U.S. 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): August 26, 2016
Atossa Genetics Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or jurisdiction of incorporation or organization)
001-35610
(Commission File Number)
26-4753208
(I.R.S. Employer Identification Number)
2300 Eastlake Ave. East, Suite 200, Seattle, WA 98102
(Address of principal executive offices (Zip Code)
Registrant's telephone number: (206) 325-6086
N/A
(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 (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 (17CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17CFR 240.13e-4(c)) |
Item 3.03 Material Modification to Rights of Security Holders.
See Item 5.03 of this Report which is incorporated into this Item 3.03 by this reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On August 26, 2016, at 12:01 am EDT, an amendment to Atossa Genetics Inc. (“Atossa”) Amended and Restated Certificate of Incorporation (the “Amended Certificate”) became effective to effectuate a reverse split of Atossa’s common stock. The Amended Certificate provides that each 15 shares of outstanding common stock will be reconstituted into one share of common stock with a proportional increase in the par value of the common stock. Cash will be paid in lieu of fractional shares.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
4.1 Certificate of Amendment to Amended and Restated Certificate of Incorporation
99.1 Press Release dated August 25, 2016 related to 1:15 Reverse Stock Split
Signature(s)
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.
| ATOSSA GENETICS INC. | ||
| Date: August 26, 2016 |
By: /s/ Kyle Guse Its: Chief Financial Officer |
Exhibit 4.1
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ATOSSA GENETICS INC.
Atossa Genetics Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:
| FIRST: | That the Board of Directors of the Corporation has duly adopted resolutions authorizing the Corporation to execute and file with the Secretary of State of the State of Delaware this Certificate of Amendment to the Amended and Restated Certificate of Incorporation, as amended (this “Amendment”) to combine each fifteen (15) outstanding shares of the Corporation’s Common Stock, par value $0.001 per share (the “Common Stock”), into one (1) validly issued, fully paid and non-assessable share of Common Stock. |
| SECOND: | That this Amendment was duly adopted in accordance with the terms of the Amended and Restated Certificate of Incorporation, as amended, and the provisions of the Delaware General Corporation Law by the Board of Directors and stockholders of the Corporation. |
| THIRD: | That upon the effectiveness of this Amendment, the Amended and Restated Certificate of Incorporation, as amended, is hereby amended such that ARTICLE IV is amended and restated in its entirety to read as set forth below, with no other changes to be made. |
| CAPITAL STOCK | |
| The total number of shares of capital stock which the Corporation shall have authority to issue is Eighty Five Million (85,000,000), of which (i) Seventy Five Million (75,000,000) shares shall be a class designated as common stock, par value $0.015 per share (the “Common Stock”), and (ii) Ten Million (10,000,000) shares shall be a class designated as undesignated preferred stock, par value $0.001 per share (the “Undesignated Preferred Stock”). | |
| Except as otherwise provided in any certificate of designations of any series of Undesignated Preferred Stock, the number of authorized shares of the class of Common Stock or Undesignated Preferred Stock may from time to time be increased or decreased (but not below the number of shares of such class outstanding) by the affirmative vote of the holders of a majority in voting power of the outstanding shares of capital stock of the Corporation irrespective of the provisions of Section 242(b)(2) of the DGCL. | |
| The powers, preferences and rights of, and the qualifications, limitations and restrictions upon, each class or series of stock shall be determined in accordance with, or as set forth below in, this Article IV. Upon the Effective Time, following the filing and effectiveness pursuant to the Delaware General Corporation Law of this Amendment, each fifteen (15) shares of Common Stock issued and outstanding immediately prior to the Effective Time shall, automatically and without any action on the part of the respective holders thereof, be combined and converted into one (1) share of Common Stock (the “Reverse Stock Split”). No fractional shares shall be issued in connection with the Reverse Stock Split. Stockholders who otherwise would be entitled to receive fractional shares of Common Stock shall be entitled to receive cash (without interest or deduction) from the Corporation’s transfer agent in lieu of such fractional share interests upon the submission of a transmission letter by a stockholder holding the shares in book-entry form and, where shares are held in certificated form, upon the surrender of the stockholder’s Old Certificates (as defined below), in an amount equal the stockholders pro-rata portion (depending on the fraction amount they own) of the net proceeds (after customary brokerage commissions and other expenses) attributable to the sale into the market by Corporation’s transfer agent of all fractional shares. | |
| Each certificate that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”), shall thereafter represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been combined, subject to the elimination of fractional share interests as described above. |
| A. COMMON STOCK | |
| Subject to all the rights, powers and preferences of the Undesignated Preferred Stock and except as provided by law or in this Certificate (or in any certificate of designations of any series of Undesignated Preferred Stock): | |
(a) the holders of the Common Stock shall have the exclusive right to vote for the election of directors of the Corporation (the “Directors”) and on all other matters requiring stockholder action, each outstanding share entitling the holder thereof to one vote on each matter properly submitted to the stockholders of the Corporation for their vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate (or on any amendment to a certificate of designations of any series of Undesignated Preferred Stock) that alters or changes the powers, preferences, rights or other terms of one or more outstanding series of Undesignated Preferred Stock if the holders of such affected series of Undesignated Preferred Stock are entitled to vote, either separately or together with the holders of one or more other such series, on such amendment pursuant to this Certificate (or pursuant to a certificate of designations of any series of Undesignated Preferred Stock) or pursuant to the DGCL; | |
| (b) dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the Corporation legally available for the payment of dividends, but only when and as declared by the Board of Directors or any authorized committee thereof; and | |
| (c) upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the net assets of the Corporation shall be distributed pro rata to the holders of the Common Stock. | |
| B. UNDESIGNATED PREFERRED STOCK | |
| The Board of Directors or any authorized committee thereof is expressly authorized, to the fullest extent permitted by law, to provide by resolution or resolutions for, out of the unissued shares of Undesignated Preferred Stock, the issuance of the shares of Undesignated Preferred Stock in one or more series of such stock, and by filing a certificate of designations pursuant to applicable law of the State of Delaware, to establish or change from time to time the number of shares of each such series, and to fix the designations, powers, including voting powers, full or limited, or no voting powers, preferences and the relative, participating, optional or other special rights of the shares of each series and any qualifications, limitations and restrictions thereof. | |
| FOURTH: | This Amendment shall be effective as of August 26, 2016, at 12:01 a.m., Eastern Time (the “Effective Time”). |
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to the Amended and Restated Certificate of Incorporation to be executed by Steven C. Quay, its Chief Executive Officer, this 24th day of August, 2016.
| ATOSSA GENETICS INC. | ||
| By: |
/s/ Steven C. Quay | |
| Name: | Steven C. Quay, M.D., Ph.D. | |
| Title: | Chairman, Chief Executive Officer and President | |
[Signature Page to Certificate of Amendment]
Exhibit 99.1
Atossa Genetics Announces Reverse Stock Split
1:15 Reverse Stock Split Effective August 26, 2016
SEATTLE, August 25, 2016 -- Atossa Genetics Inc. (NASDAQ: ATOS) today announced a reverse split of its common stock at a ratio of 1-for-15, effective August 26, 2016, and that the Company's common stock will begin trading on a split-adjusted basis when the market opens on August 26, 2016. The reverse split was approved by the Company's stockholders at an annual meeting of the stockholders held on May 18, 2016. The Company's common stock will continue to trade on the NASDAQ Capital Market under the trading symbol "ATOS." As a result of the reverse split, each fifteen pre-split shares of common stock outstanding will automatically combine into one new share of common stock without any action on the part of the holders, and the number of outstanding common shares will be reduced from approximately 39.57 million shares to approximately 2.67 million shares. The reverse split will also apply to common stock issuable upon the exercise of the Company's outstanding warrants and stock options.
The Company's transfer agent, VStock Transfer, LLC, which is also acting as the exchange agent for the reverse split, will provide instructions to stockholders regarding the process for exchanging share certificates. No fractional shares will be issued as a result of the reverse split and stockholders who otherwise would be entitled to a fractional share will receive, in lieu of the fraction, a cash payment equal to the approximate value of the fractional share.
Dr. Steve Quay, President and CEO, stated, "The reverse stock split should allow us to satisfy the NASDAQ minimum bid price requirement and should attract new stockholders. We remain highly confident in our business and in the long-term prospects of our Company. Our Phase II study of Fulvestrant administered with our microcatheters is continuing at Columbia with initial data publication planned for December 2016. We are also progressing well with our continued development of oral Endoxifen for breast cancer patients who are refractory to tamoxifen.”
Additional information about the reverse stock split can be found in the Company's definitive proxy statement filed with the Securities and Exchange Commission on April 13, 2016, a copy of which is also available at www.sec.gov or www.atossagenetics.com.
About Atossa Genetics
Atossa Genetics Inc. is a clinical-stage pharmaceutical company developing novel therapeutics and delivery methods to treat breast cancer and other breast conditions. For more information, please visit www.atossagenetics.com.
Forward-Looking Statements
Forward-looking statements in this press release, which Atossa undertakes no obligation to update, are subject to risks and uncertainties that may cause actual results to differ materially from the anticipated or estimated future results, including the risks and uncertainties associated with actions and inactions by the FDA, the outcome or timing of regulatory approvals needed by Atossa, lower than anticipated rate of patient enrollment, results of clinical studies and timing of publication of those results, the safety and efficacy of Atossa's products and services, performance of clinical research organizations and investigators, obstacles resulting from proprietary rights held by others with respect to Fulvestrant, such as patent rights, and other risks detailed from time to time in Atossa's filings with the Securities and Exchange Commission, including without limitation its periodic reports on Form 10-K and 10-Q, each as amended and supplemented from time to time.
Atossa Genetics Company Contact:
Atossa Genetics Inc.
Kyle Guse
CFO and General Counsel
(O) 800-351-3902
kyle.guse@atossagenetics.com
Investor Relations Contact
Scott Gordon
CorProminence LLC
377 Oak Street
Concourse 2
Garden City, NY 11530
Office: 516.222.2560
scottg@corprominence.com
Source: Atossa Genetics Inc.