| Item 1.01. | Entry into a Material Definitive Agreement. |
At-The-Market Agreement
On May 28, 2021, Viracta Therapeutics, Inc. (the “Company”) entered into an Open Market Sale AgreementSM (the “Sale Agreement”) with Jefferies LLC (the “Sales Agent”), under which the Company may offer and sell up to $50,000,000 of shares (the “Shares”) of its common stock, par value $0.0001 per share (“Common Stock”), from time to time through the Sales Agent, acting as the Company’s sales agent. The sales and issuances, if any, of the Shares by the Company under the Sale Agreement is subject to the effectiveness of the Company’s registration statement on Form S-3 (the “Registration Statement”), filed with the Securities and Exchange Commission on May 28, 2021. The Company makes no assurances as to if or whether the Registration Statement will become effective or, if it does become effective, as to the continued effectiveness of the Registration Statement.
Sales, if any, of the Shares pursuant to the Sale Agreement may be made in negotiated transactions or transactions that are deemed to be “at the market offerings” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), including sales made directly on The Nasdaq Stock Market, or sales made into any other existing trading market for the Common Stock. The Sales Agent is not required to sell any specific amount of securities, but will act as the Company’s sales agent using commercially reasonable efforts to sell the Shares from time to time (the “Offering”), consistent with its normal trading and sales practices, applicable state and federal laws, rules and regulations and the rules of The Nasdaq Stock Market, 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 has agreed to pay the Sales Agent a commission equal to 3.0% of the aggregate gross proceeds from each sale of Shares pursuant to the Sale Agreement and to provide the Sales Agent with customary indemnification and contribution rights, including for liabilities under the Securities Act. In addition, the Company has agreed to reimburse certain expenses incurred by the Sales Agent in connection with the Offering. The Sales Agent’s obligations to sell the Shares under the Sale Agreement are subject to satisfaction of certain conditions, including customary closing conditions.
The Company is not obligated to sell any of the Shares under the Sale Agreement and may at any time suspend solicitation and offers under the Sale Agreement. The Sale Agreement may be terminated by the Company at any time by giving 10 days’ written notice to the Sales Agent for any reason or by the Sales Agent at any time by giving 10 days’ written notice to the Company for any reason or immediately under certain circumstances, and shall automatically terminate upon the issuance and sale of all of the Shares.
The foregoing description of the Sale Agreement is not complete and is qualified in its entirety by reference to the full text of the Sale Agreement, a copy of which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
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 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 jurisdiction.
First Amendment to Loan and Security Agreement
On May 27, 2021, the Company’s subsidiary, Viracta Subsidiary, Inc. (f/k/a Viracta Therapeutics, Inc., referred to herein as “Viracta Subsidiary”) and Silicon Valley Bank (“SVB”) entered into the First Amendment (the “First Amendment”) to that certain Loan and Security Agreement, dated as of July 30, 2020, by and between Private Viracta and SVB (the “Loan Agreement”). The First Amendment, among other things, adds the Company, as the parent of Viracta Subsidiary, as a co-borrower and guarantor under the Loan Agreement and makes certain conforming amendments in connection with the closing of the transactions contemplated by the merger agreement between the Company and Private Viracta as previously described in a Current Report on Form 8-K filed on February 24, 2021.
