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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):
September 11, 2025
CALIBERCOS INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
| 001-41703 |
|
47-2426901 |
| (Commission File Number) |
|
(IRS Employer Identification No.) |
| 8901 E. Mountain View Rd. Ste. 150, Scottsdale, AZ |
|
85258 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
(480) 295-7600
(Registrant’s Telephone Number, Including
Area Code)
N/A
(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 (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)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbols |
Name of each exchange on which registered |
| Class A Common Stock, par value $0.001 |
CWD |
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 x
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.
Securities Purchase Agreement
On September 11, 2025, CaliberCos Inc. (the “Company”)
entered into a securities purchase agreement (the “Purchase Agreement”) with Mast Hill Fund, L.P. (the “Investor”)
as the purchaser, pursuant to which the Company issued the Investor 15,868 shares of Series B Preferred Stock at a per share purchase
price of $1,000 for gross proceeds to the Company of $15,868,000. The foregoing description of the Purchase Agreement does not purport
to be complete and is qualified in its entirety by the terms and conditions of the Purchase Agreement filed as Exhibit 10.1 hereto and
incorporated by reference herein.
At-The-Market Offering
On September 17, 2025, the Company entered into
an At-The-Market Offering Agreement (the “Sales Agreement”) with R.F. Lafferty & Co., Inc. and The Benchmark Company,
LLC (together, the “Managers”) to create an at-the-market equity program under which it may sell up to an aggregate of $10,333,203
of shares of the Company’s Class A common stock, par value $0.001 per share (the “Shares”), from time to time through
the Managers, as sales agents, subject to any applicable limits when using Form S-3 (the “ATM Offering”).
Upon delivery of a sales notice and subject to
the terms and conditions of the Sales Agreement, the Managers may sell the Shares by any method permitted by law deemed to be an “at-the-market”
offering as defined in Rule 415 promulgated under the Securities Act, including sales made directly on The Nasdaq Capital Market, on any
other existing trading market for the common stock or to or through a market maker. If the Company and the Managers agree on any method
of distribution other than sales of shares of the Shares into The Nasdaq Capital Market or another existing trading market in the United
States at market prices, the Company will file a further prospectus supplement providing all information about such offering as required
by Rule 424(b) under the Securities Act. The Company may instruct the Managers not to sell Shares if the sales cannot be effected at or
above the price designated by the Company from time to time. The Company and the Managers may suspend the ATM Offering upon notice and
subject to other conditions.
The Company will pay the Managers commissions,
in cash, for its services in acting as agent in the sale of the Shares. The Managers will be entitled to compensation at a commission
rate of up to 3.0%. The Company will also reimburse the Managers for certain specified expenses in connection with the Sales
Agreement. The Sales Agreement contains customary representations, warranties and agreements by the Company, indemnification obligations
of the Company and the Managers, other obligations of the parties and termination provisions. The Company has no obligation to sell any
of the Shares, and may at any time suspend offers under the Agreement.
The ATM Offering will terminate upon the
earlier of (i) the sale of all Shares subject to the Sales Agreement or (ii) termination of the Sales Agreement as permitted
therein. The Company may terminate the Sales Agreement at any time upon five (5) days’ prior notice, and the Manager may terminate the agreement in their discretion at any time.
The Company previously filed a Form S-3 that became
effective on June 25, 2025 that included the registration of $50,000,000 of its shares of Class A common stock in connection with a potential
“at-the-market” offering. On September 17, 2025, the Company filed a prospectus supplement relating to the ATM Offering with
the Securities and Exchange Commission.
The foregoing summary of the Sales Agreement does
not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed
as Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference. The Sales Agreement contains representations and
warranties that the parties made to, and solely for the benefit of, the other in the context of all of the terms and conditions of the
Sales Agreement and in the context of the specific relationship between the parties. The provisions of the Sales Agreement, including
the representations and warranties contained therein, are not for the benefit of any party other than the parties to the Agreement and
are not intended as a document for investors and the public to obtain factual information about the Company’s current state of affairs.
Rather, investors and the public should look to other disclosures contained in the Company’s filings with the SEC.
Attached as Exhibit 5.1 to this Current Report
on Form 8-K is the opinion of Manatt, Phelps & Phillips, LLP, relating to the legality of the issuance and sale of the Shares.
This Current Report on Form 8-K shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any 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 any such state.
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 1.01 of this Current Report on Form
8-K with respect to the Purchase Agreement is incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 of this Current Report on Form
8-K with respect to the Purchase Agreement is incorporated herein by reference.
The securities described above with respect to the Purchase Agreement
have not been registered under the Securities Act or the securities laws of any state, and were offered and sold in reliance on the exemption
from registration under the Securities Act afforded by Section 4(a)(2) thereof.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
On September 11, 2025, the Company filed the Series B
Certificate of Designation with the Secretary of State of the State of Delaware to establish the preferences, voting powers, limitations
as to dividends or other distributions, qualifications, terms and conditions of redemption and other terms and conditions of the Company’s
Series B Preferred Stock. The Series B Preferred Stock is subject to certain rights, preferences, privileges, and obligations,
including voluntary conversion provisions, as well as beneficial ownership restrictions and share cap limitations, as set forth in the
Series B Certificate of Designation. The following is a summary description of the terms and the general effect of the issuance of
the shares of Series B Preferred Stock on the Company’s other classes of registered securities.
Stated
Value. Each share of Series B Preferred Stock has an initial stated value of $1,000.00, subject to appropriate adjustment
in relation to certain events, such as recapitalizations, stock dividends, stock splits, stock combinations, reclassifications or similar
events affecting the Company’s Series B Preferred Stock.
Optional
Conversion. At any time and from time to time, a holder of the shares of Series B Preferred Stock may, at its option,
convert the holder’s shares of Series B Preferred Stock at a rate equal to the stated value divided by $250.00.
Voting
Rights. The Series B Preferred Stock will have no voting rights relative to matters submitted to a vote of the Company’s
stockholders (other than as required by law). However, the Company may not, without the affirmative vote or written consent of the holders
of a majority of the then issued and outstanding Series B Preferred Stock: (i) amend or waive any provision of the certificate
of designation or otherwise take any action that modifies any powers, rights, preferences, privileges or restrictions of the Series B
Preferred Stock (other than an amendment solely for the purpose of changing the number of shares of Series B Preferred Stock designated
for issuance as provided in the certificate of designation); (ii) authorize, create or issue shares of any class of stock having
rights, preferences or privileges as to dividends or distributions upon a liquidation that are superior to the Series B Preferred
Stock; or (iii) amend the Company’s certificate of incorporation in a manner that adversely and materially affects the rights
of the Series B Preferred Stock.
Liquidation.
In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of shares of the Series B
Preferred Stock then outstanding will be entitled to receive in cash out of the assets of the Company, whether from capital or from earnings
available for distribution to its stockholders, before any amount will be paid to the holders of any of the capital stock of the Company
of any class junior in rank to the Series B Preferred Stock.
Ranking.
The Series B Preferred Stock ranks senior to the Company’s Class A common stock and Class B common stock, junior
to the Company’s Series A Preferred Stock and Series AA Preferred Stock and pari passu with any other class of preferred stock created
with rights, preferences and privileges substantially similar to that of the Series B Preferred Stock with respect to the preferences
provided for in the Certificate of Designation as to distributions and payments upon the liquidation, dissolution and winding up of the
Company.
Amendments.
The Certificate of Designation may be amended by obtaining the affirmative vote of a majority of the outstanding shares of Series B
Preferred Stock, voting separately as a single class.
The
foregoing summary of the Series B Certificate of Designation does not purport to be complete and is subject to, and qualified in its entirety
by, the copy of the Series B Certificate of Designation attached as Exhibit 3.1 to this Current Report, which is incorporated
herein by reference.
Item 7.01 Regulation FD Disclosure.
On September 17, 2025, the Company issued a press
release announcing that it has closed a securities purchase agreement with an institutional investor for the sale of $15.9 million of
perpetual convertible preferred equity and, separately, has established and activated an At-The-Market (ATM) equity program. A copy of
this press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
The information disclosed under this Item 7.01, including Exhibit
99.1 attached hereto, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), or deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or
the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
|
Exhibit
No. |
|
Exhibit |
| 1.1 |
|
At-The-Market Offering Agreement by and among the Company
and R.F. Lafferty & Co., Inc., dated as of September 17, 2025 |
| 3.1 |
|
Certificate
of Designation, Preferences and Rights relating to the Series B Convertible Preferred Stock, dated September 11, 2025 |
| 5.1 |
|
Opinion of Manatt, Phelps & Phillips, LLP |
| 10.1 |
|
Securities Purchase Agreement, dated September 11, 2025 |
| 23.1 |
|
Consent of Manatt, Phelps & Phillips, LLP (included
in Exhibit 5.1) |
| 99.1 |
|
Press Release dated September 17, 2025 |
| 104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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.
| Date: September 17, 2025 |
CaliberCos Inc. |
| |
|
|
| |
By: |
/s/ John C. Loeffler, II |
| |
Name: |
John C. Loeffler, II |
| |
Title: |
Chief Executive Officer |
