On March 17, 2023, Unity Biotechnology, Inc. (the “Company”) entered into Amendment No. 2 (the “Amendment No. 2”) to the Sales Agreement, dated March 15, 2022, as amended by Amendment No. 1 thereto dated August 17, 2022 (together with Amendment No. 2, the “Sales Agreement”), with Cowen and Company, LLC (“Cowen”), in connection with the continuation of the Company’s at-the-market equity offering program (the “Program”). Pursuant to the terms and conditions of Amendment No. 2, the Company may, from time to time, continue to issue and sell through or to Cowen, shares of its common stock, $0.0001 par value per share (“common stock”), having an aggregate offering price of up to $25,000,000 (the “ATM Shares”). The purpose of Amendment No. 2 is to add the limitations imposed on the Program by General Instruction I.B.6 of Form S-3 (“Instruction I.B.6”) to the Sales Agreement. At the time of the Company’s entry into Amendment No. 2, approximately $15.2 million in ATM Shares remained available for issuance under the Program.
Subject to the terms and conditions of the Sales Agreement, Cowen will use its commercially reasonable efforts to sell the ATM Shares from time to time, based upon the Company’s instructions. The Company has provided Cowen with customary indemnification rights, and Cowen will be entitled to a commission of up to 3.0% of the gross proceeds of the ATM Shares sold through it pursuant to the Sales Agreement.
Sales of the ATM Shares will be made pursuant to a previously filed and effective registration statement on Form S-3 (File No. 333-263574). ATM Shares may be offered only by means of a prospectus, including a prospectus supplement, forming a part of the effective registration statement. Sales of the ATM Shares, if any, under the Sales Agreement may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended, including sales made by means of ordinary brokers’ transactions, including on the Nasdaq Global Select Market, at market prices or as otherwise agreed with Cowen. The Company has no obligation to sell any of the ATM Shares, and may at any time suspend offers under the Sales Agreement or terminate the Sales Agreement. At the time of the Company’s entry into Amendment No. 2, the Company had sold approximately $9.8 million of ATM Shares under the Sales Agreement.
Pursuant to Instruction I.B.6, in no event will the Company sell ATM Shares through the Program with a value exceeding more than one-third of the Company’s “public float” (the market value of the Company’s outstanding common stock held by non-affiliates) in any twelve-month period so long as the Company’s public float remains below $75.0 million. The Company has not offered any securities pursuant to Instruction I.B.6 during the prior twelve calendar month period that ends on and includes the date of 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 nor shall there be any sale of the ATM 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.
The foregoing is only a brief description of the terms of Amendment No. 2, does not purport to be a complete statement of the rights and obligations of the parties under Amendment No. 2 and the transactions contemplated thereby, and is qualified in its entirety by reference to Amendment No. 2, which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
