Item 1.01 Entry into a Material Definitive Agreement.
On November 22, 2021, Progenity, Inc. (the "Company") entered into an At Market
Issuance Sales Agreement (the "Sale Agreement") with B. Riley Securities, Inc.,
BTIG, LLC, and H.C. Wainwright & Co. LLC (the "Agents"), pursuant to which the
Company may offer and sell shares of the Company's common stock having an
aggregate offering price of up to $90,000,000, from time to time, in "at the
market" offerings through the Agents. Sales of the shares of common stock, if
any, will be made at prevailing market prices at the time of sale, or as
otherwise agreed with the Agents. The Agents will receive a commission from the
Company of up to 3.0% of the gross proceeds of any shares of common stock sold
under the Sale Agreement.
The Company is not obligated to sell, and the Agents are not obligated to buy or
sell, any shares of common stock under the Sale Agreement. As a result of the
approximately $44 million in warrant exercises to date in the fourth quarter of
2021 and other capital-raising transactions, management believes that the
Company's liquidity position prior to any sales of common stock under the Sale
Agreement provides sufficient runway to support achievement of critical research
and development milestones for at least the next 12 months. No assurance can be
given that the Company will sell any shares of common stock under the Sale
Agreement, or, if it does, as to the price or amount of shares of common stock
that it sells or the dates when such sales will take place.
In the Sale Agreement, the Company agreed to indemnify the Agents against
certain liabilities, including under the Securities Act of 1933, as amended, or
to contribute payments that the Agents may be required to make because of such
liabilities.
The shares of common stock sold pursuant to the Sale Agreement will be offered
pursuant to a shelf registration statement on Form S-3 (File No. 333-258301),
which became effective on August 6, 2021. The Company filed a prospectus
supplement with the U.S. Securities and Exchange Commission on November 22, 2021
in connection with the offer and sale of shares of the Company's common stock
pursuant to the Sale Agreement.
A copy of the Sale Agreement is attached as Exhibit 1.1 hereto and is
incorporated herein by reference. The foregoing description of the Sale
Agreement does not purport to be complete and is qualified in its entirety by
reference to the full text of the Sale Agreement.
A copy of the opinion of Gibson, Dunn & Crutcher LLP relating to the validity of
the shares of common stock that may be sold pursuant to the Sale Agreement is
filed herewith as Exhibit 5.1.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit Number Exhibit Description
1.1 At Market Issuance Sales Agreement, dated November 22,
2021, by and among Progenity, Inc., B. Riley Securities,
Inc., BTIG, LLC, and H.C. Wainwright & Co. LLC.
5.1 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (contained in
Exhibit 5.1).
104 Cover Page Interactive Data File (embedded within the Inline
XBRL document)
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