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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
Date of Report (Date of earliest event reported): April 18, 2024
NKGen Biotech, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-40427 | 86-2191918 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
3001 Daimler Street
Santa Ana, CA, 92705
(Address of principal executive offices and zip code)
Registrant’s telephone number, including area code: (949) 396-6830
Not Applicable
(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 (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, $0.0001 par value per share | NKGN | Nasdaq Global Market | ||
| Warrants, each whole warrant exercisable for one share of Common Stock at an exercise price of $11.50 per share | NKGNW | 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 1.01. Entry into a Material Definitive Agreement.
On April 18, 2024, NKGen Biotech, Inc. (the “Company” and formerly known as Graf Acquisition Corp. IV (“Graf”)) and Seller (defined below) entered into a second amendment (the “Amendment”) to the forward purchase agreement, dated as of September 26, 2023 (the “FPA”) initially among the Company, Graf, and Sandia Investment Management LP (“Sandia”) on behalf of the investors thereto (collectively, “Sellers”) for OTC Equity Prepaid Forward Transactions, as amended on January 19, 2024.
Pursuant to the Amendment, the Company and Sellers agreed to establish a floor on the Reset Price (as defined in the Amendment).
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by the terms and conditions of the Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
| Exhibit No. | Description | |
| 10.1 | Second Amendment to Forward Purchase Agreement, dated as of April 18, 2024, among NKGen and Sandia Investment Management LP on behalf of the investors thereto. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| NKGEN BIOTECH, INC. | ||
| Date: April 24, 2024 | /s/ Paul Y. Song | |
| Name: | Paul Y. Song | |
| Title: | Chief Executive Officer | |
| (Principal Executive Officer) | ||
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EXHIBIT 10.1
EXECUTION VERSION
FORWARD PURCHASE AGREEMENT CONFIRMATION AMENDMENT
THIS FORWARD PURCHASE AGREEMENT CONFIRMATION AMENDMENT, dated as of April 18, 2024 (this “Amendment”), is entered into by and among (i) Sandia Investment Management LP on behalf of the Investors listed on Schedule A in the Initial Agreement (as defined below) (“Seller”) and (v) NKGen Biotech, Inc., a Delaware corporation (“NKGN” and formerly known as Graf Acquisition Corp. IV, a Delaware corporation).
Reference is hereby made to the OTC Equity Prepaid Forward Transaction, dated as of September 26, 2023 (the “Initial Agreement”), the Forward Purchase Agreement Confirmation Amendment, dated as of January 19, 2024 (together with the Initial Agreement, the “Confirmation”), by and among Seller, NKGN and NKGen Operating Biotech, Inc. (“Target” and formerly known as NKGen Biotech, Inc., a Delaware corporation and now a wholly-owned subsidiary of NKGN). Capitalized terms not defined herein shall have the meanings assigned to such terms in the Confirmation.
On September 29, 2023, NKGN and Target completed the Business Combination, and accordingly, the Seller delivered a Pricing Date Notice to commence the Transaction.
| 1. | Amendment: The parties hereto agree to amend the Confirmation as follows: |
a. The section titled “Reset Price” shall be deleted in its entirety and replaced with the following:
| Reset Price: | The Reset Price will initially be the Initial Price. The Reset Price will be adjusted weekly on the first scheduled trading day of each week commencing on January 15, 2024 (retroactively) and January 22, 2024 to be the lowest of (a) 80% of the VWAP Price of the Shares during the prior week and (b) the Initial Price; thereafter, the Reset Price will be adjusted on the first scheduled trading day of each week to be the lowest of (a) 90% of the VWAP Price of the Shares during the prior week, (b) the Initial Price and (c) $1.2743, provided the Reset Price shall not be lower than $1.2743. In addition, the Reset Price will be reduced upon a Dilutive Offering Reset immediately upon the occurrence of such Dilutive Offering or, as otherwise reset as mutually agreed by the parties. |
2. Non-Reliance. Seller acknowledges and agrees that NKGN is in possession of non-public information about NKGN and its securities that has not been provided to Seller and that may or may not be material or superior to information available to Seller, and that Seller, in entering into this Amendment, has not relied and is not relying on any representations, warranties or other statements whatsoever, whether written or oral (from or by NKGN or any Person acting on their behalf) other than those expressly set out in this Amendment (or other related documents referred to herein) and that it will not have any right or remedy rising out of any representation, warranty or other statement not expressly set out in this Amendment or the Confirmation. Seller hereby waives any claim, or potential claim, it has or may have against NKGN and its officers and directors relating to NKGN’s possession of material non-public information.
3. Pricing Date Notice. Seller may also deliver to NKGN an updated pricing date notice, substantially in the form set forth on Schedule A of the Initial Agreement (the “Additional Share Pricing Date Notice”), to cover up to 248,360 additional Shares (the “Additional Shares”) under the Confirmation (subject to the Applicable Share Limit), with any such Additional Share Pricing Day Notice also constituting a Registration Request with respect to the Additional Shares, with the understanding that NKGN shall include such shares in its next Registration Statement.
4. No Other Amendments. All other terms and conditions of the Confirmation shall remain in full force and effect and the Confirmation shall be read and construed as if the terms of this Amendment were included therein by way of addition or substitution, as the case may be.
5. Execution in Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.
6. Ratification. The terms and provisions set forth in this Amendment modify and supersede all inconsistent terms and provisions set forth in the Confirmation and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Confirmation are ratified and confirmed and continue in full force and effect. All parties hereby agree that the Confirmation and Amendment, as amended by this Amendment, shall continue to be legal, valid, binding and enforceable in accordance with their terms.
7. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date first above written.
| SANDIA INVESTMENT MANAGEMENT LP on behalf of Investors listed on Schedule A of the Confirmation | |||
| By: | /s/ Thomas J. Cagna | ||
| Name: Thomas J. Cagna | |||
| Title: COO, CFO & CCO | |||
| NKGEN BIOTECH, INC. | |||
| By: | /s/ Paul Song | ||
| Name: | Paul Y. Song | ||
| Title: | Chief Executive Officer | ||
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