BOF BranchOut Food Inc

 

 

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): February 18, 2025

 

	BRANCHOUT FOOD INC.
	(Exact name of registrant as specified in its charter)

 

Nevada		001-41723		87-3980472
(State or other jurisdiction		(Commission		(I.R.S. Employer
of incorporation)		File Number)		Identification Number)

 

205 SE Davis Avenue, Bend Oregon		97702
(Address of principal executive offices)		(Zip Code)

 

(844) 263-6637

(Registrant’s telephone number, including area code)

 

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:

 

☐	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, par value $0.001 per share		BOF		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.

 

As previously reported, on October 23, 2024, BranchOut Food Inc., a Nevada corporation, (the “Company”) entered into an At-The-Market Issuance Sales Agreement (the “ATM Agreement”) with Alexander Capital, L.P. (“Alexander Capital”), pursuant to which the Company may from time to time issue and sell to or through Alexander Capital, acting as the Company’s sales agent, shares of the Company’s common stock, par value $0.001 per share (the “Shares”), having an aggregate offering price of up to $3,000,000 (the “ATM Offering”). In connection therewith, on October 23, 2024, the Company filed with the Securities and Exchange Commission (the “SEC”) a prospectus supplement (File No. 333-282298), related to the ATM Offering (the “Prospectus Supplement”).

 

On February 18, 2025, the Company entered into entered into a First Amendment to the ATM Agreement (the “First Amendment”) to increase the aggregate offering price of the Shares that the Company may sell in the ATM Offering to up to $5,000,000. In connection with the First Amendment, on February 18, 2025, the Company filed with the SEC an amendment to the Prospectus Supplement to increase the number of Shares that may be offered and sold in the ATM Offering.

 

The foregoing description of the First Amendment is qualified in its entirety by reference to the full text thereof, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference. The legal opinion of Pachulski Stang Ziehl & Jones LLP with respect to the validity of the Shares is filed as Exhibit 5.1 to this Current Report on Form 8-K.

 

This Current Report on Form 8-K, including the exhibits filed herewith, shall not constitute an offer to sell or the solicitation of an offer to buy the Shares, nor shall there be any offer, solicitation or sale of the Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit 1.1		First Amendment to At-The-Market Issuance Sales Agreement, dated as of February 18, 2025, between BranchOut Food Inc. and Alexander Capital, L.P.
Exhibit 5.1		Opinion of Pachulski Stang Ziehl & Jones LLP
Exhibit 23.1		Consent of Pachulski Stang Ziehl & Jones LLP (included in Exhibit 5.1)
Exhibit 104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	BranchOut Food Inc.
Date: February 18, 2025	By:	/s/ Eric Healy
		Eric Healy, Chief Executive Officer

 

 

 

Exhibit 1.1

 

BRANCHOUT FOOD inc.

 

FIRST AMENDMENT TO AT-THE-MARKET ISSUANCE SALES AGREEMENT

 

This FIRST AMENDMENT TO AT-THE-MARKET ISSUANCE SALES AGREEMENT (this “Amendment”), dated as of February 18, 2025 (the “Amendment Effective Date”), is made by and between BranchOut Food Inc. (the “Company”) and Alexander Capital, L.P. (the “Agent”).

 

WHEREAS, The Company and the Agent are parties to that certain At-The-Market Issuance Sales Agreement, dated as of October 23, 2024 (the “Sales Agreement”);

 

WHEREAS, The Company and the Agent have agreed to amend the Sales Agreement solely to increase the total value of shares of Common Stock available to be issued and sold through the Agent or any of its sub-agent(s) or other designees, acting as sales agent, from up to an aggregate offering price of US$3,000,000 to up to an aggregate offering price of US$5,000,000; and

 

WHEREAS, Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Sales Agreement.

 

NOW, THEREFORE, The Company and the Agent hereby agree as follows as of the Amendment Effective Date:

 

1. Amendment to Sales Agreement. Each reference to “$3,000,000” in (i) the header of the Sales Agreement; (ii) the introductory paragraph of the Sales Agreement; and (iii) Section 2(a) of the Sales Agreement, are hereby deleted in their entirety and replaced with “$5,000,000”.

 

2. Waiver. Notwithstanding the provisions of Section 3(p) of the Sales Agreement pursuant to which the Company and the Agent agree that the Amendment Effective Date shall constitute a Bringdown Date, the Agent unconditionally and irrevocably waives (a) the delivery of any document required to be provided by the Company or M&K CPAS, LLC on such Bringdown Date and (b) the satisfaction of any condition required to be satisfied as of such Bringdown Date, and the Company hereby accepts and acknowledges the Agent’s waiver thereof.

 

3. Company’s Representations. The Company has taken all necessary action to authorize the execution, delivery and performance of this Amendment. This Amendment has been duly executed and delivered by or on behalf of the Company and constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms subject to bankruptcy, insolvency, and other limitations on creditors’ rights generally and to equitable principles. Any consent, approval, authorization, order, registration or qualification of or with any governmental authority required for the execution, delivery and performance by the Company of this Amendment has been obtained and is in full force and effect.

 

4. Conditions Precedent. This Amendment and its provisions shall become effective upon the execution and delivery of this Amendment by a duly authorized officer of each of the Company and the Agent.

 

 

5. Full Force and Effect. Except as expressly modified hereby, all of the terms, covenants and conditions of the Sales Agreement remain unmodified and in full force and effect and are hereby ratified and confirmed by the Company. Any inconsistency between this Amendment and the Sales Agreement (as it existed before this Amendment) shall be resolved in favor of this Amendment, whether or not this Amendment specifically modifies the particular provision(s) in the Sales Agreement inconsistent with this Amendment.

 

6. No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent under the Sales Agreement or any other document, instrument or agreement executed and/or delivered in connection therewith.

 

7. Headings. Each of the captions contained in this Amendment are for the convenience of reference only and shall not define or limit the provisions hereof.

 

8. Counterparts. This Amendment may be executed in any number of counterparts, and all such counterparts shall together constitute the same agreement. Signatures delivered by email (in PDF format) shall be considered binding with the same force and effect as original signatures.

 

9. Governing Law. This Amendment shall be governed in accordance with the terms and provisions of Section 12 of the Sales Agreement.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the undersigned has entered into this First Amendment as of the Amendment Effective Date.

 

BranchOut Food Inc.
By:	/s/ Eric Healy
Name:	Eric Healy
Title:	Chief Executive Officer
Alexander Capital, L.P., as Agent
By:	/s/ Jonathan Gazdak
Name:	Jonathan Gazdak
Title:	Managing Director

 

[Signature Page to First Amendment to At-The-Market Issuance Sales Agreement]

 

 

Exhibit 5.1

 

		February 18, 2025   BranchOut Food Inc. 205 SE Davis Ave., Suite C Bend, Oregon 97702
L O S A N G E L E S, C A S A N F R A N C I S C O, C A W I L M I N G T O N, D E N E W Y O R K, N Y H O U S T O N, T X   10100 SANTA MONICA BLVD. 13th FLOOR LOS ANGELES CALIFORNIA 90067   SAN FRANCISCO 150 CALIFORNIA STREET 15th FLOOR SAN FRANCISCO CALIFORNIA 94111-4500   DELAWARE 919 NORTH MARKET STREET 17th FLOOR P.O. BOX 8705 WILMINGTON DELAWARE 19899-8705   NEW YORK 780 THIRD AVENUE 34th FLOOR NEW YORK NEW YORK 10017-2024   HOUSTON 440 LOUISIANA STREET SUITE 900 HOUSTON TEXAS 77002   www.pszjlaw.com		Re: Prospectus Supplement to Registration Statement on Form S-3 (Registration No. 333-282298)   Ladies and Gentlemen:   We have acted as counsel to BranchOut Food Inc., a Nevada corporation (the “Company”), in connection with (i) the preparation and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3 (Registration No. 333-282298) which was declared effective by the Commission on October 2, 2024 (the “Registration Statement”), the prospectus therein (the “Base Prospectus”), relating to the offering from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Securities Act of 1933, as amended (the “Securities Act”), of securities of the Company with an aggregate offering price of up to $5,000,000; and (ii) the Prospectus Supplement of the Base Prospectus, dated October 23, 2024 (the “Prospectus Supplement”), and Amendment No. 1 thereto, dated February 18, 2025 (the “Prospectus Supplement Amendment”), both filed with the Commission, relating to the issuance and sale by the Company of shares of the Company’s common stock, par value $0.001 per share, having an aggregate offering price of up to $5,000,000 (the “Shares”) in accordance with that certain At-The-Market Issuance Sales Agreement, dated October 23, 2024 (as amended, the “Agreement”), between the Company and Alexander Capital, L.P., as sales agent, as amended by that certain First Amendment thereto dated February 18, 2025; and (iii) the current report on Form 8-K of the Company dated February 18, 2025 (the “Form 8-K”), pertaining to the Shares and which will include this opinion letter as an exhibit and result in it being filed by the Company with the Commission as Exhibit 5.1 to the Registration Statement by incorporation by reference.   In connection with this opinion, we have examined instruments, documents, certificates and records which we have deemed relevant and necessary for the basis of our opinion hereinafter expressed including (a) the Registration Statement, including the exhibits thereto, the Base Prospectus, the Prospectus Supplement, and the Prospectus Supplement Amendment, (b) the Company’s Articles of Incorporation, as amended to date, (c) the Company’s Bylaws, (d) certain resolutions of the Board of Directors of the Company and (e) such other documents, corporate records, and instruments as we have deemed necessary for purposes of rendering the opinions set forth herein.   As to certain factual matters, we have relied upon certificates of the officers of the Company and have not sought to independently verify such matters. In such examination, we have assumed (a) the authenticity of original documents and the genuineness of all signatures, including signatures made and/or transmitted using electronic signature technology (e.g., via DocuSign or similar electronic signature technology); (b) the conformity to the originals of all documents submitted to us as copies; (c) the truth, accuracy, and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed; (d) the legal capacity of all natural persons; (e) the Registration Statement, and any amendments (including post-effective amendments) thereto, will remain effective at the time of issuance of any Shares thereunder; (f) the Company will issue and deliver the Shares in the manner contemplated by the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus Supplement Amendment and the Agreement against payment of valid consideration therefor; (g) all Shares will be issued in compliance with applicable federal and state securities laws; and (h) the obligations of parties to the Agreement other than the Company are valid, binding and enforceable.   Based on the foregoing, and subject to the qualifications and limitations stated herein, it is our opinion that the Shares have been duly authorized and, when issued and sold by the Company in the manner described in the Registration Statement, the Base Prospectus, the Prospectus Supplement and the Prospectus Supplement Amendment and in accordance with the resolutions adopted by the Board of Directors of the Company, will be validly issued, fully paid and nonassessable.   We express no opinion as to the laws of any jurisdiction, other than the law of the State of New York and Chapter 78 of the Nevada Revised Statutes.   We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Company’s Form 8-K and to the incorporation by reference of this opinion in the Registration Statement, and to the reference to our firm under the caption “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not thereby admit that we are included 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.   This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable law.

 

	Very truly yours,
	/s/ Pachulski Stang Ziehl & Jones LLP
	Pachulski Stang Ziehl & Jones LLP

 

v3.25.0.1

Cover	Feb. 18, 2025
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Feb. 18, 2025
Entity File Number	001-41723
Entity Registrant Name	BRANCHOUT FOOD INC.
Entity Central Index Key	0001962481
Entity Tax Identification Number	87-3980472
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	205 SE Davis Avenue,
Entity Address, City or Town	Bend
Entity Address, State or Province	OR
Entity Address, Postal Zip Code	97702
City Area Code	(844)
Local Phone Number	263-6637
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.001 per share
Trading Symbol	BOF
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false

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