RHYTHM PHARMACEUTICALS, Inc. Common Stock AMENDMENT NO. 1 TO SALES AGREEMENT
Exhibit 1.1
Common Stock
AMENDMENT NO. 1 TO SALES AGREEMENT
February 29, 2024
Xxxxx and Company, LLC
000 Xxxxxxxxx Xxxxxx
New York, NY 10022
Ladies and Gentlemen:
Reference is made to the Sales Agreement, dated November 2, 2021 (the “Agreement”), by and between Rhythm Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and Xxxxx and Company, LLC (“Cowen”). The Company and Cowen (collectively, the “Parties”) wish to amend the Agreement, pursuant to Section 15 of the Agreement, to increase the aggregate offering price under the Agreement (this “Amendment”). The Parties therefore hereby agree as follows:
1. On the date hereof, the Company has filed or will file a Prospectus Supplement relating to the offering of up to $200,000,000 of Common Stock (the “February 2024 ATM Prospectus Supplement”), to the base prospectus, dated March 2, 2023, contained in the registration statement on Form S-3 (Registration No. 333-270233). The February 2024 ATM Prospectus Supplement shall update and amend the prospectus supplement filed by the Company on March 2, 2023 relating to the Common Stock offered pursuant to the Agreement in its entirety.
| 2. | Issuance and Sale of Shares. The first paragraph of Section 1 of the Agreement is hereby amended and restated in its entirety to read as follows: |
‘The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through Cowen, acting as agent and/or principal, 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 $200,000,000, excluding the aggregate offering price of Placement Shares issued and sold prior to February 29, 2024 pursuant to this Agreement. Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitation set forth in this Section 1 on the number of shares of Common Stock issued and sold under this Agreement shall be the sole responsibility of the Company, and Cowen shall have no obligation in connection with such compliance. The issuance and sale of Common Stock through Cowen will be effected pursuant to the Registration Statement (as defined below) filed by the Company and after such Registration Statement has been 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 (as defined below) to issue the Common Stock.’
| 3. | Agreement Heading. The reference to “$100,000,000” in the heading of the Agreement shall be removed and replaced with “$200,000,000”. | |
| 4. | Expenses. Clause (viii) of Section 7(g) of the Agreement is hereby amended and restated in its entirety to read as follows: |
`(viii) the reasonable fees and disbursements of Xxxxx'x counsel in an amount not to exceed $75,000.'
| 5. | A new Section 20 as set forth below is hereby added to the Sales Agreement immediately following Section 19 thereof: |
“20. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that Cowen is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from Cowen of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that Cowen is a Covered Entity and Cowen or a BHC Act Affiliate of Cowen becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against Cowen are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) For purposes of this Section 20; (a) “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k), (b) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b), (c) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable, and (d) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.”
6. For the avoidance of doubt, any reference to “Prospectus” in the Agreement shall be deemed to include the February 2024 ATM Prospectus Supplement.
7. Governing Law. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
8. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., xxx.xxxxxxxx.xxx) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
9. Agreement Remains in Effect. Except as provided herein, all provisions, terms and conditions of the Agreement shall remain in full force and effect. As amended hereby, the Agreement is ratified and confirmed in all respects.
Terms used herein but not otherwise defined are used herein as defined in the Agreement.
(Signature page follows)
If the foregoing correctly sets forth the understanding between the Company and Cowen, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company and Cowen.
| Very truly yours, | ||
| XXXXX AND COMPANY, LLC | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Managing Director | |
| ACCEPTED as of the date | ||
| first-above written: | ||
| RHYTHM PHARMACEUTICALS, INC. | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Chief Financial Officer | |
