Item 5. Other Information
Item 5. Other Information.
2023 Equity Distribution Agreement
On November 13, 2023, we entered into an Equity Distribution Agreement with Piper Sandler & Co., as the Agent (the “2023 Equity Agreement”), in connection with the establishment of an “at-the-market” offering program under which it may sell shares of our common stock, par value $0.001 per share (the “Shares”), from time to time through the Agent, as sales agent (the “Offering”). The 2023 Equity Agreement supersedes and replaces our previous Equity Distribution Agreement with the Agent dated December 18, 2020 (the “2020 Equity Agreement”), which is no longer effective.
Under the 2023 Equity Agreement, we will set the parameters for the sale of Shares, including the number of Shares to be issued, the time period during which sales are requested to be made, limitations on the number of Shares that may be sold in any one trading day and any minimum price below which sales may not be made. The Agent will use its commercially reasonable efforts to sell the Shares requested by us to be sold on our behalf, consistent with the Agent’s normal trading and sales practices, under the terms and subject to the conditions set forth in the 2023 Equity Agreement. Sales of the Shares, if any, under the 2023 Equity Agreement may be made in transactions that are deemed to be “at-the-market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended. The 2023 Equity Agreement provides that we will pay the Agent a commission of up to 3.0% of the gross proceeds of any Shares sold through the Agent and has agreed to reimburse the Agent for certain specified expenses. The 2023 Equity Agreement contains customary representations, warranties and agreements by us, indemnification obligations of us and the Agent, other obligations of the parties and termination provisions. We have no obligation to sell any of the Shares, and may at any time suspend offers under the 2023 Equity Agreement.
The Shares will be offered and sold pursuant to our Registration Statement on Form S-3 filed by us on November 13, 2023 (the “Registration Statement”), and the sales agreement prospectus that forms a part of such Registration
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Statement, following such time as the Registration Statement is declared effective by the Securities and Exchange Commission.
The 2023 Equity Agreement is filed as Exhibit 10.2 to this Quarterly Report. The description of the 2023 Equity Agreement does not purport to be complete and is qualified in its entirety by reference to the 2023 Equity Agreement filed herewith.
This Quarterly Report shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
Termination of 2020 Equity Distribution Agreement
On November 13, 2023, we terminated the 2020 Equity Agreement in order to enter into the 2023 Equity Agreement described above. We are not subject to any termination penalties in connection with the termination of the 2020 Equity Agreement.
A description of the 2020 Equity Agreement was included in our Current Report on Form 8-K filed with the SEC on December 18, 2020, which is incorporated herein by reference.
Third Amended and Restated Bylaws
In connection with the effectiveness of new SEC rules regarding universal proxy cards and a periodic review of our Second Amended and Restated Bylaws, our Board approved and adopted the Third Amended and Restated Bylaws (the “Third A&R Bylaws”), effective November 8, 2023. The amendments primarily address matters relating to Rule 14a-19 under the Exchange Act (the “Universal Proxy Rules”), providing, among other things, that:
● a stockholder delivering a notice of nomination must include a representation that it intends to solicit proxies from stockholders representing at least 67% of the voting power of shares entitled to vote on the election of directors;
● a stockholder delivering a notice of nomination must certify to the Company in writing that it has complied with the Universal Proxy Rules requirements;
● the Company may disqualify a stockholder’s nomination if such stockholder fails to satisfy the Universal Proxy Rules requirements;
● a stockholder providing notice pursuant to the Company’s advance notice bylaws must inform the Company if the stockholder no longer plans to solicit proxies in accordance with the Universal Proxy Rules; and
● the stockholder to use a proxy card color other than white, which is reserved for the exclusive use of the Board.
The above description of the Third A&R Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Third A&R Bylaws, which is filed as Exhibit 3.1 hereto and incorporated herein by reference.
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Item 6. Exhibits.
The following exhibits are being filed herewith:
EXHIBIT INDEX
Exhibit No.
Exhibit
3.1
Third Amended and Restated Bylaws ( filed herewith ).
10.1
Employment Agreement, dated August 3, 2023, by and between the Company and Gregory Firestone ( incorporated by reference to exhibit 10.1 of the Company’s Quarterly Report on Form 10-Q, filed on August 10, 2023 ).
10.2
Equity Distribution Agreement, dated November 1 3 , 202 3, by and between the Company and Piper Sandler & Co. (filed herewith ).
31.1
Certification of Chief Executive Officer pursuant to Rules 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith).
31.2
Certification of Chief Financial Officer pursuant to Rules 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith).
32.1
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished herewith).
32.2
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished herewith).
101 INS
Inline XBRL Instance Document (filed herewith).
101 SCH
Inline XBRL Taxonomy Extension Schema Document (filed herewith).
101 CAL
Inline XBRL Taxonomy Extension Calculation Linkbase Document (filed herewith).
101 DEF
Inline XBRL Taxonomy Extension Definition Linkbase Document (filed herewith).
101 LAB
Inline XBRL Taxonomy Extension Label Linkbase Document (filed herewith).
101 PRE
Inline XBRL Taxonomy Extension Presentation Linkbase Document (filed herewith).
104
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101).
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SIGNATURES
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 thereunto duly authorized.
TELA BIO, INC.
Date: November 13, 2023
By:
/s/ ANTONY KOBLISH
Antony Koblish
President and Chief Executive Officer
(Principal executive officer)
Date: November 13, 2023
By:
/s/ ROBERTO CUCA
Roberto Cuca
Chief Operating Officer and Chief Financial Officer
(Principal financial officer)
Date: November 13, 2023
By:
/s/ MEGAN SMEYKAL
Megan Smeykal
Chief Accounting Officer and Controller
(Principal accounting officer)
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Text extracted from the filing as submitted to EDGAR. Formatting, tables and exhibits are simplified for reading; the original document is authoritative for anything you rely on.