Item 1.01 Entry into a Material Definitive Agreement.
On August 2, 2024, Zymeworks Inc. (the “Company”) entered into a Sales Agreement, dated as of August 2, 2024 (the “Sales Agreement”), with TD Securities (USA) LLC (“TD Cowen”). The Sales Agreement provides for the offer and sale of the Company’s common stock from time to time through TD Cowen 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 TD Cowen, 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 Nasdaq Global Select Market (“Nasdaq”) or any other existing trading market for the shares of common stock. The Company will pay TD Cowen a commission of up to 3.0% of the gross sales proceeds of any shares of common stock sold through TD Cowen under the Sales Agreement. The Company has also provided TD Cowen with customary indemnification and contribution rights. Sales pursuant to the Sales Agreement may be made through an affiliate of TD Cowen.
In accordance with the Sales Agreement, TD Cowen 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 TD Cowen 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 Company’s Registration Statement on Form S-3ASR (File No. 333-279073) (the “Registration Statement”), including the prospectus, dated May 2, 2024, and the Company’s prospectus supplement, dated August 2, 2024.
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 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; |
| | • | | may have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement; |
| | • | | may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and |
| | • | | were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments. |
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about the Company may be found elsewhere in this report and the Company’s other public filings, which are available without charge through the U.S. Securities and Exchange Commission’s website at http://www.sec.gov.
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