Attached files

file filename
EX-5.1 - OPINION OF GOLENBOCK EISEMAN ASSOR BELL & PESKOE LLP - MELA SCIENCES, INC. /NYd270334dex51.htm
EX-1.1 - UNDERWRITING AGREEMENT - MELA SCIENCES, INC. /NYd270334dex11.htm
EX-99.1 - PRESS RELEASE - MELA SCIENCES, INC. /NYd270334dex991.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 15, 2011

 

 

MELA Sciences, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   000-51481   13-3986004

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

50 South Buckhout Street, Suite 1

Irvington, New York

  10533
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code (914) 591-3783

(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 Instructions 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 15, 2011, MELA Sciences, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Leerink Swann LLC, as the sole-book-running manager, Needham & Company, LLC, as a co-manager and First Analysis Securities Corporation, as a co-manager (together, the “Underwriters”), relating to the public offering (the “Offering”) of 5,000,000 shares of the Company’s common stock, $0.001 par value per share (the “Common Stock”), at a price to the public of $3.25 per share (the “Offering Price”), less underwriting discounts and commissions. As part of the offering, Joseph Gulfo, the Company’s President and Chief Executive Officer, and Robert Coradini, a director of the Company, have agreed to purchase an aggregate of approximately 43,000 shares of the Company’s common stock at a purchase price of $3.97 per share, the closing price of the Company’s common stock on December 15, 2011, as reported on the Nasdaq Capital Market.

All of the shares in the Offering are being sold by the Company. The net proceeds to the Company from the sale of the Common Stock, after deducting the Underwriters’ discounts and commissions and other estimated offering expenses payable by the Company, are expected to be approximately $14,960,000. The Offering is expected to close on December 21, 2011, subject to the satisfaction of customary closing conditions.

The Common Stock is being offered and sold pursuant to the Company’s Prospectus dated June 1, 2010 and the Company’s Prospectus Supplement filed with the Securities and Exchange Commission (the “SEC”) on December 16, 2011, in connection with a takedown from the Company’s effective shelf registration statement on Form S-3 (File No. 333-167113) declared effective by the SEC on June 1, 2010.

The Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriter, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions.

The Underwriting Agreement is being filed with this Current Report on Form 8-K to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company. The representations, warranties and covenants contained in the Underwriting 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 Underwriting Agreement.

The foregoing is only a brief description of the material terms of the Underwriting Agreement, does not purport to be a complete description of the rights and obligations of the parties thereunder, and is qualified in its entirety by reference to the Underwriting Agreement that is filed as Exhibit 1.1 to this Current Report on Form 8-K and incorporated by reference herein.

The legal opinion of Golenbock Eiseman Assor Bell & Peskoe LLP relating to the Common Stock being offered is filed as Exhibit 5.1 to this Current Report on Form 8-K.


Item 8.01 — Other Events

On December 16, 2011, the Company issued a press release announcing the Offering. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated by reference herein.

Item 9.01 — Financial Statements and Exhibits

(d) Exhibits

 

Exhibit
No.

  

Description

  1.1    Underwriting Agreement, dated as of December 15, 2011, among MELA Sciences, Inc., Leerink Swann LLC, Needham & Company, LLC and First Analysis Securities Corporation
  5.1    Opinion of Golenbock Eiseman Assor Bell & Peskoe LLP
23.1    Consent of Golenbock Eiseman Assor Bell & Peskoe LLP (included as part of Exhibit 5.1).
99.1    Press Release issued by MELA Sciences, Inc. on December 16, 2011


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    MELA Sciences, Inc.
Date: December 16, 2011     By:  

/s/ Richard Steinhart

     

Richard I. Steinhart,

Chief Financial Officer

      (Principal Financial Officer)