| Item 1.01 | Entry Into a Material Definitive Agreement |
On February 15, 2023, 89bio, Inc. (the “Company”) entered into Amendment No. 1 to the Sales Agreement, dated March 25, 2021 (as amended, the “Sales Agreement”), with SVB Securities LLC and Cantor Fitzgerald & Co. (the “Sales Agents”), pursuant to which the Company may offer and sell from time to time shares of the Company’s common stock, par value $0.001 (the “Shares”), through the Sales Agents. The offering and sale of up to $150,000,000 of the Shares has been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-269471) (the “Registration Statement”), which was originally filed with the Securities and Exchange Commission (“SEC”) on January 31, 2023 and declared effective by the SEC on February 14, 2023, the base prospectus contained within the Registration Statement, and a prospectus supplement that was filed with the SEC on February 15, 2023.
Sales of the Shares, if any, pursuant to the Sales Agreement, may be made in sales deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act, 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 has no obligation to sell any of the Shares under the Sales Agreement, and may at any time suspend offers under the Sales Agreement or terminate the Sales Agreement. The Sales Agents will act as sales agents and will use commercially reasonable efforts to sell on the Company’s behalf all of the Shares requested to be sold by the Company, consistent with their normal trading and sales practices, on mutually agreed terms between the Sales Agents and the Company. The Company currently intends to use the proceeds of the offering, if any, for development, manufacturing and scale-up, as well as for working capital and other general corporate purposes. The Company may also use a portion of the proceeds to license, acquire or invest in new programs or for drug development activities related to such programs; however, it has no current commitments to do so.
The Sales Agreement contains customary representations, warranties and agreements by the Company, as well as indemnification obligations of the Company for certain liabilities under the Securities Act. Under the terms of the Sales Agreement, the Company will pay the Sales Agents a commission of up to 3.0% of the aggregate gross proceeds from each Share sold through it under the Sales Agreement. In addition, the Company has agreed to reimburse certain expenses incurred by the Sales Agents in connection with the offering. The Sales Agreement may be terminated by the Sales Agents or the Company at any time upon notice to the other party, as set forth in the Sales Agreement, or by the Sales Agents at any time in certain circumstances, including the occurrence of a material and adverse change in the Company’s business or financial condition that may materially impair the Sales Agents’ ability to sell the Shares.
This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Gibson, Dunn & Crutcher LLP, counsel to the Company, has issued an opinion to the Company, dated February 15, 2023, regarding the validity of the Shares. A copy of the opinion is filed herewith as Exhibit 5.1.
The description of the material terms of the Sales Agreement is not intended to be complete and is qualified in its entirety by reference to the Sales Agreement and Amendment No. 1 to the Sales Agreement, which are filed herewith as Exhibit 1.1 and Exhibit 1.2 and incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits.
