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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): August 21, 2020

 

PTC THERAPEUTICS, INC.

(Exact Name of Company as Specified in Charter)

 

Delaware   001-35969   04-3416587

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

100 Corporate Court    
South Plainfield, NJ   07080
(Address of Principal Executive Offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (908) 222-7000

 

Not applicable

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading Symbol(s) Name of each exchange on which registered
Common Stock, $0.001 par value per share PTCT Nasdaq Global Select Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company    ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.     ¨

 

 

 

 

 

 

Item 8.01. Other Events.

 

On August 21, 2020, PTC Therapeutics, Inc. (the “Company”) filed a prospectus supplement (the “Prospectus Supplement”) under the Company’s universal shelf registration statement on Form S-3 (File No. 333-243712) filed with the Securities and Exchange Commission (the “SEC”) on August 10, 2020 (the “Registration Statement”), relating to the offer and sale of the remaining shares of the Company’s common stock, having an aggregate offering price of up to $93,033,989 (the “Shares”), under its At the Market Offering Sales Agreement, dated as of August 7, 2019, by and among the Company, Cantor Fitzgerald & Co. and RBC Capital Markets, LLC (the “Sales Agreement”). The Company will not make any further offers or sales of its common stock pursuant to the prior prospectus supplement dated August 7, 2019 and an accompanying prospectus dated August 24, 2017 relating to the offer and sale of shares of the Company’s common stock pursuant to the Sales Agreement. The Prospectus Supplement supersedes and replaces the prospectus supplement dated August 10, 2020, filed with the SEC on August 11, 2020, relating to the offer and sale of the remaining unsold shares of the Company’s common stock pursuant to the Sales Agreement. The Company did not make and will not make any offers or sales of its common stock pursuant to such prospectus supplement.

 

Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Company, has issued a legal opinion relating to the Shares. A copy of such legal opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.

 

The Shares are registered pursuant to the Registration Statement and the base prospectus contained therein, and offerings for the Shares will be made only by means of the Prospectus Supplement. This Current Report on Form 8-K shall not constitute an offer to sell or solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities law of such state or jurisdiction.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit

No.
Description
1.1 At the Market Sales Agreement, dated as of August 7, 2019, among PTC Therapeutics, Inc., Cantor Fitzgerald & Co. and RBC Capital Markets, LLC (incorporated by reference to Exhibit 1.1 to the Current Report on Form 8-K filed by the Registrant on August 7, 2019)
5.1 Opinion of Wilmer Cutler Pickering Hale and Dorr LLP
23.1 Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1)
104 The cover page from this Current Report on Form 8-K, formatted in Inline XBRL

 

 

 

Signature

 

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.

     
  PTC Therapeutics, Inc.
     
Date: August 21, 2020 By: /s/ Emily Hill
  Name:   Emily Hill
  Title: Chief Financial Officer

 

 

Exhibit 5.1

 

 

 

+1 212 230 8800 (t)

+1 212 230 8888 (f)

wilmerhale.com

 

August 21, 2020

 

PTC Therapeutics, Inc. 

100 Corporate Court 

South Plainfield, New Jersey 07080

 

Re:Prospectus Supplement to Registration Statement on Form S-3

 

Ladies and Gentlemen:

 

This opinion is being furnished to you in connection with (i) the Registration Statement on Form S-3 (File No. 333-243712) (the “Registration Statement”) filed by PTC Therapeutics, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) for the purpose of registering with the Commission under the Securities Act of 1933, as amended (the “Securities Act”), shares of the Company’s common stock, $0.001 par value per share (the “Common Stock”), which may be issued from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act at an indeterminate initial offering price, as set forth in the Registration Statement and the prospectus contained therein; and (ii) the prospectus supplement, dated August 21, 2020, relating to the issuance and sale from time to time by the Company of shares of Common Stock with an aggregate offering price of up to $93,033,989 (the “Shares”).

 

The Shares are to be issued and sold by the Company pursuant to an At the Market Offering Sales Agreement, dated August 7, 2019, among the Company, Cantor Fitzgerald & Co. and RBC Capital Markets, LLC (the “Sales Agreement”). The Sales Agreement was filed with the Commission as Exhibit 1.1 to the Company’s Current Report on Form 8-K, filed August 7, 2019.

 

We are acting as counsel for the Company in connection with the issue and sale by the Company of the Shares pursuant to the Sales Agreement.  We have examined a signed copy of the Registration Statement and a copy of the Prospectus Supplement, each as filed with the Commission.  We have also examined and relied upon the Sales Agreement, records of meetings of the Board of Directors of the Company, including committees thereof, and the stockholders of the Company as provided to us by the Company, the Restated Certificate of Incorporation and the Amended and Restated By-Laws of the Company, certificates of representatives of the Company and such other documents as we have deemed necessary for purposes of rendering the opinion hereinafter set forth.

 

In our examination of the documents described above, we have assumed the genuineness of all signatures, the legal capacity of all individual signatories, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents and the completeness and accuracy of the corporate minute books of the Company provided to us by the Company.

 

 

 

 

 

 

PTC Therapeutics, Inc.

August 21, 2020

Page 2 

 

 

We express no opinion herein as to the laws of any state or jurisdiction other than the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States of America. We also express no opinion herein with respect to compliance by the Company with securities or “blue sky” laws of any state or other jurisdiction of the United States or of any foreign jurisdiction. In addition, we express no opinion and make no statement herein with respect to the antifraud laws of any jurisdiction.

 

Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when issued and paid for in accordance with the terms and conditions of the Sales Agreement, the Shares will be validly issued, fully paid and non-assessable.

 

It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.

 

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.  This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.

 

We hereby consent to the filing of this opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act with the Commission as an exhibit to the Current Report on Form 8-K to be filed by the Company on the date hereof in connection with the issue and sale of the Shares and to the use of our name in the Prospectus Supplement under the caption “Legal Matters.”  In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

 

 

 

 

PTC Therapeutics, Inc.

August 21, 2020

Page 3 

 

 

Very truly yours,

 

Wilmer Cutler Pickering
Hale and Dorr LLP

 

 

By: /s/ Brian A. Johnson  
  Brian A. Johnson, a Partner  

 

 

 

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