Item 1.01. Entry into a Material Definitive Agreement.
On December 29, 2020, Immunic entered into a Sales Agreement (the "Agreement")
with SVB Leerink LLC, as agent ("SVB Leerink"). Under the Agreement, the Company
may offer and sell its common stock, par value $0.0001 per share, from time to
time having an aggregate offering price of up to $50,000,000 (the "Shares")
during the term of the Agreement through SVB Leerink, acting as agent. The
Company has filed a prospectus supplement relating to the offer and sale of the
Shares pursuant to the Agreement. The Shares will be issued pursuant to the
Company's previously filed and effective Registration Statement on Form S-3
(File No. 333-250083), which was initially filed with the Securities and
Exchange Commission (the "SEC") on November 13, 2020 and declared effective on
November 24, 2020. The Company intends to use the net proceeds from the
offering, if any, to continue to fund the ongoing clinical development of its
product candidates and for other general corporate purposes, including funding
existing and potential new clinical programs and product candidates.
The prior Sales Agreement between the Company and SVB Leerink, dated as of July
17, 2019, which provides for the offer and sale of common stock from time to
time having an aggregate offering price of up to $40,000,000, will remain in
effect.
The Company is not obligated to sell any Shares pursuant to the Agreement.
Subject to the terms and conditions of the Agreement, SVB Leerink will use
commercially reasonable efforts, consistent with its normal trading and sales
practices and applicable state and federal law, rules and regulations and the
rules of The Nasdaq Global Select Market ("Nasdaq"), to sell Shares from time to
time based upon the Company's instructions, including any price, time or size
limits or other customary parameters or conditions the Company may impose.
Under the Agreement, SVB Leerink may sell Shares by any method permitted by law
deemed to be an "at the market offering" as defined in Rule 415 of the
Securities Act of 1933, as amended, and the rules and regulations thereunder,
including, without limitation, sales made directly on or through Nasdaq, on or
through any other existing trading market for the Shares or to or through a
market maker. If expressly authorized by the Company, SVB Leerink may also sell
Shares in negotiated transactions.
The Agreement will terminate upon the earlier of (i) the issuance and sale of
all of the Shares through SVB Leerink on the terms and subject to the conditions
set forth in the Agreement or (ii) termination of the Agreement as otherwise
permitted thereby. The Agreement may be terminated at any time by either party
upon ten days' prior notice, or by SVB Leerink at any time in certain
circumstances, including the occurrence of a material adverse effect on the
Company.
The Company has agreed to pay SVB Leerink a commission equal to 3.0% of the
gross proceeds from the sales of Shares pursuant to the Agreement and has agreed
to provide SVB Leerink with customary indemnification and contribution rights.
The foregoing summary of the Agreement does not purport to be complete and is
qualified in its entirety by reference to the full text of the Agreement, a copy
of which is filed as Exhibit 10.1 hereto and incorporated herein by reference.
The 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 Agreement and in the context of the specific relationship
between the parties. The provisions of the 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.
The opinion of the Company's counsel regarding the validity of the Shares that
may be issued pursuant to the Agreement is filed herewith as Exhibit 5.1.
This Current Report on Form 8-K shall not constitute an offer to sell or the
solicitation of an offer to buy Shares, nor shall there be any sale of the
Shares 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 Description
5.1 Opinion of Dentons US LLP
10.1 Sales Agreement, dated as of December 29, 2020, between SVB Leerink
LLC and Immunic, Inc.
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