| Item 1.01. | Entry into a Material Definitive Agreement. |
On April 7, 2022, Akebia Therapeutics, Inc., a Delaware corporation (the “Company”), entered into an Open Market Sale Agreement (the “Sales Agreement”) with Jefferies LLC, as agent (the “Agent”), pursuant to which the Company may offer and sell shares of its common stock, $0.00001 par value per share (“Common Stock”), from time to time up to amounts to be determined through the Agent (the “Offering”). The Company is filing a prospectus supplement with the Securities and Exchange Commission (the “SEC”) to register shares of Common Stock having an aggregate offering price of up to $26,000,000 (the “Shares”) in connection with the Offering (the “Prospectus Supplement”) under the Company’s existing shelf Registration Statement on Form S-3ASR (File No. 333-253539) filed with the SEC on February 25, 2021 (as it may be amended or supplemented, the “Registration Statement”), which was amended by Post-Effective Amendment No. 1 to Form S-3 Registration Statement filed with the SEC on March 1, 2022. The aggregate offering amount under the Prospectus Supplement is approximately the same as the amount that was remaining under the Prior Sales Agreement (as defined in Item 8.01 of this Current Report on Form 8-K).
Upon delivery of a placement notice to the Agent and subject to the terms and conditions of the Sales Agreement, the Agent may sell the Shares by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended, including sales made directly on or through the Nasdaq Global Market or on any other existing trading market for the Company’s common stock.
The Company or the Agent may suspend or terminate the offering of Shares upon notice to the other party, subject to certain conditions. The Agent will act as sales agent on a commercially reasonable efforts basis consistent with its normal sales and trading practices.
The Company has agreed to pay the Agent commissions for its services of acting as agent of up to 3.0% of the gross proceeds from the sale of the Shares pursuant to the Sales Agreement. The Company has also agreed to provide the Agent with customary indemnification and contribution rights.
A copy of the Sales Agreement is attached as Exhibit 1.1 hereto 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 such exhibit.
Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Company, has issued a legal opinion relating to the Shares. A copy of such legal opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.
The Shares will be sold pursuant to the Registration Statement, and offerings of the Shares will be made only by means of the Prospectus Supplement. This Current Report on Form 8-K shall not constitute an offer to sell or solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities law of such state or jurisdiction.
On March 16, 2022, the Company terminated its Controlled Equity Offering Amended and Restated Sales Agreement, dated November 12, 2019, with Cantor Fitzgerald & Co. (the “Prior Sales Agreement”) related to the offer and sale of shares of the Company’s common stock in at-the-market offerings. On April 7, 2022, the Company filed a prospectus supplement terminating the offer and sale of shares in at-the-market offerings pursuant to the Prior Sales Agreement. As of the date of termination, the Company had sold an aggregate of 21,532,665 shares of its common stock under the Prior Sales Agreement for aggregate gross proceeds of $74.7 million.
