Item 1.01 Entry Into a Material Definitive Agreement.
The information set forth below in Item 1.03 of this Current Report on Form 8-K
regarding the Asset Purchase Agreement (as defined below) is incorporated by
reference herein.
Item 1.03 Bankruptcy or Receivership.
Chapter 11 Filing
On June 6, 2023, PolarityTE, Inc., a Delaware corporation (the "Company"), and
its subsidiaries, PolarityTE, Inc., a Nevada Corporation ("PTE Nevada"), and
PolarityTE MD, Inc., a Nevada corporation ("PTE MD" and together with the
Company and PTE Nevada, the "Debtors"), filed voluntary petitions for relief
under Chapter 11 of 11 U.S.C. §§ 101 et seq. of the United States Code (the
"Bankruptcy Code") in the United States Bankruptcy Court for the District of
Utah (the "Bankruptcy Court") under the captions In re PolarityTE, Inc., a
Delaware corporation (Case No. 23-bk-22358-KRA) (Bankr. D. Utah), In re
PolarityTE, MD Inc., a Nevada corporation (Case No. 23-bk-22360-KRA) (Bankr. D.
Utah), and In re PolarityTE, Inc., a Nevada corporation (Case No.
23-bk-22361-KRA) (Bankr. D. Utah) (collectively, the "Chapter 11 Cases"). The
Debtors have filed a motion with the Bankruptcy Court seeking joint
administration under the caption In re PolarityTE, Inc., a Delaware corporation
(Case No. 23-bk-22358-KRA) (Bankr. D. Utah). The Debtors plan to continue to
operate their businesses as "debtors-in-possession" under the jurisdiction of
the Bankruptcy Court and in accordance with applicable provisions of the
Bankruptcy Code and orders of the Bankruptcy Court. To ensure their ability to
continue operating in the ordinary course of business, the Debtors have filed
various "first day" motions with the Bankruptcy Court requesting customary
relief, including authority to pay employee wages and benefits, employ
bankruptcy professionals, continue to employ ordinary course professionals,
maintain their insurance and utility services, and authority to hold a
competitive auction process for substantially all of their assets, which will
enable the Debtors to transition into Chapter 11 protection without material
disruption to their ordinary course operations.
The Company cannot give any assurance that holders of the Company's common stock
will receive any payments or other distributions on account of those shares in
the Chapter 11 Cases.
Asset Purchase Agreement
On June 6, 2023, prior to the filing of the Chapter 11 Cases, the Company, PTE
Nevada, and PTE MD entered into a "stalking horse" asset purchase agreement (the
"Asset Purchase Agreement") with Grander Acquisition LLC, a Delaware limited
liability company ("Grander Acquisition"), pursuant to which Grander Acquisition
agreed to purchase substantially all of the assets of the Company, PTE Nevada,
and PTE MD for approximately $6.5 million, less the amount of
debtor-in-possession financing outstanding at closing, if any, subject to
certain exceptions, and plus the assumption of assumed liabilities.
The transaction contemplated by the Asset Purchase Agreement is part of a sale
process under Section 363 of the Bankruptcy Code that will be subject to
approval by the Bankruptcy Court and compliance with agreed upon and Bankruptcy
Court-approved bidding procedures allowing for the submission of higher or
otherwise better offers, and other agreed-upon conditions. In accordance with
the sale process under Section 363 of the Bankruptcy Code, notice of the
proposed sale to Grander Acquisition will be given to third parties and
competing bids will be solicited. The Company will manage the bidding process
and evaluate the bids, in consultation with its advisors and as overseen by the
Bankruptcy Court. The Asset Purchase Agreement also provides Grander Acquisition
with an option to provide debtor-in-possession financing to the Company, if the
Company provides notice that its capital resources are not sufficient to
continue funding certain clinical trials and operate its business in the
ordinary course.
The Asset Purchase Agreement contains customary representations and warranties
of the parties and is subject to a number of closing conditions, including,
among others, (i) the accuracy of representations and warranties of the parties;
(ii) material compliance with the obligations of the parties set forth in the
Asset Purchase Agreement; (iii) the Bankruptcy Court's entry of a sale order;
and (iv) no Material Adverse Effect (as defined in the Asset Purchase Agreement)
having occurred. The representations, warranties and covenants contained in the
Asset Purchase Agreement are made only for purposes of the Asset Purchase
Agreement and as of specific dates; are solely for the benefit of the parties to
the Asset Purchase Agreement; and may be subject to limitations agreed upon by
the parties, including being qualified by confidential disclosures made by each
contracting party to the other for the purposes of allocating contractual risk
between them that differ from those applicable to investors. Investors should
not rely on the representations, warranties and covenants or any description
thereof as characterizations of the actual state of facts or condition of the
Company, Grander Acquisition, or any of their respective subsidiaries,
affiliates, businesses or stockholders. Moreover, information concerning the
subject matter of the representations, warranties and covenants may change after
the date of the Asset Purchase Agreement, which subsequent information may or
may not be fully reflected in public disclosures of the Company.
The Asset Purchase Agreement may be terminated, subject to certain exceptions,
(i) by the mutual written consent of the parties; (ii) by any party, if any
court of competent jurisdiction or other competent governmental authority issues
a final, non-appealable order prohibiting the transaction; (iii) automatically
in the event a party other than Grander Acquisition is determined to be the
winning bidder; (iv) by any party if (x) a sale order had not been entered in
favor of Grander Acquisition, (y) more than 60 days have passed since the date
on which the procedures order motion was filed, and (z) the Company has provided
notice to Grander Acquisition that it lacks sufficient capital resources to fund
certain clinical trials and operate its business in the ordinary course, unless
the Company has entered into a debtor-in-possession financing agreement with
Grander Acquisition approved by the bankruptcy court and the Company has drawn
or used any funds provided by Grander Acquisition pursuant to any such
debtor-in-possession financing agreement; and (v) by either party, for certain
material breaches by the other party of its representations and warranties or
covenants that remain uncured.
The Asset Purchase Agreement provides that, subject to approval of the
Bankruptcy Court, the Company will pay a break-up fee to Grander Acquisition
equal to $500,000, plus reimbursement of actual out-of-pocket expenses incurred
in the diligence and negotiation of the Asset Purchase Agreement and in the
Chapter 11 Cases, upon termination of the transaction in certain circumstances,
including the entry into or consummation of an alternative transaction for the
Purchased Assets (as defined in the Asset Purchase Agreement) with a party other
than Grander Acquisition.
The foregoing description of the Asset Purchase Agreement does not purport to be
complete and is qualified in its entirety by reference to the Asset Purchase
Agreement, a copy of which is filed as Exhibit 10.1 hereto and incorporated by
reference herein.
Item 7.01 Regulation FD Disclosure.
Nasdaq Delisting Notice
The Company expects to receive a notice from The Nasdaq Stock Market ("Nasdaq")
that the Company's common stock is no longer suitable for listing pursuant to
Nasdaq Listing Rule 5110(b) as a result of the Chapter 11 Cases. If the Company
receives such notice, the Company does not intend to appeal Nasdaq's
determination and, therefore, it is expected that its common stock will be
delisted. The delisting of the common stock would not affect the Company's
operations or business and does not presently change its reporting requirements
under the rules of the Securities and Exchange Commission.
Cautionary Note Regarding Trading in the Company's Securities
The Company's stockholders are cautioned that trading in shares of the Company's
common stock during the pendency of the Chapter 11 Cases will be highly
speculative and will pose substantial risks. The Company expects that the
currently outstanding shares of its common stock will be eventually cancelled
and extinguished by the Bankruptcy Court. The holders of the Company's common
stock may not receive any proceeds from the sale of substantially all of the
Company's assets due to the Company's obligations to creditors and others. As a
result, the Company expects that its currently outstanding stock may have no
value. Trading prices for the Company's common stock may bear little or no
relation to actual recovery, if any, by holders thereof in the Company's Chapter
11 Cases. Accordingly, the Company urges extreme caution with respect to
existing and future investments in its common stock.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements regarding
future events and the Company's future financial operations. These
forward-looking statements are based on current expectations, estimates and
projections about the business of the Company, including, but not limited to
expectations regarding the Asset Purchase Agreement, and the Chapter 11 Cases.
These statements are based upon management's current belief and certain
assumptions made by management. Such forward-looking statements are subject to
risks and uncertainties that could cause actual results to differ materially
from those expressed in or implied by such forward-looking statements,
including, but not limited to, the potential adverse impact of the bankruptcy
filings on our business, financial condition and results of operations,
including our ability to maintain contracts that are critical to our business;
our ability to retain employees necessary to continue operating our business,
including clinical trials, while the Chapter 11 Cases are pending; the actions
and decisions of our creditors and other third parties with interests in the
Chapter 11 Cases; our ability to maintain liquidity to fund our operations
during the Chapter 11 Cases; our ability to obtain Bankruptcy Court approvals in
connection with the Chapter 11 Cases, including approvals relating to proposed
sale bidding procedures and the proposed sale of assets; our ability to
consummate any transactions once approved by the Bankruptcy Court and the time
to consummation of such transactions; the timing and amount, if any, of
distributions to the Company's stockholders; and competitive, economic, legal,
political and technological factors affecting our industry, operations, markets,
products and pricing. Readers should carefully review the risk factors and the
information that could materially affect our financial results, described in our
Annual Report on Form 10-K for the year period ended December 31, 2022 and other
reports filed with the Securities and Exchange Commission. Readers are cautioned
to not place undue reliance on these forward-looking statements, which speak
only as of the date of this report. The Company undertakes no obligation to
publicly update any forward-looking statements, whether as a result of new
information, future events or otherwise.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit No. Description
2.1* Asset Purchase Agreement, dated as of June 6, 2023, by and between
the Company, the Company's subsidiaries party thereto, and Grander
Acquisition LLC.
104 Cover Page Interactive Data File, formatted in Inline XBRL
* Certain schedules and exhibits to this agreement have been omitted pursuant to
Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibit or schedule
will be furnished supplementally to the SEC or its staff upon request.
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