Exhibit 10.59
AMENDMENT NO. 1 TO COMMON STOCK SALES AGREEMENT
March 10, 2021
H.C. Wainwright & Co., LLC
430 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
XOMA Corporation, a Delaware corporation (the “Company”), together with H.C. Wainwright & Co., Inc. (the “Agent”), are parties to that certain Common Stock Sales Agreement dated December 18, 2018 (the “Original Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The Company and the Agent desire to amend the Original Agreement as set forth in this Amendment No. 1 thereto (this “Amendment) as follows (to be effective as set forth in paragraph 5 below):
“The Company has filed or shall file, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3, including a base prospectus, relating to certain securities, including the Common Stock to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder. The Company has prepared a prospectus included as part of the registration statement, which relates to the Placement Shares to be issued from time to time by the Company pursuant to this Agreement (the “ATM Prospectus”) and shall, if necessary, prepare a prospectus supplement to the base prospectus included as part of the registration statement, which relates to the Placement Shares (a “Prospectus Supplement”). The Company will furnish to HCW, for use by HCW, copies of the prospectus included as part of such registration statement, as supplemented by a Prospectus Supplement, if any, relating to the Placement Shares to be issued from time to time by the Company. The Company may file, if necessary, one or more additional registration statements from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with
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respect to the Placement Shares. Except where the context otherwise requires, such registration statement(s), and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement(s) pursuant to Rule 430B of the Securities Act, is herein called the “Registration Statement.” The ATM Prospectus together with the base prospectus or base prospectuses, including all documents incorporated or deemed incorporated therein by reference, included in the Registration Statement, as it may be supplemented by a Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, together with any then issued “issuer free writing prospectus(es),” as defined in Rule 433 promulgated under the Securities Act, relating to the Placement Shares that (i) is required to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(1), in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 533(g), is herein called the “Prospectus.”
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If the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon this Amendment shall constitute a binding amendment to the Original Agreement between the Company and the Agent.
Very truly yours,
H.C. WAINWRIGHT & CO., LLC
By:/s/ Mark W. Viklund
Name: Mark W. Viklund
Title: Chief Executive Officer
[Signature Page to Amendment No. 1 to Common Stock Sales Agreement]
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ACCEPTED as of the date
first-above written:
XOMA CORPORATION
By:/s/ Thomas Burns
Name: Thomas Burns
Title: SVP Finance and Chief Financial Officer
[Signature Page to Amendment No. 1 to Common Stock Sales Agreement]
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