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): March 21, 2014

 

 

CERUS CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   0-21937   68-0262011

(State or other jurisdiction

of incorporation)

 

(Commission

File No.)

 

(IRS Employer

Identification No.)

   

2550 Stanwell Drive

Concord, California 94520

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (925) 288-6000

 

 

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 (see General Instruction A.2. below):

 

¨ 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))

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

On March 21, 2014, Cerus Corporation (the “Company,” “we,” “us,” or “our”) entered into Amendment No. 1 (the “Amendment”) to the Controlled Equity Offering SM Sales Agreement, dated August 31, 2012 (the “Original Agreement” and as so amended, the “Sales Agreement”), with Cantor Fitzgerald & Co., as sales agent (“Cantor”), pursuant to which the Company may offer and sell, from time to time, through Cantor additional shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), having an aggregate offering price of up to $40.0 million (such shares, the “Additional Shares”). The Additional Shares are in addition to the shares of Common Stock remaining unsold under the Original Agreement. As of immediately prior to the Amendment, shares of Common Stock having an aggregate offering price of up to $1.5 million remained unsold under the Original Agreement. The issuance and sale of these shares under the Sales Agreement, if any, is subject to the continued effectiveness of the Company’s shelf registration statement on Form S-3, File No. 333-178480, initially filed with the Securities and Exchange Commission on December 14, 2011. We make no assurance as to the continued effectiveness of this shelf registration statement.

Under the Sales Agreement, Cantor may sell the Additional Shares by methods deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), including sales made directly on or through The NASDAQ Global Market, the existing trading market for the Common Stock, sales made to or through a market maker other than on an exchange or otherwise, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices, and/or any other method permitted by law. Subject to the terms and conditions of the Sales Agreement, Cantor will use commercially reasonable efforts to sell our Common Stock from time to time, based upon our instructions (including any price, time or size limits or other customary parameters or conditions we may impose). Cantor is entitled to compensation from us at a commission rate of up to 3.0% of the gross sales price per share of Common Stock under the terms of the Sales Agreement. We are not obligated to make any sales of Common Stock, including any sales of Additional Shares, under the Sales Agreement. The offering of shares of our Common Stock pursuant to the Sales Agreement will terminate upon the earlier of (1) the sale of all Common Stock subject to the Sales Agreement and (2) termination of the Sales Agreement. The Sales Agreement may be terminated by Cantor or the Company at any time upon 10 days notice to the other party, or by Cantor at any time in certain circumstances, including the occurrence of a material adverse change with respect to the Company.

The foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to (i) the Original Agreement, a copy of which was filed as Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on August 31, 2012, and (ii) the Amendment which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K, and in each case incorporated herein by reference.

The opinion of our counsel regarding the validity of the Additional Shares that may be sold pursuant to the Sales Agreement is filed herewith as Exhibit 5.1.

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Common Stock discussed herein, nor shall there be any offer, solicitation, or sale of Common Stock 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.

(d) Exhibits.

 

Number

  

Description

  5.1    Opinion of Cooley LLP.
10.1    Amendment No 1. to Controlled Equity Offering SM Sales Agreement, dated March 21, 2014, by and between Cerus Corporation and Cantor Fitzgerald & Co.
23.1    Consent of Cooley LLP (included in Exhibit 5.1).

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.

 

    CERUS CORPORATION
Dated: March 21, 2014      
    By:  

/s/ Kevin D. Green

      Kevin D. Green
      Vice President, Finance and Chief Financial Officer

EXHIBIT INDEX

 

Number

  

Description

  5.1    Opinion of Cooley LLP.
10.1    Amendment No 1. to Controlled Equity Offering SM Sales Agreement, dated March 21, 2014, by and between Cerus Corporation and Cantor Fitzgerald & Co.
23.1    Consent of Cooley LLP (included in Exhibit 5.1).

Exhibit 5.1

 

LOGO

March 21, 2014

Cerus Corporation

2550 Stanwell Drive

Concord, CA 94520

Ladies and Gentleman:

We have acted as counsel to Cerus Corporation, a Delaware corporation (the “ Company ”), in connection with the offering of up to $40,000,000 of shares of the Company’s common stock, par value $0.001 (the “ Shares ”), and the preferred stock purchase rights (the “ Rights ”) associated with the Shares to be issued pursuant to that certain Rights Agreement, dated as of November 3, 1999, as amended (the “ Rights Agreement ”), between the Company and Wells Fargo Bank, N.A. as rights agent (the “ Rights Agent ”), pursuant to the Registration Statement on Form S-3 (File No. 333-178480) originally filed with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Act ”), on December 14, 2011 (the “ Registration Statement ”), the related prospectus dated January 10, 2012, included in the Registration Statement (the “ Base Prospectus ”), and the prospectus supplement dated March 21, 2014, filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Act (the “ Prospectus Supplement ”). The Base Prospectus and the Prospectus Supplement are collectively referred to as the “ Prospectus .” The Shares are to be sold by the Company in accordance with the Controlled Equity Offering SM Sales Agreement, dated August 31, 2012, as amended on March 21, 2014, between the Company and Cantor Fitzgerald & Co. (the “ Sales Agreement ”), as described in the Prospectus.

In connection with this opinion, we have examined and relied upon the Registration Statement, the Prospectus, the Company’s Restated Certificate of Incorporation, as amended, the Company’s Amended and Restated Bylaws, the Sales Agreement and the Rights Agreement, each as currently in effect, and the 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. 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 the genuineness and authenticity of all documents submitted to us as originals, and the conformity to originals of all documents submitted to us as copies thereof.

This opinion assumes, with your consent, that the Rights Agreement has been duly authorized, executed and delivered by the Rights Agent, and that the Company’s Board of Directors (the “ Board ”) has acted in accordance with its fiduciary duties in adopting the Rights Agreement. This opinion does not address whether the Board may be required to redeem or terminate, or take other action with respect to, the Rights in the future based on the facts and circumstances then existing. Moreover, this opinion addresses corporate procedures in connection with the issuance of the Rights associated with the Shares, and not any particular provision of the Rights or the Rights Agreement. It should be understood that it is not settled whether the invalidity of any particular provision of a rights agreement or purchase rights issued thereunder would invalidate such rights in their entirety.

FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM

LOGO

Cerus Corporation

March 21, 2014

Page Two

 

Further, we have assumed that no more than 6,666,667 Shares will be sold, based on a sale price of $6.00 per share, representing the last reported sale price of the Company’s common stock on The NASDAQ Global Market on March 18, 2014.

With respect to securities of the Company to be issued after the date hereof, we express no opinion to the extent that, notwithstanding its current reservation of shares of common stock, future issuances of securities of the Company and/or antidilution adjustments to outstanding securities of the Company cause outstanding securities to be convertible for more shares of common stock than the number that remain authorized but unissued.

Our opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. Our opinion herein is expressed solely with respect to the federal laws of the United States and the General Corporation Law of the State of Delaware. Our opinion is based on these laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. We express no opinion as to whether the laws of any particular jurisdiction other than those identified above are applicable to the subject matter hereof.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares and the associated Rights, when sold and issued against payment therefor in accordance with the Sales Agreement, the Registration Statement and the Prospectus, will be validly issued, and the Shares fully paid and nonassessable.

We consent to the reference to our firm under the caption “Legal Matters” in the Prospectus included in the Registration Statement and to the filing of this opinion as an exhibit to a Current Report on Form 8-K.

Sincerely,

 

Cooley LLP
By:  

/s/ Chadwick L. Mills            

  Chadwick L. Mills

FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM

Exhibit 10.1

AMENDMENT NO. 1 TO SALES AGREEMENT

March 21, 2014

Cantor Fitzgerald & Co.

499 Park Avenue

New York, NY 10022

Ladies and Gentlemen:

Cerus Corporation, a Delaware corporation (the “ Company ”), and Cantor Fitzgerald & Co. (“ Agent ”) are parties to that certain Controlled Equity Offering SM Sales Agreement dated August 31, 2012 (the “ Sales Agreement ”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Sales Agreement. The parties, intending to be legally bound, hereby amend the Sales Agreement as follows:

1. The first two paragraphs of Section 1 of the Sales Agreement are hereby deleted and replaced with the following:

“1. Issuance and Sale of Shares . The Company agrees that, from time to time during the term of this Agreement, and on the terms and subject to the conditions set forth herein, it may issue and sell through Agent, shares (the “ Placement Shares ”) of the Company’s common stock, par value $0.001 per share (the “ Common Stock ”) having an aggregate offering price of up to $70,000,000, and, after March 21, 2014, $40,000,000 of such Placement Shares (the “ New Placement Shares ”) available for offer and sale are in addition to any offer and sales of Placement Shares remaining unsold under this Agreement pursuant to the Prior Prospectus Supplement (as defined below) (the “ Old Placement Shares ”);  provided, however , that in no event shall the Company issue or sell through Agent such number of Placement Shares that (a) would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including, if applicable, Instruction I.B.6. thereof), (b) exceeds the amount of Placement Shares registered on the effective Registration Statement and included in the Prospectus Supplement (each as defined below) pursuant to which the offering is being made or (c) exceeds the number of authorized but unissued shares of the Common Stock (the lesser of (a), (b) or (c), the “ Maximum Amount ”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through Agent will be effected pursuant to the Registration Statement filed by the Company and declared effective by the Securities and Exchange Commission (the “ Commission ”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Shares.

The Company has filed with the Commission, in accordance with the provisions of the Securities Act of 1933, as amended (the “ Securities Act ”), and the rules and regulations thereunder (the “ Securities Act Regulations ”), a registration statement on Form S-3 (File No. 333–178480), relating to certain securities, including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference, to the extent provided for under Form S-3, documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the rules and

regulations thereunder. The Company has prepared and filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations a prospectus supplement, dated August 31, 2012, to the base prospectus included as part of such registration statement specifically relating to the Old Placement Shares and the MLV Shares (as defined below) (the “ Prior Prospectus Supplement ”). The Company has also has prepared a prospectus supplement to the base prospectus included as part of such registration statement specifically relating only to the New Placement Shares (the “ New Prospectus Supplement ”). Such Prior Prospectus Supplement and New Prospectus Supplement are each referred to herein as a “ Prospectus Supplement ”. The Company will furnish to Agent, for use by Agent, copies of the prospectus, as supplemented by the Prospectus Supplement, relating to the Placement Shares. The Company may file one or more additional registration statements from time to time that will contain a base prospectus, prospectus and/or prospectus supplement with respect to the Placement Shares, which documents shall constitute the “Prospectus Supplement” and “Prospectus,” as applicable, under this Agreement with respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act Regulations, is herein called the “ Registration Statement .” The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such base prospectus and/or Prospectus Supplement has most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, is herein called the “ Prospectus .” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the “ Incorporated Documents ”).”

2. Subclause (z) of Section 6(i) of the Sales Agreement is hereby deleted and replaced with the following:

“(z) the Company’s execution of any amendment to the MLV Agreement or this Agreement,”

3. Section 7(m) of the Sales Agreement is hereby deleted and replaced with the following:

“ Legal Opinion . No later than the date of the first Placement Notice, the Company shall cause to be furnished to Agent a written opinion and letter of Cooley LLP or such other counsel reasonably satisfactory to Agent (“ Company Counsel ”), covering opinions and statements substantially in the forms attached heretwo as Exhibits 7(m)(1) and 7(m)(2). Thereafter within five (5) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(l) for which no waiver is applicable, the Company shall cause to be furnished to Agent a letter of Company Counsel covering statements substantially in the form attached hereto as Exhibit 7(m)(2) (such letter, a “ Negative Assurance Letter ”), modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided , however , the Company shall be required to furnish to Agent no more than one Negative Assurance Letter hereunder per calendar quarter and the Company shall not be required to furnish such letter if the Company does not intend to deliver a Placement Notice in such

calendar quarter until such time as the Company delivers its next Placement Notice; provided, further, that in lieu of such letters for subsequent periodic filings under the Exchange Act, Company Counsel may furnish Agent with a letter (a “ Reliance Letter ”) to the effect that Agent may rely on a prior Negative Assurance Letter delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except that statements in such prior letter shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date of the Reliance Letter). Notwithstanding anything to the contrary set forth herein, each obligation of the Company to cause to be furnished to Agent a Negative Assurance Letter of Company Counsel shall be conditioned upon the concurrent delivery to Agent by counsel reasonably acceptable to Agent (“ Agent Counsel ”) of a letter covering statements substantially similar to those covered by such Negative Assurance Letter of Company Counsel.”

4. Section 10(e) of the Sales Agreement is hereby deleted and replaced with the following:

“(e) Legal Opinion and Letters . Agent shall have received the opinion and letters, as applicable, of Company Counsel and Agent Counsel required to be delivered pursuant Section 7(m) on or before the date on which such delivery of such opinion and letters, as applicable, are required pursuant to Section 7(m).”

5. Section 13(d) of the Sales Agreement is hereby deleted and replaced with the following:

“(d) Unless earlier terminated pursuant to this Section 13 , this Agreement shall automatically terminate upon the earlier to occur of (i) March 21, 2017 or (ii) issuance and sale of all of the Placement Shares through Agent on the terms and subject to the conditions set forth herein except that, in either such case, the provisions of Section 9 , Section 11 , Section 11 , Section 12 , Section 18 and Section 19 hereof shall remain in full force and effect notwithstanding such termination.”

6. The first sentence of Schedule 1 is amended by adding the words “as amended on March 21, 2014” immediately after “August 31, 2012”.

7. Schedule 3 is amended by deleting the words “Howard Ervin” under the “The Company” and replacing such deleted words with “Chrystal Menard.”

8. The first sentence of the Form of Representation Date Certificate attached as Exhibit 7(l) is amended by adding the words “as amended on March 21, 2014” immediately after “August 31, 2012.”

9. No Further Amendments . Except as specifically set forth herein, all other provisions of the Sales Agreement shall remain in full force and effect.

10. New Prospectus Supplement . The Company shall file the New Prospectus Supplement within two business days of the date hereof.

11. Entire Agreement; Amendment; Severability . This Amendment No. 1 to Sales Agreement together with the Sales Agreement (including all schedules and exhibits attached hereto and thereto and Placement Notices issued pursuant hereto and thereto), the Confidentiality Agreement and that certain side letter agreement between the Company and Agent dated March 21, 2014, constitute the entire agreement and supersede all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. All references in the Sales Agreement to the “Agreement” shall mean the Sales Agreement as amended by this Amendment No. 1; provided , however , that all references to “date of this Agreement” or “date hereof” (with respect to

the Sales Agreement) in the Sales Agreement shall continue to refer to the original date of the Sales Agreement, and the reference to “time of execution of this Agreement” set forth in Section 13(a) shall continue to refer to the time of execution of the original Sales Agreement.

12. Counterparts . This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile or email transmission.

13. Governing Law . This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws.

[Remainder of Page Intentionally Blank]

If the foregoing correctly sets forth the understanding among the Company and Agent, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding amendment to the Agreement between the Company and Agent.

 

Very truly yours,
CERUS CORPORATION
By:  

/s/ Kevin D. Green

Name:   Kevin D. Green
Title:   Vice President, Finance and Chief Financial Officer
ACCEPTED as of the date first-above written:
CANTOR FITZGERALD & CO.
By:  

/s/ Jeffrey Lumby

Name:   Jeffrey Lumby
Title:   Senior Managing Director