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EX-2.1 - EX-2.1 - CLINICAL DATA INC | b83659exv2w1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 29, 2010
CLINICAL DATA, INC.
(Exact name of registrant as specified in its charter)
Delaware (State of Incorporation) |
000-12716 (Commission File Number) |
04-2573920 (IRS Employer Identification No.) |
One Gateway Center, Suite 702, Newton, Massachusetts (Address of Principal Executive Offices) |
02458 (Zip Code) |
Registrants telephone number, including area code: (617) 527-9933
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:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement. |
On November 29, 2010, Clinical Data, Inc. (Clinical Data) and PGxHealth, LLC, a wholly-owned
subsidiary of Clinical Data (PGxHealth and collectively with Clinical Data, the Company),
entered into an Asset Purchase Agreement (the Purchase Agreement) with Transgenomic, Inc.
(Transgenomic) pursuant to which the Company agreed to sell all of the assets associated with the
Companys FAMILION® Testing and Pharmacogenomics Biomarker Development Business (the Assets) to
Transgenomic (the Transaction). Following the closing of the Transaction (the Closing), the
Company will cease operating its FAMILION® Testing and Pharmacogenomics Biomarker Development
Business.
Pursuant to the terms of the Purchase Agreement, the Company will receive the following
consideration: (i) $6,000,000 in cash, (ii) a secured promissory note (the First Note) issued by
Transgenomic in principal amount of $8.5 million plus up to an additional principal amount of
approximately $0.3 million, (iii) a secured promissory note (the Second Note) in principal amount
of $0.93 million, (iv) additional payments of cash, estimated by the Company to be as high as $1.8
million, based on Transgenomics collection of accounts receivable included in the Assets, (v) two
additional payments of $250,000 in cash, or Transgenomic common stock, upon the successful
development and commercialization of biomarker assays for any FCGamma gene or any ABCB or MDR gene,
(vi) royalty payments based on the amount of reimbursements received by Transgenomic from payors or
any sublicencees in connection with the performance of certain biomarker assays included in the
Assets (or sales of reagent-assay kits) and (vii) additional consideration upon a subsequent sale
or exclusive license to any third party by Transgenomic of certain of the Assets.
The First Note is a three-year note bearing interest at 10% per annum and is payable in equal
quarterly installments commencing on the eighteen-month anniversary of the Closing. The Second Note
is a one-year note bearing interest at 6.5% per annum and is payable in equal monthly installments
commencing on the one-month anniversary of the Closing. Both the First Note and the Second Note
will be secured by a first lien security interest in all of Transgenomics assets, including the
Assets, pursuant to a Security Agreement between the parties.
The Closing is subject to, among other things, the continued accuracy of the representations
and warranties of the parties contained in the Purchase Agreement, the performance of certain
covenants and obligations of the parties, the absence of any material adverse change in the
business relating to the Assets, the receipt of certain enumerated third party and government
consents, the satisfaction of certain matters relating to the employees of the Company, and
Transgenomic raising at least $6,000,000 through the issuance of its equity securities. The
conditions to Closing are required to be satisfied, unless waived by the parties, by no later than
January 31, 2011, after which date, the Purchase Agreement may be terminated by either party.
Each of the parties to the Purchase Agreement have made customary representations, warranties
and covenants and the Company has agreed to operate the business relating to the Assets in the
ordinary course until the Closing. Subject to certain limitations, the Company has agreed to
indemnify Transgenomic for losses resulting from breaches or inaccuracies of the Companys
representations and warranties in the Purchase Agreement, the failure of the Company to perform
covenants and obligations under the Purchase Agreement and certain other matters.
Pursuant to the terms of the Purchase Agreement, the parties have agreed to enter into certain
other agreements at the Closing, including a Noncompetition and Nonsolicitation Agreement that
prohibits the Company from engaging in any activity that is competitive with the business
associated with the Assets sold to Transgenomic for a period of three years or from soliciting the
employment of Transgenomics employees for a period of three years. The Company has also agreed to
provide certain transition services to Transgenomic prior to the Closing and to enter into a
transition services agreement with Transgenomic relating to services the Company will provide
Transgenomic following the Closing. The Company has also agreed to sublease to Transgenomic a
portion of the space leased by the Company at its New Haven, Connecticut facility.
The foregoing summary of the Purchase Agreement does not purport to be complete and is
qualified in its entirety by reference to the full text of the Purchase Agreement, a copy of which
is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by
reference.
The Purchase Agreement has been included to provide investors and stockholders with
information regarding its terms. It is not intended to provide any other factual information about
the Company. The Purchase Agreement contains representations and warranties that the parties to the
Purchase Agreement made to and solely for the benefit of each other, and the assertions embodied in
such representations and warranties are qualified by information contained in confidential
disclosure schedules that the parties exchanged in connection with signing the Purchase Agreement.
Accordingly, investors and stockholders should not rely on such representations and warranties as
characterizations of the actual state of facts or circumstances, since they were only made as of
the date of the Purchase Agreement and are modified in important part by the underlying disclosure
schedules. Moreover, information concerning the subject matter of the representations and
warranties may change after the date of the Purchase Agreement, which subsequent information may or
may not be fully reflected in the Companys public disclosures.
Forward-Looking Statements
Certain statements in this Current Report on Form 8-K may constitute forward-looking
information and statements that are intended to be covered by the safe harbor for forward looking
statements provided by the Private Securities Litigation Reform Act of 1995. Forward-looking
statements are statements that are not historical facts. Words such as expect(s), feel(s),
believe(s), will, may, anticipate(s) and similar expressions are intended to identify
forward-looking statements. These statements include, but are not limited to, statements about the
Companys expected benefits of, and the ability to consummate, the asset sale to Transgenomic, and
the Companys ability to obtain regulatory approval for, and successfully introduce, vilazodone,
Stedivaze and the Companys other drug candidates; the Companys ability to expand the Companys
long-term business opportunities; and all other statements regarding future performance. All such
information and statements are subject to certain risks and uncertainties, the effects of which are
difficult to predict and generally beyond the control of the Company, that could cause actual
results to differ materially from those expressed in, or implied or projected by, the
forward-looking information and statements contained in this Current Report on Form 8-K. These
risks and uncertainties include, but are not limited to, whether the Company and Transgenomic will
be able to satisfy all closing conditions to the transaction, including the completion of
financing arrangements by Transgenomic; whether the Company will realize the full consideration and
contingent consideration contemplated by the asset sale to Transgenomic;
whether vilazodone, Stedivaze or any of the Companys other therapeutic
products will advance further in the clinical trials process and whether and when, if at all,
vilazodone, Stedivaze or any of the Companys other therapeutic products will receive final
approval from the U.S. Food and Drug Administration and equivalent foreign regulatory agencies and
for which indications; whether vilazodone, Stedivaze or any of the Companys other therapeutic
products will be successfully marketed if approved; the strength of the Companys intellectual
property rights; competition from pharmaceutical and biotechnology; general economic conditions;
and those risks identified and discussed by the Company in its filings with the U.S. Securities and
Exchange Commission. Readers are cautioned not to place undue reliance on these forward looking
statements that speak only as of the date hereof. The Company does not undertake any obligation to
publish revised forward-looking statements to reflect events or circumstances after the date hereof
or to reflect the occurrence of unanticipated events. Readers are also urged to carefully review
and consider the various disclosures in the Companys SEC periodic and interim reports, including
but not limited to its Annual Report on Form 10-K for the fiscal year ended March 31, 2010,
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2010, and Current Reports
on Form 8-K filed from time to time by the Company.
Item 9.01. | Financial Statements and Exhibits. |
(d) | Exhibits. |
2.1 | Asset Purchase Agreement, dated as of November 29,
2010, by and among PGxHealth, LLC, Clinical Data,
Inc. and Transgenomic, Inc. |
| Confidential treatment has been requested with respect to certain portions of this exhibit. This exhibit omits the information subject to this confidentiality request. Omitted portions have been filed separately with the SEC. |
SIGNATURES
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.
Clinical Data, Inc. |
||||
By: | /s/ Caesar J. Belbel | |||
Caesar J. Belbel | ||||
Executive Vice President, Chief Legal Officer and Secretary | ||||
DATE: December 3, 2010
EXHIBIT INDEX
Exhibit No. | Description | |
2.1 | Asset Purchase Agreement, dated as of November 29,
2010, by and among PGxHealth, LLC, Clinical Data,
Inc. and Transgenomic, Inc. |
| Confidential treatment has been requested with respect to certain portions of this exhibit. This exhibit omits the information subject to this confidentiality request. Omitted portions have been filed separately with the SEC. |