SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Item 8.01 Other Events
As reported by Outlook Therapeutics, Inc. (the “Company”), on its Current Report on Form 8-K filed with the Securities and Exchange Commission (the “Commission”) on March 26, 2021, the Company entered into an At The Market Offering Agreement (the “ATM Agreement”) with H.C. Wainwright & Co., LLC ( “Wainwright”), as sales agent, pursuant to which the Company may offer and sell from time to time through Wainwright up to an aggregate of $40,000,000 shares of the Company’s common stock, $0.01 par value per share (“Common Stock”).
On June 17, 2022, the Company and Wainwright entered into an amendment (the “Amendment”) to the ATM Agreement, pursuant to which the parties agreed to expand the meaning of the defined term “Registration Statement” in the ATM Agreement to include, for the period from June 17, 2022 and thereafter, the shelf registration statement (File Number 333-254778) on Form S-3 that was filed with the Commission on March 26, 2021 (the “New Registration Statement”) and that was filed prior to the expiration of the shelf registration statement (File Number 333-231922) on Form S-3 (the "First Registration Statement”), and that has been declared effective by the Commission, including exhibits and financial statements and any prospectus supplement relating to the shares of Common Stock being offered, that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each effective date and, in the event any post-effective amendment thereto becomes effective, such registration statement as so amended.
The offer and sale of shares of Common Stock through Wainwright will be made pursuant to the New Registration Statement, and a related prospectus supplement filed with the Commission on the date hereof (the “Prospectus Supplement”), pursuant to which the Company is offering shares of its Common Stock having an aggregate offering price of up to $25,856,080. The Prospectus Supplement supersedes, and the Company has ceased the use of and the offering of Common Stock under the First Registration Statement. Since March 26, 2021, the Company has sold shares of Common Stock for aggregate gross proceeds of $14,143,920 under the ATM Agreement.
A copy of the opinion of Cooley LLP relating to the validity of the Common Stock 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 any 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 9.01 Financial Statements and Exhibits.
|5.1||Opinion of Cooley LLP|
|23.1||Consent of Cooley LLP (included in Exhibit 5.1)|
|104||Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)|
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.
|Outlook Therapeutics, Inc.|
|Date: June 17, 2022||By:||/s/ Lawrence A. Kenyon|
|Lawrence A. Kenyon|
|Chief Financial Officer|
+1 212 479 6721
June 17, 2022
Outlook Therapeutics, Inc.
485 Route 1 South
Building F, Suite 320
Iselin, New Jersey 08830
Ladies and Gentlemen:
We have acted as counsel to Outlook Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the sale of shares of its common stock, par value $0.01 per share (the “Common Stock”), having an aggregate offering price of up to $25.85 million (the “Shares”) pursuant to the Registration Statement on Form S-3 (File No. 333-254778) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), the prospectus included in the Registration Statement (the “Base Prospectus”) and the prospectus supplement dated June 17, 2022 filed with the Commission pursuant to Rule 424(b) promulgated under the Act (together with the Base Prospectus, the “Prospectus”). The Shares are to be sold by the Company in accordance with that certain At The Market Offering Agreement, dated March 26, 2021, as amended on June 17, 2022, by and between the Company and H.C. Wainwright & Co., LLC (the “Agreement”), as described in the Prospectus.
In connection with this opinion, we have examined and relied upon the Registration Statement and the Prospectus, the Agreement, the Company’s Amended and Restated Certificate of Incorporation, as amended, the Company’s Second Amended and Restated Bylaws, each as currently in effect, and originals, or copies certified to our satisfaction, of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. In rendering this opinion, we have assumed the genuineness of all signatures; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
We have assumed (i) that each sale of Shares will be duly authorized by the Board of Directors of the Company, a duly authorized committee thereof or a person or body pursuant to an authorization granted in accordance with Section 152 of the General Corporation Law of the State of Delaware (the “DGCL”), (ii) that no more than 50.0 million Shares will be sold under the Agreement pursuant to the Prospectus and (iii) that the price at which the Shares are sold will equal or exceed the par value of the Common Stock. We express no opinion to the extent that future issuances of securities of the Company and/or anti-dilution adjustments to outstanding securities of the Company cause the number of shares of Common Stock outstanding or issuable upon conversion or exercise of outstanding securities of the Company to exceed the number of Shares then issuable under the Agreement.
55 Hudson Yards, New York, NY 10001-2157, Phone: (212) 479-6000, Fax: (212) 479-6275
June 17, 2022 Page Two
Our opinion herein is expressed solely with respect to the DGCL. Our opinion is based on these laws as in effect on the date hereof. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued against payment therefor in accordance with the Agreement, the Registration Statement and the Prospectus, will be validly issued, fully paid and nonassessable.
We consent to the reference to our firm under the caption “Legal Matters” in the Prospectus and to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K filed with the Commission on the date hereof and incorporated by reference into the Registration Statement.
|By:||/s/ Yvan-Claude Pierre|
55 Hudson Yards, New York, NY 10001-2157, Phone: (212) 479-6000, Fax: (212) 479-6275