8-K
Abvc Biopharma, Inc. (ABVC)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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):
July 31, 2023
ABVC BIOPHARMA, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 333-91436 | 26-0014658 |
|---|---|---|
| (State or other jurisdiction<br><br>of incorporation) | (Commission File Number) | (IRS Employer<br><br>Identification No.) |
| 44370 Old Warm Springs Blvd.<br><br> <br>Fremont, CA | 94538 | |
| --- | --- | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number including area code:
(510) 668-0881
(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 | Name of each exchange on which registered |
|---|---|---|
| Common Stock, par value $0.001 per share | ABVC | The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in 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 Material Definitive Agreements
As disclosed on ABVC BioPharma, Inc.’s (the “Company”) Current Report on Form 8-K (the “Form 8-K”) filed on July 27, 2023, the Company entered into certain securities purchase agreement, dated July 27, 2023 (the “SPA”), with a certain institutional investor (the “Purchaser”). Pursuant to the SPA, the Company agreed to issue 300,000 shares (the “Shares”) of its common stock, par value $0.001 per share (the “Common Stock”) and 200,000 pre-funded warrants, at an exercise price of $0.01 per share (the “Pre-funded Warrants”), in a registered direct offering (the “Offering”). Wilmington Securities LLC acted as placement agent for the Offering.
The transaction contemplated by the SPA was closed on July 31, 2023, as all the closing conditions have been satisfied.
The foregoing summary of the terms of the SPA and Pre-funded Warrant is subject to, and qualified in its entirety by, the complete agreements, which are attached as exhibits to this filing and incorporated herein by reference.
The sale and offering of the Shares and Pre-funded Warrants pursuant to the SPA was effected as a takedown off the Company’s shelf registration statement on Form S-3, as amended (File No. 333-260588), which became effective on November 29, 2021 (the “Registration Statement”). A final prospectus supplement to the Registration Statement was filed with the Securities and Exchange Commission on July 31, 2023.
We will pay to the placement agents an aggregate cash fee equal to 6% of the aggregate sales price of the securities sold and warrants to purchase up to 30,000 shares of Common Stock, on the same terms as the Pre-Funded Warrants.
This report shall not constitute an offer to sell or the solicitation to buy nor shall there be any sale of the securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
Item3.02 Unregistered Sales of Equity Securities
The disclosure provided in Item 1.01 above is incorporated by reference herein.
Item 9.01 Financial Statement and Exhibits
(d) Exhibits
| Exhibit No. | Description |
|---|---|
| 4.1 | Form of Pre-Funded Warrants (Incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed on July 27, 2023) |
| 5.1 | Opinion of Hunter Taubman Fischer & Li LLC |
| 10.1 | Form of Securities Purchase Agreement (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on July 27, 2023) |
| 99.1 | Press Release dated July 31, 2023 |
| 104 | Cover Page Interactive Data File (embedded within<br> the Inline XBRL document) |
1
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| ABVC BioPharma, Inc. | ||
|---|---|---|
| July 31, 2023 | By: | /s/ Uttam Patil |
| Uttam Patil | ||
| Chief Executive Officer |
2
Exhibit5.1
July 31, 2023
ABVC BioPharma, Inc.
44370 Old Warm Springs Blvd.
Fremont, CA 94538
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
You have requested our opinion with respect to the offer, sale and issuance by you, ABVC BioPharma, Inc., a Nevada corporation (the “Company”), pursuant to a Registration Statement (File No. 333-260588) (the “Registration Statement”) on Form S-3 under the Securities Act of 1933, as amended (the “Act”), of (i) 300,000 shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”), (ii) pre-funded warrants to purchase up to 200,000 shares of Common Stock (the “Pre-Funded Warrants”), (iii) the shares of Common Stock underlying the Warrants, (the “Pre-Funded Warrant Shares”), and (iv) placement agent warrants (the “Placement Agent Warrants”, together with the Pre-Funded Warrants, collectively the “Warrants”) to purchase up to an aggregate of 30,000 shares of Common Stock (the “Placement Agent WarrantShares,” which, collectively with the Common Stock, the Warrants and the Pre-Funded Warrant Shares, are referred to herein as the “Securities”), pursuant to the terms of the Engagement Agreement, dated October 12, 2022, as amended on January 30, 2023, between Allele Capital Partners, LLC together with its executing broker dealer, Wilmington Capital Securities, LLC (the “PlacementAgent”) and the Company (the “Engagement Agreement”).
In rendering the opinions set forth below, we have examined originals or copies certified or otherwise identified to our satisfaction of such documents and corporate and public records as we deem necessary as a basis for the opinions hereinafter expressed. With respect to such examination, we have assumed the genuineness of all signatures appearing on all documents presented to us as originals, and the conformity to the originals of all documents presented to us as conformed or reproduced copies. Where factual matters relevant to such opinions were not independently established, we have relied upon certificates of executive officers and responsible employees and agents of the Company.
For purposes of this opinion letter, we have also assumed that (a) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective and such effectiveness will not have been terminated or rescinded, (b) a prospectus supplement will have been prepared and filed with the Securities and Exchange Commission describing the Securities offered thereby, (c) all Securities will be offered, issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the appropriate prospectus supplement, (d) any definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto, (e) any securities issuable upon exercise of any Securities being offered will have been duly authorized, created and, if appropriate, reserved for issuance upon such exercise, (f) at the time of any offering or sale of any shares of Common Stock, Placement Agent Warrant Shares, Pre-Funded Warrant Shares or Warrants to purchase shares of Common Stock, there will be sufficient shares of Common Stock authorized and unissued under the Company’s then operative articles of incorporation, as amended (the “Articles of Incorporation”) and not otherwise reserved for issuance, (g) at the time of issuance of the Securities, the Company validly exists and is duly qualified and in good standing under the laws of its jurisdiction of incorporation, and has the necessary corporate power for such issuance, (h) at the time of issuance of the Securities, the Articles of Incorporation and then operative bylaws of the Company, as amended (the “Bylaws” and collectively with the Articles of Incorporation, the “Charter Documents”) are in full force and effect and have not been amended, restated, supplemented or otherwise altered, and there has been no authorization of any such amendment, restatement, supplement or other alteration, in either case since the date hereof, and (i) that the terms, execution and delivery of the Securities (i) do not result in breaches of, or defaults under, agreements or instruments to which the Company is bound or violations of applicable statutes, rules, regulations or court or governmental orders, and (ii) comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company. We have further assumed the legal capacity of natural persons, and we have assumed that each party to the documents we have examined or relied on has the legal capacity or authority and has satisfied all legal requirements that are applicable to that party to the extent necessary to make such documents enforceable against that party. We have not verified any of the foregoing assumptions.
www.htflawyers.com | info@htflawyers.com
950 Third Ave., Floor 19 - New York, NY 10022 | Office: (212) 530-2210 | Fax: (212) 202-6380
We do not express any opinion as to matters arising under the laws of any jurisdiction other than the United States federal securities laws and Chapter 78 of the Nevada Revised Statutes (“NRS”) as the same appear on the date hereof at https://www.leg.state.nv.us/nrs/nrs-078.html. We are not members of the Bar of the State of Nevada and have not obtained any opinions of local counsel. Insofar as the opinions expressed herein relate to matters of the United States federal securities laws or regulations or matters of the NRS, we have relied exclusively on the latest standard compilations of such statutes and laws as reproduced in commonly accepted unofficial publications available to us.
Based upon and subject to the foregoing and the other matters set forth herein, it is our opinion that:
(1) With respect to the shares of Common Stock offered under the Registration Statement, when (a) the Company has taken all necessary action to authorize and approve the issuance thereof and related matters, and (b) certificates representing the shares of Common Stock have been duly executed, countersigned, registered and delivered, or if uncertificated, valid book-entry notations have been made in the share register of the Company, in each case in accordance with the Charter Documents, either (i) against payment therefor in an amount not less than the par value thereof or such other consideration determined by the Company’s Board of Directors and permitted under the NRS and in the manner contemplated by the Registration Statement and/or the applicable prospectus supplement and in accordance with the provisions of the applicable definitive purchase, underwriting or similar agreement, if any, approved by the Company or (ii) upon exercise of any other Security in accordance with the terms of such Security or the instrument governing such Security as approved by the Company, for the consideration approved by the Company (in an amount not less than the par value thereof or such other consideration determined by the Company’s Board of Directors and permitted under the NRS), the shares of Common Stock will be duly authorized, validly issued, fully paid and non-assessable.
(2) With respect to the Warrants offered under the Registration Statement, when (a) the Company has taken all necessary action to authorize and approve the creation of and the issuance and terms of the Warrants, the terms of the offering thereof and related matters, (b) the Warrants have been duly executed and delivered against payment therefor in accordance with the Warrants and in the manner contemplated by the Registration Statement and/or the applicable prospectus supplement (assuming the securities issuable upon exercise of the Warrants have been duly authorized and reserved for issuance by all necessary corporate action and in accordance with applicable law), the Warrants will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law), including but not limited to principles limiting the availability of specific performance and injunctive relief, and concepts of materiality, reasonableness, good faith and fair dealing; (b) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(3) With respect to the Pre-Funded Warrant Shares and Placement Agent Warrant Shares issuable upon exercise of the Pre-Funded Warrants and Placement Agent Warrants, respectively, when the respective Warrant is exercised in accordance with the terms thereof, the Pre-Funded Warrant Shares and Placement Agent Warrant Shares, as applicable will be duly authorized, validly issued, fully paid and non-assessable.
We express no opinions regarding (i) the validity or enforceability of any provisions that purport to waive or not give effect to rights or notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law, (ii) the enforceability of indemnification provisions to the extent they purport to relate to liabilities resulting from or based upon negligence or any violation of federal or state securities or blue sky laws, (iii) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty, (iv) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies or judicial relief, (v) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy, (viii) provisions for exclusivity, election or cumulation of rights or remedies, (ix) provisions authorizing or validating conclusive or discretionary determinations, (x) grants of setoff rights, (xi) the availability of equitable remedies to any person or entity including, but not limited to, specific performance and injunctive relief; (xii) the effect of bankruptcy, reorganization, insolvency, fraudulent conveyance, fraudulent transfer, moratorium and other similar laws or equitable principles affecting creditors’ rights or remedies (whether applied by a court of law or equity), (xiii) the effect of applicable law and court decisions which may hereafter limit or render unenforceable certain rights or remedies of any person or entity and (xiv) the severability, if invalid, of provisions to the foregoing effect.
www.htflawyers.com | info@htflawyers.com
950 Third Ave., Floor 19 - New York, NY 10022 | Office: (212) 530-2210 | Fax: (212) 202-6380
2
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement, and to the use of our name as your counsel under “Legal Matters” in the Prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby concede that we come within the categories of persons whose consent is required by the Act or the General Rules and Regulations promulgated thereunder. We assume no obligation to update or supplement any of the opinions set forth herein to reflect any changes of law or fact that may occur.
| Very<br> truly yours, |
|---|
| /s/<br> Hunter Taubman Fischer & Li LLC |
| Hunter<br> Taubman Fischer & Li LLC |
www.htflawyers.com | info@htflawyers.com
950 Third Ave., Floor 19 - New York, NY 10022 | Office: (212) 530-2210 | Fax: (212) 202-6380
3
Exhibit 99.1
ABVC BioPharma Announces Closing on $1.75 Million Registered Direct Offering
Fremont, CA (July31, 2023) – ABVC BioPharma, Inc. (NASDAQ: ABVC) (“Company”), a clinical-stage biopharmaceutical company developing therapeutic solutions in ophthalmology, neurology, and oncology/hematology, today announced it has closed on a definitive securities purchase agreement with a single institutional investor, acquiring $1.75 million worth of its common stock in a registered direct offering (the “Offering”).
Under the terms of the securities purchase agreement, the Company agreed to sell an aggregate of 500,000 shares of common stock and/or pre-funded warrants in a registered direct offering. The purchase price per share of common stock is $3.50, and the purchase price for the pre-funded warrants is identical to the purchase price for a share of common stock, less the exercise price of $0.01 per share.
Wilmington Capital Securities, LLC acted as the exclusive placement agent for the Offering.
Gross proceeds to the Company from the Offering are estimated to be approximately $1.75 million before deducting the placement agent’s fees and other offering expenses payable by the Company. The Company will use the net proceeds from the Offering on research and development of their programs, working capital, and other general corporate purposes, which may include the repayment of outstanding debt.
The Offering of the shares of common stock and pre-funded warrants described above was made by the Company pursuant to a “shelf” registration statement on Form S-3 (File No. 333- 260588) initially filed with the Securities and Exchange Commission (“SEC”) on October 29, 2021, and declared effective by the SEC on November 29, 2021, and the accompanying prospectus contained therein.
The Offering is only made by employing a prospectus supplement and accompanying prospectus. A prospectus supplement describing the terms of the Offering was filed with the SEC and is part of the effective registration statement. Copies of the prospectus supplement relating to the registered direct offering, together with the accompanying prospectus, can be obtained at the SEC’s website at www.sec.gov.
This press release does not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful before registration or qualification under the securities laws of any such state or jurisdiction.
We believe the Company’s pipeline products have great market potential. As per the Future Market Insights report, the MDD market was valued at $11.51 billion in 2022 and is expected to reach $14.96 billion by 2032 with a CAGR of 2.8% over the forecast period.^1^ According to the Polaris market research report, the global ADHD treatment market was valued at $16.13 billion in 2022 and is expected to reach $32.14 billion by 2030 with a CAGR of 7.1% over the forecast period.^2^ According to iHealthcare Analyst, Inc., the global market for retinal surgery devices is expected to reach $3.7 billion by 2027, driven by the rising geriatric population worldwide.^3^
About ABVC BioPharma
ABVC BioPharma is a clinical-stage biopharmaceutical company with an active pipeline of six drugs and one medical device (ABV-1701/Vitargus^®^) under development. For its drug products, the Company utilizes in-licensed technology from its network of world-renowned research institutions to conduct proof-of-concept trials through Phase II of clinical development. The Company’s network of research institutions includes Stanford University, the University of California at San Francisco, and Cedars-Sinai Medical Center. For Vitargus^®^, the Company intends to conduct global clinical trials through Phase III.
Forward-Looking Statements
This press release contains “forward-looking statements.” Such statements may be preceded by the words “intends,” “may,” “will,” “plans,” “expects,” “anticipates,” “projects,” “predicts,” “estimates,” “aims,” “believes,” “hopes,” “potential,” or similar words. Forward-looking statements are not guarantees of future performance, are based on certain assumptions, and are subject to various known and unknown risks and uncertainties, many of which are beyond the Company’s control, and cannot be predicted or quantified, and, consequently, actual results may differ materially from those expressed or implied by such forward-looking statements. None of the outcomes expressed herein are guaranteed. Such risks and uncertainties include, without limitation, risks and uncertainties associated with (i) our inability to manufacture our product candidates on a commercial scale on our own, or in collaboration with third parties; (ii) difficulties in obtaining financing on commercially reasonable terms; (iii) changes in the size and nature of our competition; (iv) loss of one or more key executives or scientists; and (v) difficulties in securing regulatory approval to proceed to the next level of the clinical trials or to market our product candidates. More detailed information about the Company and the risk factors that may affect the realization of forward-looking statements is set forth in the Company’s filings with the Securities and Exchange Commission (SEC), including the Company’s Annual Report on Form 10-K and its Quarterly Reports on Form 10-Q. Investors are urged to read these documents free of charge on the SEC’s website at http://www.sec.gov. The Company assumes no obligation to publicly update or revise its forward-looking statements as a result of new information, future events or otherwise.
Contact:
Tom Masterson
Email: tmasterson@allelecomms.com
| 1. | https://www.futuremarketinsights.com/reports/major-depressive-disorder-treatment-market#:~:text=The%20major%20depressive%20disorder%20(MDD,US%24%2011.51%20billion%20in%202022 |
|---|---|
| 2. | https://www.prnewswire.com/news-releases/global-attention-deficit-hyperactivity-disorder-adhd-market-size-projected-to-reach-usd-32-14-billion-by-2032--with-cagr-of-7-1-study-by-polaris-market-research-301729196.html#:~:text=According%20to%20the%20research%20report |
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| 3. | https://www.ihealthcareanalyst.com/technological-advancement-ophthalmic-surgery-retinal-surgery-devices-market/ |
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