UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
(Rule
14a-101)
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment
No. )
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
Check
the appropriate box:
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Preliminary
Proxy Statement |
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Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive
Proxy Statement |
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Definitive
Additional Materials |
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Soliciting
Material Pursuant to §240.14a-12 |
bioAffinity
Technologies, Inc.
(Exact
Name of Registrant as Specified in its Charter)
(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
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No
fee required. |
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Fee
paid previously with preliminary materials. |
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Fee
computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a6(i)(1) and 0-11. |
bioAffinity
Technologies, Inc.
3300
Nacogdoches Road, Suite 216
San
Antonio, Texas 78217
[●],
2024
Dear
Stockholder:
I
am pleased to invite you to attend a Special Meeting of Stockholders of bioAffinity Technologies, Inc. on Wednesday, October 2, 2024, at
8:00 a.m. Central Time. The Special Meeting will be held in person at the Company’s principal office at 3300 Nacogdoches Road,
Suite 216, San Antonio, Texas 78217.
bioAffinity
Technologies is committed to developing noninvasive diagnostics for lung cancer and other diseases of the lung. Our team of scientists
and business professionals is driven by its mission to increase detection of cancer at early stage when accurate diagnosis leads to longer
lives, fewer unnecessary invasive procedures, reduced patient anxiety, and lower medical costs. As President and Chief Executive Officer
of bioAffinity Technologies, I am greatly encouraged by the growing adoption and use by physicians of our first test, CyPath®
Lung, a noninvasive test for lung cancer, and of the technological advancements that our team continues to make in its fight to
address the urgent need for noninvasive, early-stage diagnosis.
Whether
or not you plan to attend the Special Meeting, your vote matters. We encourage you to promptly vote your shares by proxy over
the internet, via telephone or by mail.
Your
trust in our team and belief in our technology are invaluable. On behalf of our Board of Directors, our executive leadership team, and
our dedicated team of scientists and businesspeople, we extend our sincerest gratitude for your continued support of and investment in
bioAffinity Technologies.
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Sincerely, |
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Maria
Zannes |
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President
and Chief Executive Officer |
NOTICE
OF SPECIAL MEETING OF STOCKHOLDERS
TO
BE HELD ON OCTOBER 2, 2024
Notice
is hereby given that bioAffinity Technologies, Inc. (the “Company”) will host a Special Meeting of Stockholders
on Wednesday, October 2, 2024, at 8:00 a.m. Central Time (the “Special Meeting”). The Special Meeting will be
held in person at the Company’s principal office at 3300 Nacogdoches Road, Suite 216, San Antonio, Texas 78217. The Special Meeting
is being held for the following purposes:
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(1) |
To
approve, pursuant to Nasdaq listing rules, the issuance of up to an aggregate of 1,801,944 shares of our common stock upon the exercise
of our common stock purchase warrants issued to institutional investors and designees of the placement agent in connection with our
registered direct offering and concurrent private placement offering and our warrant inducement transaction, each of which closed
on August 5, 2024 (the “Warrant Exercise Proposal”); and |
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(2) |
To
approve a proposal to adjourn the Special Meeting to a later date, if necessary or appropriate, to permit further solicitation and
vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of the Warrant
Exercise Proposal (the “Adjournment Proposal”) |
Stockholders
of record at the close of business on August 30, 2024, are entitled to notice of and to vote at the Special Meeting and any postponements
or adjournments thereof. A list of stockholders of record at the close of business on August 30, 2024, will be available for inspection
by any stockholder for a period of ten days prior to the Special Meeting at our principal office at 3300 Nacogdoches Road, Suite 216,
San Antonio, Texas 78217.
Your
vote is very important. Whether or not you plan to attend the Special Meeting, we encourage you to read the accompanying Proxy Statement
and to submit your proxy or voting instructions as soon as possible. In order to ensure the representation of a quorum at the Special
Meeting, stockholders who do not expect to attend the Special Meeting are urged to vote as soon as possible. For information on how to
vote your shares, please refer to the section of the Proxy Statement entitled “Questions and Answers About the Proxy Materials
and the Special Meeting” and to the instructions provided in your proxy card or by your broker, bank, or other nominee.
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By
Order of the Board of Directors: |
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Maria
Zannes |
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President
and Chief Executive Officer |
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| Dated:
[●], 2024 |
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Important
Notice Regarding the Availability of Proxy Materials
for
the Stockholder Meeting to Be Held on October 2, 2024
The
proxy statement is available at www.proxyvote.com.
bioAffinity
Technologies, Inc.
3300
Nacogdoches Road, Suite 216
San
Antonio, Texas 78217
PROXY
STATEMENT
FOR
THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON OCTOBER 2, 2024
GENERAL
INFORMATION
The
Board of Directors (the “Board”) of bioAffinity Technologies, Inc., a Delaware corporation (the
“Company”), is soliciting proxies to be used at a Special Meeting of Stockholders to be held on Wednesday,
October 2, 2024, at 8:00 a.m. Central Time (the “Special Meeting”) at the Company’s principal office
at 3300 Nacogdoches Road, Suite 216, San Antonio, Texas 78217. This proxy statement (this “Proxy
Statement”) and the accompanying proxy card are posted on the internet at www.proxyvote.com, and will be mailed to our
stockholders on or about [●], 2024. If you previously requested electronic delivery of the proxy materials, you will be sent
the proxy statement and the accompanying proxy card on or about [●], 2024.
Voting
Matters and the Board’s Recommendation
| Agenda
Item |
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Board
Vote
Recommendation |
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Page
Reference |
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| Approval
of the issuance of up to an aggregate of 1,801,944 shares of our common stock upon the exercise of our common stock purchase warrants
issued to institutional investors and designees of the placement agent in connection with our registered direct offering and concurrent
private placement offering and our warrant inducement transaction, each of which closed on August 5, 2024 |
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FOR |
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| Approval
of the Adjournment Proposal |
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FOR |
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Even
if you plan to attend the Special Meeting, please vote in advance so that your vote will be counted if you later decide not to attend
the Special Meeting.
QUESTIONS
AND ANSWERS ABOUT
THE
PROXY MATERIALS AND THE SPECIAL MEETING
Who
is soliciting my vote?
The
Board of Directors of bioAffinity Technologies, Inc. is soliciting your proxy to be used at the Special Meeting.
When
and where will the Special Meeting be held?
The
Special Meeting will be held on Wednesday, October 2, 2024, at 8:00 a.m. Central Time, at the Company’s principal office 3300 Nacogdoches
Road, Suite 216, San Antonio, Texas 78217.
| What
do I need to do if I would like to attend the Special Meeting? |
If
you wish to attend the Special Meeting in person, you must present a valid form of photo identification, such as a driver’s license.
If you are a beneficial owner of common stock that is held of record by a bank, broker, or other nominee, you will also need proof of
ownership to be admitted. In this regard, a recent brokerage statement or a letter from your bank or broker are examples of proof of
ownership. The Company reserves the right to prohibit cameras, recording equipment, or electronic devices in the Special Meeting.
What
am I voting on at the Special Meeting?
The
purpose of the Special Meeting is to vote on the following items described in this Proxy Statement:
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Proposal
No. 1: To consider and approve the issuance of up to an aggregate of 1,801,944 shares
of our common stock upon the exercise of our common stock purchase warrants issued to institutional
investors and designees of the placement agent in connection with our registered direct offering
and concurrent private placement offering and our warrant inducement transaction, each of
which closed on August 5, 2024 (the “Warrant Exercise Proposal”).
Proposal
No. 2: To consider and approve the adjournment of the Special Meeting to a later date, if necessary or appropriate, to permit
further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the
approval of the Warrant Exercise Proposal (the “Adjournment Proposal”). |
Who
is entitled to vote?
Stockholders
as of the close of business on the record date of August 30, 2024 (the “Record Date”), are entitled to vote
at the Special Meeting or any postponement or adjournment thereof. As of the Record Date, there were [●] shares of the Company’s
common stock, par value $0.007 per share (the “Common Stock”), outstanding.
How
many votes per share of Common Stock held are stockholders entitled to?
Stockholders
have one vote per share on all matters presented at the Special Meeting.
What
is the difference between holding shares of Common Stock as a “stockholder of record” and holding shares in “street
name”?
Shares
held as a “stockholder of record” (also called a “registered holder”) are shares held directly in your name.
Shares held in “street name” are shares held for you in an account with a broker, bank, or other nominee.
How
do I vote my shares?
If
you are a registered holder, you may vote:
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By
internet. Via the Internet at www.proxyvote.com; |
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By
telephone. If you are located within the United States and Canada, call 1-800-690-6903 (toll-free) from a touch-tone telephone; |
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By
mail. By returning a properly executed proxy card in the postage-paid envelope provided or return it to Vote Processing,
c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717; or |
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In
person. You may vote in person at the Special Meeting. |
To
vote online or via telephone, you will need your unique control number. You can find the control number on your proxy card. Be sure to
have your proxy card in hand and follow the instructions. Internet and telephone voting facilities will close at 11:59 p.m. Eastern Time
on October 1, 2024, for the voting of shares held by stockholders of record as of the Record Date. Proxy cards with respect to shares
held of record must be received no later than October 1, 2024.
If
you hold your shares in street name, you may vote:
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By
internet*. Via the Internet at www.proxyvote.com. To vote online, you will need your unique control number; |
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By
telephone*. If you are located within the United States and Canada, call 1-800-454-8683 (toll-free) from a touch-tone telephone; |
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By
mail: By returning a properly executed voting instruction form by mail, depending upon the method(s) your broker, bank or
other nominee makes available; or |
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In
person: To do so, you must request a legal proxy from your broker, bank, or other nominee and present it at the Special Meeting. |
*Not
all street name holders may be able to vote at the web address and phone number provided above.
If
your shares are held in street name, please check the voting instruction form provided to you by your broker, bank, or other nominee
for internet or telephone voting availability. If internet and/or telephone voting is available to a street name holder, such facilities
will close at 11:59 p.m. Eastern Time on October 1, 2024. To vote online or via telephone, you will need your unique control number.
You can find the control number on your voting instruction form. Be sure to have your voting instruction form in hand and follow the
instructions.
What
if I return a proxy card or otherwise submit a proxy but do not make a specific choices?
All
shares held by recordholders entitled to vote, represented by a properly executed and unrevoked proxy received in time for the Special
Meeting, will be voted in accordance with the instructions given. In the absence of such instructions, shares will be voted as recommended
by the Board. or postponement thereof.
What
are “broker non-votes”?
Banks,
brokers, and other agents acting as nominees are permitted to use discretionary voting authority to vote for proposals that are deemed
“routine” by the New York Stock Exchange, which means that they can submit a proxy or cast a ballot on behalf of stockholders
who do not provide a specific voting instruction. Brokers, banks, or other nominees are not permitted to use discretionary voting authority
to vote for proposals that are deemed “non-routine” by the New York Stock Exchange. Under the rules and interpretations of
the New York Stock Exchange, “non-routine” matters are matters that may substantially affect the rights or privileges of
stockholders, such as mergers, stockholder proposals, elections of directors (even if not contested), executive compensation, and certain
corporate governance proposals, even if management supported. We believe that neither of the proposals at the Special Meeting will be
treated by the New York Stock Exchange as a routine matter and both will be treated by the New York Stock Exchange as non-routine matters.
The determination of which proposals are deemed “routine” versus “non-routine” may not be made by the New York
Stock Exchange until after the date on which this proxy statement has been distributed. As such, it is important that you provide voting
instructions to your broker, bank, or other nominee as to how to vote your shares, if you wish to ensure that your shares are present
and voted at the Special Meeting on all matters.
When
there is at least one “routine” matter to be considered at a meeting, a “broker non-vote” occurs when a proposal
is deemed “non-routine” and a nominee holding shares for a beneficial owner does not have discretionary voting authority
with respect to the “non-routine” matter being considered and has not received instructions from the beneficial owner. Since
neither proposal will be deemed to be a “routine” matter broker non-votes will not occur at the Special Meeting.
What
constitutes a quorum?
A
quorum for the transaction of business at the Special Meeting requires representation, in person or by proxy, of the holders of a majority
of the Company’s issued and outstanding shares of Common Stock. Abstentions will be counted as shares that are present for purposes
of determining the presence of a quorum for the transaction of business at the Special Meeting.
What
is the voting requirement to approve each of the proposals?
| Proposal |
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Vote Required |
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Voting Options |
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Impact of “Abstain”
Vote |
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Impact of Broker Non-Votes |
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Proposal No. 1:
Warrant Exercise Proposal |
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The affirmative vote of a majority of the shares present in person or by proxy and entitled to vote on the matter is required. |
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“FOR”
“AGAINST”
“ABSTAIN” |
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Counts as a vote “AGAINST” this proposal. |
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Not applicable-There are not expected to be any. |
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Proposal No. 2: Adjournment Proposal
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The affirmative vote of a majority of the shares present in person or by proxy and entitled to vote on the matter is required. |
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“FOR”
“AGAINST”
“ABSTAIN” |
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Counts as a vote “AGAINST” this proposal. |
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Not applicable-There are not expected to be any. |
How
does the Board recommend that I vote?
The
Board recommends that you vote your shares:
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“FOR”
the Warrant Exercise Proposal (Proposal No. 1); and |
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“FOR”
the Adjournment Proposal (Proposal No. 2). |
Who
will count the vote?
One
or more inspectors of election at the Special Meeting will tabulate and certify the votes.
What
does it mean if I receive more than one set of proxy materials?
It
means that your shares are held in more than one account at the transfer agent and/or with banks or brokers. Please vote all of your
shares. To ensure that all of your shares are voted, please submit your proxy for each set of proxy materials via the internet, telephone
or by signing, dating, and returning the enclosed proxy card and/or voting instruction card in the enclosed envelope.
May
I change my vote or revoke my proxy?
Yes.
Whether you have voted by internet, telephone or mail, if you are a stockholder of record, you may change your vote and revoke your proxy
by:
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sending
a written statement to that effect to the attention of the Company’s Secretary at the Company’s principal office at 3300
Nacogdoches Road, Suite 216, San Antonio, Texas 78217, provided such statement is received no later than 11:59 p.m. Eastern Time
on October 1, 2024; |
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voting
again by internet or telephone at a later time before the closing of those voting facilities at 11:59 p.m. Eastern Time on October 1, 2024; |
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submitting
a properly signed proxy card to the attention of the Company’s Secretary at the Company’s principal office at 3300
Nacogdoches Road, Suite 216, San Antonio, Texas 78217, with a later date that is received no later than 11:59 p.m. Eastern Time on
October 1, 2024; or |
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attending
and voting at the Special Meeting on October 2, 2024. |
Your
last vote is the one that is counted. Your attendance at the Special Meeting by itself will not revoke your proxy unless you give written
notice of revocation to the Company before your proxy is voted or you vote at the Special Meeting.
If
you hold shares in street name, please refer to information from your bank, broker, or other intermediary on how to revoke or submit
new voting instructions.
Who
will pay for the cost of this proxy solicitation?
The
Company will pay for the cost of soliciting proxies. Some of the Company’s directors, officers, or employees may (for no additional
compensation) solicit proxies in person or by telephone, email, or facsimile transmission. Brokers and other nominees will be requested
to solicit proxies or authorizations from beneficial owners and will be reimbursed for their reasonable expenses.
PROPOSAL
NO. 1
THE
WARRANT EXERCISE PROPOSAL
We
are seeking stockholder approval for the issuance of up to 1,801,944 shares of our Common Stock upon the exercise of common stock purchase
warrants that were issued to institutional investors and designees of the placement agent in connection with our registered direct offering
and concurrent private placement (the “Concurrent Private Placement”) and our warrant inducement transaction,
each of which closed on August 5, 2024, as contemplated by Nasdaq Listing Rules.
Warrant
Inducement Agreement and Issuance of New Warrants
On
August 2, 2024, we entered into a warrant inducement letter agreement (the “Inducement Agreement”) with certain
existing warrant holders (the “Inducement Warrant Holders”) that had previously purchased warrants to purchase
shares of our Common Stock in a private placement offering that closed on March 8, 2024 (the “Existing Warrants”).
Pursuant to the Inducement Agreement, the Inducement Warrant Holders agreed to exercise for cash the Existing Warrants to purchase up
to an aggregate of 1,041,667 shares of our Common Stock, at the lower exercise price of $1.25 per share (reduced from the initial exercise
price of $1.64 per share). The resale of the shares of Common Stock underlying the Existing Warrants (the “Existing Warrant
Shares”) was registered pursuant to our registration statement on Form S-1 (File No. 333-278512).
The
transactions contemplated by the Warrant Inducement Agreement closed on August 5, 2024. We received aggregate gross proceeds of approximately
$1.3 million for the exercise of the Existing Warrants, before deducting placement agent fees and other expenses payable by us.
In
consideration of the Inducement Warrant Holders’ immediate exercise of the Existing Warrants (the “Existing Warrant
Exercise”), at the exercise price of $1.25 per share, in accordance with the Inducement Agreement, we issued to the Inducement
Warrant Holders new warrants (the “Inducement Warrants”) to purchase an aggregate of 1,302,082 shares of Common
Stock, equal to 125% of the number of Existing Warrant Shares, at an exercise price of $1.50 per share. The issuance of the Inducement
Warrants, and the shares of Common Stock issuable upon exercise of the Inducement Warrants (the “Inducement Warrant Shares”),
were not registered under the Securities Act of 1933, as amended (the “Securities Act”). The Inducement Warrants
will be exercisable commencing on the effective date of stockholder approval of the issuance of the Inducement Warrant Shares issuable
upon exercise of the Inducement Warrants (the “Inducement Stockholder Approval Date”) and will expire on the
fifth anniversary of the Inducement Stockholder Approval Date.
We
agreed in the Inducement Agreement to file a registration statement on Form S-1 to register the resale of the Inducement Warrant Shares
as soon as practicable (and in any event within 45 calendar days following the date of the Inducement Agreement), and to use commercially
reasonable efforts to have such resale registration statement declared effective by the Securities and Exchange Commission (the “Commission”)
and to keep such resale registration statement effective at all times until no Inducement Warrant Holder owns any Inducement Warrants
or Inducement Warrant Shares.
WallachBeth
Capital LLC (“WallachBeth”) served as our exclusive financial advisor in connection with the Existing Warrant
Exercise and other transactions described in the Inducement Agreement. Pursuant to the terms of an engagement letter, we agreed to: (i)
pay to WallachBeth a cash fee equal to 8.0% of the aggregate gross proceeds received from the Inducement Warrant Holders upon exercise
of the Existing Warrants, and (ii) issue to WallachBeth or its designees warrants (the “Inducement Advisor Warrants”)
to purchase up to 39,062 shares of Common Stock (the “Inducement Advisor Warrant Shares”), which is equal to
3.0% of the aggregate number of Inducement Warrant Shares. The Inducement Advisor Warrants have substantially the same terms as the Inducement
Warrants, including that the Inducement Advisor Warrants have an exercise price equal to $1.50 per share, except that they were immediately
exercisable and expire on the five-year anniversary of the date of issuance.
Registered
Direct Offering and Concurrent Private Placement
On
August 2, 2024, we entered into a securities purchase agreement (the “Purchase Agreement”) with an institutional
investor (the “Investor”), pursuant to which we issued to the Investor, (i) in a registered direct offering,
360,000 shares of Common Stock (the “Shares”), and (ii) in the Concurrent Private Placement, warrants (the
“ Private Warrants”) to purchase an aggregate of 450,000 shares of Common Stock (the “Private Warrant
Shares”) with an exercise price of $1.50. Such registered direct offering and Concurrent Private Placement are collectively
referred to herein as the “August Offering.”
We
received aggregate gross proceeds from the August Offering of approximately $450,000, before deducting fees payable to WallachBeth, as
placement agent and other estimated offering expenses payable by us. The Shares were offered by us pursuant to a shelf registration statement
on Form S-3 (File No. 333-275608), which was declared effective by the Commission on November 27, 2023. The issuance of the Private Warrants,
and the Private Warrant Shares issuable upon exercise of the Private Warrants, were not registered under the Securities Act. The Private
Warrants will be exercisable commencing on the effective date of stockholder approval of the issuance of the Private Warrant Shares issuable
upon exercise of the Private Warrants (the “Private Warrant Stockholder Approval Date” and together with the
Inducement Stockholder Approval Date, the “Stockholder Approval Date”) and will expire on the fifth anniversary
of the Private Warrant Stockholder Approval Date.
Pursuant
to the terms of the Purchase Agreement, until 45 days following the closing date of August Offering (the “August Closing Date”),
we agreed not to issue (or enter into any agreement to issue) any shares of Common Stock or Common Stock Equivalents (as defined in the
Purchase Agreement), subject to certain exceptions. We further agreed not to enter into an agreement involving any Variable Rate Transaction
(as defined in the Purchase Agreement) until twelve (12) months following the August Closing Date, provided however, that the prohibition
on “at the market offerings” shall expire on the six-month anniversary of the August Closing Date. In addition, each of our
officers and directors have entered into lock-up agreements with us pursuant to which each of them has agreed not to, for a period of
60 days from the August Closing Date, offer, sell, transfer or otherwise dispose of our securities, subject to certain exceptions.
WallachBeth
acted as the placement agent on a “reasonable best efforts” basis in connection with the August Offering pursuant to that
certain placement agency agreement, dated August 2, 2024 (the “Placement Agency Agreement”) by and between
us and WallachBeth, and received a cash fee of 8.0% of the aggregate gross proceeds paid to us for the securities sold in the August
Offering and reimbursement of certain out-of-pocket expenses up to a maximum of $75,000. As additional compensation to WallachBeth, in
connection with the August Offering, we issued to the Placement Agent or its designees warrants (the “Placement Agent Warrants”)
to purchase an aggregate of 10,800 shares of Common Stock (the “Placement Agent Warrant Shares”), which was
equal to 3.0% of the number of Shares issued in the registered direct offering, at an exercise price per share equal to $1.50. The Placement
Agent Warrants have substantially the same terms as the Private Warrants, including that the Placement Agent Warrants have an exercise
price equal to $1.50 per share, except that they were immediately exercisable upon issuance and expire on the five-year anniversary of
the date of issuance.
In
addition, pursuant to the terms of the Placement Agency Agreement: (a) WallachBeth has a right of first refusal for a period of six months
after the closing of the August Offering to participate in each and every future public and private equity and debt offerings of ours,
or any successor to or any subsidiary of ours in any U.S. stock exchange during such six month period, and (b) if we within 12 months
after the closing of the August Offering, effect a sale of any securities with a party first introduced by WallachBeth in connection
with the August Offering, we will pay to WallachBeth the same cash discount and percentage of Inducement Advisor Warrants set forth above
upon the completion of such transaction.
Pursuant
to the Purchase Agreement, we agreed to file a resale registration statement on Form S-1 to register the resale of the Private Warrant
Shares as soon as practicable (and in any event within 45 calendar days following the date of the Purchase Agreement), and to use commercially
reasonable efforts to have such registration statement declared effective by the Commission and to keep such registration statement effective
at all times until the Investor no longer owns any Private Warrants or Private Warrant Shares. Pursuant to the Placement Agency Agreement,
the Company agreed to file a resale registration statement on Form S-1 to register the resale of the Placement Agent Warrant Shares
The
Company filed a resale registration statement covering the resale of the Inducement Warrant Shares, the Inducement Advisor Warrant Shares,
the Private Warrant Shares and the Placement Agent Warrant Shares on [●], 2024.
The
Inducement Warrants, the Inducement Advisor Warrants, the Private Warrants and the Placement Agent Warrants are collectively referred
to as the “Warrants” and the shares of Common Stock issuable upon exercise of the Warrants are collectively
referred to as the “Warrant Shares.”
Terms
of the Inducement Warrants and the Private Warrants
The
Inducement Warrants and the Private Warrants (collectively, the “Common Warrants”) are exercisable commencing
on the effective date of the Stockholder Approval Date and will expire on the fifth anniversary of the Stockholder Approval Date. We
have agreed to hold a special meeting of stockholders at the earliest practicable date after the August Closing Date, but in no event
later than ninety (90) days after August 5, 2024 for the purpose of obtaining Stockholder Approval (as defined below), if required to
effect the purpose thereof, with the recommendation of the Company’s Board of Directors that such proposal be approved, and we
shall solicit proxies from its stockholders in connection therewith in the same manner as all other management proposals in such proxy
statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. We agreed to use our reasonable
best efforts to obtain such Stockholder Approval, and request that our officers and directors, cast their proxies in favor of such proposal.
If we do not obtain Stockholder Approval at the first meeting, we will call a meeting every six months thereafter to seek Stockholder
Approval until the earlier of the date Stockholder Approval is obtained or the Common Warrants are no longer outstanding. “Stockholder
Approval” means such approval as may be required by the applicable rules and regulations of The Nasdaq Stock Market LLC
(or any successor entity) from the stockholders of the Company to consent to any exercise of the Common Warrants and issuance of the
shares of Common Stock upon exercise of the Common Warrants (the “Common Warrant Shares”).
If
at any time after the later of (i) the six-month anniversary of August 5, 2024, and (ii) the Stockholder Approval Date, a registration
statement registering the issuance of the Common Warrant Shares under the Securities Act is not effective or available, the holder may,
in its sole discretion, elect to exercise the Common Warrants through a cashless exercise, in which case the holder would receive upon
such exercise the net number of shares of Common Stock determined according to the formula set forth in the Common Warrants.
The
exercise price of the Common Warrants, and the number of Common Warrant Shares, is subject to adjustment in the event of any stock dividend
or split, reverse stock split, recapitalization, reorganization or similar transaction, as described in the Common Warrants.
A
holder does not have the right to exercise any portion of the Common Warrants if the holder (together with its affiliates) would beneficially
own in excess of 4.99% (or, upon election of the holder, 9.99%) of the number of shares of our Common Stock outstanding immediately after
giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of such warrants. However, any
holder may increase or decrease such percentage, provided that any increase will not be effective until the 61st day after such election.
In
the event of a Fundamental Transaction (as such term is defined in the Common Warrants), then the successor entity will succeed to, and
be substituted for the Company, and may exercise every right and power that the Company may exercise and will assume all of its obligations
under the Common Warrants with the same effect as if such successor entity had been named in the warrant itself. If holders of Common
Stock are given a choice as to the securities, cash or property to be received in a Fundamental Transaction, then the holder shall be
given the same choice as to the consideration it receives upon any exercise of the Common Warrants following such Fundamental Transaction.
In addition, the successor entity, at the request of holders of the Common Warrants, will be obligated to purchase any unexercised portion
of the Common Warrants in accordance with the terms thereof. Notwithstanding the foregoing, in the event of a Fundamental Transaction,
the holders of the Common Warrants have the right to require the Company or a successor entity to redeem the Common Warrants for cash
in the amount of the Black Scholes Value (as defined in the Common Warrants) of the unexercised portion of the Common Warrants concurrently
with or within 30 days following the consummation of a Fundamental Transaction. However, in the event of a fundamental transaction which
is not in our control, including a Fundamental Transaction not approved by the Company’s board of directors, the holders of the
Common Warrants will only be entitled to receive from the Company or its successor entity, as of the date of consummation of such Fundamental
Transaction, the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion
of the Common Warrant that is being offered and paid to the holders of Common Stock in connection with the Fundamental Transaction, whether
that consideration is in the form of cash, stock or any combination of cash and stock, or whether the holders of our Common Stock are
given the choice to receive alternative forms of consideration in connection with the Fundamental Transaction.
Except
as otherwise provided in the Common Warrants or by virtue of such holder’s ownership of shares of our Common Stock, the holder
of a Common Warrants will not have the rights or privileges of a holder of our Common Stock, including any voting rights, until the holder
exercises such warrant.
Support
Agreements
Certain
of our stockholders holding in excess of 16% of our outstanding shares of Common Stock have entered into a Support Agreement, pursuant
to which such stockholders have agreed, at every meeting of the holders of our Common Stock that our stockholders are requested to vote
upon a proposal to approve the exercise in full of the Private Warrants and the issuance of the Private Warrant Shares upon exercise
of the Private Warrants, to vote all of the shares of Common Stock that they own in favor the warrant exercise proposal as well as any
proposal to approve an adjournment of any such meeting of the Company’s stockholders for purposes of obtaining further votes in
favor of the warrant exercise proposal that are at any time or from time-to-time presented for consideration to the Company’s stockholders.
Reasons
for the Warrant Exercise Proposal
Our
Common Stock is listed on The Nasdaq Capital Stock Market (“Nasdaq”) and trades under the ticker symbol “BIAF.”
Nasdaq Listing Rule 5635(d) requires stockholder approval of transactions other than public offerings of greater than 20% of the outstanding
common stock or voting power of an issuer prior to a private placement for less than the applicable Minimum Price. Under Rule 5635(d),
the “Minimum Price” means a price that is the lower of: (i) the closing price immediately preceding the signing
of the binding agreement; or (ii) the average closing price of the common stock for the five trading days immediately preceding the signing
of the binding agreement. The closing price of our Common Stock on Nasdaq on August 1, 2024, the trading date immediately preceding the
signing of the Purchase Agreement and the Placement Agency Agreement, was $2.38 per share. In order to comply with Nasdaq Listing Rule
5635(d), the Inducement Warrants and the Private Warrants are not exercisable until Stockholder Approval is obtained.
We
are seeking stockholder approval for the issuance of up to an aggregate of 1,801,944 shares of our Common Stock upon the exercise of
the Warrants. Effectively, stockholder approval of this Warrant Exercise Proposal is one of the conditions for us to receive up to approximately
$2.6 million in gross proceeds upon the exercise of the 1,752,082 Inducement Warrants and Private Warrants, if exercised for cash ($2.7
million including the 49,862 Inducement Advisor Warrants and the Placement Agent Warrants). Loss of these potential funds could adversely
impact our ability to fund our operations.
The
Board is not seeking the approval of our stockholders to authorize our entry into or consummation of the transactions described above,
as the transactions have already been completed. We are only asking for approval to issue up to an aggregate of 1,801,944 Warrant Shares
upon exercise of the Warrants.
Potential
Consequences if Proposal No. 1 is Not Approved
The
failure of our stockholders to approve this Proposal No. 1 will mean that: (i) we cannot permit the exercise of the Inducement Warrants
and Private Warrants and (ii) may incur substantial additional costs and expenses.
Each
Inducement Warrant and Private Warrant has an initial exercise price of $1.50 per share. Accordingly, we would realize an aggregate of
up to approximately $2.6 million in gross proceeds, if all of the Inducement Warrants and Private Warrants were exercised for cash ($2.7
million including the Inducement Advisor Warrants and the Placement Agent Warrants).
In
addition, in connection with the Concurrent Private Placement and the issuance of the Private Warrants, we have agreed to hold a special
meeting of stockholders at the earliest practicable date after the August Closing Date, but in no event later than ninety (90) days after
August 5, 2024 for the purpose of obtaining Stockholder Approval and to seek stockholder approval every six months thereafter until the
earlier of the date our stockholders approve the issuance of the Private Warrant Shares or the Private Warrants are no longer outstanding.
We are required to seek such approval until such time as none of the Private Warrants are outstanding which could result in us seeking
such approval every six months. The costs and expenses associated with seeking such approval could materially and adversely impact our
ability to fund our operations, advance our clinical trials, and develop and commercialize our diagnostic tests or therapeutic product
candidate.
Potential
Adverse Effects of the Approval of Proposal No. 1
If
this Proposal No. 1 is approved, existing stockholders will suffer dilution in their ownership interests in the future upon the issuance
of the Warrant Shares upon exercise of the Warrants. Assuming the full exercise of the Warrants, an aggregate of 1,801,944 additional
shares of Common Stock will be outstanding, and the ownership interest of our existing stockholders would be correspondingly reduced.
In addition, the sale into the public market of these shares also could materially and adversely affect the market price of our Common
Stock.
Required
Vote
The
affirmative vote from the holders of a majority of the shares present in person or represented by proxy and entitled to vote on the Warrant
Exercise Proposal at the Special Meeting is required for approval of this proposal. Abstentions will have the same effect as votes AGAINST
this proposal. Broker non-votes are not expected for this proposal.
THE
BOARD UNANIMOUSLY RECOMMENDS THAT
YOU
VOTE “FOR” THE WARRANT EXERCISE PROPOSAL.
PROPOSAL
2
APPROVAL
OF THE ADJOURNMENT PROPOSAL
Background
of and Rationale for the Adjournment Proposal
The
Board of Directors believes that if at the Special Meeting, the number of votes represented by shares of our Common Stock, present or
represented and voting in favor of the Warrant Exercise Proposal, is insufficient to approve the Warrant Exercise Proposal or establish
a quorum, it is in the best interests of the stockholders to enable the Board to continue to seek to obtain a sufficient number of additional
votes to approve the Warrant Exercise Proposal.
In
the Adjournment Proposal, we are asking stockholders to authorize the holder of any proxy solicited by the Board to vote in favor of
adjourning or postponing the Special Meeting or any adjournment or postponement thereof. If our stockholders approve this proposal, we
could adjourn or postpone the Special Meeting, and any adjourned session of the Special Meeting, to use the additional time to solicit
additional proxies in favor of the Warrant Exercise Proposal.
Additionally,
approval of the Adjournment Proposal could mean that, in the event we receive proxies indicating that holders of a majority of the number
of shares present in person or represented by proxy at the Special Meeting will vote against the Warrant Exercise Proposal, we could
adjourn or postpone the Special Meeting without a vote on the Warrant Exercise Proposal and use the additional time to solicit the holders
of those shares to change their vote in favor of the Warrant Exercise Proposal.
Vote
Required
The
affirmative vote from the holders of a majority of the shares present in person or represented by proxy and entitled to vote on the Adjournment
Proposal at the Special Meeting is required for approval of this proposal. Abstentions will have the same effect as a vote AGAINST this
proposal. Broker non-votes are not expected for this proposal.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A
VOTE
“FOR” APPROVAL OF THE ADJOURNMENT PROPOSAL.
SECURITY
OWNERSHIP OF MANAGEMENT
The
following table sets forth information regarding the beneficial ownership of shares of the Company’s Common Stock as of August
22, 2024, by (i) each person known to the Company to beneficially own more than 5% of any class of the Company’s outstanding voting
securities, (ii) each director, (iii) each of our named executive officers, and (iv) all of the Company’s directors and current
executive officers as a group.
Beneficial
ownership is determined according to the rules of the Commission, which generally provide that a person has beneficial ownership of a
security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that
are currently exercisable or exercisable within 60 days. In computing the number of shares beneficially owned by a person or entity and
the percentage ownership of that person or entity in the table below, all shares subject to options and warrants were deemed outstanding
if such securities are currently exercisable or will vest within 60 days of the filing of this Proxy Statement. These shares were not
deemed outstanding, however, for the purpose of computing the percentage ownership of any other person or entity.
The
percentage of beneficial ownership of the Company’s Common Stock is based on 13,490,273 shares of Common Stock outstanding as of
August 22, 2024.
Unless
otherwise indicated, the Company believes that each person named in the table below has sole voting and investment power with respect
to all shares of Common Stock beneficially owned by such person.
| Name and Address(1) | |
Number of Shares
of Common Stock | | |
Percent of Class | |
| Directors and Executive Officers: | |
| | | |
| | |
| Maria Zannes(2) | |
| 403,312 | | |
| 2.95 | % |
| Michael Dougherty(3) | |
| 84,203 | | |
| *
| |
| Steven Girgenti(4) | |
| 1,791,266 | | |
| 12.61 | % |
| S. Robert Anderson(5) | |
| 223,215 | | |
| 1.65 | % |
| Stuart Diamond(6) | |
| 126,228 | | |
| * | |
| Jamie Platt(7) | |
| 54,748 | | |
| *
| |
| Peter Knight(8) | |
| 186,022 | | |
| 1.37 | % |
| Gary Rubin(9) | |
| 2,431,387 | | |
| 17.13 | % |
| Roby Joyce(10) | |
| 669,744 | | |
| 4.96 | % |
| | |
| | | |
| | |
All Directors and Current Executive Officers as a Group (12 Individuals): | |
| 6,106,787 | | |
| 39.97 | % |
| | |
| | | |
| | |
| Five Percent Holders: | |
| | | |
| | |
| The Harvey Sandler Revocable
Trust(11) | |
| 2,235,514 | | |
| 15.81 | % |
| * |
Ownership
of less than 1%. |
| (1) |
Unless
otherwise indicated, the address for each person is c/o bioAffinity Technologies, Inc., 3300 Nacogdoches Road, Suite 216,
San Antonio, Texas 78217. |
| |
|
| (2) |
Includes
(i) 243,322 shares of Common Stock owned by Ms. Zannes, including 166,740 shares of Common Stock issued to Ms. Zannes
as restricted stock; (ii) 56,422 shares of Common Stock issuable upon exercise of options that are immediately exercisable; and
(iv) an aggregate of 103,568 shares of Common Stock issuable upon exercise of warrants. |
| |
|
| (3) |
Includes
84,203 shares issued to Mr. Dougherty as restricted stock. |
| |
|
| (4) |
Includes
(i) 1,065,149 shares of Common Stock owned by Mr. Girgenti, including 202,608 shares of Common Stock issued to Mr.
Girgenti as restricted stock; (ii) 8,955 shares of Common Stock owned directly by the Cranye Girgenti Testamentary Trust, for which
Mr. Girgenti serves as trustee; (iii) an aggregate of 669,547 shares of Common Stock issuable upon exercise of warrants owned
by Mr. Girgenti; (iv) 8,332 shares of Common Stock issuable upon exercise of warrants owned by the Cranye Testamentary Trust, for
which Mr. Girgenti serves as trustee; and (v) 39,281 shares of Common Stock issuable upon exercise of options that are immediately
exercisable.. |
| |
|
| (5) |
Includes
(i) 163,936 shares of Common Stock owned by Mr. Anderson including 95,007 shares of Common Stock issued to Mr. Anderson
as restricted stock; (ii) 39,281 shares of Common Stock issuable upon exercise of options that are immediately exercisable; and (iv)
19,998 shares of Common Stock issuable upon exercise of warrants. |
| (6) |
Includes
(i) 99,088 shares of Common Stock owned by Mr. Diamond including 95,007 shares of Common Stock issued to Mr. Diamond
as restricted stock; (ii) 7,142 shares of Common Stock issuable upon exercise of options that are immediately exercisable; and (iii)
19,998 shares of Common Stock issuable upon exercise of warrants. |
| |
|
| (7) |
Includes
54,748 shares of Common Stock issued to Dr. Platt as restricted stock. |
| |
|
| (8) |
Includes
(i) 117,455 shares of Common Stock owned by Mr. Knight including 95,007 shares of Common Stock issued to Mr. Knight
as restricted stock; (ii) 28,568 shares of Common Stock issuable upon exercise of options that are immediately exercisable; and (iii)
39,999 shares of Common Stock underlying warrants with a term of five years having an exercise price of $3.0625 per share. |
| |
|
| (9) |
Includes
(i) 146,597 shares of Common Stock owned by Mr. Rubin including 95,007 shares of Common Stock issued to Mr. Rubin as
restricted stock, (ii) 32,139 shares of Common Stock issuable upon exercise of options that are immediately exercisable; (iii)
17,137 shares of Common Stock issuable upon exercise of warrants held by Mr. Rubin (iv) 1,584,144 shares of Common Stock owned
by the Harvey Sandler Revocable Trust, for which Mr. Rubin serves as co-trustee; and (v) an aggregate of 651,370 shares of Common
Stock issuable upon exercise of warrants owned by the Harvey Sandler Revocable Trust, for which Mr. Rubin serves as co-trustee. |
| |
|
| (10) |
Includes
(i) 66,615 shares of Common Stock issued to Dr. Joyce as restricted stock; (ii) 583,130 shares of Common Stock owned by the
Joyce Living Trust; and (iii) an aggregate of 19,999 shares of Common Stock issuable upon exercise of warrants held by the Joyce
Living Trust. Dr. Joyce is co-trustee of the Joyce Living Trust, together with his wife, Joyce M. Joyce, each of whom may act
unilaterally with regard to voting and disposition power over the shares held by the Joyce Living Trust. The Joyce Living
Trust has an address at 1092 Madeline Street, New Braunfels, Texas 78132. |
| (11) |
Includes:
(i) 1,584,144 shares of Common Stock owned by
the Harvey Sandler Revocable Trust; and (ii) an aggregate of 651,370 shares of Common Stock issuable upon exercise of warrants
held by the Harvey Sandler Revocable Trust. |
STOCKHOLDER
PROPOSALS FOR 2025 ANNUAL MEETING
Stockholder
proposals intended to be included in the Company’s proxy statement relating to the 2025 Annual Meeting must comply with Rule 14a-8
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which requires that the notice
be received at the Company’s principal executive office not less than 120 calendar days before the one-year anniversary date of
the Company’s proxy statement released to stockholders in connection with the previous year’s annual meeting, and accordingly
must be received in writing by the Company at its principal executive office at the address set forth above no later than December 15,
2024.
In
connection with the Company’s next annual meeting, stockholder proposals that are not submitted for inclusion in the Company’s
proxy materials pursuant to Rule 14a-8 under the Exchange Act may be brought before an annual meeting pursuant to Article II, Section
2.12 of the Company’s By-laws, which provides that nominations or other business at an annual meeting of stockholders may be made
(i) pursuant to the Company’s notice of meeting, (ii) by or at the direction of the Board, or (iii) by any stockholder of the Company
who was a stockholder of record at the time of giving the notice provided for in Article II, Section 2.12 of the By-laws, who is entitled
to vote at the meeting and who complies with the notice procedures set forth in Article II, Section 2.12.
For
nominations or other business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Corporate Secretary. To be timely, a stockholder’s notice shall be delivered to the Secretary
of the Company at the Company’s principal executive office at 3300 Nacogdoches Road, Suite 216, San Antonio, Texas 78217, and not
later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior
to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder to be timely must be
so delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close
of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the 10th day following the day
on which public announcement of the date of such meeting is first made by the Company. The anniversary of this year’s annual meeting
will be Wednesday, June 4, 2025. Thus, a stockholder notice must be received by the Company no later than March 6, 2025, and no earlier
than February 4, 2025. If the date of the 2025 Annual Meeting is changed, these dates may change. Such stockholder’s notice is
required to set forth, as to each matter the stockholder proposes to bring before an annual meeting, certain information specified in
the By-laws and, to the extent applicable, required by Rule 14a-19 under the Exchange Act. A copy of the By-laws of the Company may be
obtained from the Secretary of the Company at the address set forth above.
In
addition to satisfying the foregoing advance notice requirements under the Company’s By-laws, to comply with the universal-proxy
rules under the Exchange Act, stockholders who intend to solicit proxies in support of director nominees other than the Company’s
nominees must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act and that is postmarked or
transmitted electronically to the Company no later than April 5, 2025.
| |
By
Order of the Board of Directors: |
| |
|
| |
 |
| |
Maria
Zannes |
| |
President
and Chief Executive Officer |
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