On March 4, 2020, Curis, Inc. (the "Company"), reported that it has entered into a Capital on Demand Sales Agreement (the "Sales Agreement") with JonesTrading Institutional Services LLC ("JonesTrading") to sell from time to time up to $30,000,000 of the Company’s common stock, par value $0.01 per share (the "Shares"), through an "at the market offering" program (the "Offering") under which JonesTrading will act as sales agent (Filing, 8-K, Curis, MAR 4, 2020, View Source [SID1234555274]).
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Sales Agreement Summary
The following is a summary of the Sales Agreement. This summary is not complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed herewith as Exhibit 1.1.
In accordance with the terms of the Sales Agreement, upon delivery of a placement notice and subject to the terms and conditions of the Sales Agreement, JonesTrading may sell the Shares by any method deemed to be an "at the market offering" as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the "Securities Act"), including sales made through the Nasdaq Global Market, on any other existing trading market for the Common Stock or to or through a market maker. In addition, with the Company’s prior written approval, JonesTrading may also sell the Shares in privately negotiated transactions.
JonesTrading will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the Nasdaq Global Market to sell on the Company’s behalf all of the shares requested to be sold by the Company.
The Company has no obligation to sell any of the Shares under the Sales Agreement. Either the Company or JonesTrading may at any time suspend solicitations and offers under the Sales Agreement upon notice to the other party.
The aggregate compensation payable to JonesTrading shall be equal to 3% of the gross proceeds from sales of the Shares sold by JonesTrading pursuant to the Sales Agreement. In addition, the Company has agreed to reimburse a portion of the expenses of JonesTrading in connection with the offering up to a maximum of $30,000.
The Sales Agreement contains customary representations and warranties, covenants of each party, and conditions to the sale of any Shares by JonesTrading thereunder. Additionally, each party has agreed in the Sales Agreement to provide indemnification and contribution against certain liabilities, including liabilities under the Securities Act, subject to the terms of the Sales Agreement.
The Sales Agreement will terminate upon the earlier of (i) the issuance and sale of all of the Shares through JonesTrading on the terms and conditions set forth therein, or (ii) termination of the Sales Agreement as permitted therein. JonesTrading may terminate the Sales Agreement at any time in specified circumstances, including: in connection with the occurrence of a material adverse change with respect to the Company that, in JonesTrading’s reasonable judgment, may materially impair its ability to sell the Shares; due to the Company’s inability, refusal or failure to perform specified conditions of the Sales Agreement, subject, in certain circumstances, to the Company’s right to cure within a period of 30 days; if any other condition to JonesTrading’s obligations is not fulfilled; or any suspension of trading in the Shares or in securities generally on the Nasdaq Global Market shall have occurred. The Company and JonesTrading each has the right to terminate the Sales Agreement in its sole discretion at any time upon five days’ notice.
Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Company, has issued a legal opinion relating to the Shares. A copy of such legal opinion, including the consent included therein, is filed herewith as Exhibit 5.1.
The Shares to be sold under the Sales Agreement, if any, may be issued and sold pursuant to the universal shelf Registration Statement on Form S-3 that the Company filed with the Securities and Exchange Commission (the "SEC") which became effective on May 17, 2018 (File No. 333-224627). The Company has also filed with the SEC a prospectus supplement, dated March 6, 2020, relating to the Offering (the "Prospectus Supplement") and offerings of Shares will be made only by means of the Prospectus Supplement. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Shares nor shall there be any sale of the Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.