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): June 19, 2020
(Exact Name of Registrant as Specified in Charter)
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (301 ) 251-5172
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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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 (see General Instruction A.2. below):
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. ☐
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ITEM 8.01.
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Other Events
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On June 19, 2020, MacroGenics, Inc. (the “Company”) entered into Amendment No. 1 (the “Amendment”) to the Sales
Agreement dated December 23, 2019 (as amended, the “Sales Agreement”) with Cowen and Company, LLC (“Cowen”), which Amendment increases the amount of the Company’s common stock, par value $0.01 per share (the “Shares”), that can be sold by the Company
through Cowen, as the Company’s agent and/or principal under the Sales Agreement, from an aggregate offering price of up to $50.0 million to an aggregate offering price of up to $175.0 million.
Subject to the terms and conditions of the Sales Agreement, Cowen will use its commercially reasonable efforts to sell
the Shares from time to time, based upon the Company’s instructions. The Company has provided Cowen with customary indemnification rights, and Cowen will be entitled to a commission of up to 3.0% of the gross sales price of the Shares sold through it
pursuant to the Sales Agreement.
Sales of the Shares will be made pursuant to a shelf registration statement on Form S-3 (File No. 333-235691), declared
effective by the Securities and Exchange Commission on January 3, 2020. Shares may be offered only by means of a prospectus, including a prospectus supplement, forming a part of the effective registration statement. Sales of the Shares, if any, under
the Sales Agreement may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended, including sales made by means of ordinary brokers’ transactions, including on The
NASDAQ Global Select Market, at market prices or as otherwise agreed with Cowen. The Company has no obligation to sell any of the Shares, and may at any time suspend offers under the Sales Agreement or terminate the Sales Agreement. As of the date of
this report, the Company has sold 2,269,745 Shares, representing $50.0 million in gross proceeds before any discounts and fees, under the Sales Agreement.
The foregoing description of the Sales Agreement does not purport to be complete and is qualified in its entirety by
reference to the full Sales Agreement, which is incorporated by reference herein, including the Amendment, which is attached hereto as Exhibit 1.2, and is incorporated by reference herein.
This Current Report on Form 8-K does not constitute an offer to sell the Shares or a solicitation of an offer to buy the
Shares, nor shall there be any sale of the Shares 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 jurisdiction.
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ITEM 9.01.
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Financial Statements and Exhibits.
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Exhibit No.
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Description
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Sales Agreement, dated December 23, 2019, between MacroGenics, Inc. and Cowen and Company, LLC (incorporated by reference to
Exhibit 1.2 to the Company’s Registration Statement on Form S-3 (No. 333-235691) filed with the SEC on December 23, 2019).
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Amendment No. 1 to Sales Agreement, dated June 19, 2020, between MacroGenics, Inc. and Cowen and Company, LLC.
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Opinion of Cooley LLP.
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Consent of Cooley LLP (included in Exhibit 5.1).
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The cover page from this Current Report on Form 8-K, formatted in Inline XBRL |
SIGNATURE
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.
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Date: June 19, 2020
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MACROGENICS, INC.
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By:
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/s/ Jeffrey Peters
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| Jeffrey Peters | ||
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Exhibit 1.2
MACROGENICS, INC.
AMENDMENT NO. 1 TO
SALES AGREEMENT
June 19, 2020
Cowen and Company, LLC
599 Lexington Avenue
New York, NY 10022
Ladies and Gentlemen:
Reference is made to the Sales Agreement, dated as of December 23, 2019 (the “Sales Agreement”), between Cowen and Company, LLC (“Cowen”)
and MacroGenics, Inc., a Delaware corporation (the “Company”), pursuant to which the Company agreed to sell through Cowen, acting as agent and/or principal, shares of common stock, par value $0.01 per
share, of the Company. All capitalized terms used in this Amendment No. 1 to Sales Agreement between Cowen and the Company (this “Amendment”) and not otherwise defined herein shall have the respective
meanings assigned to such terms in the Sales Agreement. Cowen and the Company agree as follows:
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Amendments to Sales Agreement. The Sales Agreement is amended as follows:
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1. The heading on page 1 of the Sales Agreement shall be amended such that the reference to “$50,000,000” shall be deleted.
2. Section 1 of the Sales Agreement shall be replaced as follows:
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell
through Cowen, acting as agent and/or principal, shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), (i) having an aggregate offering price of up to $50,000,000.00
(the “Initial Placement Shares”) and (ii) on or after June 19, 2020, having an aggregate offering price of up to $125,000,000.00 (the “Additional Placement Shares”
and, together with the Initial Placement Shares, the “Placement Shares”). For the avoidance of doubt, the amount of Additional Placement Shares available for offer and sale under this Agreement are in
addition to any offers and sales of Placement Shares made prior to the date hereof or hereafter under the sales agreement prospectus supplement for the Initial Placement Shares filed by the Company on January 3, 2020. Notwithstanding anything to
the contrary contained herein, the parties hereto agree that compliance with the limitation set forth in this Section 1 on the number of shares of Common Stock issued and sold under this Agreement shall be the sole responsibility of the
Company, and Cowen shall have no obligation in connection with such compliance. The issuance and sale of Common Stock through Cowen will be effected pursuant to the Registration Statement (as defined below) filed by the Company which registration
statement was declared effective by the Securities and Exchange Commission (the “Commission”) on January 3, 2020, although nothing in this Agreement shall be construed as requiring the Company to use
the Registration Statement (as defined below) to issue the Common Stock.
The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the “Securities
Act”), with the Commission a registration statement on Form S-3 (File No. 333-235691), including a base prospectus, relating to certain securities, including the Common Stock, to be issued from time to time by the Company, and which
incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared prospectus supplements specifically relating to the Initial Placement Shares and the Additional Placement Shares (together, the “Prospectus
Supplement”), in each case, to the base prospectus included as part of such registration statement. The Company has furnished to Cowen, for use by Cowen, copies of the prospectus included as part of such registration statement, as
supplemented by the Prospectus Supplement relating to the Initial Placement Shares. In addition, the Company has filed or will file, in accordance with the provisions of the Securities Act, with the Commission a sales agreement prospectus
supplement specifically relating to the Additional Placement Shares (the “Sales Prospectus”). The Company will make available to Cowen, for use by Cowen, copies of the Sales Prospectus, including the
base prospectus included as part of such registration statement. Except where the context otherwise requires, such registration statement, when it became effective, including all documents filed as part thereof or incorporated by reference therein,
and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b)
of the Securities Act, are herein called the “Registration Statement.” The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, and the
Sales Prospectus, including all documents incorporated therein by reference, as it or they may be supplemented by the applicable Prospectus Supplement or by any additional prospectus supplement, in the form in which such prospectus and/or
Prospectus Supplement and/or Sales Prospectus have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, together with any “issuer free writing prospectus,” as defined in Rule 433 of the
Securities Act regulations (“Rule 433”), relating to the Placement Shares that (i) is required to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to Rule
433(d)(5)(i), in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.”
Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference
therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to the Electronic Data Gathering,
Analysis, and Retrieval system or any successor thereto (“EDGAR”).
3. The first sentence of Schedule 3 shall be replaced with the following:
Cowen shall be paid compensation equal to up to 3.0% of the gross proceeds from the sales of Common Stock pursuant to the terms of this Agreement.
4. The first sentence of the Officer Certificate pursuant to Section 7(m) of the Sales Agreement shall be replaced as follows:
The undersigned, the duly qualified and elected ___________, of MacroGenics, Inc., a Delaware corporation (the “Company”), does hereby certify in such
capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales Agreement dated December 23, 2019, as amended on June 19, 2020 (the “Sales Agreement”) between the Company and Cowen
and Company, LLC, that to the best of the knowledge of the undersigned:
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Company Filings. The Company shall file a Prospectus Supplement pursuant to 424(b) reflecting this Amendment within two (2) Business Days of the date hereof.
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No Other Amendments. Except as set forth in Part A above, all the terms and provisions of the Sales Agreement shall continue in full force and effect.
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Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Amendment by one
party to the other may be made by facsimile or other electronic transmission.
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Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws.
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[Remainder of page intentionally left blank.]
If the foregoing correctly sets forth the understanding between the Company and Cowen, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and Cowen.
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Very truly yours,
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COWEN AND COMPANY, LLC
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By:
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/s/ Michael Murphy |
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Name: Michael Murphy
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Title: Managing Director
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ACCEPTED as of the date
first-above written:
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MACROGENICS, INC.
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By:
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/s/ Scott Koenig |
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Name: Scott Koenig, M.D., Ph.D.
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Title: President and CEO
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[Signature Page — Amendment No. 1 to Sales Agreement]
Exhibit 5.1
Eric Blanchard
+1 212 479 6565
eblanchard@cooley.com
June 19, 2020
MacroGenics, Inc.
9704 Medical Center Drive
Rockville, MD 20850
We have represented MacroGenics, Inc., a Delaware corporation (the “Company”), in connection with the offering by the Company of up to $125,000,000 of the
Company’s common stock, par value $0.01 per share, (the “Shares”), pursuant to a Registration Statement on Form S-3 (File No. 333-235691) (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), the prospectus included within the Registration Statement (the “Base Prospectus”), and the prospectus supplement dated June
19, 2020, filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations of the Act (together with the Base Prospectus, the “Prospectus”). The Shares are to be sold by the
Company in accordance with the Sales Agreement dated December 23, 2019 as amended on June 19, 2020 (the “Sales Agreement”) between
the Company and Cowen and Company, LLC, as described in the Prospectus.
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and the Prospectus, (b) the Company’s Certificate of Incorporation, as amended, and Amended and Restated Bylaws, each
as currently in effect, (c) the Sales Agreement and (d) the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, and the conformity to originals of all documents submitted to us as copies thereof (except that such assumption is
not made with respect to the due execution and delivery of documents by the Company). As to certain factual matters, we have relied upon a certificate of officers of the Company and have not sought to independently verify such matters.
We have assumed (i) that the specific sale of Shares will be duly authorized by the Board of Directors of the Company, a duly authorized committee thereof or a person or body pursuant to an authorization granted in
accordance with Section 152 of the General Corporation Law of the State of Delaware (the “DGCL”) and (ii) that no more than 10,000,000 Shares will be sold. We express no opinion to the
extent that future issuances of securities of the Company and/or anti-dilution adjustments to outstanding securities of the Company cause the number of shares of Common Stock outstanding or issuable upon conversion or exercise of outstanding
securities of the Company to exceed the number of Shares then issuable under the Sales Agreement.
Our opinion is expressed only with respect to the DGCL. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to
compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing and in reliance thereon, we are of the opinion that the Shares, when issued and paid for in accordance with the Sales Agreement and as provided in the Prospectus, will be validly issued,
fully paid and nonassessable.
We consent to the reference to our firm under the caption “Legal Matters” in the Prospectus and to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K to be filed with the Commission
for incorporation by reference into the Registration Statement.
COOLEY LLP 55 HUDSON YARDS NEW YORK, NY 10001
T: (212) 479-6000 F: (212) 479-6275 COOLEY.COM
June 19, 2020
Page 2
Sincerely,
Cooley LLP
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By:
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/s/ Eric Blanchard
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Eric Blanchard
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COOLEY LLP 55 HUDSON YARDS NEW YORK, NY 10001
T: (212) 479-6000 F: (212) 479-6275 COOLEY.COM