SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported):
MARCH 14, 2003
(Exact name of registrant as specified in its charter)
DELAWARE 000-24573 04-3053198 (State or other jurisdiction of (Commission File Number) (IRS Employer Identification No.) incorporation)
300 TECHNOLOGY SQUARE, CAMBRIDGE, MA 02139
(Address of principal executive offices and zip code)
(Registrant's telephone number, including area code)
ITEM 5. OTHER
In order to furnish certain exhibits for incorporation by reference into the Registration Statement on Form S-3 of Dyax Corp. previously filed with Securities and Exchange Commission (File No. 333-86904), which Registration Statement was declared effective by the Commission on May 3, 2002, Dyax is filing (i) a Placement Agent Agreement dated March 13, 2003 between Dyax and Pacific Growth Equities, Inc., (ii) a Form of Common Stock Purchase Agreement between Dyax and each of the purchasers named in Schedule I thereto, and (iii) an opinion from Palmer & Dodge LLP relating to the sale and issuance of shares of Dyax common stock sold in the offering.
On March 14, 2003 Dyax entered into subscription agreements to sell 4,721,625 shares of its common stock at a price of $1.86 per share for gross proceeds of $8,782,222.50 million. Dyax expects to deliver the shares of common stock to purchasers on March 19, 2003. Dyax has retained Pacific Growth Equities, Inc. to act as its exclusive placement agent in connection with the offering, excluding 1,075,269 shares to be sold to parties affiliated with one of Dyax's directors, as more fully described in the prospectus supplement filed with the Securities and Exchange Commission.
On March 14, 2002, Dyax issued the press release which is attached as Exhibit 99.1 hereto.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS.
1.1 Placement Agent Agreement dated March 13, 2003. Filed herewith.
5.2 Opinion of Palmer & Dodge LLP dated March 14, 2003. Filed herewith.
10.1 Form of Common Stock Purchase Agreement. Filed herewith.
99.1 Press release dated March 14, 2003. Filed herewith.
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.
Date: March 18, 2003 DYAX CORP. By: /s/ STEPHEN S. GALLIKER ------------------------------------- Stephen S. Galliker Treasurer and Chief Financial Officer
EXHIBIT NO. DESCRIPTION
1.1 Placement Agent Agreement dated March 13, 2003. Filed herewith. 5.2 Opinion of Palmer & Dodge LLP dated March 14, 2003. Filed herewith. 10.1 Form of Common Stock Purchase Agreement. Filed herewith. 99.1 Press release dated March 14, 2003. Filed herewith.
March 13, 2003
Henry E. Blair
Chairman and CEO
300 Technology Square
Cambridge, MA 02139
This is to confirm the agreement (the "Agreement") between Pacific Growth Equities, Inc. ("PGE") and DYAX Corp. ("the Company") as follows:
1. SERVICES TO BE RENDERED. The Company hereby retains PGE as the Company's exclusive placement agent in connection with the placement (the "Placement") by the Company of up to 5,000,000 shares of common stock (the "Shares"). PGE agrees that it will exercise its commercially reasonable efforts to find suitable purchasers of the Shares. Prior to soliciting any investors, PGE shall notify the Company and receive the Company's oral permission to approach such investors (the "Designated Investors"). It is understood that the decision to proceed with, and the final terms of, the Placement will depend on satisfactory results of PGE's due diligence investigation (including reviews of legal, accounting and operational issues) of the Company's continuing business prospects and the prevailing securities market conditions at the time of the Placement. It is anticipated that the Placement process will commence promptly. PGE disclaims any agreement, expressed or implied, in this Agreement or otherwise, that it will be successful in placing the Shares.
2. OFFERING MATERIALS. The Company will provide to PGE copies of the prospectus dated May 3, 2002 contained in the registration statement on Form S-3 dated April 24, 2002 (Registration No. 333-86904) (the Registration Statement") and, when available, copies of the prospectus supplement issued in connection with the Placement (and any amendments or supplements thereto) which will be provided to potential purchasers of the Shares (the "Offering Materials"). The Company represents that the Offering Materials will not (when read together), as of the final closing date of the Placement (the "Closing Date"), contain any untrue statement of material fact or omit to state any material fact required to be stated therein, or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. The Company agrees to cooperate with PGE in connection with the offering of the Shares, including making appropriate officers or principals of the Company available to PGE for meetings with prospective purchasers of the Shares. The Company and PGE will prepare definitive transaction documents for use in the Placement, including a Common Stock Purchase Agreement, which shall be in form and substance reasonably satisfactory to PGE.
HENRY E. BLAIR
PGE recognizes and acknowledges that it is not authorized to make any representations and statements to any potential purchaser other than and to the extent that such representations and statements are contained in the Offering Materials or otherwise have been made by the Company to PGE with the intent and expectation that they be made to potential purchasers.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents, warrants and agrees that:
a. Except for the issuance of stock options and common stock issuable upon exercise of outstanding options and warrants, the Company will not, from the date of this letter until the final closing of the Placement or the termination of this Agreement before such a closing, offer to sell, solicit offers to purchase, or sell any securities of the Company without PGE's written consent;
b. The issuance of all of the Shares has been registered on the Registration Statement and, as of the Closing Date, the Shares will be listed on the Nasdaq National Market. In connection with the transactions contemplated by this Agreement, the Company will make any and all required filings under any and all applicable federal and state securities laws;
c. The Company has all requisite corporate power and authority to execute and perform this Agreement. All corporate action necessary for the authorization, execution, delivery and performance of this Agreement has been taken. This Agreement constitutes a valid and binding obligation of the Company; and
d. The execution and performance of this Agreement by the Company and the offer and sale of the Shares in the Placement will not violate any provision of the articles of incorporation or bylaws of the Company or any agreement or other instrument to which the Company is a party or by which it is bound. Any necessary approvals, governmental and private, will be obtained by the Company prior to the closing.
4. EXPIRATION OF ENGAGEMENT. The engagement of PGE as placement agent under
Section 1 shall expire on the Closing Date. The expiration of such engagement shall not affect the other provisions of this Agreement, all of which shall remain in effect.
5. PLACEMENT AGENT FEES. In consideration for the services rendered by PGE hereunder, the Company agrees to pay PGE on the Closing Date, a COMMISSION of 6.62% of the gross proceeds to the Company on all sales of Shares made in the Placement, other than sales of Shares to Loeb Partners. The Company and PGE agree that no commission will be paid on sales of Shares to Loeb Partners. In addition, the Company agrees to reimburse PGE for all reasonable out-of-pocket expenses incurred by PGE in connection with the Placement including the reasonable fees and expenses of PGE's counsel, up to a maximum of $10,000.
HENRY E. BLAIR
6. TRANSACTION EXPENSES. Except as provided in Section 5 hereto, the Company agrees to bear all of the expenses associated with the transactions contemplated by this Agreement, including, without limitation, all printing and mailing costs, all blue sky fees and costs (if any) and the fees and costs of Company's counsel.
7. OBLIGATIONS LIMITED. PGE shall be under no obligation hereunder to make an independent appraisal of assets or investigation or inquiry as to any information regarding, or any representations of, the Company and shall have no liability hereunder in regard thereto.
8. INDEMNIFICATION. The Company agrees to indemnify and hold harmless PGE, its
members, affiliates, agents, servants and employees and each person, if any,
who controls PGE within the meaning of section 20(a) of the SECURITIES
Exchange Act of 1934 (the "Exchange Act"), against any and all loss,
liability, claim, damage and expenses reasonably incurred by each
or any of them in investigations, preparing to defend or defending against
any such action, proceeding or claim (whether commenced or threatened) or in
connection with any investigation or inquiry (i) arising out of, related to
or based upon any untrue or alleged untrue statement of a material fact or
the omission or alleged omission of a material fact required to be stated or
necessary to make not misleading any statements contained in the Offering
Materials or the Common Stock Purchase Agreement and/or (ii) otherwise
arising out of, related to or based upon any acts or omissions of the
Company, its directors, officers, employees, affiliates and/or agents (other
than PGE) in connection with the transactions contemplated by this
Agreement; PROVIDED, HOWEVER, that the Company will not be liable under this
Section 8(a) to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Offering Materials in reliance upon and in conformity with written information furnished to the Company by PGE specifically for use therein. This indemnity shall be in addition to any liability the Company may have to PGE otherwise. The Company agrees promptly to notify PGE of the commencement of any litigation or proceedings against the Company or any of its officers, director, employees, affiliates and/or agents in connection with the Placement of the Shares or in connection with the Offering Materials.
If any action, claim or investigation (collectively, a "Claim") is brought against an indemnified party, then such party promptly shall notify the indemnifying party in writing of such action. Failure by such person to so notify the indemnifying party shall not relieve the indemnifying party from its obligation to indemnify, except to the extent that such failure to notify results in the forfeiture by the indemnifying party of substantive rights or defenses. If an indemnified party seeks indemnification hereunder with respect to any Claim brought by a third party, the indemnifying party shall be entitled to assume the defense of such Claim, such indemnified party shall have the right to participate in the defense of such Claim and to retain its own counsel but the indemnifying party shall not be liable for any legal fees or expenses subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed to employ counsel reasonably satisfactory to such indemnified party in a timely manner or (iii) such indemnified party shall have reasonably determined that representation of such indemnified party by counsel provided by the indemnifying party pursuant to the foregoing would be inappropriate due to actual or potential conflicting interests between
HENRY E. BLAIR
the indemnifying party and such indemnified party, including without limitation in the event the indemnified party shall have reasonably determined that there are legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. The indemnifying party shall not be liable for any settlement or any Claim effected without its written consent (which consent shall not be unreasonably withheld or delayed).
9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement sets forth the entire understanding of the parties and supersedes any prior communications, understanding and agreements BETWEEN the parties. This Agreement cannot be changed, nor can any of its provisions be waived, except by writing signed by all parties. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
10. TERMINATION. This Agreement may be terminated by either party at any time prior to the Closing Date of the Placement upon written notice to the other party.
11. SURVIVAL. The provisions of Sections 5 (including the Company's obligation to reimburse PGE for its out-of-pocket expenses) and 8 hereof shall survive any termination of this Agreement; provided that the Company's obligation to pay fees to PGE pursuant to Section 5 shall not survive any termination of this Agreement prior to the Closing Date of the Placement by PGE other than due to the Company's breach of any term of this Agreement or the Company's failure to satisfy a condition to closing.
12. NOTICES. Any notice, consent or other communication given pursuant to this
Agreement shall be in writing and shall be effective when (i) delivered
personally, (ii) sent by telex or telecopier (with RECEIPT confirmed),
provided that a copy is mailed registered mail, return receipt requested, or
(iii) when received by the addressee, if sent by Express Mail, Federal Express or other express delivery service (receipt requested), in each case to the appropriate addressee set forth below:
If to PGE: Pacific Growth Equities, Inc. Four Maritime Plaza San Francisco, CA 94111 Attn: George J. Milstein
If to the Company: Henry E. Blair
Chairman & CEO
300 Technology Square Cambridge, MA 02139
HENRY E. BLAIR
If the foregoing correctly sets forth your understanding, please so indicate by signing and returning to us the enclosed copy of this letter.
PACIFIC GROWTH EQUITIES, INC.
By: /s/ George J. Milstein Date: March 13, 2003 ------------------------------------ ----------------------------- George J. Milstein Senior Managing Director
Confirmed and Agreed to:
By: /s/ Henry E. Blair Date: March 13, 2003 ------------------------------------ ----------------------------- Henry E. Blair Chairman & Chief Executive Officer
March 14, 2003
300 Technology Square
Cambridge, MA 02139
Ladies and Gentlemen:
Reference is made to our opinion dated April 24, 2002 and included as Exhibit 5.1 to the Registration Statement on Form S-3 (the "Registration Statement") filed on April 25, 2002 by Dyax Corp. (the "Company" ), a Delaware corporation, with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"). We are rendering this supplemental opinion in connection with the prospectus supplement (the "Prospectus Supplement") filed on March 18, 2003 by the Company with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the offering by the Company of up to 4,721,625 shares of the Company's common stock, $0.01 par value (the "Shares"), which Shares are covered by the Registration Statement. We understand that the Shares are to be offered and sold in the manner described in the Prospectus Supplement.
We have acted as your counsel in connection with the preparation of the Registration Statement and the Prospectus Supplement. We are familiar with the proceedings of the Board of Directors of the Company and its Committees in connection with the authorization, issuance and sale of the Shares. We have examined such other documents as we consider necessary to render this opinion.
The opinion rendered herein is limited to Delaware General Corporation Law (including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws) and the federal laws of the United States.
Based upon the foregoing, we are of the opinion that the Shares have been duly authorized and, when issued and delivered by the Company against payment therefor as set forth in the Prospectus Supplement, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as a part of the Registration Statement and to the reference of our firm under the caption "Legal Matters" in the Prospectus Supplement.
Very truly yours,
/s/ Palmer & Dodge LLP
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is made as of March 14, 2003 by and between_________________ ("Purchaser") and Dyax Corp. ("Company"), whereby the parties agree as follows:
The Purchaser shall buy from the Company and the Company shall sell to the Purchaser _____________ shares (the "Shares") of the Company's common stock, par value $0.01 per share (the "Common Stock"), at a price of $1.86 per share for an aggregate purchase price of $______________ (the "Purchase Price").
The Shares are being issued and sold pursuant to a registration statement on Form S-3, File No. 333-86904, which registration statement has been declared effective by the Securities and Exchange Commission. The Company is delivering herewith prior to funding a prospectus supplement dated March 14, 2003 on Form 424(b)(5), which includes the prospectus dated May 3, 2002 (together, the "Prospectus"), regarding the sale of the Shares, which electronic delivery Purchaser acknowledges and accepts by signing below. The Shares are free of restrictive legends and are free of any resale restrictions.
The Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, if applicable, at the closing date of the transaction contemplated hereby, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Not later than March 19, 2003:
1. The Purchaser shall deliver a check for the Purchase Price to the attention of Steve Galliker at the Company or wire the Purchase Price to the Company to the account set forth below.
DOMESTIC WIRE TRANSFER: INTERNATIONAL WIRE TRANSFER: -------------------------------------------------------------------------------- Instruct the paying financial Instruct the paying financial institution or the payor to institution or the payor route all domestic wire transfers financial institution or the payor via FEDWIRE to the following to the to route all international wire ABA Number: transfers to Silicon Valley Bank: TO: SIL VLY BK SJ CREDIT: SILICON VALLEY BANK 3003 TASMAN DRIVE ROUTING & TRANSIT: 121140399 SANTA CLARA, CA 95054, USA
FOR CREDIT OF: DYAX CORP ROUTING & TRANSIT #: \\FW:121140399
CREDIT ACCOUNT #: 3300388449 SWIFT CODE: SVBKUS6S
BY ORDER O [NAME OF SENDER] FOR CREDIT OF: DYAX CORP
FINAL CREDIT ACCOUNT #: FNC - 3300388449
BY ORDER OF: [NAME OF SENDER]
2. Unless instructed below to deliver share certificates or otherwise instructed by the Purchaser in writing, upon receipt of the Purchase Price, the Company shall cause its transfer agent to transmit the Shares electronically to the Purchaser by crediting the account set forth below through the Deposit Withdrawal Agent Commission system.
FOR DELIVERY OF SHARE CERTIFICATES ONLY (instead of crediting an account through the Deposit Withdrawal Agent Commission system), please complete the following:
3. Notices to the Company shall be delivered to:
300 Technology Square
Cambridge, MA 02139
Attn: Henry E. Blair, President and Chief Executive Officer Facsimile Telephone: (617) 374-3773
4. Delivery of an executed copy of a signature page to this Agreement by facsimile transmission shall be effective as delivery of a manually executed copy of this Agreement and shall be effective and enforceable as the original. This Agreement shall be governed and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to the conflicts of law principles thereunder.
AGREED AND ACCEPTED, as of the date indicated above:
SCHEDULE 1 PURCHASER NUMBER OF SHARES AGGREGATE PURCHASE PRICE --------- ---------------- ------------------------ American Skandia Trust Fed Aggressive Growth 187,300 $348,378.00 Federated Kaufmann Fund 1,148,269 $2,135,780.34 Federated Kaufmann Small Cap Fund 66,700 $124,062.00 Lancet Capital Health Ventures, L.P. 1,344,087 $2,500,001.82 Loeb Partners Corporation Agent 1,075,269 $2,000,000.34 Margrit Kelly 400,000 $744,000.00 Francis and Margrit Kelly 500,000 $930,000.00 ------------------------------------------- Total: 4,721,625 $8,782,222,50
Dyax Corp. (ticker: DYAX, exchange: NASDAQ) News Release - 3/14/2003
DYAX ANNOUNCES SALE OF COMMON STOCK
CAMBRIDGE, Mass., Mar 14, 2003 (BUSINESS WIRE) -- Dyax Corp. (Nasdaq:DYAX) announced today that it has entered into agreements to sell 4,721,625 shares of its common stock to selected institutional and other accredited investors at $1.86 per share. The offering was priced at 10% above the average closing price of Dyax traded shares for the preceding five days.
The proceeds of the financing will be used for general corporate purposes, including funding Dyax's ongoing clinical trials and operations. The offering was led by Lancet Capital and Federated Kaufman Fund. Pacific Growth Equities, LLC acted as exclusive placement agent for the securities sold in this transaction. The shares in this offering are being issued under a shelf registration statement filed with and declared effective by the Securities and Exchange Commission.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy these securities.
Dyax Corp. is a biopharmaceutical company focused on the discovery, development and commercialization of therapeutic products. The Company uses its patented phage display technology to rapidly identify a broad range of recombinant protein, peptide, and fully human monoclonal antibody compounds that bind with high affinity and specificity to targets of interest, with the objective of selecting those compounds with the greatest potential for advancement into clinical development. Dyax currently has two recombinant proteins in phase II clinical trials. DX-88 is being studied for the treatment of hereditary angioedema and for use during cardiopulmonary bypass surgery, while DX-890 is being studied for the treatment of cystic fibrosis. Dyax leverages its technology broadly through revenue generating licenses and collaborations in therapeutics and in non-core areas of affinity separations, diagnostic imaging, and research reagents. Through its subsidiary, Biotage, Inc., Dyax develops, manufactures and sells chromatography separations systems and products to pharmaceutical companies worldwide for drug discovery and purification. For more information on Dyax Corp., please visit the Company's website at www.dyax.com.
Dyax and the Dyax logo are the registered trademarks of Dyax Corp.
Stephen S. Galliker, 617/250-5733
Sondra Henrichon, 617/250-5839