Item 1.01. Entry into a Material Definitive Agreement.
On
Certain insiders may purchase shares of Common Stock and Pre-Funded Warrants in the Offering. Because the Company has not entered into any binding agreements or received any commitments to purchase from any insiders, such insiders may elect not to purchase any shares of Common Stock or Pre-Funded Warrants in the Offering.
The Offering is being made pursuant to the Company's registration statement on
Form S-3 (File No. 333-233978), previously filed with the
The legal opinion, including the related consent, of
Net proceeds from the Offering are expected to be approximately
The Pre-Funded Warrants have an initial exercise price of
The Pre-Funded Warrants may not be exercised if, upon giving effect to such exercise, (i) the aggregate number of shares of Common Stock beneficially owned by the holder together with such holder's affiliates, any person having beneficial ownership of shares of Common Stock owned by the holder as calculated in accordance with Section 13(d) of the Exchange Act, or any persons acting as a Section 13(d) group together with such holder or any of such holder's affiliates (any such person other than holder, including any group of which Holder is a member, an "Additional Restricted Ownership Person") would exceed 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the exercise, or (ii) the combined voting power of the Company's securities beneficially owned by the holder any Additional Restricted Ownership Person would exceed 9.99% of the combined voting power of all of the Company's securities then outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Pre-Funded Warrants. However, any holder may increase or decrease such percentage, but not in excess of 19.99%, upon at least 61 days' prior notice from the holder to the Company.
In the event of certain fundamental transactions, the holders of the Pre-Funded Warrants will be entitled to receive upon exercise of the Pre-Funded Warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised the Pre-Funded Warrants immediately prior to such fundamental transaction without regard to any limitations on exercise contained in the Pre-Funded Warrants.
The Underwriting Agreement contains customary representations, warranties and covenants made by the Company. It also provides for customary indemnification by each of the Company and the Underwriters, severally and not jointly, for losses, claims, damages, or liabilities arising out of or in connection with the Offering, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. In addition, pursuant to the terms of the Underwriting Agreement, each of the Company's directors and executive officers have entered into "lock-up" agreements with the Underwriters that generally prohibit, without the prior written consent of the Representative, the sale, transfer or other disposition of securities of the Company through the period ending 90 days from the date of the Underwriting Agreement.
The foregoing description of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to the copy of the Underwriting Agreement, which is filed as Exhibit 1.1 to this Current Report on Form 8-K.
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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 the Underwriting Agreement,
and may be subject to limitations agreed upon by the contracting parties.
Accordingly, the Underwriting Agreement is incorporated herein by reference only
to provide investors with information regarding the terms of the Underwriting
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
A copy of the Form of Pre-Funded Warrants is attached as Exhibit 4.1 hereto and is incorporated herein by reference. The foregoing description of the Pre-Funded Warrants does not purport to be complete and is qualified in its entirety by reference to such exhibit.
Forward-Looking Statements
This Current Report on Form 8-K may include forward-looking statements made
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Exchange Act of 1934. The words "may," "will," "could,"
"would," "should," "expect," "intend," "plan," "anticipate," "believe,"
"estimate," "predict," "project," "potential," "continue," "ongoing" and similar
expressions are intended to identify forward-looking statements, although not
all forward-looking statements contain these identifying words. While the
Company believes its plans, intentions and expectations reflected in those
forward-looking statements are reasonable, these plans, intentions or
expectations may not be achieved. The Company's actual results, performance or
achievements could differ materially from those contemplated, expressed or
implied by the forward-looking statements. For information about the factors
that could cause such differences, please refer to the Company's Annual Report
on Form 10-K for the year ended
Item 8.01. Other Events.
On
Attached hereto as Exhibit 99.3 and incorporated herein by reference are
supplemental risk factors to the risk factors set forth in Item 1A of the
Company's Annual Report on Form 10-K for the fiscal year ended
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 1.1 Underwriting Agreement, dated January 7, 2021, by and between Cerecor Inc. and Jefferies LLC . 4.1 Form of Pre-Funded Warrant. 5.1 Opinion of Troutman Pepper Hamilton Sanders LLP . 23.1 Consent of Troutman Pepper Hamilton Sanders LLP (included in Exhibit 5.1). 99.1 Press Release, dated January 7, 2021. 99.2 Press Release, dated January 7, 2021. 99.3 Supplemental Risk Factors. 2
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