UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): September 11, 2023
CymaBay Therapeutics, Inc.
(Exact name of Registrant as specified in its charter)
| Delaware | 001-36500 | 94-3103561 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
7575 Gateway Blvd., Suite 110
Newark, CA 94560
(Address of principal executive offices)
(510) 293-8800
(Registrant’s telephone number, including area code)
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):
| ☐ | 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:
Title of each class | Trading symbol(s) | Name of each exchange on which registered | ||
| Common stock, $0.0001 par value per share | CBAY | Nasdaq Global Select Market |
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 8.01. | Other Events. |
On September 11, 2023, CymaBay Therapeutics, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Piper Sandler & Co. and Raymond James & Associates, Inc., as representatives of the several underwriters named therein (the “Underwriters”), relating to the offering, issuance and sale of 12,551,080 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), at a price to the public of $17.13 per share, and, in lieu thereof to certain investors, pre-funded warrants to purchase 583,771 shares of Common Stock at a price to the public of $17.1299 per underlying share. Pursuant to the Underwriting Agreement, the Underwriters have agreed to purchase the shares of common stock from the Company at a price of $16.1022 per share and the pre-funded warrants at a price of $16.102106 per underlying share. The Underwriters have a 30-day option to purchase up to an additional 1,970,227 shares of Common Stock. The gross proceeds from the offering, excluding the exercise by the underwriters of their 30-day option to purchase additional shares of common stock and any exercise of the pre-funded warrants, are expected to be approximately $225.0 million, before deducting underwriting discounts and commissions and offering expenses. The offering is expected to close on or about September 14, 2023, subject to customary closing conditions. All of the shares and pre-funded warrants in the offering are being sold by the Company.
The pre-funded warrants have an exercise price per share of Common Stock equal to $0.0001 per share. The exercise price and the number of shares of Common Stock issuable upon exercise of the pre-funded warrant is subject to appropriate adjustments in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting the Common Stock. Under the pre-funded warrant, the Company may not effect the exercise of the pre-funded warrant, and the holder will not be entitled to exercise any portion of the pre-funded warrant that, upon giving effect to such exercise, would result in: (i) the aggregate number of shares of Common Stock beneficially owned by such holder (together with its affiliates) exceeding 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the exercise; or (ii) the combined voting power of the Company’s securities beneficially owned by such holder (together with its affiliates) exceeding 9.99% of the combined voting power of all of the Company’s securities outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the pre-funded warrant, which percentage may be changed at the holder’s election to a higher or lower percentage not in excess of 9.99% upon 61 days’ notice to the Company.
In addition, in certain circumstances, upon a fundamental transaction, the holder of the pre-funded warrant will be entitled to receive, upon exercise of the pre-funded warrant, the kind and amount of securities, cash or other property that such holder would have received had they exercised the pre-funded warrant immediately prior to the fundamental transaction; provided, however, that in the event of a fundamental transaction where the consideration consists solely of cash, solely of marketable securities or a combination thereof, the pre-funded warrant will be deemed to be exercised in full in a cashless exercise effective immediately prior to and contingent upon the consummation of such fundamental transaction.
The offering is being made pursuant to the Company’s effective shelf registration statement on Form S-3 (Registration No. 333-270796) previously filed with the Securities and Exchange Commission on March 23, 2023, which became automatically effective upon filing.
The Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriters, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement and may be subject to limitations agreed upon by the contracting parties.
The Underwriting Agreement is filed as Exhibit 1.1 hereto, and the form of pre-funded warrant is filed as Exhibit 4.1 hereto. The foregoing descriptions of the terms of the Underwriting Agreement and the pre-funded warrants are qualified in their entirety by reference to Exhibits hereto. A copy of the opinion of Cooley LLP relating to the legality of the issuance and sale of the shares in the offering is attached as Exhibit 5.1 hereto.
| Item 9.01. | Financial Statements and Exhibits. |
Exhibit No. | Description | |
| 1.1 | Underwriting Agreement, dated September 11, 2023 | |
| 4.1 | Form of Pre-Funded Warrant | |
| 5.1 | Opinion of Cooley LLP | |
| 23.1 | Consent of Cooley LLP (contained in Exhibit 5.1) | |
| 104 | Cover Page Interactive Data File (formatted as inline XBRL) | |
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.
| CymaBay Therapeutics, Inc. | ||
| By: | /s/ Sujal Shah | |
| Name: | Sujal Shah | |
| Title: | President and Chief Executive Officer | |
Dated: September 12, 2023
