Form 8-K - Current report

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, 2023

VBI VACCINES INC.

(Exact name of registrant as specified in its charter)

British Columbia, Canada		001-37769		N/A
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

160 Second Street, Floor 3

Cambridge, Massachusetts

02142

(Address of principal executive offices)

(Zip Code)

(617) 830-3031

(Registrant’s telephone number, including area code)

N/A

(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:

☐	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))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class		Trading Symbol(s)		Name of exchange on which registered
Common Shares, no par value per share		VBIV		The NASDAQ Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

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 8.01

Other Events.

Underwriting Agreement

As previously disclosed, on July 6, 2023, VBI Vaccines Inc. (the “Company”) entered into an underwriting agreement with Raymond James & Associates, Inc., as representative of the several underwriters named therein (collectively, the “Underwriters”), relating to an underwritten public offering (the “Underwritten Offering”) of 10,909,091 common shares (the “Underwritten Shares”) of the Company, no par value per share (the “Common Shares”), and accompanying common warrants to purchase up to 10,909,091 Common Shares (the “Underwritten Warrants”, and the shares issuable upon exercise of such Underwritten Warrants, the “Underwritten Warrant Shares”). The Company also granted the Underwriters a 30-day option to purchase up to an additional 1,636,363 Underwritten Shares and/or Underwritten Warrants to purchase up to 1,636,363 Common Shares offered in the Underwritten Offering. On July 10, 2023, the Underwriters exercised their option to purchase additional Underwritten Warrants to purchase up to 1,636,363 Common Shares (the “Warrant Option”). The Underwritten Offering, including the Warrant Option, closed on July 10, 2023 (the “Closing Date”).

A copy of the legal opinion and consent of Stikeman Elliott LLP, relating to the validity of the issuance and sale of the Underwritten Shares and the Underwritten Warrant Shares is attached as Exhibit 5.1 hereto. A copy of the legal opinion and consent of Haynes and Boone, LLP relating to the enforceability of the Underwritten Warrants is filed as Exhibit 5.3 hereto.

Stock Purchase Agreement

As previously disclosed, on July 5, 2023, the Company entered into a Stock Purchase Agreement with Brii Biosciences Limited, an exempted company organized under the laws of the Cayman Islands, in connection with the Company’s registered direct offering (the “RD Offering”), issuance and sale of 1,818,182 Common Shares (the “RD Shares”) and accompanying common warrants to purchase up to 1,818,182 Common Shares (the “RD Warrants”, and the shares issuable upon exercise of such RD Warrants, the “RD Warrant Shares”). The RD Offering closed simultaneously with the Underwritten Offering on the Closing Date.

A copy of the legal opinion and consent of Stikeman Elliott LLP, relating to the validity of the issuance and sale of the RD Shares and the RD Warrant Shares is attached as Exhibit 5.2 hereto. A copy of the legal opinion and consent of Haynes and Boone, LLP relating to the enforceability of the RD Warrants is filed as Exhibit 5.4 hereto.

Immediately following the Closing Date, after giving effect to the Underwritten Offering (including the exercise of the Warrant Option) and the RD Offering, the number of outstanding Common Shares of the Company is 21,335,812.

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.		Description
5.1		Opinion of Stikeman Elliott LLP
5.2		Opinion of Stikeman Elliott LLP
5.3		Opinion of Haynes and Boone, LLP
5.4		Opinion of Haynes and Boone, LLP
23.1		Consent of Stikeman Elliott LLP (included in Exhibit 5.1)
23.2		Consent of Stikeman Elliott LLP (included in Exhibit 5.2)
23.3		Consent of Haynes and Boone, LLP (included in Exhibit 5.3)
23.4		Consent of Haynes and Boone, LLP (included in Exhibit 5.4)
104		Cover Page Interactive Data File (formatted as Inline XBRL).

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.

	VBI Vaccines Inc.

Date: July 11, 2023	By:	/s/ Jeffrey R. Baxter
		Jeffrey R. Baxter
		President and Chief Executive Officer

Exhibit 5.1

July 10, 2023

File No.: 142252.1001

VBI Vaccines Inc.

160 Second Street, Floor 3

Cambridge, MA 02142

Re:	VBI Vaccines Inc.
	Prospectus Supplement dated the date hereof

We have acted as Canadian counsel to VBI Vaccines Inc. (the “Company”), a corporation incorporated under the Business Corporations Act (British Columbia). We refer to the registration statement on Form S-3 (Registration No. 333-267109), as originally filed by the Company under the United States Securities Act of 1933, as amended (the “Securities Act”) with the U.S. Securities and Exchange Commission (the “Commission”) on August 26, 2022 (including information deemed incorporated by reference therein in accordance with applicable rules of the Commission, the “Registration Statement”), and the base prospectus, dated September 6, 2022, forming part of the Registration Statement, with respect to the offering from time to time of the Company’s securities (the “Base Prospectus”).

We are furnishing this opinion in connection with the Company’s prospectus supplement dated July 6 to the Base Prospectus (the “Prospectus Supplement”) relating to the offering of 10,909,901 common shares (“Common Shares”) of the Company (the “Issued Shares”) and 10,909,901 warrants to purchase up to an aggregate of 10,909,901 Common Shares (the “Warrants” and, together with the Issued Shares, the “Securities”). The Base Prospectus and the Prospectus Supplement are collectively referred to as the “Prospectus”.

We understand that the Offered Securities (as defined below) are to be sold to the underwriters for resale to the public as described in the Prospectus Supplement and pursuant to an underwriting agreement dated July 6, 2023, by and among the Company and Raymond James & Associates, Inc., as representative of the several underwriters (the “Underwriting Agreement”). In addition, the Company has granted the underwriters an option to purchase up to an additional 1,636,363 Common Shares (the “Additional Shares” and together with the Issued Shares, the “Offered Shares”) and 1,636,363 warrants to purchase up to an aggregate of 1,636,363 Common Shares (the “Additional Warrants” and together with the Warrants, the “Offered Warrants”) from the Company within 30 days of the effective date of the Underwriting Agreement (Additional Shares, together with Additional Warrants, collectively, the “Additional Securities”). The Securities and the Additional Securities are collectively referred to as the “Offered Securities.”

We have reviewed the Prospectus Supplement and the form of Warrant (the “Warrant Certificate”) and, for the purposes of this opinion, we have also examined and relied upon originals or copies of the following documents (collectively, the “Corporate Documents”):

(a)

a certificate of officers of the Company (the “Officers’ Certificate”);

	(b)	the notice of articles and articles of the Company attached to the Officers’ Certificate; and

	(c)	certain resolutions of the pricing committee of the Company’s board of directors relating to the offering of the Offered Securities attached to the Officers’ Certificate.

We have also reviewed such other documents, and have considered such questions of law, as we have deemed relevant and necessary as a basis for our opinion. With respect to the accuracy of factual matters material to this opinion, we have relied upon the Corporate Documents, without independent investigation of the matters provided for therein for purposes of providing our opinion expressed below.

In examining all documents and in providing our opinion below we have assumed that:

	(a)	all individuals had the requisite legal capacity;

	(b)	all signatures are genuine;

	(c)	all documents submitted to us as originals are complete and authentic and all photostatic, certified, telecopied, notarial or other copies conform to the originals;

	(d)	all facts set forth in the certificates supplied by the respective officers and directors of the Company including, without limitation, the Officers’ Certificate, are complete, true and accurate as of the date hereof;

	(e)	all agreements and other documents, including but not limited to the Underwriting Agreement, have been duly authorized, executed and delivered by and are enforceable in accordance with their terms against each party to it other than the Company;

	(f)	performance of the obligations would not be illegal under the law of the place of performance if that is a place other than British Columbia;

	(g)	the Offered Securities will be offered, issued and sold in compliance with applicable United States federal and state securities laws and applicable rules of NASDAQ, and in the manner stated in the Prospectus Supplement; and

	(h)	(i) all formal legal requirements, if any, existing under the laws of the jurisdiction where the Underwriting Agreement was signed, executed and delivered by each party thereto have been complied with, and (ii) to the extent that the execution and delivery of the Underwriting Agreement, including any formal requirements relating to the execution and delivery thereof are governed by the laws of any jurisdiction other than the Jurisdiction, such laws have complied with.

Our opinion below is expressed only with respect to the laws of the Province of British Columbia (the “Jurisdiction”) and of the laws of Canada applicable in the Jurisdiction. Any reference to the laws of the Jurisdiction includes the laws of Canada that apply in the Jurisdiction.

Our opinion is expressed with respect to the laws of the Jurisdiction in effect on the date of this opinion. We have no responsibility or obligation to: (i) update this opinion; (ii) take into account or inform the addressees or any other person of any changes in law, facts or other developments subsequent to this date that do or may affect the opinion we express; or (iii) advise the addressee or any other person of any other change in any matter addressed in this opinion. Nor do we have any responsibility or obligation to consider the applicability or correctness of this opinion to any person other than the addressee.

Where our opinion expressed herein refers to the Offered Securities having been issued as being “fully-paid and non-assessable” common shares of the Company, such opinion assumes that all required consideration (in whatever form) has been paid or provided. No opinion is expressed as to the adequacy of any consideration received.

Based on the above, we are of the opinion that, (i) the Offered Shares, when issued and delivered by the Company in accordance with the terms of the Underwriting Agreement, against payment of the consideration set forth therein, will be validly issued, fully paid and non-assessable; and (ii) upon the exercise of the Offered Warrants in accordance with the terms of the Warrant Certificate, including the receipt of the exercise price therefor, the shares issuable upon the exercise of the Offered Warrants will be validly issued, fully paid and non-assessable.

This opinion has been prepared for your use in connection with the Prospectus Supplement and is expressed as of the date hereof. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Registration Statement, the Prospectus or the Offered Securities described therein.

We hereby consent to the filing of this opinion as an exhibit to the current report on Form 8-K to be filed with the Commission disclosing the issuance of the Offered Securities and to the reference to our firm under the heading “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under the Securities Act or the rules and regulations promulgated thereunder.

	Yours truly,

	/s/ Stikeman Elliott LLP

	Stikeman Elliott LLP

Exhibit 5.2

July 10, 2023

File No.: 142252.1001

VBI Vaccines Inc.

160 Second Street, Floor 3

Cambridge, MA 02142

Re:	VBI Vaccines Inc.
	Prospectus Supplement dated the date hereof

We are furnishing this opinion in connection with the Company’s prospectus supplement dated July 5 to the Base Prospectus (the “Prospectus Supplement”) relating to the offering of 1,818,182 common shares (“Common Shares”) of the Company (the “Issued Shares”) and 1,818,182 warrants to purchase up to an aggregate of 1,818,182 Common Shares (the “Warrants” and, together with the Issued Shares, the “Securities”). The Base Prospectus and the Prospectus Supplement are collectively referred to as the “Prospectus”.

We understand that the Securities are to be sold as described in the Prospectus Supplement and pursuant to a stock purchase agreement dated as of July 5, 2023, by and among the Company and the purchaser thereunder (the “Stock Purchase Agreement”).

(a)

a certificate of officers of the Company (the “Officers’ Certificate”);

(b)

the notice of articles and articles of the Company attached to the Officers’ Certificate; and

(c)

certain resolutions of the pricing committee of the Company’s board of directors relating to the offering of the Securities attached to the Officers’ Certificate.

In examining all documents and in providing our opinion below we have assumed that:

(a)

all individuals had the requisite legal capacity;

(b)

all signatures are genuine;

(c)

all documents submitted to us as originals are complete and authentic and all photostatic, certified, telecopied, notarial or other copies conform to the originals;

(d)

all facts set forth in the certificates supplied by the respective officers and directors of the Company including, without limitation, the Officers’ Certificate, are complete, true and accurate as of the date hereof;

(e)

all agreements and other documents, including but not limited to the Stock Purchase Agreement, have been duly authorized, executed and delivered by and are enforceable in accordance with their terms against each party to it other than the Company;

(f)

performance of the obligations would not be illegal under the law of the place of performance if that is a place other than British Columbia;

(g)

the Securities will be offered, issued and sold in compliance with applicable United States federal and state securities laws and applicable rules of NASDAQ, and in the manner stated in the Prospectus Supplement; and

(h)

(i) all formal legal requirements, if any, existing under the laws of the jurisdiction where the Stock Purchase Agreement was signed, executed and delivered by each party thereto have been complied with, and (ii) to the extent that the execution and delivery of the Stock Purchase Agreement, including any formal requirements relating to the execution and delivery thereof are governed by the laws of any jurisdiction other than the Jurisdiction, such laws have complied with.

Where our opinion expressed herein refers to the Securities having been issued as being “fully-paid and non-assessable” common shares of the Company, such opinion assumes that all required consideration (in whatever form) has been paid or provided. No opinion is expressed as to the adequacy of any consideration received.

Based on the above, we are of the opinion that, (i) the Common Shares, when issued and delivered by the Company in accordance with the terms of the Stock Purchase Agreement, against payment of the consideration set forth therein, will be validly issued, fully paid and non-assessable; and (ii) upon the exercise of the Warrants in accordance with the terms of the Warrant Certificate, including the receipt of the exercise price therefor, the shares issuable upon the exercise of the Warrants will be validly issued, fully paid and non-assessable.

We hereby consent to the filing of this opinion as an exhibit to the current report on Form 8-K to be filed with the Commission disclosing the issuance of the Securities and to the reference to our firm under the heading “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under the Securities Act or the rules and regulations promulgated thereunder.

	Yours truly,

	/s/ Stikeman Elliott LLP

	Stikeman Elliott LLP

Exhibit 5.3

July 10, 2023

VBI Vaccines Inc.

160 Second Street, Floor 3

Cambridge, MA 02142

Ladies and Gentlemen:

We have acted as counsel to VBI Vaccines Inc. (the “Company”), a corporation incorporated under the Business Corporations Act (British Columbia), in connection with the filing with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Securities Act”), of the Company’s prospectus supplement, dated July 6, 2023 (the “Prospectus Supplement”), forming part of the registration statement on Form S-3 (Registration No. 333-267109), initially filed on August 26, 2022 and declared effective by the Commission on September 6, 2022 (the “Registration Statement”). The Prospectus Supplement relates to the proposed issuance of (i) 10,909,091 common shares (the “Underwritten Shares”) of the Company, no par value per share (the “Common Shares”), (ii) accompanying common warrants (the “Underwritten Warrants”) to purchase up to an aggregate of 12,545,454 Common Shares, which includes the exercise of the option to purchase additional common warrants to purchase up to 1,636,363 Common Shares, and (iii) up to 12,545,454 Common Shares underlying the Underwritten Warrants, pursuant to that certain Underwriting Agreement between the Company and Raymond James & Associates, Inc. as representative of the several underwriters named therein (the “Underwriting Agreement”).

In rendering the opinion expressed herein, we have examined and relied upon the originals, or copies certified or otherwise identified to our satisfaction, of (i) the notice of articles and articles of the Company; (ii) certain resolutions of the Board of Directors of the Company (the “Board”) and the Pricing Committee of the Board related to the filing of the Prospectus Supplement, the authorization and issuance of the Underwritten Warrants and related matters; (iii) the Registration Statement, including the prospectus, and all exhibits thereto; (iv) the Prospectus Supplement and the prospectus included in the Registration Statement, dated September 6, 2022 (the “Base Prospectus” and together with the Prospectus Supplement, the “Prospectus”); (v) the Underwriting Agreement; (vi) the Underwritten Warrants; (vii) a certificate executed by an officer of the Company, dated as of the date hereof; and (viii) such other corporate records of the Company, as we have deemed necessary or appropriate for the purposes of the opinion hereafter expressed.

As to questions of fact material to the opinion expressed below, we have, without independent verification of their accuracy, relied to the extent we deem reasonably appropriate upon the representations and warranties of the Company contained in such documents, records, certificates, instruments or representations furnished or made available to us by the Company.

In making the foregoing examination, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv) that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v) that all factual information on which we have relied was accurate and complete.

Based upon the foregoing and subject to the assumptions and qualifications stated herein, we are of the opinion that when the Underwritten Warrants have been issued and delivered in accordance with the Underwriting Agreement against payment in full of the consideration payable therefor pursuant to the terms of the Underwriting Agreement, the Underwritten Warrants will constitute valid and legally binding obligations of the Company.

The opinion set forth above is subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, rearrangement, liquidation, conservatorship or other similar laws now or hereafter in effect relating to or affecting the rights of creditors generally, (ii) provisions of applicable law pertaining to the voidability of preferential or fraudulent transfers and conveyances and (iii) the fact that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

Haynes and Boone, LLP		2323 Victory Avenue \| Suite 700 \| Dallas, TX 75219
		T: 214.651.5000 \| haynesboone.com

VBI Vaccines Inc.

July 10, 2023

Page 2

The opinion expressed herein is limited to the laws of the State of New York as in effect on the date hereof, and we have not considered, and express no opinion on, any other laws or the laws of any other jurisdiction.

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.3 to the Current Report on Form 8-K filed with the Commission on July 10, 2023 and to the reference to our firm under the heading “Legal Matters” in the Prospectus. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. This opinion is given as of the date hereof and we assume no obligation to update or supplement such opinion after the date hereof to reflect any facts or circumstances that may thereafter come to our attention or any changes that may thereafter occur.

	Very truly yours,

	/s/ Haynes and Boone, LLP

	Haynes and Boone, LLP

Exhibit 5.4

July 10, 2023

VBI Vaccines Inc.

160 Second Street, Floor 3

Cambridge, MA 02142

Ladies and Gentlemen:

We have acted as counsel to VBI Vaccines Inc. (the “Company”), a corporation incorporated under the Business Corporations Act (British Columbia), in connection with the filing with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Securities Act”), of the Company’s prospectus supplement, dated July 5, 2023 (the “Prospectus Supplement”), forming part of the registration statement on Form S-3 (Registration No. 333-267109), initially filed on August 26, 2022 and declared effective by the Commission on September 6, 2022 (the “Registration Statement”). The Prospectus Supplement relates to the proposed issuance of (i) 1,818,182 common shares (the “RD Shares”) of the Company, no par value per share (the “Common Shares”), (ii) accompanying warrants (the “RD Warrants”) to purchase up to 1,818,182 Common Shares, and (iii) up to 1,818,182 Common Shares underlying the RD Warrants.

The RD Shares and the RD Warrants are being sold pursuant a securities purchase agreement, dated July 5, 2023, between the Company and Brii Biosciences Limited, an exempted company organized under the laws of the Cayman Islands (the “Securities Purchase Agreement”).

In rendering the opinion expressed herein, we have examined and relied upon the originals, or copies certified or otherwise identified to our satisfaction, of (i) the notice of articles and articles of the Company; (ii) certain resolutions of the Board of Directors of the Company (the “Board”) and the Pricing Committee of the Board related to the filing of the Prospectus Supplement, the authorization and issuance of the RD Warrants and related matters; (iii) the Registration Statement, including the prospectus, and all exhibits thereto; (iv) the Prospectus Supplement and the prospectus included in the Registration Statement (the “Base Prospectus” and together with the Prospectus Supplement, the “Prospectus”); (v) the Securities Purchase Agreement; (vi) the RD Warrants; (vii) a certificate executed by an officer of the Company, dated as of the date hereof; and (viii) such other corporate records of the Company, as we have deemed necessary or appropriate for the purposes of the opinion hereafter expressed.

Based upon the foregoing and subject to the assumptions and qualifications stated herein, we are of the opinion that when the RD Warrants have been issued and delivered in accordance with the Securities Purchase Agreement against payment in full of the consideration payable therefor pursuant to the Securities Purchase Agreement, the RD Warrants will constitute valid and legally binding obligations of the Company.

Haynes and Boone, LLP		2323 Victory Avenue \| Suite 700 \| Dallas, TX 75219
		T: 214.651.5000 \| haynesboone.com

VBI Vaccines Inc.

July 10, 2023

Page 2

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.4 to the Current Report on Form 8-K filed with the Commission on July 10, 2023 and to the reference to our firm under the heading “Legal Matters” in the Prospectus. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. This opinion is given as of the date hereof and we assume no obligation to update or supplement such opinion after the date hereof to reflect any facts or circumstances that may thereafter come to our attention or any changes that may thereafter occur.

	Very truly yours,

	/s/ Haynes and Boone, LLP

	Haynes and Boone, LLP

Cover	Jul. 11, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jul. 11, 2023
Entity File Number	001-37769
Entity Registrant Name	VBI Vaccines Inc/BC
Entity Central Index Key	0000764195
Entity Incorporation, State or Country Code	A1
Entity Address, Address Line One	160 Second Street
Entity Address, Address Line Two	Floor 3
Entity Address, City or Town	Cambridge
Entity Address, State or Province	MA
Entity Address, Postal Zip Code	02142
City Area Code	(617)
Local Phone Number	830-3031
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Shares, no par value per share
Trading Symbol	VBIV
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false