CDIO Cardio Diagnostics Holdings Inc

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

   

Form 8-K/A

(Amendment No. 2)

 

Current Report

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

March 8, 2023

Date of Report (Date of earliest event reported)

 

CARDIO DIAGNOSTICS HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware		001-41097		87-0925574
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

311 W. Superior Street, Suite 400, Chicago, IL		60654
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code:  (631) 796-5412

 

 

(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:

 

☐ Written communication 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 communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communication 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 Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

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 $0.00001		CDIO		The Nasdaq Stock Market LLC
Redeemable warrants, each warrant exercisable for one-half of one share of common stock		CDIOW		The Nasdaq Stock Market LLC

 

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

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

This Form 8-K/A is being filed as Amendment No. 2 to the Current Report on Form 8-K filed with the Securities and Exchange Commission by Cardio Diagnostics Holdings, Inc. on March 13, 2023 (the “Original 8-K”). The Company previously amended the Original 8-K on June 5, 2023 (“Amendment No. 1”).

Item 1.01

Entry into a Material Definitive Agreement.

Securities Purchase Agreement and Amendment No. 1 Thereto

As previously reported on the Original 8-K, on March 8, 2023, the Company entered into a securities purchase agreement (the “Securities Purchase Agreement”) with YA II PN, Ltd. (“Yorkville”), a fund managed by Yorkville Advisors Global, LP, headquartered in Mountainside, New Jersey. Pursuant to the Securities Purchase Agreement, the Company agreed to issue and sell to Yorkville convertible debentures (the “Convertible Debentures”) in the principal amount of up to $11.2 million, which are convertible into shares of the Company’s Common Stock, $0.00001 par value (as converted, the “Conversion Shares”) on the terms and subject to the conditions set forth therein. As previously reported, on March 8, 2023, upon signing the Securities Purchase Agreement, the Company issued and sold to Yorkville a Convertible Debenture in the principal amount of $5.0 million for a purchase price of $4.5 million (the “First Convertible Debenture”). Pursuant to the Securities Purchase Agreement, the parties further agreed that the Company will issue and sell to Yorkville, and Yorkville will purchase from the Company, a second Convertible Debenture in the principal amount of $6.2 million for a purchase price of $5.58 million upon satisfaction or waiver of certain specified conditions (the “Second Closing”).

As previously reported on Amendment No. 1 to this Current Report on Form 8-K, on June 2, 2023, the Company and Yorkville mutually agreed that the date of the Second Closing would be September 15, 2023 (or such other date that is mutually agreed upon by the Company and Yorkville), subject to the satisfaction or waiver of stated conditions set forth in the Securities Purchase Agreement. Such amendment is referred to herein as “SPA Amendment No. 1”).

Amendment No. 2 to the Securities Purchase Agreement

By letter agreement dated September 13, 2023 (“SPA Amendment No. 2”), the Company and Yorkville mutually agreed that the date of the Second Closing will be December 29, 2023 (or such other date that is mutually agreed upon by the Company and Yorkville), provided that as of such date, the conditions to the Second Closing as set forth in Sections 6 and 7 of the Securities Purchase Agreement have been satisfied or waived.

SPA Amendment No. 2 further amends the previously amended Securities Purchase Agreement by lowering the Floor Price (as defined in the Securities Purchase Agreement) from $0.55 to $0.20. In connection therewith, new Section 1(e) of SPA Amendment No. 2 provides that notwithstanding the provisions of the amended Securities Purchase Agreement, in no event shall the Company issue more than an aggregate of 20,363,637 shares of common stock upon conversion of the Convertible Debentures (the maximum number of shares approved for issuance by the Company’s stockholders at a special meeting held for such purpose on May 26, 2023 and referred to as the “New Exchange Cap”) unless the Company either (i) obtains the approval of its stockholders to increase the Exchange Cap or (ii) the Company waives or increases the Exchange Cap without stockholder approval, provided that in the event the Company waives or increases the Exchange Cap without stockholder approval, the Company obtains an opinion of outside counsel, reasonably satisfactory to Yorkville, that stockholder approval is not required.

SPA Amendment No. 2 also amends Section 7(f) of the Securities Purchase Agreement to clarify that, in the event the Company receives any customary form of notice from the Principal Market on which its securities are then trading indicating its failure to maintain a minimum bid price of $1.00 for 30 consecutive trading days, such notice shall not constitute a failure to satisfy the conditions of Section 7(f), provided that any such notice does not have an immediate adverse effect on the listing of the Company’s common stock on such Principal Market.

Except as set forth above, SPA Amendment No. 2 does not modify or update the disclosures presented in, or exhibits to, the Original Filing, as previously amended by SPA Amendment No. 1, in any way. The disclosures presented therein, as modified by SPA Amendment No. 2, are hereby incorporated by reference into this Item 1.01.

Item 2.03

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

 

The information set forth in Item 2.03 of the Original 8-K and Item 1.01 of this Amendment No. 2 are hereby incorporated by reference into this Item 2.03 in their entirety.

Item 3.02

Unregistered Sales of Equity Securities

 

The information set forth in Item 3.02 of the Original 8-K and Item 1.01 of this Amendment No. 2 are hereby incorporated by reference into this Item 3.02 in its entirety.

Item 9.01

Financial Statements and Exhibits.

Exhibit		Description
10.1		Letter Agreement dated September 13, 2023 amending the Securities Purchase Agreement dated March 8, 2023 (previously filed as Exhibit 10.1 to the Original 8-K on March 13, 2023), the First Convertible Debenture, (previously filed as Exhibit 4.1 to the Original 8-K) and the Letter Agreement dated June 2, 2023 (previously filed as Exhibit 10.1 to Amendment No. 1 on June 5, 2023)
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

SIGNATURE

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 14, 2023	CARDIO DIAGNOSTICS HOLDINGS INC.
	By:	/s/ Elisa Luqman
		Elisa Luqman Chief Financial Officer

 

Exhibit 10.1

 

 

 

 

September 13, 2023

 

Cardio Diagnostic Holdings, Inc.

400 North Aberdeen Street, Suite 900

Chicago, IL 60642

 

Ladies and Gentlemen:

Reference is made to that certain Securities Purchase Agreement dated March 8, 2023, as amended (the “SPA”), by and between YA II PN, Ltd. (“Yorkville”) and Cardio Diagnostics Holdings, Inc. (the “Company”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the SPA.

Pursuant to the SPA, the Second Closing shall take place on the date determined in accordance with Section 1(b)(ii) of the SPA, or such other date as is mutually agreed to by Yorkville and the Company. By execution of this letter (this “Letter Agreement”), Yorkville and the Company hereby agree that the date of the Second Closing shall be December 29, 2023 (or such other date that is mutually agreed by the Company and Yorkville), provided that as of such date the conditions to the Second Closing set forth in Sections 6 and 7 of the SPA are satisfied or waived, and such conditions shall be deemed to have been satisfied on the Company having executed and delivered to Yorkville the Closing Statement, the Convertible Debenture, and a compliance certificate, in each case in the form attached as an Exhibit to that certain letter agreement dated June 2, 2023 by and between Yorkville and the Company.

Section 14(k) of each of (i) the Convertible Debenture and (ii) the convertible debenture dated March 8, 2023 and issued by the Company to Yorkville in the principal amount of $5 million (the “March Debenture”, and collectively with the Convertible Debenture, the “Debentures”) is hereby amended to change the Floor Price to $0.20 per share, effective in each case from and after March 8, 2023.

There shall be inserted into the SPA a new Section 1(e) of the SPA, which shall read in full as follows:

Notwithstanding anything in this Agreement to the contrary, the Company shall not issue any shares of Common Stock pursuant to the transactions contemplated hereby or any other Transaction Documents (including the Conversion Shares) if the issuance of such shares of Common Stock would exceed 20,363,637 shares of Common Stock (the “New Exchange Cap”), except that such limitation shall not apply in the event that (A) the Company obtains the approval of its stockholders for any issuance of shares of Common Stock in excess of the New Exchange Cap or (B) the Company waives or increases the New Exchange Cap provided that in connection with such waiver or increase, the Company obtains a written opinion from outside counsel to the Company that approval of its stockholders for any issuance of shares of Common Stock in excess of the New Exchange Cap is not required, which opinion shall be reasonably satisfactory to the Buyers. The New Exchange Cap shall be appropriately adjusted for any stock dividend, stock split, reverse stock split or similar transaction.

Section 7(f) of the SPA is hereby amended and restated to read in full as follows:

The Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been suspended, as of each Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of each Closing Date, either (I) in writing by the SEC or the Principal Market or (II) by falling below the minimum maintenance requirements of the Principal Market; provided, however, that the receipt of any customary form of notice from the Principal Market that the Common Stock has failed to maintain a minimum bid price of $1 per share for the preceding 30 consecutive business days shall not constitute a failure to satisfy the conditions set forth in this Section 7(f) as long as any such notice has no immediate adverse effect on the listing of the Common Stock on the Principal Market.

Except as set forth herein, nothing in this Letter Agreement is intended to amend or modify any of the rights and obligations of the parties.

This Letter Agreement may be executed in separate counterparts (including, without limitation, electronically transmitted counterparts), each of which shall be an original and all of which when taken together shall constitute one and the same agreement. Please execute this Letter Agreement where indicated below to confirm your acknowledgment of, and agreement to, the foregoing.

[Remainder of page intentionally left blank]

 

In Witness Whereof, the parties hereto have executed this Letter Agreement as of the date first written above.

 

YORKVILLE:

 

YA II PN, LTD.

 

By: Yorkville Advisors Global, LP

Its: Investment Manager

 

By:       Yorkville Advisors Global II, LLC

Its:       General Partner

 

 

By: /s/ Michael Rosselli

Name: Mike Rosselli

Title: Member

 

 

 

 

COMPANY:

 

CARDIO DIAGNOSTIC HOLDINGS, INC.

 

 

By: /s/ Meesha Dogan

Name: Meeshanthini V. Dogan

Title: Chief Executive Officer

 

 

 

 

v3.23.2

Cover	Mar. 08, 2023
Document Type	8-K/A
Amendment Flag	true
Amendment Description	Amendment No 1
Document Period End Date	Mar. 08, 2023
Entity File Number	001-41097
Entity Registrant Name	CARDIO DIAGNOSTICS HOLDINGS, INC.
Entity Central Index Key	0001870144
Entity Tax Identification Number	87-0925574
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	311 W. Superior Street
Entity Address, Address Line Two	Suite 400
Entity Address, City or Town	Chicago
Entity Address, State or Province	IL
Entity Address, Postal Zip Code	60654
City Area Code	(631)
Local Phone Number	796-5412
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false
Common Stock, par value $0.00001
Title of 12(b) Security	Common Stock, par value $0.00001
Trading Symbol	CDIO
Security Exchange Name	NASDAQ
Redeemable warrants, each warrant exercisable for one-half of one share of common stock
Title of 12(b) Security	Redeemable warrants, each warrant exercisable for one-half of one share of common stock
Trading Symbol	CDIOW
Security Exchange Name	NASDAQ

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