Certificate of Incorporation/Bylaws Form 8 K

Item 1.01Entry into a Material Definitive Agreement.

Securities Purchase Agreement and Warrants

On July 18, 2024, Windtree Therapeutics, Inc., a Delaware corporation (the "Company"), entered into a Securities Purchase Agreement (the "Purchase Agreement") with the buyers named therein (the "Buyers"). Pursuant to the Purchase Agreement, the Company agreed to the private placement (the "Private Placement") of (i) 16,099 shares (the "Preferred Shares") of the Company's Series C Convertible Preferred Stock, $0.001 par value, (the "Series C Preferred Stock"), and (ii) warrants (the "Warrants") to acquire up to the aggregate number of 3,440,631 additional shares of the Company's common stock, $0.001 par value per share, (the "Common Stock") for aggregate gross proceeds of approximately $12.9 million, of which $9.5 million was paid through the cancellation and extinguishment of certain holders' (x) outstanding principal amount, conversion/exchange premiums and all accrued interest and dividends thereon under the Company's (i) 10% senior convertible notes due January 2025, (ii) senior secured notes due June 2025, (iii) senior unsecured promissory notes due July 2025, and/or (iv) senior secured notes due July 2025, and (y) 5,500 shares of the Company's Series B Convertible Preferred Stock, $0.001 par value.

Additionally, the Company issued 161 Preferred Shares and 42,838 Warrants as compensation for certain placement agent fees and expenses. The Company also reimbursed the lead Buyer for certain fees and expenses of counsel in accordance with the terms of the agreement.

The Company intends to use the gross proceeds from the Private Placement for working capital and general corporate purposes. On July 19, 2024, the Company consummated the transactions contemplated by the Purchase Agreement. The Company expects the Private Placement to close on July 22, 2024, subject to customary closing conditions

The Company agreed to seek stockholder approval for the issuance of all of the shares of Common Stock issuable upon conversion of the Preferred Shares and exercise of the Warrants in accordance with the rules and regulations of the Nasdaq Stock Market.

The Company additionally agreed that, subject to certain exceptions, without the consent of the holders holding at least a majority of the Registrable Securities (as defined below), for the period commencing on July 18, 2024 and ending on the date immediately following the 90th trading day after the Applicable Date (as defined in the Purchase Agreement) (the "Restricted Period"), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any "equity security" (as that term is defined under Rule 405 promulgated under the Securities Act of 1933, as amended), any Convertible Securities (as defined in the Purchase Agreement), any debt, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a "Subsequent Placement").

Subject to the limitations described in the Purchase Agreement, for so long as the Preferred Shares are outstanding, the Company will be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction (as defined in the Purchase Agreement) (other than a Permitted Equity Line (as defined in the Purchase Agreement)). Additionally, the Purchase Agreement contains a participation right, which provides that, subject to certain exceptions, at any time on or prior to the fourth anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company complies with the notice procedures as outlined in the Purchase Agreement with respect to each Buyer, providing the opportunity for such Buyer to participate in such Subsequent Placement on a pro rata basis as described in the Purchase Agreement.

Pursuant to the Purchase Agreement, the Company filed a certificate of designations (the "Certificate of Designations") with the Secretary of State of the State of Delaware on July 19, 2024 for the purpose of establishing and designating the Series C Preferred Stock, as described further below under Item 5.03 of this Current Report on Form 8-K.

The Warrants will have an exercise price of $4.11 per share, subject to customary adjustments, will become exercisable on the six month and one day anniversary of the issuance date (the "Initial Exercisability Date"), and expire on the fifth (5th) anniversary of the Initial Exercisability Date. The following outlines additional principal terms of the Warrants.

Anti-Dilutive Provisions. The exercise price and share number of the Warrants is subject to proportional adjustment upon the occurrence of specified events and subject to price-based adjustment in the event of any stock split, stock dividend, stock combination, recapitalization or other similar transactions, as described in further detail in the Warrants.

Cashless Exercise. If at the time of exercise of the Warrants, there is no effective registration statement registering the shares of the Common Stock underlying the Warrants, such Warrants may be exercised on a cashless basis pursuant to their terms.

Limitation on Beneficial Ownership. No exercise shall be effected to the extent it would cause a holder to beneficially own in excess of 4.99%, or, at the option of such holder, 9.99% of the outstanding shares of Common Stock immediately after giving effect to such exercise.

Registration Rights Agreement.

On July 20, 2024, in connection with the Purchase Agreement, the Company entered into a Registration Rights Agreement (the "Registration Rights Agreement") with the Buyers. Pursuant to the Registration Rights Agreement, the Company agreed to file a registration statement with the Securities and Exchange Commission (the "SEC") covering the resale of all the (i) shares of Common Stock underlying the Preferred Shares (the "Preferred Conversion Shares"), and (ii) shares of Common Stock issuable upon the exercise of the Warrants (the "Warrant Shares," and together with the Preferred Conversion Shares, the "Registrable Securities"), on or before the 30th calendar day following the Closing Date (as defined in the Purchase Agreement) and to cause such registration statement to be declared effective by the SEC on or before the 60th calendar day following the Closing Date, subject to limited exceptions described therein. The registration rights granted under the Registration Rights Agreement are subject to certain conditions and limitations and are subject to customary indemnification and contribution provisions.

The Company has also agreed, among other things, to indemnify the Buyers, their directors, officers, shareholders, members, partners, employees, agents, advisors, representatives under the registration statement from certain liabilities and to pay all reasonable expenses, other than underwriting discounts and commissions, incident to the Company's obligations under the Registration Rights Agreement.

The foregoing is only a summary of the material terms of the Warrants, Purchase Agreement and the Registration Rights Agreement, and does not purport to be a complete description of the rights and obligations of the parties thereunder. The summary of the Warrants, the Purchase Agreement, and the Registration Rights Agreement is qualified in its entirety by reference to such agreements, which are filed as Exhibits 4.1, 10.1 and 10.2 to this Current Report on Form 8-K and are incorporated by reference herein.

This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale, of the Warrants and/or the Series C Preferred Stock in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.

The Private Placement was exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933 as amended as a transaction by an issuer not involving a public offering. The Buyers have acquired the securities not with a view to or for sale in connection with any distribution thereof, and appropriate legends have been affixed to the securities issued in this transaction.