UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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| Item 1.01 | Entry into a Material Definitive Agreement. |
On August 20, 2021, Athenex, Inc. (the “Company”) entered into a sales agreement (the “Sales Agreement”) with SVB Leerink LLC (the “Agent”), in connection with the offer and sale of up to $100,000,000 of shares of the Company’s common stock, par value $0.001 per share (“ATM Shares”). The ATM Shares to be offered and sold under the Sales Agreement will be issued and sold pursuant to a registration statement on Form S-3 (File No. 333-258185), dated July 27, 2021 that was subsequently amended on August 5, 2021 and became effective with the Securities and Exchange Commission (the “Commission”) on August 12, 2021. A prospectus supplement relating to the offering of the ATM Shares was filed with the Commission on August 20, 2021 (the “Prospectus Supplement”).
Subject to the terms and conditions of the Sales Agreement, the Agent 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 Stock Market, LLC (“Nasdaq”), to sell ATM 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.
The Company is not obligated to make any sales of ATM Shares, and Agent is not required to sell any specific number or dollar amount of shares of the ATM Shares under the Sales Agreement. The Company or the Agent may suspend or terminate the offering of ATM Shares upon notice to the other party and subject to other conditions.
Under the Sales Agreement, the Agent may sell ATM 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 (the “Securities Act”), 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 Company’s shares of common stock or to or through a market maker. If expressly authorized by the Company, the Agent may also sell ATM Shares in privately negotiated transactions. The Company agreed to pay the Agent a commission equal to 3.0% of the gross proceeds from the sales of ATM Shares pursuant to the Sales Agreement.
The Sales Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Agent against certain liabilities, including for liabilities under the Securities Act, and termination provisions. 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 such agreement and are not intended as a document for investors and the public to obtain factual information about the current state of affairs of the Company. Rather, investors and the public should look to other disclosures contained in the Company’s filings with the Commission.
The foregoing description of the Sales Agreement is a summary of its material terms, does not purport to be complete, and is qualified in its entirety by reference to the Sales Agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
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A copy of the legal opinion and consent of Harter Secrest & Emery LLP relating to the ATM Shares that may be offered and sold pursuant to the Sales Agreement is filed as Exhibit 5.1 hereto.
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 No. |
Description | |
| 1.1 | Sales Agreement, dated August 20, 2021, by and between the Company and SVB Leerink LLC as sales agent | |
| 5.1 | Opinion of Harter Secrest & Emery LLP | |
| 23.1 | Consent of Harter Secrest & Emery LLP (included in Exhibit 5.1) | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
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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.
| ATHENEX, INC. | ||||||||
| Date: August 20, 2021 | /s/ Johnson Y.N. Lau |
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| Name: | Johnson Y.N. Lau | |||||||
| Title: | Chief Executive Officer | |||||||
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