Item 1.01 Entry into a Material Definitive Agreement.
On August 5, 2019, GenMark Diagnostics, Inc. (the “Company”) entered into an Equity Distribution Agreement (the “Agreement”) with Canaccord Genuity LLC (“Canaccord”) to sell shares of its common stock, par value $0.0001 (the “Common Stock”), having an aggregate offering price of up to $35,000,000 (the “Shares”) from time to time, through an“at-the-market offering” program (the “ATM Offering”) under which Canaccord will act as sales agent.
The Company is not obligated to sell any Shares under the Agreement. Subject to the terms and conditions of the Agreement, Canaccord will use commercially reasonable efforts to sell on the Company’s behalf all of the Common Stock requested to be sold by the Company, consistent with its normal trading and sales practices, upon the Company’s instructions, including any price, time or size limits specified by the Company. Under the Agreement, Canaccord may sell Shares by any method deemed to be an“at-the-market” offering as defined in Rule 415 under the U.S. Securities Act of 1933, as amended (the “Securities Act”), or any other method permitted by law, including in privately negotiated transactions. Canaccord’s obligations to sell Shares under the Agreement are subject to the satisfaction of certain conditions. The Company will pay Canaccord a commission of 3.0% of the aggregate gross proceeds from each sale of Shares occurring pursuant to the Agreement, if any. The Company has also agreed to reimburse Canaccord for legal fees and disbursements, not to exceed $25,000 in the aggregate, in connection with entering into the Agreement.
The Agreement may be terminated by Canaccord or the Company at any time upon written notice to the other party, as permitted therein. The Company has also agreed pursuant to the Agreement to indemnify and provide contribution to Canaccord against certain liabilities, including liabilities under the Securities Act.
The foregoing description of the terms of the Agreement is subject to, and qualified in its entirety by, the Agreement, a copy of which is filed as Exhibit 10.1 hereto and incorporated herein by reference.
The offer and sale of the Shares will be made pursuant to the Company’s effective “shelf” registration statement on FormS-3 (File No. 333-228486), the base prospectus contained therein, dated December 7, 2018, and a prospectus supplement related to the ATM Offering, dated August 5, 2019.
This Current Report on Form8-K shall not constitute an offer to sell or the solicitation of any offer to buy the Shares, nor shall there be any offer, solicitation or sale of the Shares 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 such state or jurisdiction.
Item 9.01 Financial Statements and Exhibits.
(d) The following exhibits are filed with this Current Report: