BIOAMBER INC. (NASDAQ:BIOA) Files An 8-K Entry into a Material Definitive Agreement
Item1.01 Entry into a Material Definitive Agreement.
On December22, 2016, BioAmber Inc. (the Company) entered into an
underwriting agreement (the Underwriting Agreement) with H.C.
Wainwright Co., LLC, as the representative of the several
underwriters listed in the Underwriting Agreement (the
Underwriters) to issue and sell 1,748,750 shares of common stock,
par value $0.01 per share (the Common Stock) of the Company in an
underwritten offering to a shelf registration statement on Form
S-3 (File No.333-196470) (including, a registration statement on
Form S-3 filed to Rule 462(b) under the Securities Act of 1933,
as amended (File No.333-215289) (collectively, the Registration
Statement)) and a related prospectus, including the related
prospectus supplement, filed with the Securities and Exchange
Commission (the Shares Offering). In addition, on December22,
2016, the Company entered into a Canadian Securities Purchase
Agreement (the Purchase Agreement) with the purchasers party
thereto to issue and sell warrants (the Warrants) to purchase an
aggregate of 2,224,199 shares of Common Stock in a registered
direct offering to the Registration Statement and a related
prospectus, including a related prospectus supplement, filed with
the Securities and Exchange Commission (the Warrants Offering
and, together with the Shares Offering, the Offerings).
The price paid per share for the Common Stock in the Shares
Offering, and the price paid per share for the Common Stock
underlying the Warrants in the Warrants Offering (representing
the exercise price of the Warrants that was pre-funded by each
purchaser at closing), was in each case $4.00. The Company
received net proceeds of $3.80 per share of Common Stock in the
Shares Offering, representing an underwriting discount of 5.0%.
The net proceeds from the Warrants Offering of $3.80 per share of
Common Stock underlying the Warrants, representing a placement
agent fee of 5.0%, were placed into an escrow account, to be
released upon the exercise or deemed exercise of the Warrants to
the terms of the Purchase Agreement.
The term of the Warrants lasts for 120 days from the date of
issuance. The Warrants may be voluntarily exercised, in whole or
in part, prior to their expiration, for no additional
consideration. In addition, upon the last to occur of (i)the
listing of the Common Stock on the Toronto Stock Exchange or the
TSX-Venture Exchange, and (ii)the Companys receiving of a receipt
for a prospectus qualifying the issuance of the Common Stock
underlying the Warrants from at least the Canadian provincial
securities regulator in that jurisdiction in which the initial
holder of the Warrants are resident, in each case in accordance
with applicable Canadian law (the Warrant Conditions), the
remainder of the Warrants shall be deemed to have been exercised
in full. Upon such exercise or deemed exercise, the Company will
receive the net proceeds from the escrow account described above
with respect to the shares of Common Stock underlying such
Warrants so exercised. If the Warrant Conditions have not been
satisfied on or prior to 5:00 p.m. New York City time on the date
that is 120 days from the issuance date of the Warrants, then the
gross subscription proceeds from the Warrants Offering will be
returned to the respective purchasers of the Warrants.
Each of the Underwriting Agreement and the Purchase Agreement
contains customary representations, warranties, and agreements by
the Company, and customary conditions to closing, indemnification
obligations of the Company and the Underwriters, including for
liabilities under the Securities Act of 1933, as amended, other
obligations of the parties, and termination provisions.
Each of the Underwriting Agreement and the Purchase Agreement is
attached hereto as an exhibit to provide investors and security
holders with information regarding its terms. It is not intended
to provide any other factual information about the Company. The
representations, warranties and covenants contained in the
Underwriting Agreement and the Purchase Agreement were made only
for purposes of the Underwriting Agreement and the Purchase
Agreement (as applicable) and as of specific dates, were solely
for the benefit of the parties to the Underwriting Agreement and
the Purchase Agreement (as applicable), and may be subject to
limitations agreed upon by the contracting parties, including
being qualified by confidential disclosures exchanged between the
parties in connection with the execution of the Underwriting
Agreement and the Purchase Agreement.
A copy of the opinion of Goodwin Procter LLP relating to the
legality of the issuance and sale of the Common Stock in the
Shares Offering is attached as Exhibit 5.1 hereto, and a copy of
the opinion of Goodwin Procter LLP relating to the enforceability
of the Warrants in the Warrants Offering and the legality of the
issuance and sale of the Common Stock underlying the Warrants is
attached as Exhibit 5.2 hereto, both such opinions are
filed with reference to, and are hereby incorporated by reference
into, the Registration Statement. A copy of the Underwriting
Agreement is filed herewith as Exhibit 1.1 and a copy of the
Purchase Agreement is filed herewith as Exhibit 1.2, each of
which is incorporated herein by reference.
The Warrants were issued to a Warrant Agency Agreement, dated as
of December29, 2016 (the Warrant Agreement), between the Company
and Computershare Inc. and its wholly-owned subsidiary,
Computershare Trust Company, N.A., as Warrant Agent. The Warrant
Agreement is filed as Exhibit 4.2 hereto and is incorporated
herein by reference.
The foregoing summaries of the Offerings and the terms of the
Underwriting Agreement, the Purchase Agreement, the form of
Warrant and the Warrant Agreement are subject to, and qualified
in their entirety by such documents attached herewith as Exhibits
1.1, 1.2, 4.1 and 4.2, respectively, to this Current Report on
Form 8-K and are incorporated by reference herein.
On December23, 2016, the Company issued a press release
announcing the Offerings. A copy of the press release is attached
hereto as Exhibit 99.1 and is incorporated herein by reference.
The completion of the Offerings is expected to trigger an
adjustment to the exercise price of the outstanding warrants to
purchase common stock issued in the Companys initial public
offering. The exercise price of such warrants is expected to be
reduced from $5.00 per whole share of common stock to $4.00 per
whole share of common stock, to the terms of such warrants.
Item9.01 Financial Statements and Exhibits
(d) Exhibits
| Exhibit Number | Description | |
| 1.1 |
Underwriting Agreement dated as of December 22, 2016 by and between BioAmber Inc. and H.C. Wainwright Co., LLC. |
|
| 1.2 |
Canadian Securities Purchase Agreement dated as of December 22, 2016 by and between BioAmber Inc. and the purchasers identified therein. |
|
| 4.1 | Form of Warrant to Purchase Common Stock of BioAmber Inc. | |
| 4.2 |
Warrant Agency Agreement dated as of December 29, 2016 by and between BioAmber Inc. and Computershare Inc. |
|
| 5.1 | Opinion of Goodwin Procter LLP. | |
| 5.2 | Opinion of Goodwin Procter LLP. | |
| 23.1 | Consent of Goodwin Procter LLP (contained in Exhibit 5.1). | |
| 23.2 | Consent of Goodwin Procter LLP (contained in Exhibit 5.2). | |
| 99.1 | Press release of BioAmber Inc. issued December 23, 2016. |