| Item 1.01. | Entry into a Material Definitive Agreement. |
On December 22, 2023, Scilex Holding Company (the “Company”) entered into that certain Sales Agreement, dated December 22, 2023 (the “Sales Agreement”), by and among the Company, B. Riley Securities, Inc., Cantor Fitzgerald & Co. and H.C. Wainwright & Co., LLC (the “Sales Agents”).
Pursuant to the Sales Agreement the Company may offer and sell, from time to time (the “Offering”), through or to the Sales Agents, as sales agents and/or principals, up to $170,000,000 in shares of the Company’s common stock (the “Shares”). Following the effectiveness of the Registration Statement (as defined below), any Shares offered and sold in the Offering will be issued pursuant to the Company’s shelf registration statement on Form S-3 (the “Registration Statement”), filed with the Securities and Exchange Commission (the “SEC”) on December 22, 2023. The Shares may be offered only by means of a prospectus forming a part of the Registration Statement.
Subject to the terms and conditions of the Sales Agreement, each Sales Agent will use its commercially reasonable efforts to sell the shares of the Company’s common stock from time to time, based upon the Company’s instructions. Under the Sales Agreement, the Sales Agents may sell the shares of the Company’s common stock by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”).
The Company has no obligation to sell any shares of its common stock pursuant to the Sales Agreement, and may at any time suspend offers under the Sales Agreement. The Offering will terminate upon (i) the election of the Sales Agents upon the occurrence of certain adverse events, (ii) three business days’ advance notice from the Company to the Sales Agents or a Sales Agent (with respect to itself) to the Company, or (iii) the sale of all $170,000,000 of shares of the Company’s common stock pursuant thereto.
Under the terms of the Sales Agreement, the Sales Agents will be entitled to a commission equal to 3.0% of the gross proceeds from each sale of shares of the Company’s common stock under the Sales Agreement. The Company will also reimburse the Sales Agents for certain expenses incurred in connection with the Sales Agreement, and has agreed to provide indemnification and contribution to the Sales Agents against certain civil liabilities, including liabilities under the Securities Act.
The Company currently intends to use any net proceeds from the Offering for working capital and general corporate purposes, which may include capital expenditures, commercialization expenditures, research and development expenditures, regulatory affairs expenditures, clinical trial expenditures, acquisitions of new technologies and investments, business combinations and the repayment, refinancing, redemption or repurchase of indebtedness or capital stock.
The foregoing description of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agreement, which is filed as Exhibit 1.1 hereto, and is incorporated herein by reference.
The representations, warranties and covenants contained in the Sales Agreement were made solely for the benefit of the parties to the Sales Agreement, and may be subject to limitations agreed upon by the contracting parties. Accordingly, the Sales Agreement is incorporated herein by reference only to provide investors with information regarding the terms of the Sales Agreement and not to provide investors with any other factual information regarding the Company or its business, and should be read in conjunction with the disclosures in the Company’s periodic reports and other filings with the SEC.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any offer, solicitation or sale of any securities in any state or country in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or country.
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