity Tax Identification Number	85-2448157
Entity Address, Address Line One	4900 Hopyard Road
Entity Address, Address Line Two	Suite 100
Entity Address, City or Town	Pleasanton
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	94588
City Area Code	925
Local Phone Number	463-4800
Title of 12(b) Security	Common stock, par value $0.0001 per share
Trading Symbol	PKBO
Security Exchange Name	NONE
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	true
Entity Ex Transition Period	false
Entity Central Index Key	0001834645
Amendment Flag	false

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