Attached files
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EX-2.1 - EXHIBIT 2.1 - MiddleBrook Pharmaceuticals, Inc. | c01315exv2w1.htm |
EX-99.2 - EXHIBIT 99.2 - MiddleBrook Pharmaceuticals, Inc. | c01315exv99w2.htm |
EX-99.1 - EXHIBIT 99.1 - MiddleBrook Pharmaceuticals, Inc. | c01315exv99w1.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): May 14, 2010
MiddleBrook Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 000-50414 | 52-2208264 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
7 Village Circle, Suite 100, Westlake, Texas |
76262 |
|
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (817) 837-1200
N/A
(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. |
As previously disclosed, on April 30, 2010, MiddleBrook Pharmaceuticals, Inc. (MiddleBrook
or the Company) filed a voluntary petition for bankruptcy protection under Chapter 11 of the
United States Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware
(the Bankruptcy Court), case number 10-11485.
On May 14, 2010, MiddleBrook issued a press release announcing that it had entered into an
asset purchase agreement (the Agreement) with Victory Pharma, Inc. (Victory), a Delaware
corporation, pursuant to which MiddleBrook has agreed to sell substantially all of its assets in
exchange for a cash purchase price of $17.1 million, subject to adjustment for product sales by
MiddleBrook prior to closing in excess of specified limits, plus the assumption of trade sales and
certain other liabilities of the Company. The Agreement is subject to customary closing
conditions, approval by the Bankruptcy Court, and the receipt of no higher or otherwise better
offers pursuant to specific bidding procedures and a competitive auction process to be conducted
under the supervision of the Bankruptcy Court. Victory has made a $1.71 million deposit toward the
purchase price. The parties have also agreed to place $350,000 of the purchase price in escrow at
closing to satisfy certain liabilities of MiddleBrook that it fails to timely pay.
MiddleBrook and Victory made customary representations, warranties, and covenants in the
Agreement, including, among others, covenants by MiddleBrook to promptly file a motion with the
Bankruptcy Court to approve the Agreement, to operate the business in the ordinary course, and to
refrain from selling products in excess of certain dollar limitations in each month prior to
closing. The Agreement will automatically terminate if the Bankruptcy Court or another court of
competent jurisdiction enters an order approving a proposal from another person for the acquisition
of substantially all of MiddleBrooks assets. In addition, Victory may terminate the Agreement if
the Bankruptcy Court (i) has not approved MiddleBrooks motion to approve the bidding procedures
and the form of the Agreement on or before June 30, 2010, or (ii) has not entered an order
approving the Agreement before August 31, 2010. The Agreement contains certain other termination
rights for MiddleBrook and Victory upon the occurrence of other specified events. Upon termination
of the Agreement under specified circumstances, MiddleBrook will be required to pay Victory a
termination fee of $400,000 and reimburse up to $150,000 of Victorys transaction expenses.
The foregoing description of the terms of the Agreement does not purport to be complete and is
qualified in its entirety by reference to the Agreement, which is attached hereto as Exhibit 2.1
and is incorporated herein by reference. A copy of the press release is attached hereto as Exhibit
99.1
The representations, warranties and covenants contained in the Agreement were made only for
purposes of the Agreement and as of specific dates, were solely for the benefit of the parties to
the 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 Agreement. The representations and warranties in the Agreement may have been made
for the purposes of allocating contractual risk between the parties to the 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 should not rely
on the representations, warranties and covenants or any descriptions thereof as characterizations
of the actual state of facts or condition of the Company or Victory 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 Agreement, which subsequent
information may or may not be fully reflected in the Companys public disclosures.
Item 8.01. | Other Events. |
On May 4, 2010, the Bankruptcy Court entered an Interim Order Establishing Notification and
Hearing Procedures for Transfers of Equity Securities (the Order). The Order establishes notice
and waiting periods to govern certain transfers of MiddleBrooks equity securities, as well as
procedures for objecting to such transfers in certain circumstances, and provides that transfers of
MiddleBrook equity securities in violation of such procedures are void. The Final Hearing Date
established in the Order has been moved to June 7, 2010 at 9:30 a.m. Eastern Time.
The foregoing description of the terms of the Order does not purport to be complete and is
qualified in its entirety by reference to the Order, which is attached hereto as Exhibit 99.2 and
is incorporated herein by reference.
Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
The following exhibits are filed as part of this Current Report on Form 8-K:
Exhibit No. | Exhibit | |
2.1
|
Asset Purchase Agreement, dated May 14, 2010, by and between the Company and Victory Pharma, Inc.* | |
99.1
|
Press Release dated May 14, 2010 | |
99.2
|
Interim Order Establishing Notification and Hearing Procedures for Transfers of Equity Securities |
* | Seller Disclosure Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company undertakes to furnish supplementally copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission. |
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.
MIDDLEBROOK PHARMACEUTICALS, INC. |
||||
Dated: May 19, 2010 | By: | /s/ David Becker | ||
Name: | David Becker | |||
Title: | Executive Vice President, Chief Financial
Officer and Acting President and Chief Executive Officer |
EXHIBIT INDEX
Exhibit | ||
Number | Description | |
2.1
|
Asset Purchase Agreement, dated May 14, 2010, by and between the Company and Victory Pharma, Inc.* | |
99.1
|
Press release dated May 14, 2010 | |
99.2
|
Interim Order Establishing Notification and Hearing Procedures for Transfers of Equity Securities |
* | Seller Disclosure Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company undertakes to furnish supplementally copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission |