Item 1.02 Termination of a Material Definitive Agreement.
As previously disclosed, on December 21, 2020, Exicure, Inc. (the "Company")
entered into an equity distribution agreement (the "Sales Agreement") with BMO
Capital Markets Corp., a Delaware corporation ("BMO"), with respect to an
"at-the-market offering" program under which the Company could 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 aggregate gross proceeds of up to
$50.0 million through BMO as its sales agent.
On January 4, 2022, BMO delivered written notice to the Company, effective as of
such date, to terminate the Sales Agreement pursuant to Section 6(b) thereof.
The Company and BMO agreed to terminate the Sales Agreement, effective as of
such date. Following termination, the Company will not sell any additional
shares of Common Stock pursuant to the Sales Agreement.
Item 2.02 Results of Operations and Financial Condition.
The Company intends to share with investors the amount of cash, cash equivalents
and restricted cash it had on hand as of December 31, 2021, as well as the
principal amount of outstanding debt, outstanding shares of common stock, and
outstanding warrants to purchase common stock as of December 31, 2021. Although
the Company has not finalized its financial results for the twelve months ended
December 31, 2021, the Company preliminarily estimates that its cash, cash
equivalents and restricted cash as of December 31, 2021 was approximately $48.3
million and the principal amount of its debt outstanding as of December 31, 2021
was $7.5 million. Additionally, as of December 31, 2021, the Company had
108,783,144 shares of common stock outstanding, outstanding warrants to purchase
up to 17,288,034 shares of common stock at an exercise price of $0.2701 per
share, and outstanding pre-funded warrants to purchase up to 14,000,000 shares
of common stock at an exercise price of $0.001 per share.
The information in this Item 2.02 is unaudited and preliminary, and does not
present all information necessary for an understanding of the Company's
financial condition as of December 31, 2021 and its results of operations for
the three months and year ended December 31, 2021. The audit of the Company's
financial statements for the year ended December 31, 2021 is ongoing. The
Company's actual consolidated cash, cash equivalents and restricted cash
balance, the principal amount of outstanding debt, shares of common stock
outstanding, and outstanding warrants to purchase common stock as of December
31, 2021 may differ from these estimates due to the completion of the Company's
year-end closing and auditing procedures.
The information in this Item 2.02 shall not be deemed to be "filed" for purposes
of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or otherwise subject to the liabilities of that section, nor shall such
information be deemed incorporated by reference in any filing under the
Securities Act of 1933, as amended, or the Exchange Act, except as expressly set
forth by specific reference in such a filing.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
On December 30, 2021, the Company received a letter (the "Notice") from the
staff (the "Staff") of The Nasdaq Stock Market LLC ("Nasdaq") notifying the
Company that, for the previous 30 consecutive business days, the bid price for
the Company's common stock had closed below the minimum $1.00 per share
requirement for continued listing on The Nasdaq Global Select Market under
Nasdaq Listing Rule 5550(a)(2) (the "Bid Price Requirement"). In accordance with
Nasdaq Listing Rule 5810(c)(3)(A) (the "Compliance Period Rule"), the Company
has been provided an initial period of 180 calendar days, or until June 28, 2022
(the "Compliance Date"), to regain compliance with the Bid Price Requirement.
If, at any time before the Compliance Date, the bid price for the Company's
common stock closes at $1.00 or more for a minimum of 10 consecutive business
days as required under the Compliance Period Rule, the Staff will provide
written notification to the Company that it has regained compliance with the Bid
Price Requirement, unless the Staff exercises its discretion to extend this
10-day period pursuant to Nasdaq Listing Rule 5810(c)(3)(H).
If the Company does not regain compliance with Rule 5550(a)(2) by the Compliance
Date, the Company may be eligible for additional time. To qualify, the Company
will be required to meet the continued listing requirement for market value of
publicly held shares and all other initial listing standards for The Nasdaq
Capital Market, with the exception of the Bid Price Requirement, and will need
to provide written notice of its intention to cure the deficiency during the
second compliance period, by effecting a reverse stock split, if necessary. If
the Company meets these requirements, Nasdaq may grant the Company an additional
180 calendar days to regain compliance with the Bid Price Requirement.
If the Company does not regain compliance with the Bid Price Requirement by the
Compliance Date and is not eligible for an additional compliance period at that
time, the Staff will provide written notification to the Company that its common
stock may
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be delisted. At that time, the Company may appeal the Staff's delisting
determination to the Nasdaq Listing Qualifications Panel (the "Panel"). The
Company expects that its common stock would remain listed pending the Panel's
decision. However, there can be no assurance that, if the Company receives a
delisting notice and appeals the delisting determination by the Staff to the
Panel, such appeal would be successful.
The Company intends to monitor the closing bid price of its common stock and
will consider options available to it to achieve compliance with the Bid Price
Requirement.
Item 7.01 Regulation FD Disclosure.
The Company updated its corporate presentation for use at various conferences
and meetings with investors, analysts and others. The updates primarily include
updates on the Company's business strategy and disclosure regarding the
Company's cash, cash equivalents and restricted cash as of December 31, 2021.
The presentation is posted on the "Investors" portion of its website at
https://investors.exicuretx.com/events-and-presentations/, and a copy of the
presentation is attached as Exhibit 99.1 to this Current Report on Form 8-K.
The information in this Item 7.01 shall not be deemed to be "filed" for purposes
of Section 18 of the Exchange Act, or otherwise subject to the liabilities of
that section, nor shall such information be deemed incorporated by reference in
any filing under the Securities Act of 1933, as amended, or the Exchange Act,
except as expressly set forth by specific reference in such a filing.
Item 8.01 Other Events.
As previously disclosed in December 2021, the Company has announced its
commitment to a plan to wind down the Company's immuno-oncology program for
cavrotolimod (AST-008). The Company also continues to seek opportunities to
advance the cavrotolimod (AST-008) program through strategic collaborations or
partnerships with the goal of maximizing stockholder value of the program and
the full potential of its pipeline, as previously reported in its Quarterly
Reports on Form 10-Q filed with the Securities and Exchange Commission on each
of November 19, 2021 and August 12, 2021.
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Cautionary Note Regarding Forward Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995, as amended. All
statements in this Current Report on Form 8-K other than statements of
historical fact could be deemed forward looking including, but not limited to,
statements regarding the Company's preliminary estimation of its cash, cash
equivalents, restricted cash and principal amount of its outstanding debt as of
December 31, 2021; the Company's development of its preclinical program
pipeline; the wind down of its cavrotolimod (AST-008) program and XCUR-FXN
preclinical program for the treatment of Friedreich's ataxia, including the
estimated timing and cost savings; the Company's compliance with Nasdaq listing
rules or standards; and the Company's business plans and objectives. Words such
as "plans," "expects," "will," "shall," "anticipates," "continue," "expand,"
"advance," "believes," "guidance," "target," "may," "remain," "project,"
"outlook," "intend," "estimate," "could," "should," and other words and terms of
similar meaning and expression are intended to identify forward-looking
statements, although not all forward-looking statements contain such terms. The
forward-looking statements in this Current Report on Form 8-K speak only as of
the date of this Current Report on Form 8-K, and the Company undertakes no
obligation to update these forward-looking statements. Forward-looking
statements are based on management's current beliefs and assumptions that are
subject to risks and uncertainties and are not guarantees of future performance.
Actual results could differ materially from those contained in any
forward-looking statement as a result of various factors, including, without
limitation: the risks that the ongoing COVID-19 pandemic may disrupt the
Company's business and/or the global healthcare system (including its supply
chain) more severely than it has to date or more severely than anticipated;
unexpected costs, charges or expenses that reduce the Company's capital
resources; the Company's preclinical or clinical programs do not advance or
result in approved products on a timely or cost effective basis or at all; the
cost, timing and results of clinical trials; that many drug candidates do not
become approved drugs on a timely or cost effective basis or at all; the ability
to enroll patients in clinical trials; possible safety and efficacy concerns;
risks that preliminary results from preclinical studies and clinical trials are
not necessarily predictive of future results; the ability of the Company to
collaborate successfully with strategic partners; regulatory developments;
exposure to litigation, including patent litigation, and/or regulatory actions;
the ability of the Company to protect its intellectual property rights; the
ability of the Company to comply with Nasdaq listing rules and standards; and
the impact of the completion of the Audit Committee's investigation and review,
including any related investigations or proceedings, shareholder lawsuits,
reputational harm, or the possibility that executives or other employees may
resign or be terminated. Given these risks and uncertainties, you are cautioned
not to place undue reliance on such forward-looking statements. For a discussion
of other risks and uncertainties, and other important factors, any of which
could cause the Company's actual results to differ from those contained in the
forward-looking statements, see the section titled "Risk Factors" in the
Company's Quarterly Report on Form 10-Q filed with the SEC on November 19, 2021,
as updated by the Company's subsequent filings with the Securities and Exchange
Commission. All information in this Current Report on Form 8-K is as of the date
of the release, and the Company undertakes no duty to update this information or
to publicly announce the results of any revisions to any of such statements to
reflect future events or developments, except as required by law.
Item 9.01 Financial Statements and Exhibits.
Exhibit
No. Description
99.1 Corporate P resentation dated January 5, 2022 .
104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
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