ARCA biopharma, Inc. (NASDAQ:ABIO) Files An 8-K Entry into a Material Definitive Agreement

On July 14, 2020, ARCA biopharma, Inc. (the “Company”) entered into Amendment No. 8 (the “Amendment”) to its Capital on Demand^TM Sales Agreement, dated as of January 11, 2017, as amended by the Amendment No. 1, dated as of August 21, 2017, Amendment No. 2, dated as of January 25, 2019, Amendment No. 3, dated as of March 11, 2019, Amendment No. 4, dated as of May 9, 2019, Amendment No. 5, dated as of May 20, 2019, Amendment No. 6, dated as of June 28, 2019 and Amendment No. 7, dated as of July 2, 2020, (together, the “Sales Agreement” and, as amended by the Amendment, the “Amended Sales Agreement”), with JonesTrading Institutional Services LLC, as agent (“Agent”). The Amendment, among other things, increased the maximum aggregate offering value of shares of the Company’s common stock (the “Additional Shares”) which the Company may issue and sell from time to time under the Amended Sales Agreement (the “Offering”) by $7,274,000, from $25,160,325 to $32,434,325.  As of July 13, 2020, the Company had sold 2,223,710 shares of its common stock under the Sales Agreement for an aggregate offering price of approximately $25.0 million, before deducting sales and commissions and offering expenses. The Company will file a prospectus supplement with the Securities and Exchange Commission (the “SEC”) in connection with the Offering (the “Prospectus Supplement”) under its existing Registration Statement on Form S-3 (File No 333-238067), which became effective on May 20, 2020 (the “Registration Statement”).

Under the Amended Sales Agreement, Agent may sell the Additional Shares by any method permitted by law and deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The Company may instruct Agent not to sell Additional Shares if the sales cannot be effected at or above the price designated by the Company from time to time.

The Company is not obligated to make any sales of the Additional Shares under the Amended Sales Agreement. The Offering will terminate upon the earlier of (a) the sale of all of the Additional Shares subject to the Amended Sales Agreement or (b) the termination of the Amended Sales Agreement by Agent or the Company, as permitted therein.

The Company will pay Agent a commission rate equal to 3.0% of the aggregate gross proceeds from each sale of Additional Shares and has agreed to provide Agent with customary indemnification and contribution rights. The Company will also reimburse Agent for certain specified expenses in connection with entering into the Amended Sales Agreement.

The foregoing description of the Amended Sales Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The Company previously filed the Sales Agreement as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on January 11, 2017, the Amendment No.1 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on August 21, 2017, the Amendment No.2 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on January 25, 2019, the Amendment No.3 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on March 11, 2019, the Amendment No.4 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on May 9, 2019, the Amendment No.5 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on May 20, 2019, the Amendment No.6 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on June 28, 2019 and the Amendment No.7 as Exhibit 10.1 to its Current Report on Form 8-K filed with the SEC on July 2, 2020.

Cooley LLP, counsel to the Company, has issued a legal opinion relating to the Additional Shares. A copy of such legal opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.

The Additional Shares will be sold to the Registration Statement, and offerings of the Additional Shares will be made only by means of the Prospectus Supplement and any accompanying prospectus. This Current Report on Form 8-K shall not constitute an offer to sell or solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities law of such state or jurisdiction.

Item 2.02 Results of Operations and Financial Condition.

On July 14, 2020, the Company provided an update on its cash balance. Based on its cash and cash equivalents balance as of March 31, 2020, together with the net proceeds raised from the registered direct offering on June 3, 2020 and net proceeds raised in the third quarter of 2020 from sales of its common stock, the Company believes its cash and cash equivalents will be sufficient to fund its operations, based on at its current cost structure plus projected costs for the AB201 clinical development program, through the end of the third quarter of 2021.

The information provided in this Item 2.02 of this Current Report on Form 8-K shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing.

Forward-Looking Statements

Statements in this Current Report on Form 8-K that are not historical facts are “forward-looking statements” that are made to the safe harbor provisions of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements, which may be identified by use of words such as “plan,” “may,” “might,” “believe,” “expect,” “intend,” “could,” “would,” “should,” and other words and terms of similar meaning, involve risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. Such forward-looking statements include statements relating to any future sales under the Amended Sales Agreement or the ability of the Company’s current cash balance to fund its operations. These statements are only predictions based on current information and expectations and involve a number of risks and uncertainties. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. Actual events or results may differ materially from those stated in any such statements due to various factors, some of which are discussed in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, as well as other subsequent filings by the Company with the SEC. Statements included or incorporated by reference into this Current Report on Form 8-K are based upon information known to the Company as of the date of this Current Report on Form 8-K, and the Company assumes no obligation to publicly revise or update any forward-looking statement for any reason.

Section 9 — Financial Statements and Exhibits

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

ARCA biopharma, Inc. Exhibit
EX-5.1 2 abio-ex51_7.htm EX-5.1 abio-ex51_7.htm Exhibit 5.1     Brent D. Fassett +1 720 566 4025 bfassett@cooley.com       July 14,…
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About ARCA biopharma, Inc. (NASDAQ:ABIO)

ARCA biopharma, Inc. (ARCA) is a biopharmaceutical company. The Company is principally focused on developing genetically-targeted therapies for cardiovascular diseases. The Company’s lead product candidate is Gencaro (bucindolol hydrochloride), a beta-blocker and mild vasodilator that the Company is evaluating in a clinical trial for the treatment of atrial fibrillation (AF) in patients with heart failure with reduced left ventricular ejection fraction (HFREF). Gencaro is considered part of the beta-blocker class of compounds because of its property of blocking both beta-1 and beta-2, receptors in the heart. The blocking of these receptors prevents the receptor from binding with other molecules, primarily the neurotransmitter norepinephrine (NE), which activate these receptors. The Company is conducting a Phase IIB/III clinical trial of Gencaro, known as GENETIC-AF.