Item 1.01 | Entry into a Material Definitive Agreement. |
On April 27, 2021, Benitec Biopharma Inc. (the “Company”) entered into an amended and restated underwriting agreement (the “Underwriting Agreement”) with H.C. Wainwright & Co., LLC (the “Underwriter”), relating to the sale of 3,036,066 shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”), in an upsized, firm-commitment public offering pursuant to the Company’s effective registration statement on Form S-3 (File No. 333-253259) and related prospectus and prospectus supplement, in each case filed with the Securities and Exchange Commission (the “Offering”). The public offering price is $4.25 per share, less underwriting discounts and commissions. In addition, the Company granted the Underwriter an option to purchase, for a period of 30 days from the date of the Underwriting Agreement, up to an additional 455,454 shares of Common Stock at the same public offering price.
In connection with the Offering, the Company agreed to pay the Underwriter an underwriting discount equal to 8.0% of the gross proceeds of the offering and a management fee equal to 1.0% of the gross proceeds of the offering. The Company has also agreed to pay the Underwriter (a) $50,000 for non-accountable expenses, (b) up to $100,000 for reasonable, documented fees and expenses of legal counsel and other reasonable out-of-pocket expenses and (c) clearing and settlement fees of $15,950.
The Company estimates that the net proceeds from the Offering will be approximately $11.3 million, or approximately $13.1 million if the Underwriter exercises in full its option to purchase additional shares of Common Stock, in each case after deducting underwriting discounts and commissions and estimated offering expenses. The Company intends to use the net proceeds from the Offering for the continued advancement of development activities for its product pipeline, general corporate purposes, and strategic growth opportunities. The Offering is expected to close on or about April 30, 2021, subject to satisfaction of customary closing conditions.
The Underwriting Agreement contains representations, warranties, indemnification and other provisions customary for transactions of this nature. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties. Pursuant to the Underwriting Agreement, the Company and its directors and officers agreed, for a period of 90 days, subject to certain exceptions, not to offer, sell, pledge or otherwise dispose of the common stock and other Company securities, without the prior written consent of the Underwriter.
The foregoing summary of the Underwriting Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the Underwriting Agreement, which is attached hereto as Exhibit 1.1 and incorporated herein by reference.
A copy of the opinion of Proskauer Rose LLP as to the legality of the shares of Common Stock to be issued in the Offering and related consent is attached hereto as Exhibit 5.1 to this Current Report on Form 8-K.