On July 29, 2020, Milestone Pharmaceuticals Inc. (the "Company") reported that entered into an Open Market Sale AgreementSM (the "Agreement") with Jefferies LLC, as sales agent ("Jefferies" or the "Agent"), under which the Company may issue and sell its common shares, no par value per share (the "Common Shares"), from time to time for an aggregate sales price of up to $50,000,000 through Jefferies as its sales agent (Press release, Milestone Pharmaceuticals, JUL 29, 2020, View Source [SID1234562482]). The Common Shares to be sold under the Agreement, if any, will be offered and sold pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-239318), which was declared effective by the Securities and Exchange Commission on July 6, 2020.
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The Company is not obligated to make any sales of Common Shares under the Agreement. Jefferies may sell the Common Shares by any method that is deemed to be an "at the market offering" as defined in Rule 415 of the Securities Act of 1933, as amended, including, without limitation, sales made directly on The Nasdaq Global Select Market or any other existing trading market for the Common Shares. Jefferies will use commercially reasonable efforts to sell the Common Shares under the Agreement from time to time, based upon instructions from the Company (including any price, time or size limits or other customary parameters or conditions the Company may impose). The Company will pay Jefferies a commission equal to 3.0 percent (3.0%) of the aggregate gross sales proceeds of any Common Shares sold through Jefferies under the Agreement (or as otherwise agreed between the Company and the Agent with respect to any Common Shares sold under the Agreement), and also has provided Jefferies with customary indemnification and contribution rights. In addition, the Company has agreed to reimburse certain legal expenses and fees incurred by Jefferies in connection with the offering up to a maximum of $65,000.
The offering of Common Shares pursuant to the Agreement will terminate upon the earlier of (i) the sale of all Common Shares subject to the Agreement or (ii) termination of the Agreement in accordance with its terms.
The foregoing description of the Agreement is not 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 to this Current Report on Form 8-K and is incorporated herein by reference. The legal opinion of Osler, Hoskin & Harcourt LLP relating to the Common Shares being offered pursuant to the Agreement is filed as Exhibit 5.1 to this Current Report on Form 8-K.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Common Shares nor shall there be any offer, solicitation or sale of the Common 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 other jurisdiction.