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): July 11, 2014

 

BAXANO SURGICAL, INC.

(Exact name of registrant as specified in its charter)

 

Delaware   001-33744   33-0909022
         
(State or other jurisdiction
of incorporation)		   (Commission
File Number)		   (IRS Employer
Identification No.)

 

110 Horizon Drive, Suite 230

Raleigh, North Carolina 27615

(Address of principal executive offices)

(Zip Code)

 

(919) 800-0020

(Registrant’s telephone number, including area code)

  

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:

 

  ¨ 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))

  

 
 

 

Item 1.01.   Entry into a Material Definitive Agreement.

 

Effective July 11, 2014, Baxano Surgical, Inc. (the “Company”) entered into a modification (the “Modification”) to its existing purchase agreement dated as of December 3, 2013 (the “Purchase Agreement”) with Lincoln Park Capital Fund, LLC (“LPC”). The Modification, among other things, (i) increases the number of shares of the Company’s common stock, $0.0001 par value per share (“Common Stock”), that the Company has the right to sell to LPC from 100,000 shares to 125,000 shares as often as every business day, which amount may be further increased in accordance with the Purchase Agreement, (ii) increases the aggregate amount of Common Stock that the Company has the right, subject to certain limitations, to direct LPC to purchase over the 36-month term of the Purchase Agreement from $7.0 million to $8.2 million, and (iii) decreases the floor closing price that the Common Stock must trade above in order for sales to be made to LPC under the Purchase Agreement from $1.00 to $0.50 per share. As previously disclosed, the purchase price for the Common Stock will be based upon prevailing market prices when sales are made to LPC, the amount and timing of which is in the Company’s sole discretion, subject to certain conditions specified in the Purchase Agreement.

 

No consideration was paid by the Company to LPC upon entering into the Modification.  Pursuant to the Modification,  however, the number of shares potentially issuable by the Company on a pro rata basis as and when LPC purchases Common Stock under the Purchase Agreement was increased to 657,895 shares.  No shares of Common Stock have been issued to LPC since April 16th, 2014.  To date, the Company has sold an aggregate of approximately $3.2 million of Common Stock under the Purchase Agreement.

 

The Modification, except as expressly stated, does not otherwise materially amend the Purchase Agreement, which remains in full force and effect.

 

The foregoing description of the Modification contained herein does not purport to be complete and is qualified in their entirety by reference to the Modification, a copy of which is filed as Exhibit 10.1 to this Form 8-K, and incorporated herein by reference.

 

Item 9.01.   Financial Statements and Exhibits.

 

(d) Exhibits.

 

10.1Modification Agreement, dated July 11, 2014, by and between Baxano Surgical, Inc. and Lincoln Park Capital Fund, LLC.

 

 
 

  

SIGNATURE 

 

Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

  

  BAXANO SURGICAL, INC.
   
Date:  July 14, 2014 By:   /s/ Timothy M. Shannon
    Timothy M. Shannon
    Chief Financial Officer

 

 

 



 

Exhibit 10.1

 

MODIFICATION AGREEMENT

 

THIS MODIFICATION AGREEMENT (the “Modification Agreement”) is entered into this 11th day of July 2014, by and between BAXANO SURGICAL, INC., a Delaware corporation (the “Company”) and LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited liability company (“LPC”). Capitalized terms used herein that are not defined shall have the meaning ascribed to them in that certain Purchase Agreement by and between the Company and LPC and dated as of December 3, 2013 (the “Purchase Agreement”).

 

WHEREAS, the Company and LPC desire to clarify and amend certain provisions of the Purchase Agreement.

 

NOW THEREFORE, in consideration of the promises set forth herein and for other good and valuable consideration the receipt and sufficiency of which are acknowledged by the parties, the parties hereby agree as follows:

 

1. The term “Available Amount” as defined in Section 1(g) of the Purchase Agreement is hereby amended and restated as follows: “Available Amount” means Eight Million Two Hundred Thousand Dollars ($8,200,000) in the aggregate which amount shall be reduced by the Purchase Amount each time the Investor purchases shares of Common Stock pursuant to Section 2 hereof.”

 

2. The term “Floor Price” as defined in Section 2(d) of the Purchase Agreement is hereby amended and restated as follows: “Floor Price” means fifty cents ($.50) which shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction and, effective upon the consummation of any such reorganization, recapitalization, non-cash dividend, stock split or other similar transaction, the Floor Price shall mean the lower of (i) the adjusted price and (ii) $.50.”

 

3. The reference to “One Hundred Thousand (100,000) Purchase shares” appearing in the first sentence of Section 2(a) of the Purchase Agreement is hereby amended and restated to read: “One Hundred Twenty-Five Thousand (125,000) Purchase Shares;” the reference to “One Hundred Twenty-Five Thousand (125,000) Purchase Shares” appearing in the first sentence of Section 2(a) of the Purchase Agreement is hereby amended and restated to read: “One Hundred Forty Thousand (140,000) Purchase Shares;” and the last sentence of Section 2(a) of the Purchase Agreement is hereby amended and restated as follows: “The Company may deliver multiple Regular Purchase Notices to the Investor every Business Day so long as the most recent Regular Purchase was completed.”

 

4. The 3rd and 4th sentences of Section 5(e) of the Purchase Agreement are hereby amended and restated as follows: ”In connection with each Regular Purchase and each Accelerated Purchase of Purchase Shares hereunder, the Company shall issue to the Investor a number of shares of Common Stock (the “Additional Commitment Shares” and, collectively with the Initial Commitment Shares, the “Commitment Shares”) equal to the product of (x) 657,895 and (y) the Purchase Amount Fraction. The “Purchase Amount Fraction” shall mean a fraction, the numerator of which is the Purchase Amount purchased by the Investor with respect to such Regular Purchase and Accelerated Purchase (as applicable) of Purchase Shares and the denominator of which is Five Million Dollars ($5,000,000).”

 

 
 

 

 

5. Except as expressly set forth in this Modification Agreement, all other provisions of the Purchase Agreement shall remain in full force and effect.

 

6. The terms of Section 12 of the Purchase Agreement are incorporated by reference herein.

 

 

 

 

 

IN WITNESS WHEREOF, the Investor and the Company have caused this Modification Agreement to be duly executed as of the date first written above.

 

 

 

THE COMPANY:

 

BAXANO SURGICAL, INC.

 

By: /s/ Ken Reali

Name: Ken Reali

Title: Chief Executive Officer

 

 

INVESTOR:

 

LINCOLN PARK CAPITAL FUND, LLC.

 

BY: LINCOLN PARK CAPITAL, LLC.

BY: ALEX NOAH INVESTORS, INC.

 

By: /s/Jonathan Cole 

Name: Jonathan Cole 

Title: President