Attached files
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EX-2.1 - Sucampo Pharmaceuticals, Inc. | v206736_ex2-1.htm |
EX-10.2 - Sucampo Pharmaceuticals, Inc. | v206736_ex10-2.htm |
EX-10.1 - Sucampo Pharmaceuticals, Inc. | v206736_ex10-1.htm |
EX-10.3 - Sucampo Pharmaceuticals, Inc. | v206736_ex10-3.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): December 23, 2010
Sucampo
Pharmaceuticals, Inc.
|
(Exact
Name of Registrant as Specified in
Charter)
|
Delaware
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001-33609
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30-0520478
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
|
4520
East-West Highway, Suite 300
Bethesda,
Maryland
|
20814
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(Address
of Principal Executive Offices)
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(Zip
Code)
|
Registrant’s
telephone number, including area code: (301) 961-3400
(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))
Item
1.01. Entry
into a Material Definitive Agreement.
On
December 23, 2010, Sucampo Pharmaceuticals, Inc., a Delaware corporation (“Sucampo”), entered
into a Stock Purchase Agreement (the “Purchase Agreement”)
with Dr. Ryuji Ueno, as trustee of the Ryuji Ueno Revocable Trust under Trust
Agreement dated December 20, 2002 (the “Ueno Trust”), Dr.
Sachiko Kuno as trustee of the Sachiko Kuno Revocable Trust under Trust
Agreement dated December 20, 2002 (the “Kuno Trust,” and
together with the Ueno Trust, the “Shareholders”), Dr.
Ryuji Ueno (“Dr.
Ueno”), and Dr. Sachiko Kuno (“Dr. Kuno” and
together with Dr. Ueno and the Shareholders, the “Sellers”), and
Ambrent Investments S.à r.l., a company organized
under the laws of Luxembourg and wholly-owned subsidiary of Sucampo (“Acquisition
Sub”).
Pursuant
to the terms of the Purchase Agreement, Acquisition Sub acquired (the “Acquisition”) 100% of
the issued and outstanding shares of capital stock of Sucampo AG, a Swiss–based
patent-holding company (“SAG”), and its wholly
owned subsidiary, Sucampo AG Japan Ltd, a patent maintenance company (“SAGJ”). The
Acquisition results in Sucampo acquiring SAG’s and SAGJ’s rights with respect to
patents and other intellectual property relating to prostone products including
Amitiza®,
cobiprostone, SPI-017, and other compounds. Prior to the Acquisition,
Sucampo licensed certain of these rights pursuant to various licensing
arrangements that required Sucampo to make royalty and milestone payments and to
provide certain development funding.
The total
purchase price under the Purchase Agreement is $80.0 million, consisting of a
cash payment made on December 23, 2010 of approximately $28.1 million, and the
issuance of two subordinated unsecured promissory notes in the aggregate amount
of approximately $51.9 million. In addition, the purchase price
includes a contingent payment equal to 15%, up to a maximum of $40.0 million, of
any cash that may be received by Sucampo in connection with the current
arbitration proceedings against Takeda Pharmaceutical Company Limited. The
Purchase Agreement contains customary representations, warranties and covenants,
and agreements as to indemnification among the parties, subject to certain
exclusions and limitations.
The
Sellers are related parties of Sucampo. Dr. Ueno is Sucampo’s Chief
Executive Officer, Chief Scientific Officer and Chairman of the Board of
Directors. Dr. Kuno is Sucampo’s international business advisor and a
member of its Board of Directors, and is also Dr. Ueno’s spouse. Drs.
Ueno and Kuno are co-founders and majority stockholders of Sucampo and are also
majority stockholders of R-Tech Ueno, Ltd., a significant supplier to
Sucampo. Pursuant to Sucampo’s Related Person Transactions Policy,
Sucampo’s Audit Committee, which consists solely of independent directors,
reviewed and approved the Acquisition. The purchase price for the
Acquisition was negotiated based on a discounted cash flow analysis of expected
future payments on the licensed intellectual property rights and the estimated
fair value of the acquired net assets.
Subordinated Unsecured
Promissory Notes
In
connection with the closing of the Acquisition, Acquisition Sub issued a
subordinated unsecured promissory note to each Shareholder (collectively, the
“Notes”). Each
of the Notes was issued with an initial principal balance of approximately $25.94 million, or approximately $51.9 million in
the aggregate. The interest rate for the Notes is equal to the per
annum rate of interest determined on the basis of the sum of LIBOR plus 4.00%,
and will be reset every six months on December 1 and June 1 of each year, with
the first reset on May 31, 2011.
The Notes
provide for a semi-annual repayment schedule of interest and principal over a
seven-year period on each June 1st and December 1st, provided that, until
December 1, 2012, all accrued and unpaid interest will not be paid in cash and
will instead be added to the principal balance of the Notes, and Acquisition Sub
will make only two scheduled principal payments on December 1, 2011 and December
1, 2012.
The Notes
can be prepaid at any time without penalty. In addition, the Notes
provide for a mandatory prepayment (i) in full in the event of an acquisition by
an unaffiliated third party in an all cash acquisition of all of the issued and
outstanding shares of capital stock of Sucampo or (ii) either in full or in part
in certain “Change of Control Transactions” (as further defined and set forth in
the Notes) involving Sucampo where an unaffiliated third party acquires a
majority of Sucampo’s voting stock.
The Notes
are subordinate and junior in right of payment to all “Senior Debt” (as defined
in the Notes and in any subordination agreement entered into from time to
time). The Notes contain customary events of default which, if
triggered, accelerate the maturity of the Notes.
Non-Competition
Agreement
In
connection with the closing of the acquisition, Sucampo and Acquisition Sub also
entered into a Non-Competition Agreement with the Sellers. Pursuant
to the terms of the Non-Competition Agreement, the Sellers agreed, for a
five-year period from the closing, not to directly or indirectly engage in any
“competitive activity” (as such term is defined in the Non-Competition
Agreement) in any country where the Sellers, SAG, and/or SAGJ, during the
immediately prior three-year period, have been or at the time of the closing
were, engaged. In addition, the Sellers agreed, for a five-year
period from the closing, to certain non-solicitation covenants relating to
employees, contractors, consultants and similar persons, and also relating to
customers, suppliers, distributors, licensees and similar persons.
The foregoing description of the
Purchase Agreement, the Notes and the Non-Competition Agreement does not purport
to be complete and is qualified in its entirety by reference to the Purchase
Agreement, the Notes and the Non-Competition Agreement, copies of which are
filed herewith as Exhibits 2.1, 10.1, 10.2 and 10.3, respectively, and are
incorporated into this Item 1.01 by reference.
Item 2.01. Completion of
Acquisition or Disposition of Assets.
The
information contained in Item 1.01 of this Current Report on Form 8-K is
incorporated in this Item 2.01 by reference.
Item 2.03. Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
The
information contained in Item 1.01 of this Current Report on Form 8-K is
incorporated in this Item 2.03 by reference.
Item 9.01. Financial Statements and
Exhibits.
(a) Financial Statements of
Businesses Acquired.
The
financial statements required by Item 9.01(a) of Form 8-K will be filed by
amendment no later than 71 calendar days after the date this Current Report on
Form 8-K is required to be filed.
(b) Pro Forma Financial
Information.
The pro
forma financial information required by this Item 9.01(b) of Form 8-K will be
filed by amendment no later than 71 calendar days after the date this Current
Report on Form 8-K is required to be filed.
(d) Exhibits.
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2.1+
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Stock
Purchase Agreement, dated December 23, 2010, by and among Dr. Ryuji Ueno,
as trustee of the Ryuji Ueno Revocable Trust under Trust Agreement dated
December 20, 2002, Dr. Sachiko Kuno as trustee of the Sachiko Kuno
Revocable Trust under Trust Agreement dated December 20, 2002, Dr. Ryuji
Ueno, Dr. Sachiko Kuno, Ambrent Investments S.à r.l., and Sucampo
Pharmaceuticals, Inc.
|
|
10.1
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Subordinated
Unsecured Promissory Note, dated December 23, 2010, between Ambrent
Investments S.à r.l., as borrower, and Ryuji Ueno Revocable Trust Under
Trust Agreement dated December 20, 2002, as
lender.
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10.2
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Subordinated
Unsecured Promissory Note, dated December 23, 2010, between Ambrent
Investments S.à r.l., as borrower, and Sachiko Kuno Revocable Trust Under
Trust Agreement dated December 20, 2002, as
lender.
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10.3
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Non-Competition
Agreement, dated as of December 23, 2010 by and among Dr. Ryuji Ueno, as
trustee of the Ryuji Ueno Revocable Trust under Trust Agreement dated
December 20, 2002, Dr. Sachiko Kuno as trustee of the Sachiko Kuno
Revocable Trust under Trust Agreement dated December 20, 2002, Dr. Ryuji
Ueno, Dr. Sachiko Kuno, Ambrent Investments S.à r.l., and Sucampo
Pharmaceuticals, Inc.
|
+ The schedules
and exhibits to the Stock Purchase Agreement are not being filed
herewith. The Stock Purchase Agreement contains a list identifying the
contents of the schedules and exhibits to such document. The Registrant
undertakes to furnish supplementally a copy of any omitted schedule and exhibit
to the Securities and Exchange Commission upon request.
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.
SUCAMPO
PHARMACEUTICALS, INC.
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||||
Date:
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December
29, 2010
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By:
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/s/ JAN
SMILEK
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Name:
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Jan
Smilek
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|||
Title:
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Chief
Financial Officer
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EXHIBIT
INDEX
Exhibit
No.
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Description
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2.1+
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Stock
Purchase Agreement, dated December 23, 2010, by and among Dr. Ryuji Ueno,
as trustee of the Ryuji Ueno Revocable Trust under Trust Agreement dated
December 20, 2002, Dr. Sachiko Kuno as trustee of the Sachiko Kuno
Revocable Trust under Trust Agreement dated December 20, 2002, Dr. Ryuji
Ueno, Dr. Sachiko Kuno, Ambrent Investments S.à r.l., and Sucampo
Pharmaceuticals, Inc.
|
|
10.1
|
Subordinated
Unsecured Promissory Note, dated December 23, 2010, between Ambrent
Investments S.à r.l., as borrower, and Ryuji Ueno Revocable Trust Under
Trust Agreement dated December 20, 2002, as
lender.
|
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10.2
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Subordinated
Unsecured Promissory Note, dated December 23, 2010, between Ambrent
Investments S.à r.l., as borrower, and Sachiko Kuno Revocable Trust Under
Trust Agreement dated December 20, 2002, as
lender.
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10.3
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Non-Competition
Agreement, dated as of December 23, 2010 by and among Dr. Ryuji Ueno, as
trustee of the Ryuji Ueno Revocable Trust under Trust Agreement dated
December 20, 2002, Dr. Sachiko Kuno as trustee of the Sachiko Kuno
Revocable Trust under Trust Agreement dated December 20, 2002, Dr. Ryuji
Ueno, Dr. Sachiko Kuno, Ambrent Investments S.à r.l., and Sucampo
Pharmaceuticals, Inc.
|
+ The schedules
and exhibits to the Stock Purchase Agreement are not being filed
herewith. The Stock Purchase Agreement contains a list identifying the
contents of the schedules and exhibits to such document. The Registrant
undertakes to furnish supplementally a copy of any omitted schedule and exhibit
to the Securities and Exchange Commission upon request.