Item 1.01 Entry into a Material Definitive Agreement.
On January 4, 2018, Daré Bioscience, Inc., a Delaware corporation (the Company), entered into a Common Stock Sales Agreement (the
Sales Agreement) with H.C. Wainwright & Co., LLC (Wainwright), as sales agent, in connection with an at the market offering under which the Company from time to time may offer and sell shares of its
common stock, par value $0.0001 per share (the Common Stock), having an aggregate offering price of up to $10,000,000 (the Shares). Shares sold under the Sales Agreement will be offered and sold pursuant to the
Companys previously filed and effective Registration Statement on
Form S-3
(Registration
No. 333-206396)
(the Registration Statement) and a
prospectus supplement and accompanying base prospectus that the Company expects to file with the Securities and Exchange Commission (the SEC) relating to the Shares shortly after the filing of this Current Report on
Form 8-K.
Subject to the terms and conditions of the Sales Agreement, Wainwright will use its commercially
reasonable efforts to sell the Shares from time to time, based upon the Companys instructions, including any price, time or size limits specified by the Company. The Company has provided Wainwright with customary indemnification rights, and
Wainwright will be entitled to a commission at a fixed commission rate equal to 3.0% of the gross proceeds per Share sold. In addition, pursuant to the terms of the Sales Agreement, the Company has agreed to reimburse Wainwright for the documented
fees and costs of its legal counsel reasonably incurred in connection with (i) entering into the transactions contemplated by the Sales Agreement in an amount not to exceed $50,000 in the aggregate and (ii) Wainwrights ongoing
diligence, drafting and other filing requirements arising from the transactions contemplated by the Sales Agreement in an amount not to exceed $2,500 in the aggregate per calendar quarter. Sales of the Shares, if any, under the Sales Agreement may
be made in transactions that are deemed to be at the market offerings as defined in Rule 415 under the Securities Act of 1933, as amended (the Securities Act). The Company has no obligation to sell any of the Shares, and
may at any time suspend sales under the Sales Agreement or terminate the Sales Agreement. The Sales Agreement will terminate upon the sale of all of the Shares under the Sales Agreement unless terminated earlier by either party as permitted under
the Sales Agreement.
The Company currently intends to use the net proceeds from the offering, if any, for working capital and general corporate purposes,
which include, but are not limited to, advancing its product portfolio, acquiring the rights to new product candidates, and general and administrative expenses.
The foregoing description of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the Sales Agreement, a copy
of which is filed as Exhibit 10.1 to this Current Report on
Form 8-K
and 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 the
Shares, nor shall there be any offer, solicitation or sale of the Shares in any state or country in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or
country.
The opinion of the Companys counsel regarding the validity of the Shares is filed as Exhibit 5.1 to this Current Report on
Form 8-K.
This opinion is also filed with reference to, and is hereby incorporated by reference into, the Registration Statement.
The Company cautions you that statements included in this Current Report on
Form 8-K
that are not a description
of historical facts are forward-looking statements. These forward-looking statements include statements regarding the Companys ability to sell Shares pursuant to the Sales Agreement. The inclusion of forward-looking statements should not be
regarded as a representation by the Company that any of these statements, results or sales will be achieved or completed due in part to risks and uncertainties inherent in the Companys business, including those described in the Companys
Form 10-Q
for the quarter ended September 30, 2017 filed with the SEC on November 13, 2017. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of
the date hereof, and the Company undertakes no obligation to revise or update this report to reflect events or circumstances after the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement. This
caution is made under the safe harbor provisions of Section 21E of the Private Securities Litigation Reform Act of 1995.
Item 1.02
Termination of a Material Definitive Agreement.
On October 14, 2016, the Company entered into a common stock purchase agreement (the
Purchase Agreement) with Aspire Capital Fund, LLC, an Illinois limited liability company (Aspire Capital), pursuant to which Aspire Capital committed to purchase up to an aggregate of $20.0 million of shares of the
Companys Common Stock (the Offering Shares) over a term of 24 months from the execution of the Purchase Agreement. The Company previously issued 70,000 shares of the Companys Common Stock to Aspire Capital in
consideration for entering into the Purchase Agreement and sold 80,000 shares of the Offering Shares at a price of $12.50 per share (as adjusted to reflect the reverse stock split in the ratio of 10 to 1 that was effective on July 20, 2017) to
Aspire Capital for proceeds of $1.0 million pursuant to the Purchase Agreement and Registration Statement, including the base prospectus included therein, filed with the SEC under the Securities Act, and declared effective by the SEC on
October 14, 2016, and the Companys prospectus supplement thereto, filed with the SEC pursuant to Rule 424(b)(5) under the Securities Act on October 18, 2016 (the Previous Prospectus Supplement).
On December 29, 2017, the Company sent written notice to Aspire Capital that it was terminating the Purchase
Agreement pursuant to Section 11(k)(iv) of the Purchase Agreement, effective as of January 4, 2018. The Company did not incur any termination penalties as a result of the termination of the Purchase Agreement. Immediately prior to the
termination of the Purchase Agreement, there was $19,000,000 of Offering Shares unsold and available for sale under the Purchase Agreement pursuant to the Previous Prospectus Supplement. The Sales Agreement is intended to replace the Purchase
Agreement, and the termination of the Purchase Agreement terminated any future sales of Offering Shares pursuant to the Previous Prospectus Supplement.
A
copy of the Purchase Agreement was filed as Exhibit 99.1 to the Companys Current Report on Form
8-K
filed with the SEC on October 18, 2016.