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Item 1.01.
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Entry into a
Material Definitive Agreement.
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On
April 30, 2019, Mustang Bio, Inc. (“Mustang” or the “Company”) entered into an underwriting agreement (the
“Underwriting Agreement”) with Cantor Fitzgerald & Co., as representative of the several underwriters named therein
(each, an “Underwriter” and collectively with Cantor Fitzgerald & Co., the “Underwriters”). Pursuant
to the Underwriting Agreement, the Company agreed to sell to the Underwriters, in a firm commitment underwritten public offering,
6,875,000 shares (the “Firm Shares”) of the Company’s common stock, $0.0001 par value per share (“Common
Stock”), at a price to the public of $4.00 per share, less underwriting discounts and commissions. In addition, pursuant
to the Underwriting Agreement, the Company has granted the Underwriters an option, exercisable for 30 days, to purchase up to an
additional 1,031,250 shares of Common Stock (the “Additional Shares,” together with the Firm Shares, the “Shares”).
The transactions contemplated by the Underwriting Agreement are expected to close on May 2, 2019, subject to the satisfaction of
customary closing conditions. A copy of the Underwriting Agreement is attached hereto as Exhibit 1.1 and is incorporated by reference
herein.
Cantor
Fitzgerald & Co. is acting as lead book-running manager for the offering. Oppenheimer & Co. Inc. is acting as book-running
manager and H.C. Wainwright & Co. and Roth Capital Partners and H.C. Wainwright & Co. are acting as co-managers for the
offering.
The
gross proceeds to the Company are expected to be approximately $27.5 million, assuming no exercise of the option to purchase Additional
Shares and excluding underwriting discounts and commissions and other offering-related expenses.
The
Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing,
indemnification obligations of the Company and the Underwriters, including for liabilities under the Securities Act of 1933, as
amended (the “Securities Act”), other obligations of the parties and termination provisions.
The
offering is being made pursuant to the Company’s effective “shelf” registration statement on Form S-3 (File No.
333-226175) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”)
on July 13, 2018, amended on July 20, 2018, and declared effective by the SEC on July 27, 2018, as supplemented by a preliminary
prospectus supplement filed with the SEC on April 29, 2019 and a final prospectus supplement expected to be filed with the SEC
on May 1, 2019, pursuant to Rule 424(b) under the Securities Act.
Alston
& Bird LLP, counsel to the Company, delivered an opinion as to the validity of the Shares, a copy of which is attached hereto
as Exhibit 5.1 and is incorporated by reference herein.
This
Current Report on Form 8-K is being filed to incorporate the Underwriting Agreement and opinion by reference into such Registration
Statement. The foregoing summary description of the offering and the documentation related thereto, including without limitation,
the Underwriting Agreement, does not purport to be complete and is qualified in its entirety by reference to such Exhibits.
The
Underwriting Agreement has been included to provide investors and security holders with information regarding its terms. It is
not intended to provide any other factual information about the Company. 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, including being qualified
by confidential disclosures exchanged between the parties in connection with the execution of the Underwriting Agreement. The representations
and warranties may have been made for the purposes of allocating contractual risk between the parties to the agreement instead
of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that
differ from those applicable to investors. Investors are not third-party beneficiaries under the Underwriting Agreement and should
not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state
of facts or condition of the Company or any of its subsidiaries or affiliates. Moreover, information concerning the subject matter
of the representations and warranties may change after the date of the Underwriting Agreement, and this subsequent information
may or may not be fully reflected in the Company’s public disclosures.