Attached files
| file | filename |
|---|---|
| EX-4.2 - GENTA INC DE/ | v176692_ex4-2.htm |
| EX-4.7 - GENTA INC DE/ | v176692_ex4-7.htm |
| EX-4.5 - GENTA INC DE/ | v176692_ex4-5.htm |
| EX-4.1 - GENTA INC DE/ | v176692_ex4-1.htm |
| EX-4.6 - GENTA INC DE/ | v176692_ex4-6.htm |
| EX-4.3 - GENTA INC DE/ | v176692_ex4-3.htm |
| EX-10.1 - GENTA INC DE/ | v176692_ex10-1.htm |
| EX-99.1 - GENTA INC DE/ | v176692_ex99-1.htm |
| EX-10.2 - GENTA INC DE/ | v176692_ex10-2.htm |
| EX-10.3 - GENTA INC DE/ | v176692_ex10-3.htm |
| EX-4.4 - GENTA INC DE/ | v176692_ex4-4.htm |
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UNITED
STATES
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SECURITIES
AND EXCHANGE COMMISSION
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WASHINGTON,
D.C. 20549
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________________________________________
FORM
8-K
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CURRENT
REPORT
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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): March 5,
2010
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GENTA
INCORPORATED
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________________________________________
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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000-19635
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33-0326866
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(I.R.S.
Employer
Identification
No.)
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200
Connell Drive
Berkeley
Heights, NJ
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07922
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(908) 286-9800
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(Registrant’s
telephone number, including area code)
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(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))
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Item
1.01.
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Entry
into a Material Definitive
Agreement.
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As
previously reported,
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·
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On
June 9, 2008, Genta Incorporated, a Delaware corporation (the “Company”)
issued to certain accredited investors in a private placement $20 million
of senior secured convertible notes (the “2008
Notes”).
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·
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On
April 2, 2009, the Company issued to certain accredited institutional
investors in a private placement $6 million of senior secured convertible
notes (the “April 2009 Notes”). Pursuant to the terms of the
securities purchase agreement between the Company and such investors dated
April 2, 2009 (the “April 2009 Purchase Agreement”), the investors had the
right to purchase in whole or in part the remaining $6 million of
principal amount of the April 2009 Notes under the April 2009 Purchase
Agreement (the “Purchase Option”). Such Purchase Option would
expire upon the earlier of April 2, 2012 or three months after the Company
receives United States or European approval of
Genasense®.
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·
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Also
on April 2, 2009, the Company entered into a consent agreement (the
“Consent Agreement”) with the holders of the 2008 Notes under which the
Company granted such holders the right to purchase April 2009 Notes equal
to the principal amount of the 2008 Notes currently held by such holder
(the “Purchase Rights”).
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·
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On
July 7, 2009, the Company entered into a securities purchase agreement
(the “July 2009 Purchase Agreement”), whereby it issued to certain
accredited institutional investors in a private placement $3 million of
units (the “July Units”), each July Unit consisting of (i) 70% of a
subordinated unsecured convertible note (the “July 2009 Notes”) and (ii)
30% of shares of the Company’s Common Stock, par value $0.001 per share
(the “Common Stock”) (the “July 2009
Financing”).
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·
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On
September 4, 2009, the Company issued to certain accredited institutional
investors in a private placement $7 million of the July 2009 Notes and
Common Stock at an additional closing under the July 2009 Purchase
Agreement.
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·
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Also
on September 4, 2009, the Company entered into a securities purchase
agreement (the “September 2009 Purchase Agreement”) with certain
accredited institutional investors, pursuant to which it issued
approximately $3 million of the units (the “September Units”), each
September Unit consisting of (i) 70% of a subordinated unsecured
convertible note (the “September 2009 Notes”) and (ii) 30% of shares of
the Company’s Common Stock (the “September 2009 Financing”). In
connection with the sale of the September Units, the Company also issued
to the investors two-year warrants to purchase Common Stock in an amount
equal to 25% of the number of shares of Common Stock issuable upon
conversion of the September 2009 Notes purchased by each investor at the
closing.
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On March 5, 2010, the Company entered
into a securities purchase agreement (the “March 2010 Purchase Agreement”) with
certain accredited investors listed on the signature pages thereto, pursuant to
which it agreed to issue $25 million of units (the “2010 Units”), each 2010 Unit
consisting of (i) 40% of a senior unsecured convertible note (the “B Notes”),
(ii) 40% of a senior unsecured convertible note (the “C Notes”) and (iii) 20% of
a senior secured convertible note (the “D Notes”). In connection with
the sale of the 2010 Units, the Company also agreed to issue warrants (the “Debt
Warrants”) to purchase senior unsecured convertible notes (the “E Notes”) in an
amount equal to 40% of the purchase price paid for each such 2010
Unit. The issuance of the Closing Notes and Debt Warrants in
exchange for $25 million is referred to herein as the “March 2010
Financing”. In addition, the Company and the holders of
two-thirds of the outstanding Purchase Rights and Purchase Options agreed to
amend the Purchase Rights and Purchase Options to, among other things, provide
for the issuance of senior unsecured convertible notes in substantially the same
form as the B Notes upon exercise of the Purchase Rights and Purchase Options
(the “F Notes”). The B Notes, C Notes, and D Notes are hereinafter
referred to collectively as the “Closing Notes”. The Closing Notes,
the E Notes and the F Notes are hereinafter referred to collectively as the
“Notes”.
In the March 2010 Purchase Agreement,
the Company also agreed that it will not file a registration statement or
undertake any registered offering prior to the earlier of (i) the later of
September 30, 2011 and six months after the date of the public release of final
top-line survival results of the Company’s Phase 3 trial of Genasense® plus
chemotherapy in advanced melanoma (known as AGENDA) (the “AGENDA Results Date”)
and (ii) the 11th trading
day after the AGENDA Results Date, if the closing price of the Company’s Common
Stock on such date is equal to or greater than 300% of the then effective
conversion price of the Notes and certain other conditions are
met. The Company also agreed not to consummate any additional
financings before the later of March 30, 2011 and two weeks after the AGENDA
Results Date.
In connection with the March 2010
Financing, the officers and directors of the Company executed lock-up
agreements, whereby each such officer and director agreed not to engage in any
transactions involving the Company’s Common Stock for the period beginning on
March 3, 2010 and ending six months from such date.
The March 2010 Financing closed on
March 9, 2010. Proceeds of the March 2010 Financing will be used to
ensure adequate follow-up to determine overall survival results for AGENDA and
to accelerate development of the Company’s pipeline products, among other
uses. The Company has direct access to $20 million of the proceeds,
and the remaining $5 million of the proceeds were placed in a blocked account as
collateral security for the $5 million in principal amount of the D
Notes. The security interest of the holders of the D Notes will be
released, and restrictions on the Company’s use of the $5 million held in the
blocked account will terminate if, at any time after six months and ten weeks
from the closing of the transaction: (i) the Company files a Form 8-K with the
United Stated Securities and Exchange Commission showing that the daily trading
volume of the Company’s Common Stock, as reported by the Company’s principal
trading market, for each of the 10 trading days prior to the date on which such
filing is made equals or exceeds one-tenth of the number of shares underlying
the D Notes on the date such filing is made; and (ii) the Daily Closing Price
(as defined in the B Note) on each trading day (each such trading day, a “Test
Date”) during the 10 trading day period prior to the date on which such filing
is made is greater than the conversion price then in effect for the D Notes on
such Test Date by an amount equal to or greater than 200% of the conversion
price on such Test Date. The security interest will also be released
(i) dollar for dollar upon conversion of any part of the D Notes or (ii) in its
entirety upon the approval of the holders of two-thirds of the then outstanding
principal amount of D Notes.
The Notes all have a three-year
term. The holder of each Note has the right to require the Company to
repay 100% of the outstanding principal and accrued interest on each Note on the
second anniversary of the closing date. At any time on or after
January 15, 2011 and prior to the release of the security interest in full,
holders of at least two-thirds of the outstanding D Notes will have the right to
require the Company to repay 100% of the outstanding principal and accrued
interest on all then outstanding D Notes.
The Notes will be initially convertible
into shares of the Company’s Common Stock at a conversion rate of 100,000 shares
of common stock for every $1,000.00 of principal. This conversion
rate is subject to customary adjustment for any stock splits, combinations,
recapitalizations or the like. Additionally, if on the later of (A)
date that is seven months after the Closing and (B) the eleventh trading day
following the effective date of the reverse stock split (the “October Adjustment
Date”) the volume weighted closing price of the Company’s Common Stock for the
10 consecutive trading day period ending on the last trading day prior to the
October Adjustment Date (the “10-Day October VWCP”) is less than $0.10 (as
adjusted for any stock splits, combinations, recapitalizations or the like), the
conversion price for the B Notes, E Notes and F Notes, as applicable, shall be
reduced to a price equal to 10% of the 10-Day October VWCP. Also, if
on the last trading day prior to December 31, 2010 (the “December Adjustment
Date”) the volume weighted closing price of the Company’s Common Stock for the
10 consecutive trading day period ending on the last trading day prior to the
December Adjustment Date (the “10-Day December VWCP”) is less than $0.10 (as
adjusted for any stock splits, combinations, recapitalizations or the like), the
conversion price for the D Notes shall be reduced to a price equal to 10% of the
10-Day December VWCP. In addition, the conversion rate of all of the
Notes will be reduced if the Company issues additional shares of Common Stock or
Common Stock Equivalents (as defined in the Notes) for consideration that is
less than the then applicable conversion price or if the conversion or exercise
price of any Common Stock Equivalent (including the Notes) is adjusted or
modified to a price less than the then applicable conversion price.
The amount of each Note (other than the
F Notes) that is convertible on any day is limited to a fraction of the total
principal amount of such Note according to a schedule set forth in the
Notes.
Since the conversion price of the Notes
is less than the current conversion price for the 2008 Notes, April 2009 Notes,
July 2009 Notes and September 2009 Notes (collectively, the “Prior Notes”), the
conversion price for the Prior Notes reset upon the closing of the March 2010
Financing to $0.01 per share of Common Stock, pursuant to the terms of the Prior
Notes.
The Closing Notes will bear interest at
an annual rate of 12% payable semi-annually in cash or in other Notes at the
option of the Company and may not be prepaid unless certain conditions are
met. The Company shall have the right to force conversion of the
Notes, in whole or in part, if the closing price of the Company’s Common Stock
equals or exceeds $0.25 for a 10-consecutive-trading-day period and certain
other conditions are met.
Pursuant to the March 2010 Purchase
Agreement, the Company has agreed to effect a reverse stock split in a ratio to
be determined by the Company’s Board of Directors and approved by the holders of
66 2/3% of the then outstanding Closing Notes. If such reverse stock
split is not effected on or prior to September 17, 2010, the Company will be
obligated to pay each investor who is a signatory to the March 2010 Purchase
Agreement a cash payment equal to 0.75% of the principal amount of all B Notes
and C Notes purchased by such investor for each day from September 18, 2010
until the reverse stock split is effected; provided, however, that the Company
is not obligated to make any such payments in excess of 100% of the principal
amount of the B Notes and C Notes purchased by the investors in the March 2010
Financing. Pursuant to the terms of the Note Conversion and Amendment
Agreement dated as of March 5, 2010, the holders of the April 2009 Notes, July
2009 Notes and September 2009 Notes have agreed to convert a portion of such
notes and vote the shares issued upon such conversion in favor of the reverse
stock split.
The Debt
Warrants issued in connection with the March 2010 Financing are exercisable for
up to $10,000,000 of E Notes until the later of (i) September 30, 2011 and (ii)
the date that is six months after the AGENDA Results Date. In the
event that the value of the Common Stock issuable upon conversion of the Notes
underlying the Debt Warrant exceeds the aggregate exercise price of the Debt
Warrant, the holder of the Debt Warrant has the right to exercise the Debt
Warrant without payment of cash in exchange for a Note with a reduced principal
amount.
In connection with the March 2010
Financing, pursuant to a Note Conversion and Amendment Agreement, the
outstanding Purchase Rights and Purchase Options granted to investors in the
Company’s prior financings will be modified to provide that, upon exercise of
such Purchase Rights or Purchase Options, the investors will receive F
Notes. The expiration of these Purchase Rights and Purchase Options
will also be shortened to expire upon the later of: (i) the date that is two
weeks after the AGENDA Results Date and (ii) March 30, 2011.
The Company has also extended the
maturity date of the outstanding 2008 Notes in exchange for three-year warrants
to purchase the same number of shares of the Company’s Common Stock issuable
upon conversion of such 2008 Notes. The warrants shall have an
initial exercise price equal to the conversion price of the Notes (subject to
customary adjustments for any stock splits, combinations, recapitalizations or
the like and for issuances of new securities, or modifications or amendments of
outstanding securities).
The Notes and the warrants offered and
the Common Stock and Notes issuable upon conversion of the Notes and upon
exercise of the warrants, have not been registered under the Securities Act of
1933, as amended (the “Securities Act”), or any state securities laws, and may
not be offered or sold in the United States absent an effective registration
statement or an applicable exemption from registration
requirements. The Company believes that the issuance of the
securities in this transaction was exempt from registration under Section 4(2)
of the Securities Act.
A complete copy of each form of Note,
the form of Debt Warrant, the form of common stock warrant, the March 2010
Purchase Agreement, the Note Conversion and Amendment Agreement and the Security
Agreement are attached to this Form 8-K. The foregoing description of
the March 2010 Financing, and any other documents or filings referenced herein,
are qualified in their entirety by reference to such exhibits, documents or
filings.
The Company issued a press release on
March 8, 2010 to announce the Company’s entrance into the March 2010 Purchase
Agreement. A copy of the press release is filed herewith as Exhibit
99.1.
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Item
3.02.
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Unregistered
Sales of Equity
Securities.
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See Item 1.01.
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Item
9.01.
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Financial
Statements and Exhibits
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(d)
Exhibits.
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4.1
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Form
of Senior Unsecured Convertible Note (“B Note”) (filed
herewith).
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4.2
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Form
of Senior Unsecured Convertible Note (“C Note”) (filed
herewith).
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4.3
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Form
of Senior Secured Convertible Note (“D Note”) (filed
herewith).
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4.4
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Form
of Senior Unsecured Convertible Note (“E Note”) (filed
herewith).
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4.5
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Form
of Senior Unsecured Convertible Note (“F Note”) (filed
herewith)
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4.6
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Form
of Common Stock Purchase Warrant (filed herewith).
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4.7
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Form
of Senior Unsecured Convertible Promissory Note Purchase Warrant (filed
herewith).
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10.1
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Form
of Securities Purchase Agreement (filed herewith).
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10.2
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Form
of Note Conversion and Amendment Agreement (filed
herewith).
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10.3
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Form
of Security Agreement (filed herewith).
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99.1
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Press
Release of the Company issued on September 8, 2009 announcing the
Additional Closing of the July 2009 Financing and the September 2009
Financing (filed herewith).
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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.
| GENTA INCORPORATED | |||
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By:
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/s/ Gary Siegel | |
| Name: Gary Siegel | |||
| Title: Vice President, Finance | |||
Dated:
March 9, 2010