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EX-5.1 - EX-5.1 - Surface Oncology, Inc.d935599dex51.htm
EX-1.1 - EX-1.1 - Surface Oncology, Inc.d935599dex11.htm

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): May 22, 2020

 

 

SURFACE ONCOLOGY, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-38459   46-5543980

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

50 Hampshire Street, 8th Floor

Cambridge, MA

  02139
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (617) 714-4096

Not Applicable

Former name or former address, if changed since last report

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading Symbol(s)

 

Name of each exchange on which registered

Common stock, $0.0001 par value per share   SURF   Nasdaq Global Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company   ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.   ☒

 

 

 


Item 1.01 Entry into a Material Definitive Agreement

On May 22, 2020, Surface Oncology, Inc. (the “Company”) entered into a Capital on Demand Sales Agreement (the “Sales Agreement”) with JonesTrading Institutional Services LLC (“JonesTrading”) with respect to an at the market offering program under which the Company may offer and sell, from time to time at its sole discretion, shares of its common stock, par value $0.0001 per share (the “Common Stock”), having an aggregate offering price of up to $50,000,000 (the “Placement Shares”) through JonesTrading as sales agent. The issuance and sale, if any, of the Placement Shares by the Company under the Sales Agreement will be made pursuant to the Company’s effective registration statement on Form S-3 (Registration Statement No. 333-231144) and the Prospectus Supplement dated May 22, 2020.

JonesTrading may sell the Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) of the Securities Act of 1933, as amended, including, without limitation, sales made on or through The Nasdaq Global Market (“Nasdaq”) or any other existing trading market for the Common Stock. Subject to the terms of a placement notice, JonesTrading may also sell Placement Shares by any other method permitted by law, including but not limited to in negotiated transactions, subject to the prior written consent of the Company. JonesTrading will use commercially reasonable efforts to sell the Placement Shares from time to time, based upon instructions from the Company (including any price, time or size limits or other customary parameters or conditions the Company may impose). The Company will pay JonesTrading a commission of up to three percent (3.0%) of the gross sales proceeds of any Placement Shares sold through JonesTrading under the Sales Agreement, and also has provided JonesTrading with customary indemnification and contribution rights. In addition, the Company has agreed to reimburse certain legal expenses and fees by JonesTrading in connection with the offering up to a maximum of $50,000, in addition to certain ongoing legal fees of JonesTrading’s counsel.

The Company is not obligated to make any sales of Common Stock under the Sales Agreement. The Company or JonesTrading may suspend or terminate the offering of Placement Shares upon notice to the other party and subject to other conditions. JonesTrading will act as sales agent on a commercially reasonable efforts basis consistent with its normal trading and sales practices and applicable state and federal law, rules and regulations and the rules of Nasdaq.

The foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. A copy of the opinion of Goodwin Procter LLP relating to the legality of the issuance and sale of the Placement Shares in the offering is attached as Exhibit 5.1 hereto.

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an 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 1.02 Termination of a Material Definitive Agreement

On May 1, 2019, the Company entered into a Capital on Demand Sales Agreement with JonesTrading Institutional Services LLC (the “Prior Sales Agreement”) providing for the sale of up to $30.0 million of shares of Common Stock. On May 22, 2020, the Prior Sales Agreement terminated by mutual agreement of the parties due to the issuance and sale of substantially all of the shares of Common Stock subject thereto.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit
No.

  

Description

  1.1    Capital on DemandTM Sales Agreement, dated as of May 22, 2020, by and between the Company and JonesTrading Institutional Services LLC
  5.1    Opinion of Goodwin Procter LLP
23.1    Consent of Goodwin Procter LLP (included in Exhibit 5.1 hereto)


SIGNATURE

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.

 

Date: May 22, 2020     SURFACE ONCOLOGY, INC.
    By:   /s/ J. Jeffrey Goater
      J. Jeffrey Goater
      President and Chief Executive Officer

 

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