Item 1.01 Entry Into a Material Definitive Agreement.
On January 5, 2023, Vivos Therapeutics, Inc., a Delaware corporation (the
"Company"), entered into a Securities Purchase Agreement ("Purchase Agreement")
with an institutional investor (the "Purchaser") pursuant to which the Company
agreed sell up to an aggregate of $8,000,000 of securities of the Company in a
private placement (the "Private Placement") of units. Each unit consists of one
share ("Share") of the Company's common stock, $0.0001 par value ("Common
Stock") (or a pre-funded warrant to purchase one share of Common Stock) (the
"Pre-Funded Warrants") and one warrant exercisable for one share Common Stock e
(the "Common Stock Purchase Warrants" and together with the Pre-Funded Warrants,
the "Warrants"). No actual units will be issued in the Private Placement.
Pursuant to the Purchase Agreement, the Company agreed to issue and sell in the
Private Placement 2,000,000 Shares, Pre-Funded Warrants to purchase up to an
aggregate of 4,666,667 shares of Common Stock and Common Stock Purchase Warrants
to purchase up to an aggregate of 6,666,667 shares of Common Stock (collectively
with the shares of Common Stock underlying the Pre-Funded Warrants and the
Warrants, the "Warrant Shares"). The purchase price per Share and associated
Common Stock Purchase Warrant was $1.20, and the purchase price per Pre-Funded
Warrant and associated Common Stock Purchase Warrant was $1.1999.
The Private Placement is expected to close on January 9, 2023. After the
placement agent fees and estimated offering expenses payable by the Company, the
Company expects to receive net proceeds of approximately $7.5 million. The
Company intends to use the net proceeds from the Private Placement for general
working capital and general corporate purposes.
Each Common Stock Purchase Warrant entitles the holder, for a period of five
years and 6 months, to purchase one share of Common Stock at an exercise price
of $1.20 per share. Each Pre-Funded Warrant entitles the holder, for a period
until all Pre-Funded Warrants are exercised, to purchase one share of Common
Stock at an exercise price of $0.0001 per share. The Warrants also contain
customary beneficial ownership limitations that may be waived at the option of
each holder upon 61 days' notice to the Company.
The Purchase Agreement includes standard representations, warranties and
covenants of the Company and Purchaser, including certain restrictions on future
issuances of Company capital stock.
On January 5, 2023, in connection with the Private Placement, the Company
entered into a registration rights agreement (the "Registration Rights
Agreement") with the Purchaser, pursuant to which the Company agreed to file a
registration statement with the Securities and Exchange Commission (the "SEC")
to register for resale the Shares and the shares of Common Stock issuable upon
exercise of the Warrants within 30 days of the signing of the Registration
Rights Agreement, with such registration statement to be effective by February
14, 2023 (if such registration statement is not subject to review by the SEC) or
within 75 days after the signing of the Registration Rights Agreement (if such
registration statement is subject to limited or full review by the SEC). The
Company is subject to customary penalties and liquidated damages in the event it
does not meet certain filing and effectiveness deadlines set forth in the
Registration Rights Agreement, up to a maximum aggregate penalty of 10.5% of the
gross proceeds of the Private Placement.
Roth Capital Partners, LLC and A.G.P./Alliance Global Partners acted as
placement agents for the Private Placement (the "Placement Agents"). Pursuant to
a placement agency agreement, dated January 5, 2023, between the Company and the
Placement Agents (the "Placement Agency Agreement"), the Company agreed to pay
the Placement Agent a cash fee equal to 6.0% of the gross proceeds received by
the Company in the Private Placement, in addition to the reimbursement of
$40,000 of expenses. The Placement Agency Agreement contains customary
representations, warranties, terms and conditions, including for indemnification
of the Placement Agents and their related parties by the Company.
The foregoing descriptions of the Purchase Agreement, the Common Stock Purchase
Warrants, the Pre-Funded Warrants, the Registration Rights Agreement and the
Placement Agency Agreement do not purport to be complete and are qualified by
reference to the full text of such agreements, which are attached to this
Current Report on Form 8-K as Exhibits 10.1, 4.1, 4.2, 10.2, and 10.3,
respectively, and are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosures set forth in Item 1.01 above related to the Private Placement
are incorporated by reference into this Item 3.02. The Shares, the Pre-Funded
Warrants, the Common Stock Purchase Warrants and the shares of Common Stock
underlying the Warrants have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to the Registration Statement
and are instead being offered pursuant to the exemption provided in Section
4(a)(2) under the Securities Act and/or Rule 506(b) promulgated thereunder.
Item 8.01 Other Information.
On January 5, 2023, the Company issued a press release announcing the Private
Placement. A copy of the press release is attached to this Current Report on
Form 8-K as Exhibit 99.1, and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Exhibit
4.1 Form of Common Stock Warrant
4.2 Form of Pre-Funded Warrant
10.1 Form of Securities Purchase Agreement, dated January 5, 2023,
between the Company and the Purchaser
10.2 Form of Registration Rights Agreement, dated January 5, 2023,
between the Company and the Purchaser
10.3 Placement Agency Agreement, dated January 5, 2023, between the
Company and the Placement Agents.
99.1 Press release, dated January 5, 2023.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
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VIVOS THERAPEUTICS, INC. 
