| Item 1.01 |
Entry into a Material Definitive Agreement. |
Registered Direct Offering
On December 12, 2022, ImmunityBio, Inc. (the “Company”) entered into a securities purchase agreement (the “SPA”) with an institutional investor (the “Investor”) for the purchase and sale in a registered direct offering of 9,090,909 shares of the Company’s common stock and warrants to purchase an additional 9,090,909 shares at an exercise price of $6.60 per share for a purchase price of $5.50 per share and accompanying warrant, generating gross proceeds from the offering of approximately $50.0 million before deducting placement agent fees and other estimated offering expenses. The warrants will become immediately exercisable after the issuance date and expire two years after the initial issuance date. The closing of the offering is expected to occur on or about December 14, 2022, subject to the satisfaction of customary closing conditions.
On December 12, 2022, the Company also entered into a placement agency agreement (the “PAA”) with Piper Sandler & Co. (the “Placement Agent”). Pursuant to the terms of the PAA, the Placement Agent has agreed to serve as our exclusive Placement Agent on a reasonable best efforts basis to arrange for the sale of the securities described above and the Company agreed to pay the Placement Agent a cash fee equal to 6.0% of the gross proceeds generated from the sale of the shares of the Company’s common stock, less certain Company expenses to be reimbursed by the Placement Agent. The Placement Agent will not receive any fees for the exercise of the warrants.
The securities are being offered and sold by the Company pursuant to a prospectus supplement and an accompanying prospectus forming part of a “shelf” registration statement on Form S-3 (Registration No. 333-255699), including a base prospectus, previously filed with and declared effective by the Securities and Exchange Commission (the “SEC”) on May 18, 2022 and a related registration statement on Form S-3 (Registration No. 333-268750) filed on December 12, 2022 pursuant to Rule 462(b), which became effective automatically upon filing. In connection with the offering, the Company reduced the size of its current “at-the-market” offering to $238,795,982 and filed an amended prospectus supplement to reflect this.
The SPA and PAA contain customary representations, warranties and covenants by the Company, customary conditions to closing, indemnification obligations of the Company, the Placement Agent and the Investor, other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the SPA and PAA were made only for purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements, and may be subject to limitations agreed upon by the contracting parties.
The foregoing descriptions of the material terms of the PAA, the warrants and the SPA do not purport to be complete and are qualified in their entirety by reference to the full text of the PAA, the Form of Common Stock Purchase Warrant and the SPA, copies of which are filed as Exhibits 1.1, 4.1, and 10.1 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference.
The legal opinion of Wilson Sonsini Goodrich & Rosati, P.C. relating to the legality of the issuance and sale of the securities in the offering is filed as Exhibit 5.1 to this Current Report on Form 8-K.
New $50.0 million Variable-Rate Promissory Note
On December 12, 2022, the Company executed a $50.0 million promissory note with Nant Capital, LLC (“Nant Capital”), an entity affiliated with Dr. Patrick Soon-Shiong, our Executive Chairman and Global Chief Scientific and Medical Officer. This note bears interest at Term Secured Overnight Financing Rate (“Term SOFR”) plus 8.0% per annum. The accrued interest shall be payable quarterly on the last business day of March, June, September and December, commencing on December 31, 2022. The outstanding principal amount and any accrued and unpaid interest are due on December 31, 2023. The Company may prepay the outstanding principal amount, together with any accrued interest at any time, in whole or in part, without premium or penalty. The Company must prepay the outstanding principal amount, together with any accrued interest, if requested by the holder, following the successful closing of a strategic collaboration transaction with a large biopharmaceutical company.