UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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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:
| 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:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
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. |
As previously disclosed, Fusion Pharmaceuticals Inc. (the “Company”) entered into an Open Market Sale AgreementSM (the “Sales Agreement”) with Jefferies LLC (“Jefferies”) on July 2, 2021, pursuant to which the Company may, from time to time in its sole discretion, issue and sell through Jefferies, acting as sales agent, shares of the Company’s common shares, no par value per share (the “Common Shares”), having an aggregate offering price of up to $100.0 million (the “Initial Shares”). As of January 19, 2024, the Company had offered and sold the Initial Shares having an aggregate offering price at the time of sale of approximately $99.7 million under the Sales Agreement.
On January 19, 2024, the Company and Jefferies entered into an amendment to the Sales Agreement (the “Amendment”) to increase the aggregate offering price of the Common Shares that the Company may offer under the Sales Agreement by $100.0 million (the “Additional Shares” and, together with the “Initial Shares,” the “Shares”), for an aggregate of $200.0 million. The material terms and conditions of the Sales Agreement otherwise remain unchanged.
Sales of the Shares through Jefferies, if any, will be made pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-257653), filed with the Securities and Exchange Commission (the “Commission”) on July 2, 2021. The offering of the Shares is described in the Company’s Prospectus dated July 13, 2021, as supplemented by a Prospectus dated July 13, 2021, and a Prospectus Supplement dated January 19, 2024.
The foregoing description of the Amendment and the Sales Agreement are not complete and are qualified in their entirety by reference to (i) the full text of the Amendment, a copy of which is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and (ii) the full text of the Sales Agreement, a copy of which was filed as Exhibit 1.2 to the Company’s Registration Statement on Form S-3 filed with the Commission on July 2, 2021, each of which is incorporated herein by reference. A copy of the opinion of Osler, Hoskin & Harcourt LLP relating to the validity of the issuance and sale of the Additional Shares is attached 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 offer, solicitation or sale of the securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit |
Description | |
| 1.1 | Amendment No. 1 to Open Market Sale AgreementSM, dated January 19, 2024, by and between the Company and Jefferies LLC. | |
| 5.1 | Opinion of Osler, Hoskin & Harcourt LLP. | |
| 23.1 | Consent of Osler, Hoskin & Harcourt LLP (contained in Exhibit 5.1). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Fusion Pharmaceuticals Inc. | ||||||
| Date: January 19, 2024 | By: | /s/ Maria Stahl | ||||
| Maria Stahl | ||||||
| Chief Legal Officer | ||||||
Exhibit 1.1
AMENDMENT NO. 1 TO THE OPEN MARKET SALE AGREEMENTSM
January 19, 2024
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
This Amendment No. 1 to the Open Market Sale AgreementSM (this “Amendment No. 1”) is entered into as of the date first written above by and between Fusion Pharmaceuticals Inc., a corporation existing under the Canada Business Corporations Act (the “Company”), and Jefferies LLC, as sales agent and/or principal (the “Agent”), as parties to that certain Open Market Sale AgreementSM, dated July 2, 2021 (the “Sales Agreement”) relating to the offering of up to $100,000,000 of the Company’s common shares, no par value per share (the “Common Shares”).
On the date hereof, the Company has filed or will file a Prospectus Supplement relating to the offering of an additional $100,000,000 of the Common Shares (the “January 2024 ATM Prospectus Supplement”), to the base prospectus, dated July 13, 2021, contained in the registration statement on Form S-3 (Registration No. 333-257653).
This Amendment No. 1, among other things, increases the aggregate offering price to $200,000,000. All capitalized terms not defined herein shall have the meanings ascribed to them in the Sales Agreement.
The parties, intending to be legally bound, hereby amend the Sales Agreement as follows:
1. The preamble to the Sales Agreement is hereby deleted in its entirety and replaced with the following:
“Fusion Pharmaceuticals Inc., a corporation existing under the Canada Business Corporations Act (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time through Jefferies LLC, as sales agent and/or principal (the “Agent”), common shares of the Company, no par value per share (the “Common Shares”), having an aggregate offering price of up to $200,000,000 on the terms set forth in this agreement (this “Agreement”).”
2. Section 3(d) of the Sales Agreement is hereby amended by deleting the last sentence of such section in its entirety and replacing it with the following:
“The fees and disbursement of the Agent’s counsel pursuant to subsections (vi) and (vii) above shall not exceed (A) $50,000 in connection with the first Issuance Notice, (B) $15,000 in connection with each Triggering Event Date (as defined below) on which the Company is required to provide a certificate pursuant to
Section 4(o), except for a Triggering Event Date related to the Company’s filing of an Annual Report on Form 10-K and (C) $25,000 in connection with each Triggering Event Date on which the Company is required to provide a certificate pursuant to Section 4(o) related to the Company’s filing of an Annual Report on Form 10-K.”
3. For the avoidance of doubt, any reference to “Prospectus” in the Sales Agreement shall be deemed to include the January 2024 ATM Prospectus Supplement.
4. The Company represents and warrants to, and agrees with the Agent that: (a) this Amendment No. 1 has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles; and (b) that on the date hereof, the Company will file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act of 1933, as amended, relating to the additional $100,000,000 of the Common Shares which may be issued pursuant to the Sales Agreement as amended by this Amendment No. 1 and a Current Report on Form 8-K relating to this Amendment No. 1.
5. Without limiting any other agreement, including Section 3(d) of the Sales Agreement, as applicable, the Company agrees to pay all costs, fees and expenses incurred in connection with the entry into this Amendment No. 1 and the performance of the Company’s obligations under the Sales Agreement, as further amended by this Amendment No. 1, and the transactions contemplated hereby and thereby, including without limitation, (i) all filing fees, attorneys’ fees and expenses incurred by the Company or any Agent in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Shares authorized by this Amendment No. 1 for offer and sale under the state securities or blue sky laws and (ii) the reasonable fees and disbursements of the Agent’s counsel, including the reasonable fees and expenses of counsel for the Agent in connection with, FINRA review, if any, and approval of the Agent’s participation in the offering and distribution of the Shares authorized by this Amendment No. 1. The fees and disbursements of Agent’s counsel pursuant to subsections (i) and (ii) above shall not exceed $75,000. For the avoidance of doubt, the $75,000 of fees and disbursements of Agent’s counsel that may become payable by the Company hereunder shall be in addition to the fees and disbursements of Agent’s counsel in connection with entering into the Sales Agreement, that were paid by the Company under Section 3(d) of the Sales Agreement prior to the date hereof, and the fees and disbursements of Agent’s Counsel that may become payable by the Company pursuant to Section 3(d) of the Sales Agreement as amended by this Amendment No. 1 in connection with each Triggering Event Date on which the Company is required to provide a certificate pursuant to Section 4(o) of the Sales Agreement.
6. The Sales Agreement, as amended by this Amendment No. 1, represents the final agreement of the parties and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Amendment No. 1 may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit.
7. The invalidity or unenforceability of any section, paragraph or provision of this Amendment No. 1 shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Amendment No. 1 is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable. All references in the Sales Agreement to the “Agreement” shall mean the Sales Agreement as amended by this Amendment No. 1; provided, however, that all references to “date of this Agreement” in the Sales Agreement shall (i) continue to refer to the date of the Sales Agreement, unless otherwise amended pursuant to this Amendment No. 1, and (ii) refer to each of the date of the Sales Agreement and the date of this Amendment No. 1, as the context requires, with respect to the first paragraph of Section 2, Section 2(b), Section 2(uu), and Section 8(a).
8. This Amendment No. 1 shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Amendment No. 1 or the transactions contemplated hereby or by the Sales Agreement (each, a “Related Proceeding”) may be instituted in the federal courts of the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in each case located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth in the Sales Agreement shall be effective service of process for any suit, action or other proceeding brought in any such court. The Company hereby irrevocably appoints Equiniti Trust Company, LLC, with offices at 48 Wall Street, Floor 23, New York, NY 10005, as its agent for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it at the office of such agent. The Company waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents and warrants that such agent has agreed to act as the Company’s agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
9. This Amendment No. 1 may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of an executed amendment by one party to the other may be made by facsimile, electronic mail or other transmission method as permitted by applicable law,
and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. A party’s electronic signature (complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) of this Amendment No. 1 shall have the same validity and effect as a signature affixed by the party’s hand.
[Remainder of Page Intentionally Blank]
If the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon this Amendment No. 1 shall constitute a binding amendment to the Sales Agreement between the Company and the Agent.
| Very truly yours, | ||
| JEFFERIES LLC | ||
| By: | /s/ Michael Magarro | |
| Name: Michael Magarro | ||
| Title: Managing Director | ||
| ACCEPTED as of the date first written above: | ||
| FUSION PHARMACEUTICALS INC. | ||
| By: | /s/ John Valliant | |
| Name: John Valliant | ||
| Title: Chief Executive Officer | ||
[Signature Page to Amendment No. 1 to the Sales Agreement]
Exhibit 5.1
January 19, 2024
Fusion Pharmaceuticals Inc.
270 Longwood Road South
Hamilton, Ontario
L8P 0A6
| Re: | Securities Registered under Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as Canadian counsel to you in connection with your filing of a Registration Statement on Form S-3 (as amended or supplemented, the “Registration Statement”) filed on July 2, 2021 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of the offering by Fusion Pharmaceuticals Inc., a corporation governed by the Canada Business Corporations Act (the “Company”) of up to $400,000,000 of any combination of securities of the types specified therein. Reference is made to our opinion letter dated July 2, 2021 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus supplement (the “Prospectus Supplement”) filed on January 19, 2024 by the Company with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the offering by the Company of up to $100,000,000 of the Company’s common shares (the “Shares”) covered by the Registration Statement. The Shares are being offered and sold by the sales agent named in, and pursuant to, the sales agreement, as amended, between the Company and such sales agent.
We have considered such questions of law and examined such public and corporate records, certificates and other documents and conducted such other examinations as we have considered necessary to give the opinion set forth below. We have relied, without independent verification, on certificates of public officials and, as to certain factual matters, upon certificates of officers of the Company.
We have assumed the legal capacity of all individuals, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, electronic, photostatic or facsimile copies.
For purposes of the opinion set forth below, we have assumed that the Shares are issued for a price per share equal to or greater than the minimum price authorized by the Company’s board of directors prior to the date hereof (the “Minimum Price”) and that no event occurs that causes the number of authorized common shares available for issuance by the Company to be less than the number of then unissued Shares that may be issued for the Minimum Price.
For purposes of the opinion set forth below, we refer to the following as “Future Approval and Issuance”: (a) the approval by the Company’s board of directors of the issuance of the Shares (the “Approval”) and (b) the issuance of the Shares in accordance with the Approval and the receipt by the Company of the consideration to be paid in accordance with the Approval.
The opinion expressed below is limited solely to the laws of the Province of Ontario and the federal laws of Canada applicable therein.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon Future Approval and Issuance, will be validly issued as fully paid and non-assessable common shares of the Company.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Shares (the “Current Report”) which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Current Report and its incorporation by reference and the reference to our firm in that report. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Yours very truly,
/s/ “Osler, Hoskin & Harcourt LLP”
OSLER, HOSKIN & HARCOURT LLP
Document and Entity Information |
Jan. 19, 2024 |
|---|---|
| Cover [Abstract] | |
| Entity Tax Identification Number | 00-0000000 |
| Amendment Flag | false |
| Entity Central Index Key | 0001805890 |
| Document Type | 8-K |
| Document Period End Date | Jan. 19, 2024 |
| Entity Registrant Name | FUSION PHARMACEUTICALS INC. |
| Entity Incorporation State Country Code | Z4 |
| Entity File Number | 001-39344 |
| Entity Address, Address Line One | 270 Longwood Road South |
| Entity Address, City or Town | Hamilton |
| Entity Address, State or Province | ON |
| Entity Address, Country | CA |
| Entity Address, Postal Zip Code | L8P 0A6 |
| City Area Code | (289) |
| Local Phone Number | 799-0891 |
| Written Communications | false |
| Soliciting Material | false |
| Pre Commencement Tender Offer | false |
| Pre Commencement Issuer Tender Offer | false |
| Security 12b Title | Common shares, no par value per share |
| Trading Symbol | FUSN |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | true |
| Entity Ex Transition Period | false |
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