Biovie Inc 8-K/A, filed Mar 4, 2024
Biovie Inc. (BIVI)
About this 8-K/A
Biovie Inc filed this 8-K/A on March 4, 2024.
Items reported
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
(Exact Name of Registrant as Specified in Its Charter)
| (State or Other Jurisdiction of Incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) |
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| (Address of Principal Executive Offices) | (Zip Code) |
(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 Symbol(s) | Name of each exchange on which registered |
| The |
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)) |
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. ☐
EXPLANATORY NOTE
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
| * | Previously filed as an exhibit to the Original 8-K. |
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.
Dated: March 4, 2024
| BIOVIE INC. | ||
| By: | /s/ Joanne Wendy Kim | |
| Name: | Joanne Wendy Kim | |
| Title: | Chief Financial Officer | |
Exhibit 5.1
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March 4, 2024
BioVie Inc.
680 West Nye Lane, Suite201
Carson City, Nevada 489703
| Re: | BioVie Inc. |
Ladies and Gentlemen:
We have acted as special Nevada counsel to BioVie Inc., a Nevada corporation (the “Company”), in connection with the issuance and sale by the Company of (a) up to 15,000,000 shares (the “Shares”) of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”); (b) up to 6,000,000 pre-funded warrants (the “Pre-Funded Warrants”) to purchase an equal number of shares of Common Stock (the “Pre-Funded Warrant Shares”) with an exercise price equal to $0.0001 per share; and (c) up to 10,500,000 common stock purchase warrants (the “Common Warrants”) to purchase an equal number of shares of Common Stock (the “Common Warrant Shares”) with an exercise price equal to $1.50 per share. The Shares, the Pre-Funded Warrants, the Pre-Funded Warrant Shares, the Common Warrants, and the Common Warrant Shares are collectively referred to herein as the “Securities.” The Securities are being offered, sold, and issued under the terms of a Placement Agency Agreement dated March 4, 2024 (the “Placement Agreement”) by and between the Company and ThinkEquity LLC, acting as the exclusive placement agent.
The Securities are being registered under a Registration Statement on Form S-3 (File No. 333-274083) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), including the base prospectus forming a part of such Registration Statement dated August 28, 2023 (the “Base Prospectus”), and the prospectus supplement thereto dated March 4, 2024 (the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”).
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For purposes of these opinions, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:
(a) the Registration Statement;
(b) the Prospectus;
(c) the Placement Agreement;
(d) form of Pre-Funded Common Stock Purchase Warrant;
(e) form of Common Warrant;
(f) the Company’s Current Report on Form 8-K/A to be filed with the Commission on the date hereof;
(g) resolutions of the Board of Directors and such other matters as relevant related to the (i) approval of the Placement Agreement and authorization of the Company to execute, deliver, and perform its obligations under the Placement Agreement, (ii) issuance and the registration of the Securities under the Securities Act, and (iii) such other matters as relevant; and
(h) originals or copies, certified or otherwise identified to our satisfaction, of the Company’s charter documents and other corporate records of the Company, certificates, and forms of agreements and instruments as relevant related to the issuance and the registration of the Securities under the Securities Act as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
We have also examined such other corporate charter documents, records, certificates, and instruments as we deem necessary or advisable to render the opinions set forth herein.
In our examination, we have assumed:
(a) the legal capacity of all natural persons executing the documents;
(b) the genuineness of all signatures on the documents;
(c) the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as copies;
(d) that the parties to such documents, other than the Company, have the power, corporate or other, to enter into and perform all obligations thereunder;
(e) that the Placement Agreement is enforceable in accordance with its terms;
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(f) other than with respect to the Company, the due authorization by all requisite action, corporate or other, of the execution, delivery and performance by all parties of the documents;
(g) that each of the documents is a valid and binding obligation of the parties thereto in accordance with its terms.
The opinions set forth below are also subject to the further qualification that the enforcement of any agreements or instruments referenced herein and to which the Company is a party may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
As to certain factual matters, we have relied on certificates of public officials and the factual representations set forth in the Placement Agreement.
Based on the foregoing and in reliance thereon, and subject to the assumptions, limitations, and qualifications set forth herein, we are of the opinion that:
(a) the Shares have been duly authorized, and when issued against payment in accordance with the terms of the Placement Agreement, will be validly issued, fully paid, and nonassessable;
(b) the Pre-Funded Warrant Shares have been duly authorized, and when issued upon exercise of the Pre-Funded Warrants in accordance with the terms thereof and the Company’s charter documents, including, without limitation, the payment in full of the applicable consideration, will be validly issued, fully paid, and non-assessable; and
(c) the Common Warrant Shares have been duly authorized, and when issued upon exercise of the Common Warrants in accordance with the terms thereof and the Company’s charter documents, including without limitation, the payment in full of the applicable consideration, will be validly issued, fully paid, and non-assessable.
The opinions expressed herein are limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or any changes in applicable law that may come to our attention after the date hereof.
While certain members of this firm are admitted to practice in certain jurisdictions other than Nevada, in rendering the foregoing opinions we have not examined the laws of any jurisdiction other than Nevada. Accordingly, the opinions we express herein are limited to matters involving the laws of the State of Nevada, excluding securities laws of the State of Nevada as to which we express no opinion. We express no opinion regarding the effect of the laws of any other jurisdiction or state, including any federal securities laws related to the issuance and sale of the Securities.
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We hereby consent to the use of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus Supplement. In giving the foregoing consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, | |
| /s/ Sherman & Howard L.L.C. | |
| SHERMAN & HOWARD L.L.C. |
Exhibit 5.2
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Reed Smith LLP 599 Lexington Avenue +1 212 521 5400 Fax +1 212 521 5450 reedsmith.com |
March 4, 2024
| BioVie Inc. 680 West Nye Lane, Suite 201 Carson City, Nevada 489703 |
Ladies and Gentlemen:
We have acted as counsel to BioVie, Inc., a Nevada corporation (the “Company”), in connection with (i) the Placement Agency Agreement, dated March 4, 2024 (the “Agreement”), by and between the Company and ThinkEquity LLC as the Company’s exclusive placement agent (the “Placement Agent”), and (ii) the issuance and sale by the Company directly to investors (collectively, the “Investors”) through the Placement Agent of (a) an aggregate of 15,000,000 shares (collectively, the “Shares”) of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”) (b) pre-funded warrants (each, a “Pre-Funded Warrant”, and collectively, the “Pre-Funded Warrants”) to purchase up to 6,000,000 shares of Common Stock (the “Pre-Funded Warrant Shares”) with an exercise price of $0.0001 per Pre-Funded Warrant Share, and (c) warrants (each, a “Common Warrant”, and collectively, the “Common Warrants”) to purchase 10,500,000 shares of Common Stock (the “Common Warrant Shares”) with an exercise price of $1.50 per Common Warrant Share. Capitalized terms used in this letter and not defined herein have the respective meanings ascribed thereto in the Placement Agency Agreement.
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have reviewed originals or copies of (a) the Agreement, (b) the S-3 registration statement (File No. 333-274083), filed with the Securities and Exchange Commission (the SEC”) on August 18, 2023, which was declared effective by the Commission on August 28, 2023 (including the documents incorporated by reference therein, the “Registration Statement”, (c) the final base prospectus, dated August 28, 2023, relating to certain securities to be issued from time to time by the Company, which was filed with the SEC pursuant to Rule 424(b)(3) under the Securities Act on August 29, 2023, (d) the preliminary prospectus supplement, dated March 1, 2024, including the documents incorporated therein by reference (the “Preliminary Prospectus Supplement” and, together with the final base prospectus, the “Preliminary Prospectus” (e) the Preliminary Prospectus, together with the pricing and other final terms of the offering provided to investors set forth on Schedule 1 of the Placement Agency Agreement, (f) the form of Pre-Funded Warrant, (g) the form of Common Warrant (collectively, the “Transaction Documents”), (h) the documents delivered to the Placement Agent by the Company at the closing pursuant to the Agreement and (i) certain resolutions of the Board of Directors of the Company and the Pricing Committee of the Board of Directors of the Company, and have made such other investigations as we have deemed necessary as a basis for the opinions set forth below.
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In rendering the opinion set forth below, we have assumed:
| a. | the genuineness of all signatures; |
| b. | the legal capacity of natural persons; |
| c. | the authenticity of all documents submitted to us as originals; |
| d. | the conformity to original documents of all documents submitted to us as duplicates or conformed copies; |
| e. | as to matters of fact, the truthfulness of the representations and warranties made or to be made (as applicable) by the parties to the Transaction Documents and the truthfulness of the representations made in certificates or comparable documents of public officials and officers of the Company; |
| f. | the Company (i) is duly incorporated and is validly existing and in good standing, (ii) has requisite legal status and legal capacity under the laws of the jurisdiction of its organization, (iii) has complied and will comply with all aspects of the laws of the jurisdiction of its organization in connection with the transactions contemplated by, and the performance of its obligations under, the Pre-Funded Warrant and Common Warrant, and (iv) has the corporate power and authority to execute, deliver and perform all its obligations under the Pre-Funded Warrant and Common Warrant; and |
| g. | neither the execution and delivery by the Company of the Pre-Funded Warrants or Common Warrants nor the performance by the Company of its obligations thereunder, including the issuance and sale of the Pre-Funded Warrants and Common Warrants (i) conflicts or will conflict with the Articles of Incorporation of the Company, (ii) constitutes or will constitute a violation of, or a default under, any lease, indenture, instrument or other agreement to which the Company or its property is subject, (iii) contravenes or will contravene any order or decree of any governmental authority to which the Company or its property is subject, (iv) violates or will violate any law, rule or regulation to which the Company or its property is subject (except that we do not make the assumption set forth in this clause (iv) with respect to the Opined-on Law (as defined below)), or (v) requires or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule, or regulation of any jurisdiction. |
We have not independently established the validity of the foregoing assumptions.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Pre-Funded Warrants and Common Warrants, when issued by the Company in the manner contemplated in the Agreement and assuming the due authorization, execution and delivery of the Pre-Funded Warrants and Common Warrants, constitute the legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their terms, under the laws of the State of New York, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to
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enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
The opinions stated herein are subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of (i) public policy considerations which may limit the rights of parties to obtain certain remedies, (ii) any provision waiving the right to object to venue in any court; and (iii) any agreement to submit to the jurisdiction of any federal court.
Our opinion is limited to the laws of the State of New York (the “Opined-on Law”) and we do not express any opinion herein concerning any other law. We advise you that issues addressed by this letter may be governed in whole or in part by other laws, but we express no opinion as to whether any relevant difference exists between the laws upon which our opinions are based and any other laws which may actually govern. This opinion letter speaks only as of its date.
We hereby consent to the filing of this opinion letter as Exhibit 5.2 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus forming part of the Registration Statement and any amendments thereto. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, and the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ REED SMITH LLP
Reed Smith LLP