On December 17, 2020, Adverum Biotechnologies, Inc. entered into a Common Stock Sales Agreement (the “Sales Agreement”) with Cowen and Company, LLC (“Cowen”) pursuant to which Adverum may sell from time to time, at its option, shares of Adverum’s common stock having an aggregate offering price of up to $150 million, through Cowen, as sales agent (the “ATM Offering”). Pursuant to the Sales Agreement, sales of Adverum’s common stock, if any, will be made under Adverum’s previously filed and currently effective Registration Statement on Form S-3 (File No. 333-233134), at market prices by any method that is deemed to be an “at the market” offering as defined in Rule 415 under the Securities Act, as amended (the “Securities Act”), including sales made directly on the Nasdaq Global Market or any other trading market for the common stock.
Subject to the terms and conditions of the Sales Agreement, Cowen will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the Nasdaq Global Market to sell on Adverum’s behalf all of the shares of common stock requested to be sold by Adverum. Cowen will offer the common stock subject to the terms and conditions of the Sales Agreement on a daily basis or as otherwise agreed upon by Adverum and Cowen. Adverum will designate the maximum amount of common stock to be sold through Cowen on a daily basis or otherwise determine such maximum amount together with Cowen. Adverum may instruct Cowen not to sell common stock if the sales cannot be effected at or above the price designated by Adverum in any such instruction. Adverum or Cowen may suspend the offering of common stock being made through Cowen under the Sales Agreement upon proper notice to the other party.
The compensation payable to Cowen as sales agent shall be up to 3.0% of the gross sales price of the shares sold through it pursuant to the Sales Agreement. In addition, Adverum has agreed in the Sales Agreement to provide indemnification and contribution to Cowen against certain liabilities, including liabilities under the Securities Act. The total expenses of the offering payable by Adverum, excluding commissions payable to Cowen under the Sales Agreement, will be approximately $300,000.
Adverum is not obligated to make any sales of shares of common stock under the Sales Agreement. The offering of common stock pursuant to the Sales Agreement will terminate upon (a) the sale of all of the shares of common stock subject to the Sales Agreement or (b) the termination of the Sales Agreement in accordance with its terms.
The Sales Agreement is attached to this Current Report on Form 8-K as Exhibit 1.1 and is incorporated herein by reference. The foregoing description of the material terms of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the exhibit attached hereto.
The legal opinion of Cooley LLP relating to the shares of common stock being offered pursuant to the Sales Agreement is filed as Exhibit 5.1 to 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 the common stock discussed herein, nor shall there be any offer, solicitation, or sale of the common stock in any state or other 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 other jurisdiction.
