Report of Foreign Issuer Pursuant to Rule 13a-16 or 15d-16 (6-k)
January 25 2021 - 10:32AM
Edgar (US Regulatory)
U.S.
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES
EXCHANGE ACT OF 1934
dated
January 25, 2021
Commission
File Number 0-51504
GENETIC
TECHNOLOGIES LIMITED
(Exact
Name as Specified in its Charter)
N/A
(Translation
of Registrant’s Name)
60-66
Hanover Street
Fitzroy
Victoria
3065 Australia
(Address
of principal executive offices)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form
20-F [X] Form 40-F [ ]
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): [ ]
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): [ ]
Indicate
by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information
to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes
[ ] No [X]
If
“Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): Not
applicable.
On
January 21, 2021, Genetic Technologies Limited (the “Company”) entered into a definitive agreement (the “Purchase
Agreement”) with certain institutional investors providing for the issuance of an aggregate of 1,250,000 American Depositary
Shares (the “ADSs”) in a registered direct offering at $5.25 per share for aggregate gross proceeds of approximately
$6.5 million. The offering is expected to close on or about January 25, 2021, subject to the satisfaction of customary
closing conditions.
Subject
to certain exceptions, the Purchase Agreement provides that for a period of one year following the closing of the offering, the
Company will not effect or enter into an agreement to effect a “variable rate transaction” as defined in the Purchase
Agreement. The Purchase Agreement also contains representations, warranties, indemnification and other provisions customary for
transactions of this nature.
H.C.
Wainwright & Co., LLC (the “Placement Agent”) served as the sole placement agent for the Company in connection
with the offering. The Company agreed to pay the Placement Agent a cash placement fee equal to 7.5% of the aggregate purchase
price for the ADSs sold in the offering, a management fee of $65,625 (equal to 1.0% of the aggregate gross proceeds raised in
the Offering), $25,000 for non-accountable expenses, $50,000 for accountable expenses including the legal fees of the Placement
Agent, and $12,900 for clearing expenses.
The
Company agreed to issue to the Placement Agent warrants to purchase 81,250 ADSs (the “Placement Agent’s Warrants”),
subject to and upon obtaining shareholder approval for such issuance. The Placement Agent’s Warrants will have a term that
will commence upon obtaining shareholder approval for such issuance and expire five years from the effective date of the Offering
and an exercise price per ADS equal to $6.56 per share.
The
ADSs to be issued in the registered direct offering will be issued pursuant to a prospectus supplement dated as of January 21,
2021 which was filed with the SEC, in connection with a takedown from the Company’s shelf registration statement on
Form F-3 (File No. 333-237152) (the “Registration Statement”), which became effective on March 23, 2020, and the
base prospectus dated as of March 23, 2020 contained in such Registration Statement. This Report shall not constitute an
offer to sell or the solicitation to buy nor shall there be any sale of the ADSs in any state or jurisdiction in which such
offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state or jurisdiction.
The
foregoing summary of the terms of the Purchase Agreement is subject to, and qualified in its entirety by, such document attached
hereto as Exhibit 10.1, and is incorporated herein by reference. The Purchase Agreement contains representations and warranties
that the parties made to, and solely for the benefit of, the others, except as expressly set forth in the Purchase Agreement,
in the context of all of the terms and conditions of that agreement and in the context of the specific relationship between the
parties.
A
copy of the opinion of K&L Gates relating to the legality of the issuance and sale of the ordinary shares underlying the ADSs
is attached as Exhibit 5.1 hereto.
The
Company previously announced the offering in a press release issued on January 21, 2021, which is attached hereto as exhibit 99.1.
Warning
Concerning Forward Looking Statements
This Report of Foreign
Private Issuer on Form 6-K contains statements which constitute forward looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995 and other securities laws. These forward looking statements are based upon the Company’s present
intent, beliefs or expectations, but forward looking statements are not guaranteed to occur and may not occur for various reasons,
including some reasons which are beyond the Company’s control. For example, this Report states that the offering is expected
to close on or about January 25, 2021. In fact, the closing of the offering is subject to various conditions and contingencies
as are customary in securities purchase agreement in the United States. If these conditions are not satisfied or the specified
contingencies do not occur, this offering may not close. For this reason, among others, you should not place undue reliance upon
the Company’s forward looking statements. Except as required by law, the Company undertakes no obligation to revise or update
any forward looking statements in order to reflect any event or circumstance that may arise after the date of this Report.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused the Report to be signed on its behalf
by the undersigned, thereunto duly authorized.
Date:
January 25, 2021
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GENETIC
TECHNOLOGIES LIMITED
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By:
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/s/
Justyn Stedwell
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Name:
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Justyn
Stedwell
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Title:
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Company
Secretary
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