Item 1.01 Entry into a Material Definitive Agreement.
On May 4, 2021, Invitae Corporation (the "Company") entered into a Sales
Agreement (the "Agreement") with Cowen and Company, LLC (the "Sales Agent"). The
Agreement provides for the issuance and sale by the Company of common stock
having an aggregate offering price of up to $400,000,000. Pursuant to the
Agreement, the Company may offer and sell the shares in transactions deemed to
be an "at-the-market" offering as defined in Rule 415(a)(4) of the Securities
Act of 1933, which shares can be sold by the Company from time to time,
depending upon market demand, with the Sales Agent acting as an agent for sales.
The Company will pay the Sales Agent a commission of up to 3.0% of the gross
proceeds from the sale of shares of common stock by it as agent under the
Agreement. The Agreement provides that the Company will provide customary
indemnification rights to the Sales Agent. The Company has no obligation to sell
any shares of common stock pursuant to the Agreement and may at any time suspend
sales pursuant to the Agreement. Either party may terminate the Agreement
pursuant to the terms of the Agreement without liability of any party.
The shares of common stock will be sold pursuant to the Company's automatic
shelf registration statement on Form S-3 (File No. 333-230053), that was filed
with the Securities and Exchange Commission and became automatically effective
on March 4, 2019, including the related prospectus, dated March 4, 2019, as
supplemented by the prospectus supplement dated May 4, 2021. This Current Report
on Form 8-K shall not constitute an offer to sell or the solicitation of an
offer to buy nor shall there be any sale of these securities in any state in
which such offer, solicitation or sale would be unlawful prior to the
registration or qualification under the securities laws of any such state.
Under the Agreement, the Company may also sell shares of common stock to the
Sales Agent as principal for its own account, at a price to be agreed upon at
the time of sale. If the Company sells shares to the Sales Agent as principal,
the Company will enter into a separate terms agreement with the Sales Agent, and
the Company will describe the agreement in a separate prospectus supplement or
pricing supplement.
The foregoing description of the Agreement does not purport to be complete and
is subject to and qualified in its entirety by reference to the Agreement, a
copy of which is attached hereto as Exhibit 1.1 and is incorporated herein by
reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Management Incentive Compensation Plan
On April 30, 2021, upon the recommendation of the Compensation Committee (the
"Compensation Committee") of the Board of Directors of the Company (the
"Board"), the Board (and with respect to that of Sean E. George, the Company's
Chief Executive Officer (the "CEO"), all of the independent members of the
Board) approved a management incentive compensation plan for the 2021 fiscal
year (the "Management Incentive Plan"). Under the Management Incentive Plan, the
Company's executive officers, as well as other specified senior level employees
that are participants in the Management Incentive Plan, may be eligible to
receive incentive compensation in the form of performance-based restricted stock
units ("PRSUs") based on the level of achievement of specified 2021 performance
goals directed at cash burn, revenue, SG&A as a percentage of revenue, and
volume, except for Ms. Guyer who is transitioning to a new role leading the
Company's ESG efforts. Eligibility to participate in the Management Incentive
Plan and actual award amounts are not guaranteed and are determined at the
discretion of the independent members of the Board upon the recommendation of
the Compensation Committee. Potential payouts under the Management Incentive
Plan may be as low as 0% and may exceed 100% of target PRSU amounts based on
relative achievement of the 2021 performance goals, and will be granted no later
than March 31, 2022. PRSUs awarded pursuant to the Management Incentive Plan
vest as to 50% of the shares on the grant date, with the remaining 50% of the
total amount of shares vesting on the first anniversary of the grant date,
depending on eligibility and performance. Target PRSU bonus amounts at 100%
payout for the Company's named executive officers and other executive officers
are as follows: Sean E. George-59,700 PRSUs; Kenneth D. Knight-19,900 PRSUs;
Katherine A. Stueland-19,900 PRSUs; Robert L. Nussbaum-19,900 PRSUs; Thomas R.
Brida-19,900 PRSUs; and Lee Bendekgey-16,600 PRSUs.
Retention Equity Grants
On April 30, 2021, upon the recommendation of the Compensation Committee, the
Board (and with respect to that of the CEO, all of the independent members of
the Board) approved grants of retention restricted stock units ("Retention
RSUs") and options to acquire shares of the Company's common stock ("Retention
Options") under the 2015 Stock Incentive Plan (the "2015 Plan") to the Company's
executive officers, as well as other specified senior level employees, except
for Ms. Guyer who is transitioning to a new role leading the Company's ESG
efforts. The shares of common stock underlying Retention RSUs will vest in equal
annual installments over a three year period, subject to continued service, with
the first installment vesting on May 15, 2022. Retention Options vest over a
four year period, subject to continued service, with 25% of the shares vesting
on the first anniversary of the grant date, and the remaining 75% of each option
award vesting monthly over the following three years. Each equity award is
subject to the terms and conditions of the 2015 Plan and the applicable stock
award agreements. Retention RSUs and Retention Options for the Company's named
executive officers and other executive officers are as follows: Sean E.
George-134,200 Retention RSUs and 69,500 Retention Options; Kenneth D.
Knight-44,700 Retention RSUs and 23,200 Retention Options; Katherine A.
Stueland-44,700 Retention RSUs and 23,200 Retention Options; Robert L.
Nussbaum-44,700 Retention RSUs and 23,200 Retention Options; Thomas R.
Brida-44,700 Retention RSUs and 23,200 Retention Options; and Lee
Bendekgey-37,300 Retention RSUs and 19,300 Retention Options.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description
1.1 Sales Agreement dated May 4, 2021 between Invitae Corporation and
Cowen and Company, LLC.
5.1 Opinion of Pillsbury Winthrop Shaw Pittman LLP.
23.1 Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit
5.1).
104 Cover Page Interactive Date File (embedded within the Inline XBRL
document).
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