INOVIO PHARMACEUTICALS, INC. (Form: 8-K, Received: 03/09/2020 06:19:50)

INOVIO PHARMACEUTICALS, INC.

Date: March 9, 2020

/s/ Peter Kies

Peter Kies

Chief Financial Officer

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 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 3, 2020

Inovio Pharmaceuticals, Inc.

(Exact name of registrant as specified in its charter)

Delaware

001-14888

33-0969592

(State or other jurisdiction
of incorporation)

(Commission
File Number)

(IRS Employer

Identification No.)

660 W. Germantown Pike, Suite 110

Plymouth Meeting, PA 19462

(Address of principal executive offices, including zip code)

(267) 440-4200

(Registrant’s telephone number, including area code)

N/A

(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, $0.001 par value	INO	The Nasdaq Stock Market LLC

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 March 9, 2020, Inovio Pharmaceuticals, Inc. (the “Company”) entered into an Amendment No. 2 (the “Amendment”) to the At-The-Market Equity Offering Sales Agreement dated May 25, 2018, as amended by Amendment No. 1 on February 7, 2020 (as amended, the “Sales Agreement”) with Stifel, Nicolaus & Company, Incorporated (“Stifel”), which amendment increases the amount of Company common stock, par value $0.001 per share (the “Common Stock”), that can be sold by the Company through Stifel as its sales agent under the Sales Agreement from an aggregate offering price of up to $200,000,000 to an aggregate offering price of up to $250,000,000.

Pursuant to the Sales Agreement, sales of the Common Stock, if any, will be made under the Company’s previously filed and effective Registration Statement on Form S-3 (File No. 333- 225233) and an applicable prospectus supplement, by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended. Since September 30, 2019 the Company has sold approximately $168.3 million of its common stock pursuant to the Agreement and since May 25, 2018 has sold $200 million of its common stock pursuant to the Agreement.

The Sales Agreement is attached or incorporated by reference to this Current Report on Form 8-K as Exhibits 1.1, 1.2 and 1.3 and is incorporated herein by reference. The foregoing description of the material terms of the Amendment does not purport to be complete and is qualified in its entirety by reference to the exhibits attached 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 2.02. Results of Operations and Financial Conditions.

As of December 31, 2019, the Company had approximately $89.5 million of cash and cash equivalents and short-term investments. This amount is unaudited and preliminary, is subject to completion of financial closing procedures that could result in changes to the amount, and does not present all information necessary for an understanding of the Company’s financial condition as of December 31, 2019.

Item 8.01. Other Events.

On March 3, 2020 the Company announced that it plans to pursue an accelerated timeline for developing its DNA vaccine INO-4800 to address COVID-19, also known as coronavirus. The Company believes it may be in a position to begin human clinical trials in the United States in April 2020 and soon thereafter in China and South Korea, subject to approval by the U.S. Food and Drug Administration and China and South Korea regulatory authorities, respectively, and aims to produce up to one million doses by the end of 2020, with its existing capacity and contract resources, for further clinical trials or emergency use.

Forward-Looking Statements

This report contains certain forward-looking statements relating to the Company’s business that involve a number of risks and uncertainties, including statements about its plans related to INO-4800. These statements may be identified by introductory words such as “may,” “expects,” “plan,” “believe,” “will,” “achieve,” “anticipate,” “would,” “should,” “subject to” or words of similar meaning, or by the fact that they do not relate strictly to historical or current facts. For such statements, the Company claims the protection of the Private Securities Litigation Reform Act of 1995. Actual events or results may differ from the expectations set forth herein as a result of a number of factors, including, but not limited to factors discussed in the “Risk Factors” sections of the Company’s most recently filed Annual Report on Form 10-K and Quarterly Report on Form 10-Q, and other filings that the Company makes with the SEC from time to time. There can be no assurance that any of the forward-looking information provided herein will be proven accurate.

In addition, the forward-looking statements included in this report represent the Company’s views as of the date hereof. The Company anticipates that subsequent events and developments may cause its views to change. However, while the Company may elect to update these forward-looking statements at some point in the future, the company specifically disclaims any obligation to do so, except as may be required by law. These forward-looking statements should not be relied upon as representing the Company’s views as of any date subsequent to the date of this report.

SIGNATURES

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.

Exhibit 1.3

INOVIO PHARMACEUTICALS, INC.

AMENDMENT NO. 2 TO

THE

AT-THE-MARKET EQUITY OFFERING SALES AGREEMENT

March 9, 2020

STIFEL, NICOLAUS & COMPANY, INCORPORATED

One South Street, 15^th Floor

Baltimore, Maryland 21202

Ladies and Gentlemen:

Reference is made to the At-The-Market Equity Offering Sales Agreement, dated as of May 25, 2018 (the “Original Sales Agreement”) between Stifel, Nicolaus & Company, Incorporated (“Stifel Nicolaus”) and Inovio Pharmaceuticals, Inc., a Delaware corporation (the “Company”), as amended by Amendment No. 1 to the Original Sales Agreement, dated as of February 7, 2020 (the “First Amendment” and, together with the Original Sales Agreement, the “Sales Agreement”), pursuant to which the Company agreed to sell through Stifel Nicolaus, acting as sales agent and/or principal, shares of the Company’s common stock, $0.001 par value per share. All capitalized terms used in this Amendment No. 2 to the At-The-Market Equity Offering Sales Agreement between Stifel Nicolaus and the Company (this “Amendment”) and not otherwise defined herein shall have the respective meanings assigned to such terms in the Sales Agreement. Stifel Nicolaus and the Company agree as follows:

A. Amendments to the Sales Agreement. The Sales Agreement is amended as follows:

1. The first paragraph of the Sales Agreement is hereby deleted in its entirety and replaced with the following:

“Inovio Pharmaceuticals, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time to or through Stifel, Nicolaus & Company, Incorporated (“Stifel Nicolaus”), as sales agent and/or principal (“Agent”), shares of the Company’s common stock, $0.001 par value per share (the “Common Stock”), (i) having an aggregate offering price of up to $100,000,000 (the “Initial Shares”), (ii) on or after February 7, 2020, having an aggregate offering price of up $100,000,000 (the “February Additional Shares”), and (iii) on or after March 9, 2020, having an aggregate offering price of up to $50,000,000 (the “March Additional Shares” and, together with the February Additional Shares and the Initial Shares, the “Shares”) on the terms set forth in Section 2 of this At-The-Market Equity Offering Sales Agreement (this “Agreement”). For the avoidance of doubt, the amount of March Additional Shares available for offer and sale under this Agreement are in addition to any offers and sales of Shares made prior to March 9, 2020 or hereafter under the sales agreement prospectus supplement for the Initial Shares filed by the Company on June 11, 2018 and under the sales agreement prospectus supplement for the February Additional Shares filed by the Company on February 7, 2020. The Company agrees that whenever it determines to sell Shares directly to the Agent as principal, it will enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such sale in accordance with Section 3 of this Agreement.”

2. The first paragraph of Section 1(a) of the Sales Agreement is hereby deleted in its entirety and replaced with the following:

“(a) Compliance with Registration Requirements. The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration under the Securities Act of 1933, as amended (the “1933 Act”) on Form S-3 (File No. 333-225233), in respect of the Company’s Common Stock (including the Shares) (collectively, the “Securities”); such registration statement, and any post-effective amendment thereto, has become effective; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; the various parts of such registration statement, including all exhibits thereto and any prospectus supplement relating to the Shares that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the prospectus supplement specifically relating to the Initial Shares, the prospectus supplement specifically relating to the February Additional Shares and the prospectus supplement specifically relating to the March Additional Shares, each prepared and filed with the Commission pursuant to Rule 424(b) under the 1933 Act, are collectively hereinafter called the “Prospectus Supplement”; the Basic Prospectus, as amended and supplemented by each Prospectus Supplement, is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act; any reference to any amendment or supplement to the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Shares filed with the Commission pursuant to Rule 424(b) under the 1933 Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”), and incorporated therein, in each case after the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the 1933 Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”).”

3. All references to “May 25, 2018” set forth in Annex 1 of the Sales Agreement are revised to read “May 25, 2018 (as amended by Amendment No. 1 to the Sales Agreement, dated February 7, 2020 and Amendment No. 2 to the Sales Agreement, dated March 9, 2020)”.

B. Company Filings. The Company shall file a Prospectus Supplement pursuant to 424(b) of the 1933 Act reflecting this Amendment within two (2) Business Days of the date hereof.

C. No Other Amendments. Except as set forth in Part A above, all the terms and provisions of the Sales Agreement shall continue in full force and effect.

D. Amendment. All references in the Agreement to the “Agreement” shall mean the Agreement as amended by this Amendment; provided, however, that all references to “date of this Agreement” in the Agreement shall continue to refer to the date of the Agreement, and the reference to “time of execution of this Agreement” set forth in Section 10(e) of the Agreement shall continue to refer to the time of execution of the Agreement.

E. Applicable Law; Consent to Jurisdiction. 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. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in effect for notices to it under this amendment and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.

F. Waiver of Jury Trial. The Company and Stifel Nicolaus each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this amendment or any transaction contemplated hereby.

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

If the foregoing correctly sets forth the understanding among the Company and Stifel Nicolaus, 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 Stifel Nicolaus.


Very truly yours,

INOVIO PHARMACEUTICALS, INC.

By:		/s/ Peter Kies
		Name: Peter Kies
		Title: Chief Financial Officer


Accepted as of the date hereof:

STIFEL, NICOLAUS & COMPANY, INCORPORATED

By:		/s/ Daniel J. Covatta
		Name: Daniel J. Covatta
		Title: Managing Director

Exhibit 5.1

LOGO

Brian F. Leaf

(703) 456-8053

bleaf@cooley.com

March 9, 2020

Inovio Pharmaceuticals, Inc.

660 W. Germantown Pike, Suite 110

Plymouth Meeting, Pennsylvania 19462

We have represented Inovio Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the offering by the Company of up to $50,000,000 of the Company’s common stock, par value $0.001 per share, (the “Shares”), pursuant to a Registration Statement on Form S-3 (File No. 333-225233) (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 within the Registration Statement (the “Base Prospectus”), and the prospectus supplement dated March 9, 2020, filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations of the Act (together with the Base Prospectus, the “Prospectus”). The Shares are to be sold by the Company in accordance with the At-The-Market Equity Offering Sales Agreement dated May 25, 2018 as amended on February 7, 2020 and March 9, 2020 (the “Sales Agreement”) between the Company and Stifel, Nicolaus & Company, Incorporated, as described in the Prospectus.

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and the Prospectus, (b) the Company’s Certificate of Incorporation, as amended, and Amended and Restated Bylaws, each as currently in effect, (c) the Sales Agreement and (d) 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. 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 (except that such assumption is not made with respect to the due execution and delivery of documents by the Company). As to certain factual matters, we have relied upon a certificate of officers of the Company and have not sought to independently verify such matters.

We have assumed (i) that the specific 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”) and (ii) that no more than 30,000,000 Shares will be sold. 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 Sales Agreement.

Our opinion is expressed only with respect to the DGCL. 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 issued and paid for in accordance with the Sales Agreement and as provided in 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 to be filed with the Commission for incorporation by reference into the Registration Statement.

ONE FREEDOM SQUARE, RESTON TOWN CENTER, 11951 FREEDOM DRIVE, RESTON, VA 20190-5640 T: (703) 456-8000 F: (703) 456-8100 WWW.COOLEY.COM

LOGO

March 9, 2020

Page Two

Sincerely,

COOLEY LLP


By:		/s/ Brian F. Leaf
		Brian F. Leaf

ONE FREEDOM SQUARE, RESTON TOWN CENTER, 11951 FREEDOM DRIVE, RESTON, VA 20190-5640 T: (703) 456-8000 F: (703) 456-8100 WWW.COOLEY.COM


Exhibit No.		Exhibit Description

1.1		At-The-Market Equity Offering Sales Agreement dated May 25, 2018 between Inovio Pharmaceuticals, Inc. and Stifel, Nicolaus & Company, Incorporated (incorporated by reference to Exhibit 1.1 to the Company’s Current Report on Form 8-K filed May 25, 2018).

1.2		Amendment No. 1 to the At-The-Market Equity Offering Sales Agreement dated February 7, 2020 between Inovio Pharmaceuticals, Inc. and Stifel, Nicolaus & Company, Incorporated (incorporated by reference to Exhibit 1.2 to the Company’s Current Report on Form 8-K filed February 7, 2020).

1.3		Amendment No. 2 to the At-The-Market Equity Offering Sales Agreement dated March 9, 2020 between Inovio Pharmaceuticals, Inc. and Stifel, Nicolaus & Company, Incorporated.

5.1		Opinion of Cooley LLP.

23.1		Consent of Cooley LLP (included in Exhibit 5.1).