Current Report Filing (8-k)
February 04 2022 - 4:40PM
Edgar (US Regulatory)
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2022-02-04
2022-02-04
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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): February 4, 2022
Beyond
Air, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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001-38892
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47-3812456
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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900
Stewart Avenue, Suite 301
Garden
City, NY 11530
(Address
of principal executive offices)
516-665-8200
(Registrant’s
telephone number, including area code)
(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:
☐
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR240.14d-2(b))
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☐
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR240.13e-4(c))
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Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
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Trading
Symbol(s)
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Name
of each exchange on which registered
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Common
Stock, par value $.0001 per share
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XAIR
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The
Nasdaq Stock Market LLC
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Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405)
or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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.
On
February 4, 2022, Beyond Air, Inc. (the “Company”) entered into an At-The-Market Equity Offering Sales Agreement (the “Agreement”)
with Truist Securities, Inc. and Oppenheimer & Co. (collectively, the “Agents”) under which the Company may offer and
sell, from time to time at its sole discretion, shares of its common stock, par value $0.0001 per share (the “Common Stock”),
having an aggregate offering price of up to $50,000,000 through the Agents as its sales agent. The issuance and sale, if any, of Common
Stock by the Company under the Agreement will be pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-262311)
filed with the Securities and Exchange Commission (the “SEC”) on January 24, 2022 (the “Registration Statement”)
and declared effective by the SEC on February 1, 2022, the prospectus supplement relating to the Offering filed with the SEC on February
4, 2022, and any applicable additional prospectus supplements related to the Offering that form a part of the Registration Statement.
Subject
to the terms and conditions of the Agreement, the Agents may sell the Common Stock by any method permitted by law deemed to be an “at
the market offering” as defined in Rule 415(a)(4) of the Securities Act of 1933, as amended. The Agents will use commercially reasonable
efforts to sell the Common Stock from time to time, based upon instructions from the Company (including any price, time or size limits
or other customary parameters or conditions the Company may impose). The Company will pay the Agents a commission equal to up to three
percent (3%) of the gross sales proceeds of any Common Stock sold through the Agents under the Agreement, and also has provided the Agents
with certain indemnification rights.
The
Company is not obligated to make any sales of Common Stock under the Agreement. The offering of shares of Common Stock pursuant to the
Agreement will terminate upon the earlier of (i) the sale of all Common Stock subject to the Agreement or (ii) termination of the Agreement
in accordance with its terms.
The
foregoing description of the Agreement is not complete and is qualified in its entirety by reference to the full text of the Agreement,
a copy of which is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and is 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 securities discussed herein,
nor shall there be any offer, solicitation, or sale of the securities 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.
The
opinion of Sichenzia Ross Ference LLP, the Company’s legal counsel, regarding the validity of the Shares is filed as Exhibit 5.1
hereto. This opinion is also filed with reference to, and is hereby incorporated by reference into, the Registration Statement.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits
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.
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BEYOND
AIR, INC.
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Date:
February 4, 2022
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By:
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/s/
Steven A. Lisi
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Steven
A. Lisi
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Chief
Executive Officer
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