portion of the Investment Amount plus a specific annual rate of return less payments previously received. If a change of control of the Company occurs, the Company must immediately repay HCR the total amount actually funded plus a change of control premium, the amount of which is variable up to 95% based on timing and circumstances of such change of control and the amount funded and conditionally eligible to be funded by HCR as of the date of the change of control.
The RIFA includes customary events of default upon the occurrence of enumerated events, includingnon-payment of Revenue Interests, failure to perform certain covenants and the occurrence of insolvency proceedings, certain judgments, certain cross-defaults or certain revocations, withdrawals or cancellations of regulatory approval for MYCAPSSA. In addition, the RIFA contains various representations and warranties, information rights,non-financial covenants, indemnification obligations and other provisions that are customary for a transaction of this nature. Further, the RIFA requires the Company to maintain a minimum of $20.0 million in cash and cash equivalents during any quarter that the trailing four quarters of net revenue of MYCAPSSA is below a certain threshold. Upon the occurrence of an event of default, the Investor may accelerate payments due under the RIFA up to the Hard Cap. Upon the occurrence of certain material adverse events or the material breach of certain representations and warranties, which will not be considered events of default, the Investor may elect to terminate the RIFA and require the Company to make payments to the Investor equal to the funded portion of the Investment Amount, minus payments received by the Investor in respect of the Revenue Interests, plus a specified annual rate of return. The Company’s obligations under the RIFA will be secured by a first priority perfected security interest in all cash and Cash Equivalents (as defined in the RIFA) of the Company and all present and future net revenues of MYCAPSSA and all MYCAPSSA-related assets.
The Company expects to file the Agreement as an exhibit to its next Quarterly Report on Form10-Q. The foregoing description of the Agreement is qualified in its entirety by reference to the text of the Agreement when filed.
A copy of the Company’s press release announcing the entry into the RIFA is filed as Exhibit 99.1 to this Current Report on Form8-K and is incorporated herein by reference.
Open Market Sale Agreement
On April 7, 2020, the Company entered into an Open Market Sale AgreementSM (the “Sales Agreement”) with Jefferies LLC (“Jefferies”) with respect to an at the market offering program under which the Company may offer and sell, from time to time at its sole discretion, shares of its common stock, par value $0.01 per share (the “Common Stock”), having an aggregate offering price of up to $60,000,000 (the “Placement Shares”) through Jefferies as sales agent or principal. The issuance and sale, if any, of the Placement Shares by the Company under the Sales Agreement will be made pursuant to the Company’s effective registration statement on FormS-3 (Registration StatementNo. 333-233654) and the Prospectus Supplement dated April 8, 2020.
Jefferies may sell the Placement Shares by any method permitted by law 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 through The Nasdaq Global Select Market (“Nasdaq”) or into any other existing trading market for the Common Stock. Jefferies will use commercially reasonable efforts to sell the Placement Shares 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 up to three percent (3.0%) of the gross sales proceeds of any Placement Shares sold through Jefferies under the Sales 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 by Jefferies in connection with the offering up to a maximum of $50,000, in addition to certain ongoing disbursements of Jefferies’ counsel.
The Company is not obligated to make any sales of Common Stock under the Sales Agreement. The Company or Jefferies may suspend or terminate the offering of Shares upon notice to the other party and subject to other conditions. Jefferies will act as sales agent on a commercially reasonable efforts basis consistent with its normal trading and sales practices and applicable state and federal law, rules and regulations and the rules of Nasdaq.
The foregoing description of the Sales Agreement 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 to this Current Report on Form8-K and is incorporated herein by reference. A copy of the opinion of Goodwin Procter LLP relating to the legality of the issuance and sale of the Placement Shares in the offering is attached as Exhibit 5.1 hereto.
