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 May 21, 2021, Seres Therapeutics, Inc. (the “Company”) entered into a Sales Agreement (the “Sales Agreement”) with Cowen and Company, LLC (“Cowen”) to sell shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), with aggregate gross sales proceeds of up to $150 million, from time to time, through an “at the market” equity offering program under which Cowen will act as sales agent.
Under the Sales Agreement, the Company will set the parameters for the sale of shares, including the number of shares to be issued, the time period during which sales are requested to be made, limitations on the number of shares that may be sold in any one trading day and any minimum price below which sales may not be made. Subject to the terms and conditions of the Sales Agreement, Cowen may sell the shares by methods deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), including sales made through The Nasdaq Global Select Market, on any other existing trading market for the Common Stock or to or through a market maker. The Company will pay Cowen a commission equal to up to 3.0% of the gross proceeds of any Common Stock sold through Cowen under the Sales Agreement, and also has provided Cowen with customary indemnification rights. The Sales Agreement may be terminated by the Company upon ten days’ prior notice to Cowen or by Cowen upon ten days’ prior notice to the Company, or at any time under certain circumstances, including but not limited to the occurrence of a material adverse change in the Company.
Any sales of shares under the Sales Agreement will be made pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-244401) filed with the Securities and Exchange Commission (the “Commission”) on August 11, 2020, which was automatically effective upon filing. The Company filed a prospectus supplement with the Commission on May 21, 2021 in connection with the offer and sale of the shares pursuant to the Sales Agreement.
The foregoing description of the material terms of the Sales Agreement is qualified in its entirety by reference to the full agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Latham & Watkins LLP, counsel to the Company, has issued an opinion to the Company, dated May 21, 2021, regarding the validity of the shares of Common Stock to be issued and sold pursuant to the Sales Agreement. A copy of the opinion is filed as Exhibit 5.1 to this Current Report on Form 8-K.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of any offer to buy the securities discussed herein, nor shall there be any offer, solicitation or sale of the 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.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit |
Exhibit Description | |
| 1.1 | Sales Agreement, dated as of May 21, 2021, between Seres Therapeutics, Inc. and Cowen and Company, LLC. | |
| 5.1 | Opinion of Latham & Watkins, LLP. | |
| 23.1 | Consent of Latham & Watkins, LLP (included in Exhibit 5.1). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
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 hereunto duly authorized.
| SERES THERAPEUTICS, INC. | ||||||||
| Date: May 21, 2021 | By: | /s/ Thomas J. DesRosier |
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| Name: | Thomas J. DesRosier | |||||||
| Title: | Executive Vice President and Chief Legal Officer | |||||||