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May 13 2024 - 7:05AM
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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): May 13, 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 May 13, 2024, NKGen Biotech,
Inc. (the “Company”) and Generating Apha Ltd. (“Alpha”) entered into an amendment (the “Amendment”)
to the securities purchase agreement, dated as of May 7, 2024, between the Company and Alpha (the “Purchase Agreement”).
Pursuant to the Amendment,
the Company and Alpha agreed to amend the Purchase Agreement to add a beneficial ownership limitation limiting the number of shares of
common stock, par value $0.0001 per share, of the Company that may be issued to Alpha.
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.
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: May 13, 2024 |
/s/ Paul Y. Song |
|
Name: |
Paul Y. Song |
|
Title: |
Chief Executive Officer |
|
|
(Principal Executive Officer) |
2
Exhibit 10.1
FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This FIRST AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (this “First Amendment”), dated as of May 13, 2024, is made between NKGen Biotech Inc. and Generating
Alpha Ltd. Capitalized terms used herein and not otherwise defined in this First Amendment have the meanings ascribed to them in the Securities
Purchase Agreement (hereinafter defined).
W I T N E S S E T H:
WHEREAS, NKGen Biotech Inc. and Generating Alpha
Ltd. entered into that certain Securities Purchase Agreement, dated as of May 7, 2024 (the “Securities Purchase Agreement”);
and
WHEREAS,
each of the parties desires to enter into an amendment to the Securities Purchase Agreement as and to the limited extent set forth in
this First Amendment and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration
of the mutual promises, covenants and agreements contained in this First Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
| 1. | Amendment. Section 4. ADDITIONAL COVENANTS, AGREEMENTS AND ACKNOWLEDMENTS of the Securities
Purchase Agreement is hereby amended by adding new Section 4(x) as follows: |
| a. | Beneficial Ownership Limitation. In no event shall the Company issue to the Buyer a number of Common
Stock which result in the Buyer and its affiliates together beneficially owning more than 4.99% of the then issued and outstanding Common
Stock (the “Beneficial Ownership Limitation”). For purposes hereof, beneficial ownership shall be determined in accordance
with Section 13(d) of the 1934 Act and Regulation 13D-G under the 1934 Act. |
| 2. | Nature of Agreement; No Other Amendments. The parties hereby acknowledge
and agree that this First Amendment constitutes an amendment to the Securities Purchase Agreement in accordance with Section E(d) thereof.
Except as specifically amended by this First Amendment, all other terms and provisions of the Securities Purchase Agreement shall remain
in full force and effect. |
| 3. | Governing Law. This First Amendment shall be deemed executed, delivered
and performed in Nevis. This First Amendment shall be solely and exclusively construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and performance of this Amendment shall be governed solely and exclusively by the
internal laws of Nevis, without giving effect to any choice of law or conflict of law provision or rule (whether of Nevis or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than Nevis. The Company irrevocably and exclusively
consents to and expressly agrees that binding arbitration in Nevis conducted by the Arbitrator Conflict Resolution Centre shall be their
sole and exclusive remedy for any dispute arising out of or relating to this First Amendment or any other agreement between the parties,
the Company’s transfer agent or the relationship of the parties or their affiliates, and that the arbitration shall be conducted
via telephone or teleconference. If the Arbitrator is not available, a different arbitrator or law firm in Nevis shall be chosen by the
Buyer and agreed upon by the Company in its reasonable discretion. The Company covenants and agrees to provide written notice to Buyer
via email prior to bringing any action or arbitration action against the Company’s transfer agent or any action against any person
or entity that is not a party to this First Amendment that is related in any way to this First Amendment or any transaction contemplated
herein or therein, and further agrees to timely notify Buyer to any such action. The Company acknowledges that the governing law and venue
provisions set forth in this First Amendment are material terms to induce Buyer to enter into the First Amendment and that but for the
Company’s agreements set forth in this section, Buyer would not have entered into the First Amendment. In the event that the Buyer
needs to take action to protect their rights under this First Amendment, the Buyer may commence action in any jurisdiction needed with
the understanding that this First Amendment shall still be solely and exclusively construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and performance of this First Amendment shall be governed solely and exclusively
by the internal laws of Nevis, without giving effect to any choice of law or conflict of law provision or rule (whether of Nevis or any
other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Nevis. Each party hereby irrevocably
waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Note
or any other related transaction document by email. |
| (a) | Section headings in this First Amendment are included herein for convenience of reference only and shall
not constitute a part of this First Amendment for any other purpose. |
| (b) | This First Amendment is, and shall be deemed to be, the product of joint drafting by the parties hereto
and shall not be construed against any of them as the drafter hereof. |
| (c) | This First Amendment shall inure to the benefit of and be binding upon the parties and their respective
heirs, successors and assigns. |
| (d) | This First Amendment may be executed and delivered by facsimile signature and in two or more counterparts,
each of which will be deemed to be an original signature and copy of this First Amendment and all of which, when taken together, will
be deemed to constitute one and the same First Amendment. |
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed
this First Amendment as of the date first written above.
|
NKGEN BIOTECH INC. |
|
a Delaware corporation |
|
|
|
By: |
/s/ Paul Y. Song |
|
Name: |
Paul Y. Song |
|
Title: |
Chief Executive Officer |
|
GENERATIONG ALPHA LTD. |
|
a Saint Kitts and Nevis company |
|
|
|
By: |
/s/ Maria Cano |
|
Name: |
Maria Cano |
|
Title: |
Director |
[Signature Page to First Amendment]
v3.24.1.1.u2
Cover
|
May 13, 2024 |
Document Type |
8-K
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Amendment Flag |
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|
Document Period End Date |
May 13, 2024
|
Entity File Number |
001-40427
|
Entity Registrant Name |
NKGen Biotech,
Inc.
|
Entity Central Index Key |
0001845459
|
Entity Tax Identification Number |
86-2191918
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
3001 Daimler
Street
|
Entity Address, City or Town |
Santa Ana
|
Entity Address, State or Province |
CA
|
Entity Address, Postal Zip Code |
92705
|
City Area Code |
949
|
Local Phone Number |
396-6830
|
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|
Common Stock, $0.0001 par value per share |
|
Title of 12(b) Security |
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|
Trading Symbol |
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|
Security Exchange Name |
NASDAQ
|
Warrants, each whole warrant exercisable for one share of Common Stock at an exercise price of $11.50 per share |
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Title of 12(b) Security |
Warrants, each whole warrant exercisable for one share of Common Stock at an exercise price of $11.50 per share
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Trading Symbol |
NKGNW
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Security Exchange Name |
NASDAQ
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