BIVI BioVie Inc

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 

FORM 8-K/A

 

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 23, 2024

 

BioVie Inc.
(Exact Name of Registrant as Specified in Its Charter)

 

Nevada		001-39015		46-2510769
(State or Other Jurisdiction of Incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

680 W Nye Lane Suite 201 Carson City, NV		89703
(Address of Principal Executive Offices)		(Zip Code)

 

(775) 888-3162
(Registrant’s Telephone Number, Including Area Code)

 

(Former Name or Former Address, if Changed Since Last Report)

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Class A Common Stock, par value $0.0001 per share	BIVI	The Nasdaq Stock Market, LLC

 

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))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in 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. ☐

 

 

 

EXPLANATORY NOTE

 

On September 24, 2024, BioVie Inc. (the “Company”) filed a Current Report on form 8-K (the “Original 8-K”) with the Securities and Exchange Commission to report its entry into a placement agent agreement with ThinkEquity LLC, as the placement agent (the “Placement Agent”), in connection with the issuance and sale directly to various investors of up to 1,960,800 shares of the Company’s class A common stock par value $0.0001 per share (the “Common Stock”), at a public offering price to the investors of $1.53 per share (the “Share Offering Price”) and/or pre-funded warrants (the “Pre-Funded Warrants”) to purchase shares of Common Stock (the “Pre-Funded Warrant Shares”), at a public offering price to the investors of $1.5299 per Pre-Funded Warrant, together with class A common stock purchase warrants (“Common Warrants”) to purchase up to 1,960,800 shares of Common Stock. This amendment is being filed solely to amend the Original 8-K to file an amended Exhibit 5.1 hereto. Other than as described above, this amendment does not amend any other information previously filed in the Original 8-K.

 

 

Item 9.01 Financial Statements and Exhibits

 

(d) Exhibits.

 

Exhibit No.		Description
4.1*		Form of Pre-Funded Warrant.
4.2*		Form of Common Warrant.
4.3*		Form of Placement Agent’s Warrant Agreement (included in Exhibit 10.1).
5.1		Opinion of Fennemore Craig, P.C.
5.2*		Opinion of Reed Smith LLP.
10.1*+		Placement Agent Agreement, dated as of September 23, 2024 by and between the Company and the Placement Agent.
23.1		Consent of Fennamore Craig, P.C. (included in Exhibit 5.1).
23.2		Consent of Reed Smith LLP (included in Exhibit 5.2).
99.1*		Press Release dated September 23, 2024.
99.2*		Press Release dated September 23, 2024.

 

*

Previously filed as an exhibit to the Original 8-K.

+

Certain portions of this Exhibit have been omitted pursuant to Regulation S-K Item 601(a)(6) promulgated under the Exchange Act. The Registrant agrees to furnish supplementally a copy of any omitted schedule to the SEC upon request.

 

 

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 hereunto duly authorized.

 

Dated: September 24, 2024

 

	BIOVIE INC.
	By:	/s/ Joanne Wendy Kim
	Name:	Joanne Wendy Kim
	Title:	Chief Financial Officer

 

 

Exhibit 5.1

 

7800 Rancharrah Parkway Reno, Nevada 89511 fennemorelaw.com

 

 

September 24, 2024

 

BioVie Inc.

680 West Nye Lane, Suite 201

Carson City, Nevada 489703

 

Re:

BioVie Inc./Registration Statement on Form S-3

 

Ladies and Gentlemen:

 

We have acted as special Nevada counsel to BioVie Inc., a Nevada corporation (the “Company”), in connection with the issuance and sale by the Company of (a) up to 1,360,800 shares (the “Shares”) of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”); (b) pre-funded warrants (the “Pre-Funded Warrants”) to purchase up to 600,000 shares of Common Stock (the “Pre-Funded Warrant Shares”) with an exercise price equal to $0.0001 per share; (c) warrants (the “Common Warrants”) to purchase up to 1,960,800 shares of Common Stock (the “Common Warrant Shares”) at with an exercise price equal to $1.5299 per share; and (d) up to 98,040 warrants (the “Placement Agent Warrants”) to purchase an equal number of shares of Common Stock (the “Placement Agent Warrant Shares”) with an exercise price equal to $1.9125 per share. The Shares, the Pre-Funded Warrants, the Pre-Funded Warrant Shares, the Common Warrants, the Common Warrant Shares, the Placement Agent Warrants, and the Placement Agent Warrant Shares are collectively referred to herein as the “Securities.” The Securities are being offered, sold, and issued under the terms of a Placement Agency Agreement dated September 23, 2024 (the “Placement Agreement”) by and between the Company and ThinkEquity LLC, acting as the exclusive placement agent.

 

The Securities are being registered under a Registration Statement on Form S-3 (File No. 333-274083) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), including the base prospectus forming a part of such Registration Statement dated August 28, 2023 (the “Base Prospectus”), and the prospectus supplement thereto dated September 23, 2024 (the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”).

 

For purposes of these opinions, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:

 

 

 

 

BioVie Inc.

September 24, 2024

Page 2

 

(a)       the Registration Statement;

 

(b)       the Prospectus;

 

(c)       the Placement Agreement;

 

(d)       form of Pre-Funded Common Stock Purchase Warrant (the “Pre-Funded Warrants”);

 

(e)       form of Placement Agent Warrant;

 

(f)       form of the Common Warrant;

 

(g)       the Company’s Current Report on Form 8-K to be filed with the Commission on the date hereof; and

 

(h)       resolutions of the Board of Directors and the Pricing Committee thereof and such other matters as relevant related to the (i) approval of the Placement Agreement and authorization of the Company to execute, deliver, and perform its obligations under the Placement Agreement, (ii) issuance and the registration of the Securities under the Securities Act, and (iii) such other matters as relevant.

 

We have obtained from officers and agents of the Company and from public officials, and have relied upon, such certificates, representations, and assurances as we have deemed necessary and appropriate for purposes of rendering this opinion letter. We have also examined such other corporate documents, records, certificates, and instruments (collectively with the documents identified in (a) through (h) above, the “Documents”) as we deem necessary or advisable to render the opinions set forth herein.

 

In our examination, we have assumed:

 

(a)       the legal capacity of all natural persons executing the Documents;

 

(b)       the genuineness of all signatures on the Documents;

 

(c)       the authenticity of all Documents submitted to us as originals, and the conformity to original documents of all Documents submitted to us as copies;

 

(d)       that the parties to such Documents, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder;

 

 

 

 

BioVie Inc.

September 24, 2024

Page 3

 

(e)       other than with respect to the Company, the due authorization by all requisite action, corporate or other, of the Documents;

 

(f)       the execution, delivery, and performance by all parties of the Documents; and

 

(g)       that all Documents are valid, binding, and enforceable against the parties thereto.

 

We have relied upon the accuracy and completeness of the information, factual matters, representations, and warranties contained in such Documents.

 

We note that the Company has reserved, and assume that it will continue to reserve, sufficient authorized shares of its Common Stock to allow for the issuance of its shares of Common Stock upon sale of the Shares and exercise of the Common Warrants, the Pre-Funded Warrants and the Placement Agent Warrants.

 

The opinions expressed below are limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed for purposes of delivering these opinions expressed herein or any changes in applicable law that may come to our attention after the date the Registration Statement is declared effective.

 

On the basis of the foregoing and in reliance thereon, and subject to the assumptions, limitations, and qualifications set forth herein, we are of the opinion that:

 

(a)

the Shares have been duly authorized, and when issued in accordance with the Placement Agreement, will be validly issued, fully paid, and nonassessable;

 

(b)

the Pre-Funded Warrant Shares have been duly authorized, and when issued upon exercise of the Pre-Funded Warrants in accordance with the terms thereof, will be validly issued, fully paid, and non-assessable;

 

(c)

the Common Warrant Shares have been duly authorized, and when issued upon exercise of a Common Warrant in accordance with the terms thereof, will be validly issued, fully paid, and non-assessable; and

 

(d)

the Placement Agent Warrant Shares have been duly authorized, and when issued upon exercise of the Placement Agent Warrant in accordance with the terms thereof, will be validly issued, fully paid, and non-assessable.

 

While certain members of this firm are admitted to practice in certain jurisdictions other than Nevada, in rendering the foregoing opinions we have not examined the laws of any jurisdiction other than Nevada. Accordingly, we express no opinion regarding the effect of the laws of any other jurisdiction or state, including any federal laws. The opinions we express herein are limited solely to the laws of the State of Nevada, other than the securities laws and regulations of the State of Nevada as to which we express no opinion.

 

 

 

 

BioVie Inc.

September 24, 2024

Page 4

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and we consent to the reference of our name under the caption “Legal Matters” in the Registration Statement. In giving the foregoing consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

	Very truly yours,
	/s/ Fennemore Craig, P.C.
	Fennemore Craig, P.C.

 

tmor/cete/cdol

 

 

v3.24.3

Cover	Sep. 23, 2024
Cover [Abstract]
Document Type	8-K/A
Amendment Flag	true
Amendment Description	On September 24, 2024, BioVie Inc. (the “Company”) filed a Current Report on form 8-K (the “Original 8-K”) with the Securities and Exchange Commission to report its entry into a placement agent agreement with ThinkEquity LLC, as the placement agent (the “Placement Agent”), in connection with the issuance and sale directly to various investors of up to 1,960,800 shares of the Company’s class A common stock par value $0.0001 per share (the “Common Stock”), at a public offering price to the investors of $1.53 per share (the “Share Offering Price”) and/or pre-funded warrants (the “Pre-Funded Warrants”) to purchase shares of Common Stock (the “Pre-Funded Warrant Shares”), at a public offering price to the investors of $1.5299 per Pre-Funded Warrant, together with class A common stock purchase warrants (“Common Warrants”) to purchase up to 1,960,800 shares of Common Stock. This amendment is being filed solely to amend the Original 8-K to file an amended Exhibit 5.1 hereto. Other than as described above, this amendment does not amend any other information previously filed in the Original 8-K.
Document Period End Date	Sep. 23, 2024
Entity File Number	001-39015
Entity Registrant Name	BioVie Inc.
Entity Central Index Key	0001580149
Entity Tax Identification Number	46-2510769
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	680 W Nye Lane
Entity Address, Address Line Two	Suite 201
Entity Address, City or Town	Carson City
Entity Address, State or Province	NV
Entity Address, Postal Zip Code	89703
City Area Code	(775)
Local Phone Number	888-3162
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Class A Common Stock, par value $0.0001 per share
Trading Symbol	BIVI
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false

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