bioAffinity Technologies Inc. filed SEC Form 8-K: Entry into a Material Definitive Agreement, Financial Statements and Exhibits
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Item 1.01. Entry into a Material Definitive Agreement.
On May 22, 2025, bioAffinity Technologies, Inc., a Delaware corporation, (the “Company”), entered into an At-The-Market Issuance Sales Agreement (the “ATM Agreement”) with WallachBeth Capital LLC (“WallachBeth”), as sales agent providing for the sale by the Company of its common stock, par value $0.007 per share (the “Common Stock”), from time to time, in an “at the market offering” program through WallachBeth with certain limitations on the amount of Common Stock that may be offered and sold by the Company as set forth in the ATM Agreement (the “Offering”). The sales, if any, of the shares of Common Stock made under the ATM Agreement will be made by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”) including sales made directly on or through the Nasdaq Capital Market or on any other existing trading market for the Company’s common shares, directly to WallachBeth as principal, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices, and/or in any other method permitted by law.
The shares of Common Stock, if any, will be issued pursuant to a prospectus supplement, dated May 27, 2025 (the “ATM Prospectus Supplement”), and an accompanying base prospectus, dated November 27, 2023, contained therein, which together form a part of the Company’s “shelf” registration statement on Form S-3 (File No. 333-275608) filed by the Company with the Securities and Exchange Commission (“SEC”) on November 16, 2023 and declared effective by the SEC on November 27, 2023. The aggregate market value of the shares of Common Stock eligible for sale under the ATM Prospectus Supplement is currently $5,801,000, which is based on the limitations of General Instruction I.B.6 of Form S-3.
Under the ATM Agreement, the Company will set the parameters for the sale of shares, including the number of shares to be issued, the time period during which sales are requested to be made, limitation on the number of shares that may be sold in any one trading day and any minimum price below which sales may not be made. Subject to the terms and conditions of the ATM Agreement, WallachBeth may sell the shares by methods deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act. WallachBeth will use commercially reasonable efforts in conducting such sales activities consistent with its normal trading and sales practices, and applicable state and federal laws. The ATM Agreement will terminate on the sale of all of the shares of Common Stock subject to the ATM Agreement and may also be terminated by the Company upon 10 days’ written notice to WallachBeth, as specified in the ATM Agreement for any reason, or by WallachBeth upon 10 days’ written notice to the Company for any reason, or at any time under certain circumstances, including but not limited to the occurrence of a material adverse change in the Company.
The ATM Agreement provides that WallachBeth will be entitled to compensation for its services of 3.0% of the gross sales price of all shares of Common Stock sold through WallachBeth under the ATM Agreement. The Company has no obligation to sell any shares under the ATM Agreement, and may at any time suspend solicitation and offers under the ATM Agreement. The ATM Agreement contains customary representations, warranties and agreements by the Company, indemnification obligations of the Company and WallachBeth, other obligations of the parties and termination provisions. The Company will also reimburse WallachBeth for certain specified expenses in connection with entering into the ATM Agreement.
The foregoing description of the ATM Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
A copy of the legal opinion and consent of Blank Rome LLP relating to the legality of the shares of Common Stock that may be issued pursuant to the ATM Agreement is attached as Exhibit 5.1 to this Current Report on Form 8-K.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any sale of such securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit Number |
Description | |
| 1.1 | At-The-Market Issuance Sales Agreement by and between bioAffinity Technologies, Inc. and WallachBeth Capital LLC | |
| 5.1 | Opinion of Blank Rome, LLP regarding legality of shares of Common Stock | |
| 23.1 | Consent of Blank Rome LLP (including in Exhibit 5.1) | |
| 104 | Cover Page Interactive Data File (embedded within the XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: | May 27, 2025 | BIOAFFINITY TECHNOLOGIES, INC. | |
| By: | /s/ Maria Zannes | ||
| Name: | Maria Zannes | ||
| Title: | President and Chief Executive Officer | ||