Item 1.01 Entry into a Material Definitive Agreement
On April 23, 2020, Heat Biologics, Inc. (the “Company”) entered into Amendment No. 1, dated April 23, 2020 (the “Amendment”), to that certain At Market Issuance Sales Agreement, by and between the Company and B. Riley FBR, Inc. (“B. Riley FBR”) dated April 3, 2019 (together with the Amendment, the “Sales Agreement”) pursuant to which the Company may offer and sell, from time to time, at its option, shares of the Company’s common stock, par value $0.0002 per share, through B. Riley FBR, as sales agent (the “Sales Agent”) in an “at the market” offering (the “ATM Offering”). The Amendment will be effective at the time the Company’s Registration Statement on Form S-3 (File No. 333-237808) (the “New Registration Statement”) is declared effective by the Securities and Exchange Commission.
The original Sales Agreement provided for the issuance and sale of shares of common stock in the ATM Offering pursuant to the Company’s shelf Registration Statement on Form S-3 (File No. 333-221201)(the “Prior Registration Statement”), which includes a base prospectus and a prospectus supplement dated April 3, 2019 (the “Prior Prospectus”), providing for the sale of up to $18 million of shares of common stock in the ATM Offering. As of April 20, 2020, the Company has issued and sold an aggregate of 15,551,075 shares of common stock for aggregate gross proceeds of approximately $12,843,702 pursuant to the Sales Agreement under the Prior Registration Statement, utilizing the Prior Prospectus.
The Amendment provides for the issuance and sale of shares of common stock in the ATM Offering pursuant to the New Registration Statement. The issuance and sale of shares of common stock in the ATM Offering will be made under the New Registration Statement, once it is declared effective, pursuant to a prospectus, which consists of a base prospectus and a prospectus (the “ATM Prospectus”), each of which has been filed with the New Registration Statement. The ATM Prospectus provides for the sale of up to $50 million of shares of common stock in the ATM Offering under the New Registration Statement.
Under the terms of the Sales Agreement, in no event will the Company issue or sell through the Sales Agent such number or dollar amount of shares of common stock that would (i) exceed the number or dollar amount of shares of common stock registered and available on the Registration Statement, (ii) exceed the number of authorized but unissued shares of common stock, (iii) exceed the number or dollar amount of shares of common stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable), or (iv) exceed the number or dollar amount of common stock for which the Company has filed a prospectus supplement to the Registration Statement.
Under the terms of the Sales Agreement, the Company may sell shares of its common stock through B. Riley FBR by any method permitted that is deemed an “at the market offering” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). B. Riley FBR will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations to sell the Company’s common stock from time to time, based upon the Company’s instructions (including any price, time or size limits or other customary parameters or conditions the Company may impose). Actual sales will depend on a variety of factors to be determined by the Company from time to time, including (among others) market conditions, the trading price of the Company’s common stock, capital needs and determinations by the Company of the appropriate sources of funding for the Company. The Company is not obligated to make any sales of common stock under the Sales Agreement and the Company cannot provide any assurances that it will issue any shares pursuant to the Sales Agreement. The Company will pay a commission rate of up to 3.0% of the gross sales price per share sold and agreed to reimburse B. Riley FBR for certain specified expenses, including the fees and disbursements of its legal counsel in an amount not to exceed $50,000 and have agreed to reimburse B. Riley FBR an amount not to exceed $2,500 per quarter during the term of the sales agreement for legal fees to be incurred by B. Riley FBR. The Company has also agreed pursuant to the Sales Agreement to provide B. Riley FBR with customary indemnification and contribution rights.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any security nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
The description of the Sales Agreement and the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agreement and the Amendment, copies of which are filed herewith as Exhibits 1.1. and 1.2, and are incorporated herein by reference.
The representations, warranties and covenants contained in the Sales Agreement and the Amendment were made solely for the benefit of the parties thereto. In addition, such representations, warranties and covenants (i) are intended as a way of allocating the risk between the parties to the Sales Agreement and the Amendment and not as statements of fact, and (ii) may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Sales Agreement and the Amendment, which subsequent information may or may not be fully reflected in public disclosures.