Attached files
| file | filename |
|---|---|
| EX-3.2 - Talon Therapeutics, Inc. | v187788_ex3-2.htm |
| EX-3.1 - Talon Therapeutics, Inc. | v187788_ex3-1.htm |
| EX-10.3 - Talon Therapeutics, Inc. | v187788_ex10-3.htm |
| EX-10.4 - Talon Therapeutics, Inc. | v187788_ex10-4.htm |
| EX-10.2 - Talon Therapeutics, Inc. | v187788_ex10-2.htm |
| EX-99.1 - Talon Therapeutics, Inc. | v187788_ex99-1.htm |
| EX-10.1 - Talon Therapeutics, Inc. | v187788_ex10-1.htm |
| EX-99.2 - Talon Therapeutics, Inc. | v187788_ex99-2.htm |
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): June
7, 2010
Hana Biosciences,
Inc.
(Exact name of registrant as specified
in its charter)
Delaware
(State or other jurisdiction of
incorporation)
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001-32626
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32-0064979
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(Commission File
Number)
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(IRS
Employer
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Identification
No.)
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7000
Shoreline Court, Suite 370
South
San Francisco, CA 94080
(Address of principal executive offices
and Zip Code)
(650)
588-6404
(Registrant’s telephone number, including area
code)
Not Applicable
(Former name or former address, if
changed since last report)
Check the
appropriate box below if the Form 8-K is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following
provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-14(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01.
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Entry
into a Material Definitive
Agreement.
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Investment
Agreement
On June 7, 2010, Hana Biosciences, Inc.
(the “Company”)
entered into an Investment Agreement (the “Investment
Agreement”) with Warburg Pincus Private Equity X, L.P. and Warburg Pincus
X Partners, L.P. (together, the “Warburg Purchasers”),
and Deerfield Private Design Fund, L.P., Deerfield Private Design International,
L.P., Deerfield Special Situation Fund, L.P., and Deerfield Special Situations
Fund International Limited (collectively, the “Deerfield
Purchasers,” and together with the WP Purchasers, the “Purchasers”). Pursuant
to the terms of the Investment Agreement, on June 7, 2010, the Company issued
and sold to the Purchasers an aggregate of 400,000 shares of the Company’s
newly-designated Series A-1 Convertible Preferred Stock, stated value $100 per
share (the “Series A-1
Preferred Stock”), at a per share purchase price of $100 for an aggregate
purchase price of $40,000,000. Collectively, the Warburg Purchasers
purchased 360,000 shares of Series A-1 Preferred Stock at an aggregate purchase
price of $36,000,000, and the Deerfield Purchasers purchased 40,000 shares at an
aggregate purchase price of $4,000,000. Prior to the entry into the
Investment Agreement, the Company had no prior relationship with the Warburg
Purchasers. Prior to the entry into the Investment Agreement, the
Company and the Deerfield Purchasers had previously entered into a Facility
Agreement dated October 30, 2007 (the “Facility Agreement”)
that provided for the Company to borrow from the Deerfield Purchasers up to an
aggregate of $30,000,000, of which the principal amount of $27,500,000 is
currently outstanding and is secured by a senior security interest in all
Company assets. In addition, prior to June 7, 2010, the Deerfield
Purchasers beneficially owned approximately 18.9 million shares of the Company’s
common stock, par value $0.001 per share (the “Common Stock”),
representing approximately 22.4% of the outstanding Common Stock.
The Investment Agreement provides that
the Purchasers have the right, but not the obligation, to make additional
investments in the Company in the event the Company obtains Stockholder Approval
(as defined below) of certain amendments to its certificate of incorporation by
December 7, 2010 (the “Stockholder Approval Outside
Date”), as follows:
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·
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At
any time prior to the date the Company receives marketing
approval from the U.S. Food and Drug Administration for any of its product
candidates (the “Marketing Approval
Date”), the Purchasers may purchase up to an additional 200,000
shares of Series A-1 Preferred Stock at a purchase price of $100 per share
for an aggregate purchase price of $20,000,000 (the “Additional Series A-1
Investment”), which purchases shall be in tranches of at least
100,000 shares; and
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·
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At
any time beginning 15 days and within 120 days following the date of the
Marketing Approval Date, the Purchasers may purchase up to an aggregate of
400,000 shares of the Company’s newly-designated Series A-2 Convertible
Preferred Stock, stated value $100 per share (the “Series A-2 Preferred
Stock” and together with the Series A-1 Preferred Stock, the “Series A Preferred
Stock”), at a per share purchase price of $100 and an aggregate
purchase price of $40,000,000 (the “Series A-2
Investment”), which purchases shall be in tranches of at least
100,000 shares.
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If the
Company does not receive Stockholder Approval by the Stockholder Approval
Outside Date, then the Investment Agreement provides that the Purchasers have
the right, but not the obligation, to purchase up to an additional
200,000 shares of Series A-1 Preferred Stock at any time prior to Marketing
Approval, and up to an additional 400,000 shares of Series A-1 Preferred Stock
at any time beginning 15 days and within 120 days following the Marketing
Approval Date, in each case at a per share price of $100 (each a “Subsequent Series A-1
Investment”).
1
Terms of Series A-1 Preferred
Stock
The terms, conditions, privileges,
rights and preferences of the Series A-1 Preferred Stock are described in a
Certificate of Designation filed with the Secretary of State of Delaware on June
7, 2010 (the “Series
A-1 Certificate”), a copy of which is attached hereto as Exhibit 3.1 and
incorporated herein by reference. The Series A-1 Preferred Stock
will, with respect to both dividend rights and rights upon a liquidation or
change of control, rank senior to all junior stock, including the Common Stock,
and on parity with all parity stock, including the Series A-2 Preferred
Stock.
Until such time as the Company obtains
the requisite approval of its stockholders to amend its certificate of
incorporation to (i) increase the authorized number of shares of Common Stock,
(ii) effect a reverse split of its Common Stock at a ratio to be agreed upon
with the Purchasers, and (iii) provide that the number of authorized shares of
Common Stock may be increased or decreased by the affirmative vote of the
holders of a majority of the issued and outstanding Common Stock and preferred
stock, voting together as one class, notwithstanding the provisions of Section
242(b)(2) of the Delaware General Corporation Law (the “Stockholder
Approval”), the Series A-1 Preferred Stock shall have the terms described
in Annex I of the Series A-1 Certificate (the “Series A-1 Initial
Terms”), including the 400,000 shares of Series A-1 Preferred Stock sold
to the Purchasers on June 7, 2010. If Stockholder Approval is not
obtained by the Stockholder Approval Outside Date, then the Initial Terms shall
continue to apply to all outstanding shares of Series A-1 Preferred Stock and
any shares of Series A-1 Preferred Stock thereafter issued in connection with
any Subsequent Series A-1 Investment. However, if Stockholder
Approval is obtained on or before the Stockholder Approval Outside Date, then
any outstanding shares of Series A-1 Preferred Stock shall thereafter be subject
to the terms described on Annex II of the Series A-1 Certificate (the “Series A-1 Revised
Terms”), and any shares of Series A-1 Preferred Stock issued in
connection with an Additional Series A-1 Investment shall be subject to the
Revised Terms.
The Revised Series A-1 Terms, which
will govern the Series A-1 Preferred Stock from and after the time Stockholder
Approval is obtained, provide that the Series A-1 Preferred Stock would be
convertible into shares of Common Stock at a conversion price of $0.184 per
share (subject to adjustment in certain circumstances) (the “Revised Series A-1
Conversion Price”). The stated value of each share of Series
A-1 Preferred Stock would accrete at a rate of 9% per annum, compounded
quarterly, for a five-year term; thereafter cash dividends would become payable
at a rate of 9% of the accreted stated value per annum, payable
quarterly. Upon the occurrence and during the continuance of certain
material breaches by the Company of its obligations under the Investment
Agreement, Series A-1 Certificate and related transaction agreements (referred
to in the Series A-1 Certificate as “special triggering events”), the accretion
rate and the dividend rate on the Series A-1 Preferred Stock would increase to
12% per annum, compounded quarterly. Upon any liquidation of the
Company, holders of the Series A-1 Preferred Stock would be entitled to receive
a liquidation preference per share equal to the greater of (i) 100% of the
then-accreted value of the Series A-1 Preferred Stock and (ii) the amount which
the holder would have received if the Series A-1 Preferred Stock had been
converted into Common Stock at the Revised Series A-1 Conversion Price
immediately prior to the liquidation. Similar rights would apply upon
any change of control in the Company (although the liquidation preference would
be calculated assuming the liquidation occurred on the fifth anniversary of the
date of issuance). Unlike under the Initial Series A-1 Terms, the
Series A-1 Preferred Stock would not be redeemable under the Revised Series A-1
Terms.
Prior to the time Stockholder Approval
is obtained, the Series A-1 Preferred Stock (including the initial 400,000
shares sold to the Purchasers on June 7, 2010) will be governed by the Initial
Series A-1 Terms. Under the Initial Series A-1 Terms, the Series A-1 Preferred
Stock is convertible into shares of Common Stock at a conversion price of
$0.1288 per share (subject to adjustment in certain circumstances) (the “Initial Series A-1
Conversion Price”), subject to limitations on the number of shares of
Common Stock available for issuance, which shall not be less than 90,000,000
shares. The stated value of each share of Series A-1 Preferred Stock,
which is initially $100 per share, accretes at a rate of 12% per annum
(increasing by 0.5% annually) for a seven-year term, compounded
quarterly. Following such seven year term, the holders are thereafter
entitled to cash dividends at a rate of 15.5% of the accreted stated value per
annum, payable quarterly. Upon the occurrence and during the
continuance of a “special triggering event”, the accretion rate and the dividend
rate on the Series A-1 Preferred Stock would increase by 3% per annum,
compounded quarterly. Upon any liquidation of the Company, holders of
the Series A-1 Preferred Stock would be entitled to receive a liquidation
preference per share equal to the greater of (i) 250% of the then-accreted value
of the Series A-1 Preferred Stock and (ii) the amount which the holder would
have received if the Series A-1 Preferred Stock had been converted immediately
prior to the liquidation (at a conversion price equal to $0.1288, subject to
adjustment). Similar rights would apply upon any “change of control”
of the Company (although the liquidation preference would be calculated assuming
the liquidation occurred on the seventh anniversary of the date of
issuance). In addition, if Stockholder Approval is not obtained by
the Stockholder Approval Outside Date, then the holders of the Series A-1
Preferred Stock would thereafter have the right to require the Company to redeem
the Series A-1 Preferred Stock at a redemption price equal to the greater of (i)
250% of the then-accreted value of the Series A-1 Preferred Stock plus any
unpaid dividends accrued thereon or (ii) the product obtained by multiplying the
then-current market value of the underlying Common Stock by the number of shares
of Common Stock then issuable upon conversion of each Series A-1 Preferred
Stock.
2
The terms, conditions, privileges,
rights and preferences of the Series A-2 Preferred Stock are described in a
Certificate of Designation filed with the Secretary of State of Delaware on June
7, 2010 (the “Series
A-2 Certificate”), a copy of which is attached hereto as Exhibit 3.2 and
incorporated herein by reference. The terms of the Series A-2 Preferred Stock,
which is only issuable to the extent Stockholder Approval is obtained by the
Stockholder Approval Outside Date, are identical to the Revised Series A-1
Terms, except that the Series A-2 Preferred Stock would be convertible into
Common Stock at a conversion price equal to $0.276 per share.
The foregoing summary of the terms of
the Series A Preferred Stock is qualified in its entirety by reference to the
Series A-1 Certificate and the Series A-2 Certificate.
Other Terms of Investment
Agreement
The Investment Agreement also provides
that the Purchasers will agree, subject to certain exceptions, not to transfer
the Series A Preferred Stock and underlying shares of Common Stock for a period
of one year from one year from the applicable closing date on which such shares
were sold, provided that such restriction will lapse if Stockholder Approval is
not obtained by the Stockholder Approval Outside Date. The Purchasers
also agreed not to acquire other securities of the Company (other than pursuant
to the Investment Agreement) for a period ending December 7, 2011, provided that
such restriction shall terminate on the date the Company materially breaches the
Investment Agreement, fails to obtain Stockholder Approval by the Stockholder
Approval Outside Date or the Board of Directors (the “Board”) pursues a
buyout transaction or a change of control of the Company. The
Purchasers will also have the right to participate in future offerings by the
Company for a period of five years.
Pursuant to the Investment Agreement,
the Company was also required to increase the size of the Board to nine members
and agreed to appoint up to five individuals to designated by the Warburg
Purchasers. As a result, effective upon the June 7, 2010 closing,
Michael Weiser and Linda E. Wiesinger resigned from the Board, and the Board
appointed Jonathan Leff, Nishan de Silva and Andrew Ferrer, all designated by
the Warburg Purchasers, to serve as directors of the Company. The
Warburg Purchasers continue to have the right to designate two additional
persons for appointment to the Board. On June 7, 2010, the Company
also entered into an Indemnification Agreement with each of Messrs. Leff, de
Silva and Ferrer in the form attached hereto as Exhibit 10.2, pursuant to which
the Company agreed to indemnify and hold harmless, to the fullest extent
permitted by Delaware law, each of Messrs. Leff, de Silva and Ferrer from
damages and expenses incurred from claims or proceedings brought against such
persons as a result of their capacities as directors.
3
The Investment Agreement also provides
that the Company will pay all reasonable out-of-pocket expenses incurred by the
Warburg Purchasers.
The foregoing summary of the Investment
Agreement is qualified in its entirety by reference to the complete agreement, a
copy of which is attached hereto as Exhibit 10.1 and incorporated herein by
reference. On June 7, 2010, the Company issued a press release
announcing its entry into the Investment Agreement and the closing of the sale
of the first 400,000 shares of Series A-1 Preferred Stock, a copy of which is
attached hereto as Exhibit 99.1 and incorporated herein by
reference.
Registration Rights
Agreement
Pursuant to the terms of a Registration
Rights Agreement dated June 7, 2010, among the Company and the Purchasers, the
Company agreed to file and cause to become and remain effective at all times
following the first anniversary of the date of the Investment Agreement a
registration statement covering the Series A Preferred Stock and the Common
Stock issuable upon conversion of the Series A Preferred Stock. The
expenses of the filing of such registration statement (including any expenses of
the Purchasers) will be borne by the Company. The foregoing summary
of the Registration Rights Agreement is qualified in its entirety by reference
to the complete agreement, a copy of which is attached hereto as Exhibit 10.3
and incorporated herein by reference.
Amendment
to Deerfield Facility Agreement
As described above, and as previously
disclosed in the Company’s Current Report on Form 8-K filed with the Commission
on November 5, 2007, the Company and the Deerfield Purchasers had previously
entered into the Facility Agreement on October 30, 2007. In
connection with the entry into the Investment Agreement, on June 7, 2010, the
Company and Deerfield entered into that First Amendment to Facility Agreement
(the “Facility
Amendment”), a copy of which is attached hereto as Exhibit
10.4. Among other items, pursuant to the Facility Agreement, the
maturity date of the outstanding principal outstanding pursuant to the loan
under the Facility Agreement was extended from October 30, 2012 to June 30,
2015.
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Item
3.02.
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Unregistered
Sales of Equity Securities.
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On June
7, 2010, pursuant to the terms of the Investment Agreement, the Company sold
400,000 shares of Series A-1 Preferred Stock to the Purchasers at a price per
share of $100, for aggregate proceeds of $40,000,000. The offer and sale of such
shares constituted a private placement under Section 4(2) of the Securities
Act of 1933, as amended, in accordance with Regulation D promulgated
thereunder. The information set forth under Item 1.01 is incorporated
herein by reference.
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Item
5.01.
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Changes
in Control of Registrant
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The
disclosures set forth above under Item 1.01 of this report are incorporated by
reference hereto. As further described in Item 1.01 above, in
accordance with the terms of the Investment Agreement, the Warburg Purchasers
purchased 360,000 shares of Series A-1 Preferred Stock, each of which is
currently convertible into Common Stock at a rate determined by dividing the
stated value of $100 by the Initial Series A-1 Conversion Price, subject to
limitations on the number of shares of Common Stock available for issuance,
which shall not be less than 90,000,000 shares. As of June 7, 2010,
there were 84,844,815 shares of Common Stock outstanding.
4
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Item
5.02.
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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The
disclosures set forth above under Item 1.01 of this report are incorporated by
reference hereto. As described above, on June 7, 2010, Dr. Weiser and
Ms. Wiesinger resigned from the Board and Messrs. Leff, de Silva and Ferrer were
appointed directors of the Company. No determinations have been made
with respect to the committees of the Board on which any of Messrs. Leff, de
Silva and Ferrer will serve. Each new director will be entitled to
the compensation applicable to the Company’s non-employee
directors.
Upon the
closing of the initial sale of 400,000 shares of Series A-1 Preferred Stock to
the Purchasers, the Company granted to each of Steven R. Deitcher, its President
& Chief Executive Officer, and Craig W. Carlson, its Chief Financial
Officer, 10-year stock options to purchase 350,000 and 250,000 shares of Common
Stock at an exercise price of $0.23 per share. The stock options are evidenced
by a form of stock option agreement between the Company and each of Dr. Deitcher
and Mr. Carlson in the standard form of agreement for use under the Company’s
2010 Stock Incentive Plan, a copy of which was filed as Exhibit 10.2 to the
Company’s Current Report on Form 8-K filed on February 22, 2010.
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Item
5.03.
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Amendments
to Article of Incorporation or Bylaws; Change in Fiscal
Year.
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The
disclosures set forth above under Item 1.01 of this report are incorporated by
reference hereto. Effective June 7, 2010, the Board adopted an amendment to the
Company’s Amended & Restated Bylaws by deleting the existing Section 3.12
and replacing it with the following provision:
“3.12 Quorum
of Directors. The presence in person of a majority of the Directors at any time
in office, provided, however, that such number of Directors shall in no event
constitute less than one third (1/3) of the number of members of the Entire
Board, shall be necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board.”
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Item
8.01.
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Other
Information
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On June 7, 2010, the Company issued a
press release announcing data from its pivotal Phase 2 rALLy trial of
Marqibo. A copy of the press release is attached hereto as Exhibit
99.2 and is incorporated herein by reference.
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Item
9.01.
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Financial
Statements and Exhibits.
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(d) Exhibits. The following
exhibits are filed herewith.
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Exhibit
No.
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Description
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3.1
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Certificate
of Designation of Series A-1 Convertible Preferred
Stock
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3.2
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Certificate
of Designation of Series A-2 Convertible Preferred
Stock
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10.1
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Investment
Agreement dated June 7, 2010 among the Company and the Purchasers named
therein.
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10.2
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Form
of Indemnification Agreement dated June 7, 2010 between the Company and
each of Jonathan Leff, Nishan de Silva and Andrew
Ferrer.
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10.3
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Registration
Rights Agreement dated June 7, 2010 among the Company and the Holders
identified therein.
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10.4
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First
Amendment dated June 7, 2010 to Facility Agreement dated October 30, 2007
among the Company and the Lenders identified therein.
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99.1
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Press
release of Hana Biosciences, Inc. dated June 7, 2010 announcing Investment
Agreement.
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99.2
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Press
release of Hana Biosciences, Inc. dated June 7, 2010 announcing data from
Phase 2 study.
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5
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.
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Date: June 11,
2010
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Hana Biosciences,
Inc.
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By:
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/s/ Craig W.
Carlson
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Craig W.
Carlson
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Chief Financial
Officer
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6
Index
to Exhibits Filed with this Report
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Exhibit
No.
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Description
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3.1
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Certificate
of Designation of Series A-1 Convertible Preferred
Stock
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3.2
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Certificate
of Designation of Series A-2 Convertible Preferred
Stock
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10.1
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Investment
Agreement dated June 7, 2010 among the Company and the Purchasers named
therein.
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10.2
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Form
of Indemnification Agreement dated June 7, 2010 between the Company and
each of Jonathan Leff, Nishan de Silva and Andrew
Ferrer.
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10.3
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Registration
Rights Agreement dated June 7, 2010 among the Company and the Holders
identified therein.
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10.4
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First
Amendment dated June 7, 2010 to Facility Agreement dated October 30, 2007
among the Company and the Lenders identified therein.
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99.1
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Press
release of Hana Biosciences, Inc. dated June 7, 2010 announcing Investment
Agreement.
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99.2
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Press
release of Hana Biosciences, Inc. dated June 7, 2010 announcing data from
Phase 2 study.
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