Attached files
| file | filename |
|---|---|
| EX-2.1 - Pathfinder Cell Therapy, Inc. | v206677_ex2-1.htm |
| EX-4.1 - Pathfinder Cell Therapy, Inc. | v206677_ex4-1.htm |
| EX-99.1 - Pathfinder Cell Therapy, Inc. | v206677_ex99-1.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
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Date of Report (Date of earliest event reported)
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December 22, 2010
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SyntheMed,
Inc.
(Exact
name of Registrant as Specified in its Charter)
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Delaware
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0-20580
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14-1745197
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(State
or Other Jurisdiction
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(Commission
file Number)
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(IRS
Employer
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||
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of
Incorporation)
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Identification
No.)
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200 Middlesex Essex Turnpike, Suite 210, Iselin,
New Jersey
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08830
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant's
telephone number, including area code: 732-404-1117
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(Former
name or address, if changed since last
report)
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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):
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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-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Section
1 – Registrant’s Business and Operations
Item
1.01 Entry into a Material Definitive Agreement
On
December 22, 2010, SyntheMed, Inc., a Delaware corporation (“SyntheMed”),
entered into an Agreement and Plan of Merger (the “Merger Agreement”) with
Pathfinder, LLC, a Massachusetts limited liability company (“Pathfinder”), and
SYMD Acquisition Sub, Inc., a Massachusetts corporation and wholly-owned
subsidiary of SyntheMed (“Merger Sub”), pursuant to which, on the terms and
subject to the conditions set forth in the Merger Agreement, SyntheMed will
acquire Pathfinder in a stock-for-stock reverse triangular merger (the
“Merger”). In the Merger, Merger Sub will be merged with and into Pathfinder,
with Pathfinder surviving the merger as a wholly-owned subsidiary of
SyntheMed.
Upon the
terms and subject to the conditions set forth in the Merger Agreement, SyntheMed
will issue, and holders of Pathfinder’s membership interests will receive,
shares of common stock of SyntheMed, such that upon consummation of the Merger,
then current members of Pathfinder are expected to own approximately 80% of the
outstanding common stock of the combined company and then current SyntheMed
stockholders are expected to own approximately 20% of the outstanding common
stock of the combined company. The Merger Agreement was approved by
Pathfinder's sole manager and by the Board of Directors of
SyntheMed. SyntheMed's Board approval follows the favorable
recommendation by a special committee of independent directors. The Merger
is intended to qualify for federal income tax purposes as a tax-free
reorganization under the provisions of Section 368(a) of the U.S. Internal
Revenue Code of 1986, as amended.
Subject
to the terms of the Merger Agreement, upon consummation of the Merger each
Pathfinder membership interest issued and outstanding immediately prior to the
Merger will be canceled, extinguished and automatically converted into the right
to receive that number of shares of SyntheMed’s common stock as determined
pursuant to the exchange ratio described in the Merger Agreement. In
addition, SyntheMed will assume options to purchase Pathfinder membership
interests which will become exercisable for shares of SyntheMed common stock,
adjusted in accordance with the same exchange ratio.
So long
as the Merger Agreement remains in effect and prior to effectiveness of the
Merger, SyntheMed and Pathfinder have each agreed to refrain from certain
actions, without the prior written consent of the other, with respect to, among
other things, its respective organizational documents, capital stock, certain
expenditures, incurrence of debt, sale, lease, exchange or license of certain
assets, as well as other matters. Neither party is prohibited from
soliciting alternative merger or acquisition proposals from third
parties.
Consummation
of the Merger is subject to closing conditions, including, among other things,
(i) approval of the Merger Agreement and Merger by the requisite votes of
Pathfinder’s members and SyntheMed’s stockholders, (ii) approval of the filing
of a charter amendment by the requisite vote of SyntheMed’s stockholders, (iii)
approval of an increase in the number of authorized shares available for
issuance under SyntheMed’s 2006 Stock Option Plan and (iv) subscriptions for the
purchase of at least $1 million in SyntheMed common stock, at a minimum
subscription price and on other terms set forth in the Merger Agreement, shall
be held in escrow to close immediately after the
Merger. In addition, upon consummation of the Merger,
the previously announced
credit and security agreement under which Pathfinder has been funding
SyntheMed’s operating requirements since September 2010 shall be deemed
canceled, and any and all amounts then owing by SyntheMed to Pathfinder
thereunder shall be deemed forgiven.
2
The
Merger Agreement contains certain termination rights for both Pathfinder and
SyntheMed. Each party is responsible for the payment of fees and expenses
incurred by it in connection with the transactions, irrespective of whether the
Merger occurs.
Dr.
Richard L. Franklin, MD, PhD., Executive Chairman and a stockholder of
SyntheMed, is CEO, President, sole manager and a member of Pathfinder. Mr. Joerg
Gruber, a director and stockholder of SyntheMed, is Chairman and a member
of Pathfinder. Upon consummation of the Merger, SyntheMed’s management and
board of directors will be replaced by individuals designated by
Pathfinder. Dr. Franklin will serve as CEO and President, and Mr.
Gruber will serve as Chairman.
A copy of
the Merger Agreement is attached to this report as Exhibit 2.1 and is
incorporated herein by reference. The foregoing description of the Merger
Agreement does not purport to be complete and is qualified in its entirety by
reference to the Merger Agreement. A copy of the joint press release issued by
Pathfinder and SyntheMed announcing the Merger is attached to this report as
Exhibit 99.1 and is incorporated by reference herein.
The
Merger Agreement has been attached to this report to provide investors and
security holders with information regarding its terms. It is not intended to
provide any other factual information about Pathfinder, SyntheMed or Merger Sub.
The representations, warranties and covenants contained in the Merger Agreement
were made only for purposes of such agreement and as of specific dates, were
solely for the benefit of the parties to such agreement, and may be subject to
limitations agreed upon by the contracting parties, including being qualified by
confidential disclosures exchanged between the parties in connection with the
execution of the Merger Agreement. The representations and warranties may have
been made for the purposes of allocating contractual risk between the
parties to the Merger Agreement instead of establishing these matters as facts,
and may be subject to standards of materiality applicable to the contracting
parties that differ from those applicable to investors. Investors are not
third-party beneficiaries under the Merger Agreement and should not rely on the
representations, warranties and covenants or any descriptions thereof as
characterizations of the actual state of facts or condition of Pathfinder,
SyntheMed or Merger Sub or any of their respective subsidiaries or affiliates.
Moreover, information concerning the subject matter of the representations and
warranties may change after the date of the Merger Agreement, which subsequent
information may or may not be fully reflected in SyntheMed’s public
disclosures.
3
Rights
Agreement Amendment
As of
December 22, 2010, a Rights Agreement Amendment was executed amending the Rights
Agreement dated as of May 20, 2008 between SyntheMed and American Stock Transfer
& Trust Company. The amendment, which is attached as exhibit 4.1 hereto,
serves to exclude the pending merger transaction described above between
Pathfinder and SyntheMed from triggering a distribution of rights under the
Rights Agreement and accelerates the expiration date of the Rights Agreement to
immediately prior to the Merger.
Banker
Engagement Termination
On
December 22, 2010, SyntheMed entered into an agreement with Oppenheimer &
Co., Inc. terminating a prior agreement entered into between the parties under
which Oppenheimer assisted SyntheMed in its efforts to explore strategic
alternatives. Under the termination agreement, Oppenheimer released
SyntheMed of any payment obligation in respect of the engagement, and SyntheMed
agreed to issue 3 million shares of its common stock to Oppenheimer and, on the
later to occur of the Merger or SyntheMed raising at least $3 million in gross
proceeds from an equity offering, to pay to Oppenheimer $75,000 in
cash.
Additional
Information about the Merger and Where to Find It
In
connection with the Merger, SyntheMed intends to file a proxy statement with the
SEC. Investors and security holders of SyntheMed are urged to read the proxy
statement, when it becomes available, as it will contain important information
about Pathfinder and SyntheMed. SyntheMed stockholders will be able to obtain a
copy of the proxy statement, as well as other filings containing information
about SyntheMed, without charge, at the SEC's Internet website (www.sec.gov).
Copies of the proxy statement and SyntheMed's filings with the SEC
can also be obtained, without charge, by directing a request to SyntheMed, Inc.,
200 Middlesex Essex Turnpike, Suite 210, Iselin, NJ, 08830 Attention: John
Benson, e-mail: jbenson@synthemed.com.
This
communication does not constitute an offer to sell or the solicitation of an
offer to sell or the solicitation of an offer to buy any securities, nor shall
there be any sale of securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such jurisdiction.
SyntheMed
and its directors and executive officers may be deemed to be participants in the
solicitation of proxies from the stockholders of SyntheMed in connection with
the Merger. Information regarding the special interests of these directors and
executive officers in the Merger will be included in the proxy statement
described above. Additional information regarding the directors and executive
officers of SyntheMed is also included in SyntheMed's Annual Report, as amended
on Form 10-K/A for the year ended December 31, 2009, which was filed with the
SEC on April 27, 2010. This document is available free of charge at the SEC's
web site at www.sec.gov and from SyntheMed at the addresses
above.
4
Section
2 – Financial Information
Item
2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant
The
information set forth above under Item 1.01 Banker Engagement Termination is
incorporated herein by reference.
Item
3.03 Material Modification to Rights of Security Holders.
The
information set forth above under Item 1.01 with respect to the Rights Agreement
Amendment is incorporated herein by reference.
Section
5 Corporate Governance and Management
Item
5.02 Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
(b) Mr.
Robert Hickey, SyntheMed’s President, CEO and CFO, and a director of SyntheMed,
has provided notice of termination of his part-time consulting agreement to
serve in the stated executive capacities and has tendered his resignation as a
director of SyntheMed, both of which being effective on January 6,
2011.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
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2.1
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Agreement
and Plan of Merger, dated as of December 22, 2010, by and among SyntheMed,
Inc., SYMD Acquisition Sub, Inc., and Pathfinder, LLC.
*
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4.1
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Rights
Agreement Amendment, dated as of December 22, 2010, to the Rights
Agreement dated May 20, 2008 between SyntheMed and American Stock Transfer
& Trust Company.
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99.1
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Joint
Press Release by Pathfinder and SyntheMed dated December 22,
2010.
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*
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Schedules
have been omitted pursuant to Item 601(b)(2) of Regulation S-K. SyntheMed
undertakes to furnish supplemental copies of any of the omitted schedules
upon request by the Securities and Exchange
Commission.
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5
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.
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SyntheMed,
Inc.
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Date:
December 28, 2010
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By:
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s/Robert P. Hickey
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Robert
P. Hickey
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President,
CEO and CFO
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