Attached files
file | filename |
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EX-4.2 - EX-4.2 - Pernix Sleep, Inc. | c20676exv4w2.htm |
EX-5.1 - EX-5.1 - Pernix Sleep, Inc. | c20676exv5w1.htm |
EX-4.3 - EX-4.3 - Pernix Sleep, Inc. | c20676exv4w3.htm |
EX-4.1 - EX-4.1 - Pernix Sleep, Inc. | c20676exv4w1.htm |
EX-10.1 - EX-10.1 - Pernix Sleep, Inc. | c20676exv10w1.htm |
EX-99.1 - EX-99.1 - Pernix Sleep, Inc. | c20676exv99w1.htm |
EX-10.2 - EX-10.2 - Pernix Sleep, Inc. | c20676exv10w2.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): July 28, 2011
SOMAXON PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware | 000-51665 | 20-0161599 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
3570 Carmel Mountain Road, Suite 100, San Diego, CA |
92130 |
|
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (858) 876-6500
(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:
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 August 1, 2011, Somaxon Pharmaceuticals, Inc. (Somaxon or we) entered into an
At-the-Market Equity Offering Sales Agreement (Sales Agreement) with Citadel Securities LLC
(Citadel) pursuant to which we may sell, at our option, up to an aggregate of the $30.0 million in
shares of our common stock through Citadel, as sales agent. Sales of the common stock made
pursuant to the Sales Agreement, if any, will be made on the NASDAQ Capital Market under our
previously filed and currently effective Registration Statements on Form S-3 (File Nos. 333-167789
and 333-162788) by means of ordinary brokers transactions at market prices. Additionally, under
the terms of the Sales Agreement, we may also sell shares of our common stock through Citadel, on
the NASDAQ Capital Market or otherwise, at negotiated prices or at prices related to the prevailing
market price. Under the terms of the Sales Agreement, we may also sell shares to Citadel as
principal for Citadels own account at a price agreed upon at the time of sale pursuant to a
separate terms agreement to be entered into with Citadel at such time. Citadel will use its
commercially reasonable efforts to sell our common stock from time to time, based upon our
instructions (including any price, time or size limits or other customary parameters or conditions
we may impose). We cannot provide any assurances that we will issue any shares pursuant to the
Sales Agreement. We will pay Citadel a commission equal to 3% of the gross proceeds from the sale
of shares of our common stock under the Sales Agreement, if any. We have also agreed to reimburse
Citadel for certain expenses incurred in connection with entering into the Sales Agreement and have
provided Citadel with customary indemnification rights. The offering of common stock pursuant to
the Sales Agreement will terminate upon the earlier of (a) the sale of all of the common stock
subject to the Sales Agreement or (b) the termination of the Sales Agreement by us or Citadel.
Either party may terminate the agreement in its sole discretion at any time upon written notice to
the other party.
On July 28, 2011, we terminated our existing loan agreement with Comerica Bank, and on August
2, 2011, we entered into a new loan and security agreement (Loan Agreement) with Oxford Finance
LLC (Oxford) and Silicon Valley Bank (SVB, and together with Oxford, the Lenders) pursuant to
which the Lenders provided us a term loan in the principal amount of $15.0 million. The term loan
bears interest at 7.5% per annum. We are obligated to pay interest only on the loan through
December 31, 2011, and thereafter to pay the principal plus interest on such principal amount in 24
monthly installments continuing through December 31, 2013. At our option, we may prepay all of the
outstanding principal balance, subject to a pre-payment fee of $150,000. It is an event of
default under the Loan Agreement if a generic version of Silenor enters the market and we do not
prepay the entire outstanding principal balance shortly after such date. Additionally, under the
Loan Agreement, the Lenders may declare an event of default if we experience a material adverse
change. We paid to the Lenders an initial fee of $150,000 upon the closing of the term loan. In
the event of the final payment of the loan, either through repayment of the loan in full at
maturity or upon any pre-payment, we are required to pay a final payment fee of $637,500. In
connection with the Loan Agreement, we granted the Lenders a security interest in substantially all
of our assets now owned or hereafter acquired other than our intellectual property, and we agreed
to a negative pledge on our intellectual property. We are also subject to certain affirmative and
negative covenants, including limitations on our ability to: undergo certain change of control
events; convey, sell, lease, license, transfer or otherwise dispose of assets, other than in
certain specified circumstances; create, incur, assume, guarantee or be liable with respect to
certain indebtedness; grant liens; pay dividends and make certain other restricted payments; and
make certain investments. In addition, under the Loan Agreement, subject to certain exceptions, we
are required to maintain with SVB our primary cash and investments accounts. We have currently met
all of our obligations under the Loan Agreement.
As part of the financing, the Lenders received warrants (the Warrants) to purchase up to an
aggregate of 583,152 fully paid and non-assessable shares of our common stock at an exercise price
equal to $1.543333 per share. The Warrants will expire ten years from the date of the grant.
The Sales Agreement, the Loan Agreement and the Warrants, which are filed as Exhibits 10.1,
10.2, 4.1, 4.2 and 4.3, respectively, to this report on Form 8-K, are incorporated herein by reference.
The foregoing descriptions of the Sales Agreement, Loan Agreement and the Warrants do not purport
to be complete and are qualified in their entirety by reference to such exhibits.
We intend to file two prospectus supplements relating to the ATM program with the Commission.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of any
offer to buy the securities discussed
herein, nor shall there be any offer, solicitation, or sale of the securities in any State in
which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
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Item 1.02 Termination of a Material Definitive Agreement.
On July 28, 2011, we terminated our loan agreement with Comerica in order to enter into the
new Loan Agreement with the Lenders. We no longer have any obligations under the loan agreement
with Comerica and there are no further encumbrances on our assets by Comerica, other than an
outstanding letter of credit in the principal amount of $200,000.
Item 2.02 Results of Operations and Financial Condition
On August 2, 2011, we issued a press release announcing our results of operations for the
second quarter ended June 30, 2011. The full text of such press release is furnished as Exhibit
99.1 to this report.
In accordance with General Instruction B.2. of Form 8-K, the information in this Item 2.02 of
the Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed filed for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended (the Exchange Act), or otherwise
subject to the liability of that section, nor shall it be deemed incorporated by reference in any
filing under the Securities Act of 1933, as amended, or the Exchange Act, whether made before or
after the date hereof, except as expressly set forth by specific reference in such filing to this
Current Report on Form 8-K.
Item 3.02 Unregistered Sales of Equity Securities.
We relied on the exemption from registration contained in Section 4(2) of the Securities Act,
and Rule 506 of Regulation D, in connection with the issuance of the Warrants pursuant to the loan
and security agreement. The Warrants have not been registered under the Securities Act, or state
securities laws, and may not be offered or sold in the United States without being registered with
the SEC or through an applicable exemption from SEC registration requirements.
The other information called for by this item is contained in Item 1.01, which is incorporated
herein by reference.
Somaxon cautions readers that statements included in this Current Report on Form 8-K that are
not a description of historical facts are forward-looking statements. For example, statements
regarding Somaxons ability to raise additional funds through the ATM offering program are
forward-looking statements. The inclusion of forward-looking statements should not be regarded as
a representation by Somaxon that any of its plans will be achieved. Actual results may differ
materially from those set forth in this release due to the risks and uncertainties inherent in
Somaxons business, including, without limitation, Somaxons ability to successfully commercialize
Silenor; the market potential for insomnia treatments, and Somaxons ability to compete within that
market; Somaxons ability to comply with the covenants under the loan agreement with Silicon Valley
Bank and Oxford Finance Corporation; the potential for an event of default under the loan
agreement, and the corresponding risk of acceleration of repayment and potential foreclosure on the
assets pledged to secure the loan; Somaxons ability to fully utilize the equity sales agreement
with Citadel as a source of future financings, whether due to market conditions, Somaxons ability
to satisfy various conditions required to sell shares under the agreement, Citadels performance
of its obligations under the agreement or otherwise; the impact on the level of Somaxons stock
price, which may decline, in connection with the implementation of the equity sales facility or the
occurrence of any sales under the facility; Somaxons reliance on its co-promotion partner, Procter
& Gamble, and its contract sales force provider, Publicis, for critical aspects of the commercial
sales process for Silenor; the ability of Somaxons sales management personnel to effectively
manage the sales representatives employed by Publicis; the scope, validity and duration of patent
protection and other intellectual property rights for Silenor; whether the approved label for
Silenor is sufficiently consistent with such patent protection to provide exclusivity for Silenor;
Somaxons ability to successfully enforce its intellectual property rights and defend its patents,
including any developments relating to the recent submission of abbreviated new drug applications
for generic versions of Silenor 3 mg and 6 mg and related patent litigation; the possible
introduction of generic competition for Silenor; Somaxons ability to raise sufficient capital to
fund its operations, and the impact of any such financing activity on the level of its stock price;
the impact of any inability to raise sufficient capital to fund ongoing operations, including any
patent infringement
litigation; inadequate therapeutic efficacy or unexpected adverse side effects relating to
Silenor that could adversely impact commercial success, or that could result in recalls or product
liability claims; other difficulties or delays in development, testing, manufacturing and marketing
of Silenor; the timing and results of post-approval regulatory requirements for Silenor, and the
FDAs agreement with Somaxons interpretation of such results; and other risks detailed in
Somaxons periodic filings with the Securities and Exchange Commission.
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Readers are cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date hereof. All forward-looking statements are qualified in their entirety
by this cautionary statement, and Somaxon undertakes no obligation to revise or update this Current
Report on Form 8-K to reflect events or circumstances after the date hereof. This caution is made
under the safe harbor provisions of Section 21E of the Securities Exchange Act of 1934.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. | Description | |||
4.1 | Warrant dated August 2, 2011 issued to Silicon Valley Bank |
|||
4.2 | Warrant dated August 2, 2011 issued to Oxford Finance LLC |
|||
4.3 | Warrant dated August 2, 2011 issued to Oxford Finance LLC |
|||
5.1 | Opinion of Latham & Watkins LLP |
|||
10.1 | At-the-Market Equity Offering Sales Agreement between Somaxon
Pharmaceuticals, Inc. and Citadel Securities LLC dated August 1, 2011 |
|||
10.2 | Loan and Security Agreement between Somaxon Pharmaceuticals,
Inc., Oxford Finance LLC, as collateral agent, and Silicon
Valley Bank and Oxford Finance LLC, as lenders, dated as of
August 2, 2011 |
|||
23.1 | Consent of Latham & Watkins LLP (included in Exhibit 5.1) |
|||
99.1 | Press Release dated August 2, 2011 |
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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.
SOMAXON PHARMACEUTICALS, INC. |
||||
Date: August 2, 2011 | By: | /s/ Matthew W. Onaitis | ||
Name: | Matthew W. Onaitis | |||
Title: | Senior Vice President and General Counsel | |||
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EXHIBIT INDEX
Exhibit No. | Description | |||
4.1 | Warrant dated August 2, 2011 issued to Silicon Valley Bank |
|||
4.2 | Warrant dated August 2, 2011 issued to Oxford Finance LLC |
|||
4.3 | Warrant dated August 2, 2011 issued to Oxford Finance LLC |
|||
5.1 | Opinion of Latham & Watkins LLP |
|||
10.1 | At-the-Market Equity Offering Sales Agreement between Somaxon
Pharmaceuticals, Inc. and Citadel Securities LLC dated August 1, 2011 |
|||
10.2 | Loan and Security Agreement between Somaxon Pharmaceuticals,
Inc., Oxford Finance LLC, as collateral agent, and Silicon
Valley Bank and Oxford Finance LLC, as lenders, dated as of
August 2, 2011 |
|||
23.1 | Consent of Latham & Watkins LLP (included in Exhibit 5.1) |
|||
99.1 | Press Release dated August 2, 2011 |
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