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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):
September 5, 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 September 5, 2024, NKGen
Biotech, Inc. (the “Company” and formerly known as Graf Acquisition Corp. IV (“Graf”)) and Seller (defined below)
entered into a sixth amendment (the “Amendment”) to the forward purchase agreement, dated as of September 22, 2023 (the “FPA”),
initially among the Company, Graf Acquisition Corp. IV, (“Graf”), Meteora Strategic Capital, LLC (“MSC”), Meteora
Capital Partners, LP (“MCP”) and Meteora Select Trading Opportunities Master, LP (“MSTO” with MSC, MCP, and MSTO
collectively, “Seller”) for OTC Equity Prepaid Forward Transactions, as amended on December 26, 2023, as further amended on
January 2, 2024, January 11, 2024, February 21, 2024 and July 12, 2024.
Pursuant to the Amendment,
the Company and Seller agreed to increase (i) the Prepayment Shortfall (as defined in the Amendment) by $250,000 and (ii) to increase
the Share Consideration Shares (as defined in the Amendment) by 250,000 shares of the Company’s common stock. All other terms and
conditions remained unchanged.
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 5.02. Departure of Directors
or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On September 9, 2024, NKGen
Biotech, Inc. (the “Company”) entered into a Separation and Transition Agreement (the “Transition Agreement”)
with Pierre Gagnon, former Chief Operating Officer of the Company and a named executive officer for the fiscal year ended December 31,
2023. Under the Transition Agreement, Mr. Gagnon will serve as Advisor, through November 30, 2024 (the “Separation Date”).
In exchange for his service
as Advisor, Mr. Gagnon will receive an hourly wage of $200 per hour and continued vesting of stock options. Mr. Gagnon will be providing
services as a non-exempt, part-time employee, and therefore will cease to be eligible to accrue paid time off or participate in the Company’s
benefits plans.
Pursuant to the Transition
Agreement, Mr. Gagnon will be an at-will employee and either the Company or Mr. Gagnon may terminate the Transition Agreement prior
to the Separation Date at any time. The Transition Agreement does not provide for any severance or
other termination rights. Mr. Gagnon will continue to be subject to the restrictive covenants contained within the Company’s Employee
Confidential Information and Inventions Assignment Agreement.
The foregoing description of the Transition
Agreement is a summary only and is qualified in its entirety by reference to its full text, a copy of which will be attached to
Form 10-Q covering the third quarter.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
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: September 11, 2024 |
/s/ Paul Y. Song |
|
Name: |
Paul Y. Song |
|
Title: |
Chief Executive Officer |
|
|
(Principal Executive Officer) |
2
Exhibit 10.1
FORWARD
PURCHASE AGREEMENT CONFIRMATION Sixth AMENDMENT
THIS FORWARD PURCHASE AGREEMENT
CONFIRMATION SIXTH AMENDMENT, dated as of September 5, 2024 (this “Amendment”), is entered into by and among (i) Meteora
Capital Partners, LP (“MCP”) (ii) Meteora Select Trading Opportunities Master, LP (“MSTO”) and (iii)
Meteora Strategic Capital, LLC (“MSC”) (with MCP, MSTO and MSC collectively as “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 22, 2023 (the “Confirmation”), the Forward Purchase
Agreement Confirmation Amendment, dated as of December 26, 2023, Forward Purchase Agreement Confirmation Second Amendment, dated as of
January 2, 2024, and Forward Purchase Agreement Confirmation Third Amendment, dated as of January 11, 2024, Forward Purchase Fourth Amendment,
dated as of February 21, 2024, and Forward Purchase Agreement Confirmation Fifth Amendment, dated as of July 12, 2024 (as amended from
time to time, collectively the “Prior Amendments”), 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 “Prepayment
Shortfall” shall be deleted in its entirety and replaced with the following:
Prepayment Shortfall: |
An
amount in USD equal to 0.50% of the product of (i) the Recycled Shares multiplied by (ii) the Initial Price (the “Initial Shortfall”);
provided that Seller shall pay 0.50% of the product of (i) the Recycled Shares multiplied by (ii) the Initial Price of the Prepayment
Shortfall to Counterparty on the Prepayment Date (which amount shall be netted from the Prepayment Amount) and, at the request of Counterparty,
an additional Prepayment Shortfall of $500,000 in cash (the “Future Shortfall”), with such request being made by no
later than 5:00pm EST on December 26, 2023, after which the option will expire, and at the request of Counterparty, an additional Prepayment
Shortfall of $500,000 in cash (the “Second Future Shortfall”), with such request originally made by the deadline on
January 2, 2024 but subsequently withdrawn, not funded and thus expired, and at the request of Counterparty, an additional Prepayment
Shortfall of $500,000 in cash (the “Third Future Shortfall”), with such request being made by no later than 5:00pm
EST on January 11, 2024, after which the option will expire, and at the request of Counterparty, an additional Prepayment Shortfall of
$200,000 in cash (the “Fourth Future Shortfall”), with such request being made by no later than 5:00pm EST on February
21, 2024, after which the option will expire, and at the request of Counterparty,
an additional Prepayment Shortfall of $200,000 in cash (the “Fifth Future Shortfall”), with such request being made
by no later than 5:00pm EST on July 12, 2024, after which the option will expire, and at the request of the Counterparty, an additional
Prepayment Shortfall of $250,000 in cash (the “Sixth Future Shortfall), with such request being made by no later than 5:00pm EST
on September 5, 2024, after which the option will expire.
|
b. The section titled “Prepayment
Shortfall Consideration” shall be deleted in its entirety and replaced with the following:
Prepayment Shortfall Consideration: |
Seller in its sole discretion may sell Additional Shares or Recycled Shares at any time following the Trade Date without payment by Seller of any Early Termination Obligation (as defined below) until such time as the proceeds from such sales equal 100% the Prepayment Shortfall, other than any subsequent Prepayment Shortfall request by Counterparty which shall be set at 120% of the Prepayment Shortfall (as set forth under Shortfall Sales below) (such sales, “Shortfall Sales,” and such Shares, “Shortfall Sale Shares”). A sale of Shares is only (a) a “Shortfall Sale,” subject to the terms and conditions herein applicable to Shortfall Sale Shares, when a Shortfall Sale Notice is delivered hereunder, and (b) an Optional Early Termination, subject to the terms and conditions herein applicable to Terminated Shares, when an OET Notice (as defined below) is delivered hereunder, in each case the delivery of such notice in the sole discretion of the Seller. For the avoidance of doubt and notwithstanding anything to the contrary herein, Seller shall not be liable for any Settlement Amount payment with respect to the Shortfall Sale Shares. |
c. The section titled “Share
Consideration” shall be deleted in its entirety and replaced with the following:
Share Consideration: |
In addition to previously issued Share Consideration Shares, Counterparty shall issue 250,000 incremental Share Consideration Shares in connection with the execution of this Amendment. Such shares shall be incremental to the Maximum Number of Shares, shall not be included in the Number of Shares in this Transaction, and the Seller and the Share Consideration Shares shall be free and clear of all obligations with respect to the Seller and such Share Consideration Shares in connection with this Confirmation. |
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. No
Other Amendments. All other terms and conditions of the Confirmation and Prior Amendments 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.
4. 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.
5. 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 Prior Amendments, as amended by this Amendment,
shall continue to be legal, valid, binding and enforceable in accordance with their terms.
6. 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.
[signature page follows]
|
METEORA STRATEGIC CAPITAL, LLC |
|
METEORA SELECT TRADING OPPORTUNITIES MASTER, LP; AND |
|
METEORA CAPITAL PARTNERS, LP |
|
|
|
|
By: |
/s/ Vik Mittal |
|
Name: |
Vik Mittal |
|
Title: |
Managing Member |
|
|
|
|
NKGEN BIOTECH, INC. |
|
|
|
By: |
/s/ Paul Song |
|
Name: |
Paul Song |
|
Title: |
Chief Executive Officer |
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