UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
On October 4, 2021, Progenity, Inc. (the “Company”) entered into a securities purchase agreement with certain institutional and accredited investors (the “Purchase Agreement”) relating to the offering and sale of 13,333,334 shares of Company common stock, par value $0.001 per share (the “Shares”) at a purchase price of $1.50 per share (the “Offering”).
The gross proceeds to the Company from the Offering were approximately $20 million before deducting placement agent fees and estimated offering expenses. The Offering closed on October 6, 2021.
The Shares were offered and sold pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-258301) initially filed with the Securities and Exchange Commission (the “Commission”) on July 30, 2021 and declared effective on August 6, 2021. A prospectus supplement relating to the Offering was filed with the Commission on October 5, 2021 (the “Prospectus Supplement”).
Pursuant to an engagement letter, dated as of October 1, 2021, between the Company and H.C. Wainwright & Co., LLC, or the placement agent, the Company agreed to pay the placement agent a cash fee of 6.0% of the gross proceeds of the Offering. The Company also agreed to pay the placement agent $60,000 for non-accountable expenses and $15,950 for clearing fee.
The Purchase Agreement contains customary representations, warranties and agreements by the Company and customary conditions to closing. In addition, the Company has agreed not to issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of common stock or securities convertible into or exchangeable for shares of common stock or file any registration statement or amendment or supplement thereto, other than this prospectus supplement or a registration statement on Form S-8 in connection with any employee benefit plan until November 20, 2021.
The Company agreed to indemnify the placement agent against certain liabilities relating to or arising out of the placement agent’s activities under the engagement letter agreement and to contribute to payments that the placement agent may be required to make in respect of such liabilities.
The foregoing description of the Purchase Agreement is qualified in its entirety by reference to the full text of the Purchase Agreement which is attached to this Current Report on Form 8-K as Exhibit 10.1 and incorporated herein by reference in its entirety.
The Company notes that the representations, warranties and covenants made by the Company in any agreement that is filed as an exhibit to any document that is incorporated by reference in the Prospectus Supplement or the accompanying base prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to or in favor of any stockholder or potential stockholder of the Company other than the parties thereto. In addition, the assertions embodied in any representations, warranties and covenants contained in such agreements may be subject to qualifications with respect to knowledge and materiality different from those applicable to security holders generally. Moreover, such representations, warranties or covenants were accurate only as of the date when made, except where expressly stated otherwise. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of the Company’s affairs at any time.
The Prospectus Supplement relating to the Offering was filed with the Commission and is available on the Commission’s web site at http://www.sec.gov. Copies of the Prospectus Supplement may also be obtained from the web site maintained by the placement agent, and the placement agent may distribute the Prospectus Supplement electronically.
An opinion of Gibson, Dunn & Crutcher LLP regarding the validity of the Shares is filed as Exhibit 5.1.
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy, and these securities cannot be sold in any state or jurisdiction in which this offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any state or jurisdiction. Any offer will be made only by means of a prospectus, including a prospectus supplement, forming a part of the effective registration statement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| 5.1 | Opinion of Gibson, Dunn & Crutcher LLP | |
| 10.1 | Form of Securities Purchase Agreement, dated October 4, 2021, by and between the Company and the Purchasers signatory therein. | |
| 23.1 | Consent of Gibson, Dunn & Crutcher, LLP (contained in Exhibit 5.1) | |
| 104 | Cover Page Interactive Data File (formatted in Inline XBRL and contained in Exhibit 101) | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Progenity, Inc. | ||||||
| Date: October 6, 2021 | By: | /s/ Eric d’Esparbes | ||||
| Eric d’Esparbes Interim Chief Executive Officer and Chief Financial Officer | ||||||