PTIX 8-K
Protagenic Therapeutics, Inc.\new (PTIX)
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 Company as specified in its charter)
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| (Address of principal executive offices) | (Zip Code) |
(Company’s telephone number, including area code)
(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 Company 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 | ||
Indicate by check mark whether the Company 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 Company 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 a Material Definitive Agreement
On January 9, 2025, Protagenic Therapeutics, Inc. (the “Company”) entered into Amendment No. 1 to that certain At Market Issuance Sales Agreement, dated July 2, 2021 (as amended, the “Sales Agreement”) with B. Riley Securities, Inc. (the “Agent”), pursuant to which the Company may offer and sell, from time to time, through the Agent, as sales agent, shares of the Company’s common stock, par value $0.0001 per share, having an aggregate offering price of up to $1,200,000 (the “ATM Offering”).
The Company is not obligated to sell any shares under the Sales Agreement. Subject to the terms and conditions of the Sales Agreement, the Agent will use commercially reasonable efforts, consistent with its normal trading and sales practices, applicable state and federal law, rules and regulations and the rules of the Nasdaq Capital Market, to sell shares from time to time based upon the Company’s instructions, including any price, time or size limits specified by the Company. Under the Sales Agreement, the Agent may sell shares by any method deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended. The Company will pay the Agent a commission of 3.0% of the gross sales price per share sold and provide them with customary indemnification and contribution rights. The Sales Agreement may be terminated by the Agent or by the Company upon notice to the other party as provided in the Sales Agreement.
The issuance and sale, if any, of the shares by the Company under the Agreement will be made pursuant to the Company’s shelf registration statement on Form S-3 (Registration No. 333-280244) initially filed with the Securities and Exchange Commission (the “Commission”) on June 14, 2024, as amended to date, and declared effective by the Commission on January 8, 2025 (the “Registration Statement”). The ATM Offering is described in the Company’s Prospectus dated January 9, 2025, as filed with the SEC on January 9, 2025.
The foregoing description of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. The legal opinion of Duane Morris LLP relating to the validity of the shares of common stock being offered pursuant to the Sales Agreement is filed as Exhibit 5.1 to this Current Report on Form 8-K and is incorporated herein by reference.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any shares under the Sales Agreement nor shall there be any sale of such shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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.
| PROTAGENIC THERAPEUTICS, INC. | ||
| By: | /s/ Alexander K. Arrow | |
| Name: | Alexander K. Arrow | |
| Title: | Chief Financial Officer | |
| Dated: | January 9, 2025 | |
Exhibit 1.1
First Amendment to At Market Issuance Sales Agreement
This First Amendment to the At Market Issuance Sales Agreement is entered into as of January 9, 2025 (the “Amendment”), by and between Protagenic Therapeutics, Inc. (the “Company”) and B. Riley Securities, Inc. (“BRS” or the “Agent” and, together with the Company, the “Parties”). The Company and the Agent are parties to that certain At Market Issuance Sales Agreement dated as of July 2, 2021 and as amended from time to time (the “Agreement”). The parties desire to amend the Agreement in accordance with the terms of this Amendment.
The Parties wish to amend the Agreement through this Amendment to remove one of the sales agents and to make certain other changes to the Agreement with effect on and after the date hereof (the “Effective Date”)
| 1. | Definitions. Unless otherwise specified herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Agreement. |
| 2. | Amendment of the Agreement. The Parties agree, from and after the Effective Date, that: |
| a. | On and after the Effective Date, the references to “Designated Agent,” “Agent,” or “Agents” shall include only BRS. |
| b. | Section 14 of the Agreement is updated to remove: |
“EF Hutton, division of Benchmark Investments, LLC
590 Madison Avenue, 39th Floor
New York, NY 10022
Attention: Joseph T. Rallo
Telephone: (917) 855-5924
Email: [email protected]”
| c. | All references to “July 2, 2021” set forth in Schedule 1 and Exhibt 7(l) of the Agreement are revised to read “July 2, 2021 (as amended by Amendment No. 1 to At Market Issuance Sales Agreement, dated January 9, 2025)”. |
| 3. | References to Agreement. All references to the Agreement or in any other document executed or delivered in connection therewith shall, from the Effective Date, be deemed a reference to the Agreement as amended by this Agreement. |
| 4. | Applicable Law. This Amendment and any claim, controversy or dispute arising under or related to this Amendment shall be governed by, and construed in accordance with, the laws of the State of New York without regard to its choice of law provisions. |
| 5. | Waiver of Jury Trial. The Company and the Agent each hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Amendment or the transactions contemplated hereby. |
| 6. | Entire Agreement. This Amendment and the Agreement as further amended hereby contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. Except as set forth in this Amendment or as further amended hereby, all of the terms of the Agreement shall remain in full force and effect and are hereby confirmed in all respects. |
| 7. | Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile, electronic mail (including electronic signature) or other transmission method, and the Parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.
| Very truly yours, | ||
| PROTAGENIC THERAPEUTICS, INC. | ||
| By: | /s/ Alexander K. Arrow | |
| Name: | Alexander K. Arrow | |
| Title: | Chief Financial Officer | |
| ACCEPTED as of the date first-above written: | ||
| B. RILEY SECURITIES, INC. | ||
| By: | /s/ Matthew Feinberg | |
| Name: | Matthew Feinberg | |
| Title: | Senior Managing Director | |
Exhibit 5.1
NEW
YORK |
FIRM and AFFILIATE OFFICES
www.duanemorris.com
|
HANOI ALLIANCES IN MEXICO |
January 9, 2025
Protagenic Therapeutics, Inc.
149 Fifth Avenue
New York, NY 10010
Re: Protagenic Therapeutics, Inc. – Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Protagenic Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the At Market Issuance Sales Agreement, dated July 2, 2021, as amended by Amendment No. 1, dated January 9, 2025 (as amended, the “Agreement”), by and between B. Riley Securities, Inc., as sales agent, and the Company, pursuant to which the Company may issue and sell up to an aggregate of $1,200,000 of shares of common stock, par value $0.0001 per share (the “Common Stock”). The Common Stock is being offered and sold pursuant to the Company’s shelf registration statement on Form S-3 (Registration No. 333-280244), initially filed by the Company with the Securities and Exchange Commission (the “Commission”) on June 14, 2024, as amended on January 7, 2025, and declared effective on January 8, 2025 (the “Registration Statement”), in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively, the “Act”), relating to the issuance and sale of the Common Stock.
For purposes of rendering this opinion, we have examined originals or copies (certified or otherwise identified to our satisfaction) of (i) the Registration Statement, including the prospectus contained therein (the “Base Prospectus”); (ii) the prospectus supplement, dated January 9, 2025, in the form filed with the Commission pursuant to Rule 424(b) under the Act (the “Prospectus Supplement,” together with the Base Prospectus and the documents incorporated and deemed to be incorporated by reference therein, herein collectively referred to as the “Prospectus”); (iii) the Third Amended and Restated Certificate of Incorporation (“Company’s Certificate of Incorporation”); (iv) the Second Amended and Restated Bylaws of the Company (“Company’s Bylaws”); and (v) records of proceedings of the Board of Directors, or committees thereof. We have also examined such other certificates of public officials, such other certificates of officers of the Company and such other records, agreements, documents and instruments as we have deemed relevant and necessary as a basis for the opinions hereafter set forth. In rendering such opinion, we have relied as to factual matters upon the representations, warranties and other statements made in the Sales Agreement without having independently verified such factual matters.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, the Common Stock has been duly authorized, and when the Common Stock is issued and paid for in accordance with the terms and conditions of the Agreement, the Common Stock will be validly issued, fully paid and non-assessable.
Our opinion herein is limited to the General Corporation Law of the State of Delaware and the federal laws of the United States of America.
January 9, 2025 Page 2 |
 |
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to the use of this opinion as an exhibit to the Current Report on Form 8-K to be filed by the Company and further consent to all references to us in the Prospectus Supplement under “Legal Matters”. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| Very truly yours, | |
| /s/ Duane Morris LLP |