On September 3, 2021, VBI Vaccines Inc. (the "Company") reported that it entered into an Open Market Sale AgreementSM (the "Sales Agreement") with Jefferies LLC to act as the Company’s sales agent and/or principal ("Agent"), with respect to the issuance and sale of up to $125,000,000 of the Company’s common shares, no par value per share (the "Shares"), from time to time in an at-the-market public offering (Filing, 8-K, VBI Vaccines, SEP 3, 2021, View Source [SID1234587236]).
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Upon delivery of an issuance notice and subject to the terms and conditions of the Sales Agreement, Agent may sell the Shares by any method permitted by law deemed to be an "at the market offering" as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended. The Company may sell the Shares in amounts and at times to be determined by the Company from time to time subject to the terms and conditions of the Sales Agreement, but it has no obligation to sell any of the Shares under the Sales Agreement. In addition, if expressly authorized by the Company, Agent may also sell the Shares in privately negotiated transactions.
The Company or Agent may suspend or terminate the offering of Shares upon notice to the other party and subject to other conditions. Agent will use its commercially reasonable efforts consistent with its normal sales and trading practices to place the Shares, subject to the terms of the Sales Agreement. The Sales Agreement will automatically terminate when the sale of the Shares reaches an aggregate offering amount equal to $125,000,000, or sooner if terminated as permitted therein.
The Company will pay Agent a commission of up to 3.0% of the gross proceeds from the sale of the Shares pursuant to the Sales Agreement.
The Sales Agreement contains representations, warranties and covenants that are customary for transactions of this type. In addition, the Company has agreed to indemnify Agent against certain liabilities, including liabilities under the Securities Act of 1933, as amended. A copy of the Sales Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. The description of the Sales Agreement is qualified in its entirety by reference to Exhibit 1.1 to this Current Report on Form 8-K.
The Shares will be sold and issued pursuant to a shelf registration statement on Form S-3 (File No. 333-240266), which became automatically effective upon filing with the Securities and Exchange Commission on July 31, 2020, and a prospectus supplement and the accompanying prospectus relating to the at-the-market offering have been filed with the Securities and Exchange Commission on September 3, 2021.
This Current Report on Form 8-K, including the exhibits filed herewith, is not an offer to sell or the solicitation of an offer to buy the Shares or any other securities of the Company, nor shall there by any offer, solicitation or sale of the Shares or any other securities of the Company in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.