On September 17, 2020, Checkpoint Therapeutics, Inc., a Delaware corporation (the "Company"), reported that it entered into an underwriting agreement (the "Underwriting Agreement") with H.C. Wainwright & Co., LLC (the "Underwriter") (Filing, Checkpoint Therapeutics, SEP 17, 2020, View Source [SID1234565431]). Pursuant to the Underwriting Agreement, the Company agreed to sell to the Underwriter, and the Underwriter agreed to purchase for resale to the public, in a firm commitment underwritten public offering, 7,142,857 shares (the "Firm Shares") of the Company’s common stock, $0.0001 par value per share (the "Common Stock"), at a price to the public of $2.80 per share, less underwriting discounts and commissions. In addition, pursuant to the Underwriting Agreement, the Company has granted the Underwriter an option, exercisable for 30 days from the closing date of this offering, to purchase up to an additional 1,071,428 shares of Common Stock (the "Additional Shares" and, together with the Shares, the "Offered Shares") at the same offering price to the public, less underwriting discounts and commissions. On September 20, 2020, the Underwriter partially exercised its option purchase 178,572 Additional Shares. The offering of the Offered Shares was registered pursuant to a Registration Statement (No. 333-221493) on Form S-3, which was filed by the Company with the Securities and Exchange Commission on November 9, 2017 and declared effective on December 1, 2017, including a prospectus contained therein, as supplemented by a prospectus supplement, dated September 17, 2020, relating to this offering (the "Registration Statement"). A copy of the Underwriting Agreement is attached hereto as Exhibit 1.1 and is incorporated by reference herein.
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H.C. Wainwright & Co., LLC is acting as sole book-running manager for the offering.
The Company expects to receive net proceeds from the sale of the Offered Shares, after deducting underwriting discounts and commissions and other estimated offering expenses payable by the Company, of approximately $19.0 million, which includes proceeds from the additional shares of Common Stock to be sold pursuant to Underwriter’s partial exercise of its option to purchase additional shares. The offering, including the Additional Shares to be issued and sold pursuant to the partial exercise of the Underwriter’s option to purchase additional shares, is expected to close on September 22, 2020, subject to satisfaction of customary closing conditions.
The Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriter, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions.
Alston & Bird LLP, counsel to the Company, delivered an opinion as to the validity of the Offered 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.