AURX 8-K
Nuo Therapeutics, Inc. (AURX)
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): December 1, 2021
Nuo Therapeutics, Inc.
(Exact name of Registrant as Specified in Charter)
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Delaware |
001-32518 |
23-3011702 |
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(State or Other Jurisdiction |
(Commission |
(IRS Employer |
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of Incorporation) |
File Number) |
Identification No.) |
8285 El Rio, Suite 150, Houston, TX 77054
(Address of Principal Executive Offices) (Zip Code)
(832) 236-9060
(Registrant’s telephone number, including area code)
N/A
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement 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 or Rule 12b-2 of the Securities Exchange Act of 1934.
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. ☐
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
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None |
None |
None |
Item 1.01 Entry into a Material Definitive Agreement
Warrant Modification Agreement
As previously disclosed in a Current Report on Form 8-K filed with the Securities and Exchange Commission on October 5, 2020, which is incorporated herein by reference, Nuo Therapeutics, Inc. (the “Company”) issued certain common stock purchase warrants (the “Warrants”) (i) in conjunction with a Recapitalization Agreement, to shareholders participating in the Recapitalization Agreement and (ii) in exchange for services rendered over the period May 2019 thru September 2020 to three individuals including David Jorden, the Company’s Chief Executive and Chief Financial Officer and Scott Pittman, a member of the Company’s Board of Directors.
Effective as of December 1, 2021 (the “Effective Date”), the Company entered into a Warrant Modification Agreement (the “Agreement) with the holders of an aggregate 6,865,461 Warrants (the “Investors”) whereby the Warrants were modified to adjust the warrant exercise price from $0.40 per share to $0.20 per share provided the Investor exercised the warrant prior to January 31, 2022 (the “Payment Forfeiture Date”). All Warrants not exercised prior to the Payment Forfeiture Date were to be forfeited and deemed expired or otherwise cancelled.
As of December 30, 2021, all Warrants had been exercised for total consideration of $1,373,092 and the resulting issuance of 6,865,461 shares of common stock.
The issuance of the common shares was exempt from the registration requirements of the Securities Act, pursuant to Section 4(a)(2) and/or the exemption for exchange transactions under Section 3(a)(9) of the Securities Act.
The above description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Agreement, attached as Exhibit 4.1, which is incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
As described in Item 1.01 above, the Company on December 31, 2021, issued to the Investors, an aggregate 6,865,461 shares of the Company’s common stock.
The descriptions of the Agreement contained in Item 1.01 are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
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Exhibit No. |
Exhibit Description |
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4.1 |
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.
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Nuo Therapeutics, Inc. |
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By: |
/s/ David E. Jorden |
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David E. Jorden |
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Chief Executive Officer and |
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Date: January 4, 2022 |
Exhibit 4.1
NEITHER THIS SECURITY NOR THE SECURITIES AS TO WHICH THIS SECURITY MAY BE EXERCISED HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER DEALER OR OTHER LOAN SECURED BY SUCH SECURITIES WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT.
WARRANT MODIFICATION AGREEMENT
This Warrant Modification Agreement (this “Agreement”), effective as of December 1, 2021, is made pursuant to the terms of that certain Common Stock Purchase Warrant (“Warrant” or “Warrant Agreement”, attached as Form of Warrant) dated October 5, 2020, by and between Nuo Therapeutics Inc., a Delaware corporation, (the “Company”) and the undersigned holder(s) (the “Holder”) of warrants to purchase shares of the Company’s common stock, par value $0.001 per shares (the “Common Stock”), issued by the Company, as set forth on Schedule A (collectively, the “Warrants”).
WITNESSETH:
WHEREAS, in order to induce the Warrant Holders (including the Holder) to forfeit their rights to exercise the Warrants for the remaining term until the respective expiration dates and to exercise the Warrants on or prior to January 31, 2022 (“Payment Forfeiture”), the Company proposes to amend and reduce the exercise price of the Warrants to the amounts as set forth below in this Agreement (the “Price Adjustments,” and, together with Term Forfeiture, the “Warrant Adjustments”);
WHEREAS, the Board of Directors of the Company and a special committee of the Board of Directors of the Company have both determined that the Warrant Adjustments are in the best interests of the Company and its shareholders;
WHEREAS, the Company and the Holder(s) desire to amend certain terms of the Warrant Agreement by means of this Agreement to reflect the Warrant Adjustments; and
WHEREAS, pursuant to the terms of Section 9 of the Warrant Agreement, the Company and the Holder have the power to amend and modify the terms of the Warrant Agreement; and
WHEREAS, the Holder’s Warrants are exercisable into a number of shares of Common Stock as set forth on Schedule A (the “Warrant Shares”); and
WHEREAS, the existing exercise price of Warrants is $0.40 (zero dollars and forty cents) with a maturity and expiration date of October 5, 2025: and
NOW, THEREFORE, in consideration of the above premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Holders hereby agree as follows:
1. Exercise of Warrants. The Company and the Holder hereby agree that the Holder shall exercise the Warrants at the Price Adjustment of $0.20 (zero dollars and twenty cents) per share, equal to fifty percent (50%) of the original exercise price, for aggregate cash proceeds to the Company set forth on Schedule A, otherwise pursuant to the terms of the Warrants. The Warrant Shares as set forth on Schedule A will be delivered to the Holder upon the Closing to the name and address set forth on the signature page hereof.
1.1 Forfeiture of Warrants. Any and all Warrants not exercised prior to the Payment Forfeiture date above, shall be forfeited and deemed expired or otherwise cancelled.
2. Closing.
2.1 Acceptance - Prior to the Expiration Date of December 15, 2021, Holder shall execute this Agreement and deliver same to:
Nuo Therapeutics, Inc.
Attn. David Jorden, CEO
by mail at: 8285 El Rio, Suite 150. Houston, TX. 77054 or
by email at xxxxxxx.xxx
2.2 Exercise and
Payment Execute and deliver as in 2.1, Exhibit A - Exercise Notice of the Warrant, Payment: and immediately wire the aggregate cash exercise price for such Warrants to the following bank account on or before January 31, 2022:
Bank Name: Chase Bank
Account: Nuo Therapeutics, Inc.
ABA Number: xxxxxxxx
A/C Number: xxxxxxxx
FBO: See Schedule A
2.3 Assignment: If Holder assigns any or all of Holder’s Warrants subsequent to acceptance and execution of this Agreement, Holder covenants they shall deliver a copy of this Agreement to the Assignee together with the full Warrant Agreement.
The closing of the exercise of the Warrants and the issuance of the Common Stock shares (the “Closing”) shall occur upon execution by the Company and delivery to the Holder of an executed copy of this Agreement, against receipt of such aggregate cash exercise price by January 31, 2022.
3. Accredited Investor. The Holder represents and warrants that it is an “accredited investor” as defined in Rule 501 under the Securities Act of 1933, as amended. The Holder, either alone or together with its representatives, has such knowledge, sophistication, and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Warrant Shares, and has so evaluated the merits and risks of such investment.
3.1 Risks. Holder acknowledges the current status of Nuo Therapeutics, Inc. is “non reporting” with the Securities and Exchange Commission and the various risks have been disclosed to Holder by virtue of the Company’s latest SEC Filings, including the Company’s Forms 8-K, Annual Report on Form 10-K, and Quarterly Reports on Form 10-Q filings during the most recent 24 month period, which is incorporated herein by reference and which are accessible at https://sec.report/Ticker/AURX .
4. Reliance. The Holder acknowledges and that the Company has agreed to the terms of this Agreement in reliance upon the Holder’s representations, warranties and covenants made herein.
5. Modification. This Agreement shall not be modified or waived except by an instrument in writing signed by the party against whom any such modification or waiver is sought.
6. Entire Agreement. All other terms of the Warrant remain in full force and effect and together with this Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and supersede all, understandings, discussions and representations whether oral or written.
7. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without giving effect to the principles of conflicts of law that would require the application of the laws of any other jurisdiction.
8. Severability. In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
9. Successors; Third-Party Beneficiary. This Agreement shall be binding upon and inure to the benefit of the Holder and the Company and the respective successors and permitted assigns.
10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one instrument, and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the other parties.
11. EXPIRATION DATE. THIS OFFER IS FOR A LIMITED TIME ONLY AND SHALL EXPIRE IF THE SIGNATURE PAGE TO THIS AGREEMENT IS NOT COMPLETED, EXECUTED BY THE HOLDER AND RETURNED TO THE COMPANY ON OR BEFORE 5:00 P.M. ET ON DECEMBER 15, 2021.
AGREED AND ACCEPTED:
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NUO THERAPEUTICS, INC. |
HOLDER: |
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By: /s/ David Jorden_____________ |
CHARLES SHEEDY |
| Name:________________________ | |
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Title: CEO/CFO________________ |
By: /s/ Charles Sheedy___________________ |
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Print Name: __________________________ |
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Title: __________________________ |
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| TIM CONN | |
| By: /s/ Tim Conn___________________ | |
| Name:____________________________ | |
| Title:_____________________________ | |
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PAUL ANTHONY JACOBS AND NANCY E. JACOBS JOINT TRUST |
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| By: /s/ Tony Jacobs___________________ | |
| Name:_____________________________ | |
| Title: Trustee________________________ | |
| By: /s/ Nancy Jacobs___________________ | |
| Name:______________________________ | |
| Title: Trustee_________________________ | |
| DAVID JORDEN | |
| By: /s/ David Jorden______________________ | |
| Name: _________________________________ | |
| Title: __________________________________ | |
| SCOTT PITTMAN | |
| By: /s/ Scott Pittman______________________ | |
| Name: _________________________________ | |
| Title: __________________________________ | |
| MOSKOVITS FAMILY TRUST | |
| By: /s/ William Moskovits__________________ | |
| Name:__________________________________ | |
| Title: Trustee_____________________________ |
| WILLIAM K. KNOX | |
| By: /s/ William Knox________________________ | |
| Name: _________________________________ | |
| Title: __________________________________ | |
| STEVE JAKUBOWSKI | |
| By: /s/ Steve Jakubowski___________________ | |
| Name: _________________________________ | |
| Title: __________________________________ | |
| JOHN AND MARTINA STEED | |
| By: /s/ John Steed /s/ Martina Steed__________ | |
| Name: _________________________________ | |
| Title: __________________________________ |
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EXHIBIT A |
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Warrant Holder |
Number of Warrants |
Modified Exercise Price |
Aggregate Exercise Proceeds to Company |
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Charles E. Sheedy |
1,431,615 | $ | 0.20 | $ | 286,323.00 | |||||||
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Tim Conn |
397,635 | $ | 0.20 | $ | 79,527.00 | |||||||
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Paul Anthony Jacobs and Nancy E. Jacobs Joint Trust |
318,948 | $ | 0.20 | $ | 63,789.60 | |||||||
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David E. Jorden |
1,297,635 | $ | 0.20 | $ | 259,527.00 | |||||||
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Scott M. Pittman |
1,222,635 | $ | 0.20 | $ | 244,527.00 | |||||||
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Moskovits Family Trust |
636,861 | $ | 0.20 | $ | 127,372.20 | |||||||
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John and Martina Steed |
194,871 | $ | 0.20 | $ | 38,974.20 | |||||||
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William K. Knox |
157,371 | $ | 0.20 | $ | 31,474.20 | |||||||
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Steve Jakubowski |
1,207,890 | $ | 0.20 | $ | 241,578.00 | |||||||
| 6,865,461 | $ | 1,373,092.20 | ||||||||||