| ITEM 1.01 | Entry into a Material Definitive Agreement. |
On October 21, 2022, Zymeworks Inc. (the “Company”) entered into an Open Market Sale AgreementSM, dated as of October 21, 2022, (the “Sales Agreement”) with Jefferies LLC (“Jefferies”). The Sales Agreement provides for the offer and sale of the Company’s common stock from time to time through Jefferies as its sales agent, subject to the maximum aggregate dollar amount registered pursuant to the applicable prospectus supplement. Sales of shares of common stock through Jefferies, if any, will be made by any method permitted by law deemed to be an “at-the-market” offering as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended, including without limitation sales made directly on the New York Stock Exchange or any other existing trading market for the shares of common stock. The Company will pay Jefferies a commission of up to 3.0% of the gross sales proceeds of any shares of common stock sold through Jefferies under the Sales Agreement. The Company has also provided Jefferies with customary indemnification and contribution rights.
In accordance with the Sales Agreement, Jefferies will use commercially reasonable efforts to sell the Company’s common stock from time to time, based upon instructions from the Company (including any price, time or size limits or other customary parameters or conditions the Company may impose). The Company is not obligated to make any sales of its common stock under the Sales Agreement. The Sales Agreement may be terminated by the Company or Jefferies upon the written notice to the other party in accordance with the terms of the Sales Agreement. The offering of the shares of common stock pursuant to the Sales Agreement will terminate upon the termination of the Sales Agreement in accordance with its terms.
The shares of common stock are being offered and sold pursuant to the Registration Statement on Form S-3ASR (File No. 333-259970) (“Registration Statement”), including the prospectus, dated October 1, 2021, filed by Zymeworks BC Inc. (“Zymeworks BC”) and the prospectus supplement, dated October 21, 2022, filed by the Company. The Registration Statement was adopted by the Company pursuant to Rule 414 under the Securities Act of 1933, as amended.
The foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed as Exhibit 1.1 hereto and incorporated herein by reference. The Sales Agreement is also incorporated by reference into the Registration Statement.
A copy of the opinion of Wilson Sonsini Goodrich & Rosati, P.C. relating to the legality of the shares of common stock issuable under the Sales Agreement is filed as Exhibit 5.1 to this Current Report on Form 8-K and is also incorporated by reference into the Registration Statement.
This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any sale of such securities in any state or 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 jurisdiction.
| ITEM 1.02 | Termination of a Material Definitive Agreement. |
On October 21, 2022, Zymeworks BC, the Company’s subsidiary, and Jefferies mutually terminated the Open Market Sales AgreementSM (the “Prior Sales Agreement”) by and between Zymeworks BC and Jefferies dated November 5, 2019, as amended. The Prior Sales Agreement provided that Zymeworks BC may sell its common shares, from time to time, through an “at-the-market” equity offering program under which Jefferies acted as sales agent. None of Zymeworks BC’s common shares were sold under the Prior Sales Agreement that has been terminated.
The foregoing description of the Prior Sales Agreement is not complete and is qualified in its entirety by reference to the full text of the Sales Agreement and the related amendment, copies of which are filed as Exhibit 1.1 to Zymeworks BC’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on November 6, 2019 and Exhibit 1.1 to Zymeworks BC’s Current Report on Form 8-K filed with the SEC on October 1, 2021, respectively.
| ITEM 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
In reviewing the agreement included as an exhibit to this report, please remember that it is included to provide you with information regarding its terms and is not intended to provide any other factual or disclosure information about the Company or the other parties to the agreement. The agreement contains representations and warranties made by the Company. These representations and warranties have been made solely for the benefit of the other party to the agreement and:
| | • | | should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; |
2
