Item 1.01. Entry into a Material Definitive Agreement.
On November 20, 2020, Fulgent Genetics, Inc. (the “Company”) entered into an Equity Distribution Agreement (the “Equity Distribution Agreement”) with Piper Sandler & Co., BTIG, LLC, and Oppenheimer & Co. Inc., collectively as sales agents (the “Agents”), pursuant to which the Company may offer and sell, from time to time, through the Agents (the “Offering”) up to $175.0 million in shares of its common stock (the “Shares”). Any Shares offered and sold in the Offering will be issued pursuant to the Company’s Registration Statement on Form S-3 originally filed with the Securities and Exchange Commission (the “SEC”) on July 21, 2020, as amended on August 5, 2020 and declared effective on August 12, 2020 (the “Registration Statement”), the prospectus supplement relating to the Offering filed with the SEC on November 20, 2020 and any applicable additional prospectus supplements related to the Offering that form a part of the Registration Statement.
Subject to the terms and conditions of the Equity Distribution Agreement, the Agents will use their commercially reasonable efforts to sell the Shares from time to time, based upon the Company's instructions. Under the Equity Distribution Agreement, the Agents may sell the Shares by any method permitted by law 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 the Nasdaq Global Market or on any other existing trading market for the Shares.
The Company has no obligation to sell any of the Shares, and may at any time suspend offers under the Equity Distribution Agreement. The Offering will terminate upon the earlier of (i) the sale of all of the Shares, or (ii) the termination of the Equity Distribution Agreement according to its terms by either the Company or the Agents. The Company and the Agents may each terminate the Equity Distribution Agreement at any time by giving advance written notice to the other party as required by the Equity Distribution Agreement. The Equity Distribution Agreement contains representations and warranties for the benefit of the Company and the Agents and other terms customary for similar agreements.
Under the terms of the Equity Distribution Agreement, the Agents will be entitled to a commission at a rate of up to 3.0% of the gross proceeds from each sale of Shares under the Equity Distribution Agreement. The Company will also reimburse the Agents for certain expenses incurred in connection with the Equity Distribution Agreement, and has agreed to provide indemnification and contribution to the Agents with respect to certain liabilities, including liabilities under the Securities Act and the Securities Exchange Act of 1934, as amended.
The Company currently intends to use any net proceeds from the Offering for working capital and general corporate purposes.
The foregoing description of the Equity Distribution Agreement is not complete and is qualified in its entirety by reference to the full text of the form of the Equity Distribution Agreement filed as Exhibit 1.1 hereto, which is incorporated herein by reference.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Shares, nor shall there be any offer, solicitation or sale of the Shares in any state or country in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or country.
The opinion of the Company's counsel regarding the validity of the Shares is filed as Exhibit 5.1 hereto. This opinion is also filed with reference to, and is hereby incorporated by reference into, the Registration Statement.