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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
January 25, 2023
Date of report (Date of earliest event reported)
Agile Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
001-36464 |
23-2936302 |
(State or other jurisdiction
of incorporation) |
(Commission
File Number)
|
(IRS Employer
Identification No.)
|
| |
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500 College Road East,
Suite 310
Princeton,
New Jersey
(Address of principal executive offices)
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08540
(Zip Code)
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|
|
|
Registrant's telephone number, including area code (609)
683-1880
(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 each exchange on which
registered |
|
Common stock, par value $0.0001 per share |
AGRX |
The
Nasdaq Capital Market |
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 3.03. Material Modification to Rights of Security
Holders.
The disclosure set forth in Item 5.03 below is hereby incorporated
herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
Amendment and Restatement
of Bylaws
Effective as of January 25, 2023, the board of directors (the
“Board”) of Agile
Therapeutics, Inc. (the “Company”) adopted amendments to
the Company’s Amended and Restated Bylaws (the “Bylaws”), effective
as of January 25, 2023, to, among other things, reduce the number
of holders of shares of outstanding capital stock of the Company
which shall constitute a quorum at a meeting of stockholders from
“a majority” to one-third of the issued and outstanding shares of
the Company’s common stock, par value $0.0001 per share
(“Common Stock”),
and to enhance certain procedural mechanics and disclosure
requirements in connection with stockholder nominations of
directors, including by specifying procedural requirements with
which nominating stockholders desiring to utilize the “universal
proxy rules” in Rule 14a-19 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), must comply.
The Bylaws, as amended, also incorporate certain clarifying,
ministerial, non-substantive and conforming changes.
The foregoing description of the Bylaws is a summary and is
qualified in its entirety by reference to the Bylaws as adopted by
the Board on January 25, 2023, a copy of which is filed as Exhibit
3.1 to this Current Report and is incorporated herein by
reference.
Series C Preferred
Stock
On January 25, 2023, the Board declared a dividend of one
one-thousandth of a share of Series C Preferred Stock, par value
$0.0001 per share (“Series
C Preferred Stock”), for each outstanding share of Common
Stock to stockholders of record at 5:00 p.m. Eastern Time on
February 6, 2023 (the “Record Date”).
General; Transferability. Shares of Series C
Preferred Stock will be uncertificated and represented in
book-entry form. No shares of Series C Preferred Stock may be
transferred by the holder thereof except in connection with a
transfer by such holder of any shares of Common Stock held by such
holder, in which case a number of one one-thousandths (1/1,000ths)
of a share of Series C Preferred Stock equal to the number of
shares of Common Stock to be transferred by such holder will be
automatically transferred to the transferee of such shares of
Common Stock.
Voting Rights. Each share of Series C Preferred Stock
will entitle the holder thereof to 1,000,000 votes per share (and,
for the avoidance of doubt, each fraction of a share of Series C
Preferred Stock will have a ratable number of votes). Thus, each
one-thousandth of a share of Series C Preferred Stock would entitle
the holder thereof to 1,000 votes. The outstanding shares of Series
C Preferred Stock will vote together with the outstanding shares of
Common Stock of the Company as a single class exclusively with
respect to (1) any proposal to adopt an amendment to the Company’s
Amended and Restated Certificate of Incorporation, as amended (the
“Certificate of
Incorporation”), to reclassify the outstanding shares of
Common Stock into a smaller number of shares of Common Stock at a
ratio specified in or determined in accordance with the terms of
such amendment (the “Reverse Stock Split”) and (2)
any proposal to adjourn any meeting of stockholders called for the
purpose of voting on Reverse Stock Split (the “Adjournment Proposal”). The
Series C Preferred Stock will not be entitled to vote on any other
matter, except to the extent required under the Delaware General
Corporation Law.
Unless otherwise provided on any applicable proxy or ballot with
respect to the voting on the Reverse Stock Split or the Adjournment
Proposal, the vote of each share of Series C Preferred Stock (or
fraction thereof) entitled to vote on the Reverse Stock Split, the
Adjournment Proposal or any other matter brought before any meeting
of stockholders held to vote on the Reverse Stock Split and the
Adjournment Proposal will be cast in the same manner as the vote,
if any, of the share of Common Stock (or fraction thereof) in
respect of which such share of Series C Preferred Stock (or
fraction thereof) was issued as a dividend is cast on the Reverse
Stock Split, the Adjournment Proposal or such other matter, as
applicable, and the proxy or ballot with respect to shares of
Common Stock held by any holder on whose behalf such proxy or
ballot is submitted will be deemed to include all shares of Series
C Preferred Stock (or fraction thereof) held by such holder.
Holders of Series C Preferred Stock will not receive a separate
ballot or proxy to cast votes with respect to the Series C
Preferred Stock on the Reverse Stock Split, the Adjournment
Proposal or any other matter brought before any meeting of
stockholders held to vote on the Reverse Stock Split.
Dividend Rights. The holders of Series C Preferred
Stock, as such, will not be entitled to receive dividends of any
kind.
Liquidation Preference. The Series C Preferred Stock
will rank senior to the Common Stock as to any distribution of
assets upon a liquidation, dissolution or winding up of the
Company, whether voluntarily or involuntarily (a “Dissolution”). Upon any
Dissolution, each holder of outstanding shares of Series C
Preferred Stock will be entitled to be paid out of the assets of
the Company available for distribution to stockholders, prior and
in preference to any distribution to the holders of Common Stock,
an amount in cash equal to $0.0001 per outstanding share of Series
C Preferred Stock.
Redemption. All shares of Series C Preferred Stock
that are not present in person or by proxy at any meeting of
stockholders held to vote on the Reverse Stock Split and the
Adjournment Proposal as of immediately prior to the opening of the
polls at such meeting (the “Initial Redemption Time”) will
automatically be redeemed in whole, but not in part, by the Company
at the Initial Redemption Time without further action on the part
of the Company or the holder of shares of Series C Preferred Stock
(the “Initial
Redemption”). Any outstanding shares of Series C Preferred
Stock that have not been redeemed pursuant to an Initial Redemption
will be redeemed in whole, but not in part, (i) if such redemption
is ordered by the Board in its sole discretion, automatically and
effective on such time and date specified by the Board in its sole
discretion or (ii) automatically upon the approval by the Company’s
stockholders of the Reverse Stock Split at any meeting of the
stockholders held for the purpose of voting on such proposal.
Each share of Series C Preferred Stock redeemed in any redemption
described above will be redeemed in consideration for the right to
receive an amount equal to $0.10 in cash for each one hundred (100)
whole shares of Series C Preferred Stock that are “beneficially
owned” by the “beneficial owner” (as such terms are defined in the
certificate of designation with respect to the Series C Preferred
Stock (the “Certificate of
Designation”)) thereof as of the applicable redemption time
and redeemed pursuant to such redemption, payable upon receipt by
the Company of a written request submitted by the applicable holder
to the corporate secretary of the Company (each a “Redemption Payment Request”)
following the applicable redemption time. Such Redemption Payment
Request shall (i) be in a form reasonably acceptable to the
Company, (ii) set forth in reasonable detail the number of shares
of Series C Preferred Stock beneficially owned by the holder at the
applicable redemption time and include evidence reasonably
satisfactory to the Company regarding the same, and (iii) set forth
a calculation specifying the amount in cash owed to such Holder by
the Company with respect to the shares of Series C Preferred Stock
that were redeemed at the applicable redemption time. However, the
redemption consideration in respect of the shares of Series C
Preferred Stock (or fractions thereof) redeemed in any redemption
described above: (i) will entitle the former beneficial owners of
less than one hundred (100) whole shares of Series C Preferred
Stock redeemed in any redemption to no cash payment in respect
thereof and (ii) will, in the case of a former beneficial owner of
a number of shares of Series C Preferred Stock (or fractions
thereof) redeemed pursuant to any redemption that is not equal to a
whole number that is a multiple of one hundred (100), entitle such
beneficial owner to the same cash payment, if any, in respect of
such redemption as would have been payable in such redemption to
such beneficial owner if the number of shares (or fractions
thereof) beneficially owned by such beneficial owner and redeemed
pursuant to such redemption were rounded down to the nearest whole
number that is a multiple of one hundred (such, that for example,
the former beneficial owner of 150 shares of Series C Preferred
Stock redeemed pursuant to any redemption will be entitled to
receive the same cash payment in respect of such redemption as
would have been payable to the former beneficial owner of 100
shares of Series C Preferred Stock redeemed pursuant to such
redemption).
The Series C Preferred Stock is not convertible into, or
exchangeable for, shares of any other class or series of stock or
other securities of the Company. The Series C Preferred Stock has
no stated maturity and is not subject to any sinking fund. The
Series C Preferred Stock is not subject to any restriction on the
redemption or repurchase of shares by the Company while there is
any arrearage in the payment of dividends or sinking fund
installments.
The Certificate of Designation was filed with the Delaware
Secretary of State and became effective on January 26, 2023. The
foregoing description of the Series C Preferred Stock does not
purport to be complete and is qualified in its entirety by
reference to the Certificate of Designation, which is filed as
Exhibit 3.2 to this Current Report and is incorporated herein by
reference.
Item 7.01. Regulation FD Disclosure.
On January 26, 2023, the Company issued a press release announcing
the Series C Preferred Stock dividend. A copy of that press release
is furnished as Exhibit 99.1 to this Current Report and
incorporated herein by reference.
In accordance with General Instructions B.2 and B.6 of Form 8-K,
the information included in Item 7.01 of this Report, including
Exhibit 99.1 hereto, shall not be deemed “filed” for the purposes
of Section 18 of the Exchange, or otherwise subject to the
liabilities of that section, nor shall it be deemed incorporated by
reference into any filing made by the Company under the Exchange
Act or the Securities Act of 1933, as amended, except as shall be
expressly set forth by specific reference in such a filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the Company has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
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Agile Therapeutics, Inc. |
| |
|
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| Dated:
January 26, 2023 |
By: |
/s/ Alfred Altomari |
| |
Name: |
Alfred
Altomari |
| |
Title: |
Chairman
and Chief Executive Officer |
Agile Therapeutics (NASDAQ:AGRX)
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