Form 8-K Cytosorbents Corp For: Apr 20
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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): April 20, 2020
CYTOSORBENTS CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 001-36792 | 98-0373793 | |||
| (State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) | |||
|
7 Deer Park Drive, Suite K, Monmouth Junction, New Jersey |
08852 | ||||
| (Address of principal executive offices) | (Zip Code) | ||||
Registrant’s telephone number, including area code: (732) 329-8885
Not Applicable
(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 (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)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
| common stock, $0.001 par value | CTSO | The Nasdaq Stock Market LLC (Nasdaq Capital Market) |
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.
¨
| Item 1.01 | Entry into a Material Definitive Agreement |
CytoSorbents Corporation (the “Company”) is party to that certain Open Market Sale AgreementSM (the “Sale Agreement”) with Jefferies LLC and B. Riley FBR, Inc. (each, an “Agent” and together, the “Agents”), dated July 9, 2019, pursuant to which the Company may offer to sell, from time to time through the Agents, shares of the Company’s common stock, $0.001 par value per share (the “Shares”) having an aggregate offering price of up to $25 million. As of April 20, 2020, the Company had offered and sold Shares with an aggregate offering price of approximately $21 million under the Sale Agreement.
On April 20, 2020, the Company and the Agents entered into an amendment to the Sale Agreement (the “Amendment”) to provide for an increase in the aggregate offering amount under the Sales Agreement, such that as of April 20, 2020, the Company may offer and sell Shares having an additional aggregate offering price of up to $25 million under the Sale Agreement, as amended by the Amendment (the “Amended Sale Agreement”).
Subject to the terms of the Amended Sale Agreement, the Agents will use reasonable efforts to sell the Shares from time to time, based upon the Company’s instructions (including any price, time or size limits or other customary parameters or conditions the Company may impose). The Company cannot provide any assurances that it will issue any additional Shares pursuant to the Amended Sale Agreement. The Company will pay the Agents a commission of up to 3.0% of the gross proceeds from the sale of the Shares, if any. The Company has also agreed to provide the Agents with customary indemnification rights. The offering of the Shares will terminate upon the earliest of (a) the sale of the maximum number or amount of the Shares permitted to be sold under the Amended Sale Agreement and (b) the termination of the Amended Sale Agreement by the parties thereto.
The foregoing description of the Amended Sale Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is attached hereto as Exhibit 1.1 and incorporated by reference herein, and the Sale Agreement, a copy of which was filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission (the “SEC”) on July 9, 2019 and incorporated by reference herein into Exhibit 1.2.
Morgan, Lewis & Bockius LLP, counsel to the Company, has issued a legal opinion relating to the legality of the issuance and the sale of the Shares pursuant to the Amendment. A copy of such legal opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.
The Shares to be sold under the Amended Sale Agreement, if any, will be issued and sold by methods deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, in block transactions or if specified by the Company, in privately negotiated transactions pursuant to the registration statement on Form S-3 (File No. 333-226372), which was previously filed with the SEC on July 26, 2018, amended on August 3, 2018, and declared effective by the SEC on August 7, 2018 (the “Registration Statement”). A prospectus supplement related to the offering is being filed with the SEC on April 20, 2020 (the “Prospectus Supplement”). This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Shares nor shall there be any sale of the 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)
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: April 20, 2020 | CYTOSORBENTS CORPORATION | |
| By: | /s/ Dr. Phillip P. Chan | |
| Name: | Dr. Phillip P. Chan | |
| Title: |
President and Chief Executive Officer | |
Exhibit 1.1
AMENDMENT NO. 1 TO THE OPEN MARKET SALE AGREEMENTSM
April 20, 2020
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
B. RILEY FBR, INC.
299 Park Avenue, 21st Floor
New York, New York 10171
Ladies and Gentlemen:
This Amendment No. 1 to the Open Market Sale AgreementSM (this “Amendment”) is entered into as of the date first written above by CytoSorbents Corporation, a Delaware corporation (the “Company”), and Jefferies LLC and B. Riley FBR, Inc. as sales agents and/or principals (each, an “Agent” and, collectively, the “Agents”), that collectively are the parties to that certain Open Market Sale AgreementSM, dated July 9, 2019 (the “Original Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The parties hereto, intending to be legally bound, hereby agree as follows:
| 1. | The preamble to the Original Agreement is hereby deleted in its entirety and replaced with the following: |
“CytoSorbents Corporation, a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time through Jefferies LLC and B. Riley FBR, Inc., as sales agents and/or principals (each, an “Agent” and, collectively, the “Agents”), shares of the Company’s common stock, par value $0.001 per share (the “Common Shares”), having an aggregate offering price of up to $50,000,000 on the terms set forth in this agreement (this “Agreement”).”
| 2. | The definition of “Maximum Program Amount” in Section 1(a) of the Original Agreement is hereby deleted in its entirety and replaced with the following: |
“Maximum Program Amount” means Common Shares with an aggregate Sales Price of the lesser of (a) $50,000,000, (b) the number or dollar amount of Common Shares, the issuance and sale of which is registered under the effective Registration Statement (defined below) pursuant to which the offering is being made, (c) the number of authorized but unissued Common Shares (less Common Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), (d) the number or dollar amount of Common Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable), or (e) the number or dollar amount of Common Shares for which the Company has filed a Prospectus (defined below).”
| 3. | The Company shall file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act reflecting this Amendment and a Current Report on Form 8-K disclosing this Amendment within one (1) Business Day following the date hereof. |
| 4. | The Company agrees to pay all costs, fees and expenses incurred in connection with entering into this Amendment and the performance of they Company’s obligations under the Original Agreement as amended by this Amendment and the transactions contemplated hereby and thereby, including without limitation, (i) all filing fees, attorneys’ fees and expenses incurred by the Company or any Agent in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Shares authorized by this Amendment for offer and sale under the state securities or blue sky laws or the provincial securities laws of Canada, and, if requested by an Agent, preparing and printing a “Blue Sky Survey” or memorandum and a “Canadian wrapper” and any supplements thereto, advising the Agents of such qualifications, registrations, determinations and exemptions and (ii) the reasonable fees and disbursements of the Agents’ counsel, including the reasonable fees and expenses of counsel for the Agents in connection with, FINRA review, if any, and approval of the Agents’ participation in the offering and distribution of the Shares authorized by this Amendment. The fees and disbursements of Agents’ counsel pursuant to subsections (i) and (ii) above shall not exceed $50,000. |
| 5. | The Company represents and warrants to, and agrees with each of the Agents that as of the date of this Amendment, this Amendment has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. |
| 6. | This Amendment, together with the Original Agreement,
constitutes the entire agreement of the parties hereto and supersedes all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter hereof. This Amendment may not be amended or modified unless
in writing by all the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each
party whom the condition is meant to benefit. The invalidity or unenforceability of any provision contained herein shall not affect
the validity or enforceability of any other provision hereof. If any provision of this Amendment is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary
to make it valid and enforceable. All references in the Original Agreement to the “Agreement” shall mean the Original
Agreement as amended by this Amendment; provided, however, that all references to “date of this Agreement” in the
Original Agreement shall continue to refer to the date of the Original Agreement. |
| 7. | This Amendment shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Amendment or the transactions contemplated hereby or by the Original Agreement may be instituted in the federal courts of the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in each case located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum. |
| 8. | This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed amendment by one party to the other may be made by facsimile transmission or electronic transmission (e.g., PDF). |
[Remainder of Page Intentionally Blank]
If the foregoing correctly sets forth the understanding between the Company and each of the Agents, please so indicate in the space provided below for that purpose, whereupon this Amendment shall constitute a binding amendment to the Original Agreement between the Company and each of the Agents.
Very truly yours,
| JEFFERIES LLC | ||
| By: | /s/ Michael Robinson | |
| Name: | Michael Robinson | |
| Title: | Managing Director | |
| B. RILEY FBR, INC. | ||
| By: | /s/ Patrice McNicoll | |
| Name: | Patrice McNicoll | |
| Title: | Co-Head of Investment Banking | |
|
ACCEPTED as of the date first-above written: |
||
| CYTOSORBENTS CORPORATION | ||
| By: | /s/ Dr. Phillip P. Chan | |
| Name: | Dr. Phillip P. Chan | |
| Title: | President and Chief Executive Officer | |
[Signature Page to Amendment No. 1 to the Open Market Sale AgreementSM]
Exhibit 5.1
April 20, 2020
CytoSorbents Corporation
7 Deer Park Drive, Suite K
Monmouth Junction, NJ 08852
| Re: | CytoSorbents Corporation Registration Statement on Form S-3 (333-226372) |
Ladies and Gentlemen:
We have acted as counsel to CytoSorbents Corporation, a Delaware corporation (the “Company”), in connection with the filing of a prospectus supplement, dated April 20, 2020 (the “Prospectus”), by the Company with the Securities and Exchange Commission (the “Commission”) on April 20, 2020 pursuant to Rule 424(b)(5) promulgated under the Securities Act of 1933, as amended (the “Act”), relating to the offer and sale by the Company of up to $25,000,000 aggregate offering amount of shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), in an “at the market offering” as defined in Rule 415(a)(4) of the Act in accordance with the Open Market Sale AgreementSM, dated July 9, 2019 (the “Sale Agreement”), by and among the Company, Jefferies LLC and B. Riley FBR, Inc. (together, the “Agents”), as amended by Amendment No. 1 to the Open Market Sale AgreementSM, dated as of April 20, 2020, by and among the Company and the Agents (“Amendment No. 1”, and together with the Sale Agreement, as amended, the “Amended Sale Agreement”), pursuant to the referenced Registration Statement on Form S-3 (No. 333-226372) (the “Registration Statement”) filed with the Commission on July 26, 2018, as amended by a pre-effective amendment filed on August 3, 2018, and declared effective by the Commission on August 7, 2018.
As to all matters of fact (including factual conclusions and characterizations and descriptions of purpose, intention or other state of mind), we have relied, with your permission, entirely upon written actions by the board of directors of the Company and certificates of certain officers of the Company and have assumed, without independent inquiry, the accuracy of those certificates and written actions by the board of directors of the Company.
As counsel to the Company, in rendering the opinions hereinafter expressed, we have examined and relied upon originals or copies of such corporate records, agreements, documents and instruments as we have deemed necessary or advisable for purposes of this opinion, including (i) the certificate of incorporation and bylaws of the Company, (ii) the Registration Statement and the exhibits thereto filed with the Commission, (iii) the Prospectus, (iv) the Amended Sale Agreement and (v) the written actions of the board of directors of the Company referenced above.
| Morgan, Lewis & Bockius llp | ||
| 502 Carnegie Center | ||
| Princeton, NJ 08540-6241 |  +1.609.919.6600 | |
|
United States |
+1.609.919.6701 | |
CytoSorbents Corporation
April 20, 2020
Page 2
This opinion is limited solely to the Delaware General Corporation Law without regard to choice of law, to the extent that the same may apply to or govern the transactions contemplated by the Registration Statement. We express no opinion as to the effect of events occurring, circumstances arising, or changes of law becoming effective or occurring, after the date hereof on the matters addressed in this opinion.
Based on such examination and subject to the foregoing, we are of the opinion that the Shares, when issued by the Company and delivered by the Company against payment therefore as contemplated by the Amended Sale Agreement, and an Issuance Notice (as defined in the Amended Sale Agreement) will be validly issued, fully paid and non-assessable, assuming that (i) the Company’s Board of Directors or an authorized committee thereof will have specifically authorized the issuance of such Shares in exchange for consideration that the Board of Directors or such committee determines as adequate and in excess of the par value of such Shares (“Common Stock Authorizing Resolutions”), and (ii) the Company has received the consideration provided for in the applicable Common Stock Authorizing Resolutions.
We hereby consent to the filing of this opinion with the Commission as an exhibit to a Current Report on Form 8-K to be filed with the Commission (and its incorporation by reference into the Registration Statement) in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Act and to the reference to this firm therein and under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not 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. In rendering this opinion, we are opining only as to the specific legal issues expressly set forth herein, and no opinion shall be inferred as to any other matter or matters. This opinion is intended solely for use in connection with the issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose.
|
|
Very truly yours, |
| /s/ Morgan, Lewis & Bockius LLP |
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