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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): June 12, 2024
ARCH
THERAPEUTICS, INC.
(Exact
name of registrant as specified in its charter)
| Nevada |
|
000-54986 |
|
46-0524102 |
| (State
or other jurisdiction |
|
(Commission |
|
(I.R.S.
Employer |
| of
incorporation) |
|
File
Number) |
|
Identification
No.) |
| 235
Walnut Street, Suite 6 |
|
|
| Framingham,
Massachusetts |
|
01702 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (617) 431-2313
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 (see General Instruction A.2. below):
| ☐ |
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 each exchange on which registered |
| N|A |
|
N|A |
|
N|A |
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.
As
previously disclosed in the Current Report on Form 8-K filed by Arch Therapeutics, Inc. (the “Company”) with the Securities
and Exchange Commission on May 21, 2024 (the “Prior Form 8-K”), the Company entered into a Securities Purchase Agreement,
dated May 15, 2024 (the “SPA”), with certain institutional and accredited individual investors who have previously
purchased secured promissory notes from the Company, providing for the issuance and sale by the Company to the investors certain Secured
Promissory Notes (each a “2024 First Note” and collectively, the “2024 First Notes”) convertible
into shares of common stock, par value $0.001 per share (the “Common Stock”) (the “Convertible Notes Offering”).
The initial closing of the Convertible Notes Offering occurred on May 15, 2024 (the “Initial Closing Date”).
On
June 12, 2024, the Company consummated a second closing (the “Second Closing”) of the Convertible Notes Offering pursuant
to the terms and conditions of the SPA with a certain institutional investor (the “Investor”) providing for the issuance
and sale by the Company to the Investor a 2024 First Note convertible into shares of Common Stock. The 2024 First Note was issued as
part of the Convertible Notes Offering previously authorized by the Company’s board of directors.
In
connection with the Second Closing of the Convertible Notes Offering, the Company issued and sold to the Investor a 2024 First Note in
the principal amount of $180,000, which includes a $30,000 original issue discount in respect of the 2024 First Note. The net proceeds
for the sale of the 2024 First Note was approximately $150,000, after deducting issuance discounts. The Second Closing of the sale of
the 2024 First Note under the SPA occurred on June 12, 2024 (the “Second Closing Date”).
Use
of Proceeds
The
Company intends to use the net proceeds from the Convertible Notes Offering primarily for working capital and general corporate purposes,
and has not allocated specific amounts for any specific purposes.
2024
First Note
The
2024 First Note becomes due and payable on June 30, 2024 (the “Maturity Date”) and may be prepaid provided that an
Event of Default (as defined therein) has not occurred. The 2024 First Note bears interest on the unpaid principal balance at a rate
equal to ten percent (10%) (computed on the basis of the actual number of days elapsed in a 360-day year) per annum accruing from the
Second Closing Date until the 2024 First Note becomes due and payable at maturity or upon their conversion, acceleration or by prepayment,
and may become due and payable upon the occurrence of an Event of Default under the 2024 First Note. Any amount of principal or interest
on the 2024 First Note which is not paid when due shall bear interest at the rate of the lesser of (i) eighteen percent (18%) per annum
or (ii) the maximum amount allowed by law from the due date thereof until payment in full (the “Default Interest”).
The
2024 First Note is convertible into an aggregate of 360,000 shares of Common Stock (such shares of Common Stock, the “Conversion
Shares”) at the option of the holder of the 2024 First Note (the “Holder”) from the Second Closing Date
at the Conversion Price (as defined below) through the later of (i) the Maturity Date and (ii) the date of payment of the Default Amount
(as defined in the 2024 First Note); provided, however, the 2024 First Note includes a provision preventing such conversion
if, as a result, the Holder, together with its affiliates and any other persons whose beneficial ownership of Company Common Stock would
be aggregated with the Holder’s, would be deemed to beneficially own more than 4.99% of the outstanding shares of the Company’s
Common Stock (the “Note Ownership Limitation”) immediately after giving effect to the Conversion; and provided
further, the Holder, upon notice to the Company, may increase or decrease the Note Ownership Limitation; provided that
(i) the Note Ownership Limitation may only be increased to a maximum of 9.99% of the outstanding shares of the Company’s Common
Stock; and (ii) any increase in the Note Ownership Limitation will not become effective until the 61st day after delivery of such
waiver notice.
The
initial conversion price of the 2024 First Note (the “Conversion Price”) shall be equal to $0.50 per share and may
be reduced or increased proportionately as a result of any stock dividends, recapitalizations, reorganizations, and similar transactions.
If the Company fails to deliver the shares of Common Stock issuable upon a conversion by the Deadline (as defined in the 2024 First Note),
then the Company is obligated to pay such 2024 First Note Holder $5,000 per day in cash for each day beyond the Deadline.
The
2024 First Note contains customary events of default, which includes, among other things, (i) the Company’s failure to pay when
due any principal or interest payment under the 2024 First Note; (ii) the insolvency of the Company; (iii) delisting of the Company’s
Common Stock; (iv) the Company’s breach of any material covenant or other material term or condition under the 2024 First Note;
and (v) the Company’s breach of any representations or warranties under the 2024 First Note which cannot be cured within five days.
Further, Events of Default under the 2024 First Note also include (i) the unavailability of Rule 144 on or after six months from the
Issue Date (as defined therein); (ii) the Company’s failure to deliver the shares of Common Stock to the 2024 First Note Holder
upon exercise by such Holder of its conversion rights under the 2024 First Note; (iii) the Company’s loss of the “bid”
price for its Common Stock and/or a market and such loss is not cured during the specified cure periods; and (iv) the Company’s
failure to complete an uplist to a National Exchange (as defined therein) by June 30, 2024.
Upon
an Event of Default, the 2024 First Note shall become immediately due and payable and the Company shall pay the 2024 First Note Holder
an amount equal to 125% (the “Default Premium”) multiplied by the sum of the outstanding principal amount of the 2024
First Note plus any accrued and unpaid interest on the unpaid principal amount of the 2024 First Note to the date of payment, plus any
Default Interest and any other amounts owed to the Holder under the SPA (the “Default Amount”); provided that,
upon any subsequent Event of Default not in connection with the first Event of Default, the Holder shall be entitled to an additional
5% to the Default Premium for each subsequent Event of Default. At the election of each 2024 First Note Holder, the Default Amount may
be paid in cash or shares of Common Stock equal to the Default Amount divided by the Conversion Price at the time of payment.
Upon
the closing of the transaction that results in the uplist of the Common Stock to a National Exchange, 100% of the then outstanding principal
amount of the 2024 First Note shall automatically convert (the “Automatic Conversion”) into shares of Common Stock
(the “Automatic Conversion Shares”), with the conversion price for purposes of such Automatic Conversion being $0.515625
per share. Upon the Automatic Conversion and to the extent that the beneficial ownership of the Holder of 2024 First Note would increase
over the applicable Note Ownership Limitation, the Holder will receive pre-funded warrants (the “2024 Note Conversion Pre-Funded
Warrants”, and the shares issuable upon exercise thereof, the “2024 Note Conversion Pre-Funded Warrant Shares”)
in lieu of shares of Common Stock otherwise issuable to the Holder in connection with the Automatic Conversion, which 2024 Note Conversion
Pre-Funded Warrants shall have an exercise price of $0.000125 per share, may be exercised on a cashless basis, shall be exercisable immediately
upon issuance and shall contain a customary beneficial ownership limitation provision.
In
addition, upon the Automatic Conversion, the Holder shall receive a warrant (the “Uplist Conversion Warrant”, and
the shares issuable upon exercise thereof, the “Uplist Conversion Warrant Shares”) to purchase a number of shares
of Common Stock equal to the number of shares of Common Stock (or shares of Common Stock underlying 2024 Note Conversion Pre-Funded Warrants,
if any) issued upon the Automatic Conversion. The Uplist Conversion Warrant shall have an exercise price per share of $0.50 and shall
otherwise be identical to the warrants (other than pre-funded warrants) sold pursuant to the securities purchase agreement dated November
8, 2023, as amended. The Company also agreed in the 2024 First Note to file no later than 60 days after the closing of an uplist to a
National Exchange a registration statement on Form S-4, or other appropriate form, registering the offer by the Company to exchange,
on a one-for-one basis, all outstanding Uplist Conversion Warrants and certain other warrants for newly issued warrants identical to
the warrants being sold in the offering that results in the uplist to a National Exchange, which warrants are expected to be listed on
the Cboe BZX Exchange, Inc. under the symbol “ARTHW.”
Registration
Rights Agreement
On
the Second Closing Date, the Company entered into a Registration Rights Agreement with the Investor (the “Registration Rights
Agreement”), pursuant to which the Company is obligated, subject to certain conditions, to file with the Securities and Exchange
Commission within 60 days after the Initial Closing Date one or more registration statements (any such registration statement, a “Resale
Registration Statement”) to register the Conversion Shares for resale under the Securities Act of 1933, as amended (the “Securities
Act”). The Company’s failure to satisfy certain filing and effectiveness deadlines with respect to a Resale Registration
Statement and certain other requirements set forth in the Registration Rights Agreement may subject the Company to payment of monetary
penalties.
Security
Agreement
In
connection with the issuance of the 2024 First Notes, the Company entered into a Security Agreement with the Collateral Agent (as defined
therein) on behalf of the investors on the Initial Closing Date and the Investor on the Second Closing Date (the “Security Agreement”),
pursuant to which the Company and each of its subsidiaries (together with any persons who execute a joinder to the Security Agreement,
the “Debtors”) provided as collateral to the Investors a security interest in, and a lien on, substantially all of
the Debtors. Upon an Event of Default under the 2024 First Note, each investor may exercise its rights to the collateral pursuant to
the terms of the Security Agreement.
IP
Security Agreement
In
connection with the issuance of the 2024 First Notes, the Company also entered into an Intellectual Property Security Agreement with
the Collateral Agent (as defined therein) on behalf of the investors on the Initial Closing Date and the Investor on the Second Closing
Date (the “IP Security Agreement”), pursuant to which the Company and each of its subsidiaries (together with any
persons who execute a joinder to the Security Agreement, the “IP Debtors”) provided as collateral to the investors
a security interest in, and a lien on, substantially all of the IP Debtors. Upon an Event of Default under the 2024 First Notes, each
Investor may exercise its rights to the collateral pursuant to the terms of the Security Agreement.
Certain
Restrictions on Activities
The
SPA contains certain restrictions on the Company’s ability to conduct subsequent sales of its equity securities and certain business
activities. In particular, subject to certain customary exemptions, from the Initial Closing Date, until 30 days after the Resale Registration
Statement goes effective, the Company shall not file any registration statement with respect to the Company’s Common Stock.
The
issuance and sale of the 2024 First Note has not been, and will not upon issuance be, registered under the Securities Act, and the 2024
First Note may not be offered or sold in the United States absent registration under or exemption from the Securities Act and any applicable
state securities laws. The Securities will be issued and sold in reliance upon an exemption from registration afforded by Section 4(a)(2)
of the Securities Act and Rule 506(b) promulgated under Securities Act based on the following facts: each of the Investors has represented
that it is an accredited investor as defined in Rule 501 promulgated under the Securities Act; that it is acquiring the Securities for
its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of
applicable securities; the Company used no advertising or general solicitation in connection with the issuance and sale of the 2024 First
Note to the Investor; and the Securities will be issued as restricted securities. This Current Report on Form 8-K is not and shall not
be deemed to be an offer to sell or the solicitation of an offer to buy the 2024 First Note.
The
preceding descriptions of the SPA, 2024 First Notes, Registration Rights Agreement, Security Agreement and IP Security Agreement are
qualified in their entirety by reference to the copies of the Forms of Securities Purchase Agreement, 2024 First Note, Registration Rights
Agreement, Security Agreement and IP Security Agreement attached herewith as Exhibit 10.1, Exhibit 10.2, Exhibit 10.3,
Exhibit 10.4, and Exhibit 10.5 to this Current Report on Form 8-K, respectively, which are incorporated herein by reference.
Item
2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
Reference
is made to the disclosure set forth in Item 1.01 of this Current Report on Form 8-K, which disclosure is incorporated by reference
into this Item 2.03.
Item
3.02 Unregistered Sales of Equity Securities.
Reference
is made to the disclosure set forth in Item 1.01 of this Current Report on Form 8-K, which disclosure is incorporated by reference
into this Item 3.02.
Item
9.01 Financial Statements and Exhibits.
(d)
The following exhibits are being attached herewith:
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.
| |
ARCH
THERAPEUTICS, INC. |
| |
|
| Dated:
June 18, 2024 |
By: |
/s/
Terrence W. Norchi, M.D. |
| |
Name:
|
Terrence
W. Norchi, M.D.
|
| |
Title: |
President, Chief Executive Officer |
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