Oncobiologics, Inc. (NASDAQ:ONS) Files An 8-K Entry into a Material Definitive AgreementItem 1.01
On September 11, 2017, in connection with the closing of the initial sale of the Series A to the Purchase Agreement, the Company entered into an investor rights agreement with the Investor (the “Investor Rights Agreement”), to which the Company granted the Investor certain registration rights with respect to the shares of its common stock issuable upon conversion of the Series A and exercise of the Warrants, Board designation rights and information rights, as well as the right of first offer over future issuances of securities, as well as a right of participation in future securities issuances.
Under the Investor Rights Agreement, the Investor received demand registration rights, as well as piggyback registration rights. The Company also agreed not to file any registration statement to register for resale the sale of any securities of a third party without the Investor’s prior consent.
Additionally, the Company agreed to appoint up to four new directors to be designated by the Investor, such that the Investor’s designees represent a majority of the Board. As long as the Investor maintains beneficial ownership of at least 5% of the Company’s outstanding Common Stock, the Investor shall be entitled to nominate directors to the Board in proportion to its ownership stake in the Company (rounded up). As long as Investor maintains beneficial ownership of at least 50% of the Company’s outstanding Common Stock but less than or equal to 57%, the Investor, shall be entitled to nominate a majority of the directors for election to the Board. Effective September 11, 2017, the Company appointed two new directors, Faisal G. Sukhtian and Joe Thomas to the Board to such rights.
The foregoing description of the Investor Rights Agreement is a summary of the material terms of such agreement, does not purport to be complete and is qualified in its entirety by reference to the Investor Rights Agreement, which is filed as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated by reference herein.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
On September 7, 2017, the Company and the holders of its $15.0 million aggregate principal amount of outstanding senior secured notes issued to the certain Note and Warrant Purchase Agreement dated December 22, 2017, as amended on April 13, 2017, entered into Note, Warrant and Registration Rights Amendment and Waiver, to which the senior secured noteholders agreed to, among other items, consent to certain items to permit entry into the Purchase Agreement and Investor Rights Agreement and sale of the Securities to the Investor, waive certain events of default that may be deemed to have occurred by entry into the license agreements with investor, and waive past non-compliance with certain registration rights of the senior secured noteholders, among other items, as well as extend the maturity date of the senior secured notes to the later to occur of (x) December 22, 2018 and (y) one year following the second closing under the Purchase Agreement.
The foregoing description of the amendment of the terms of the senior secured notes is a summary of the material terms of such agreement, does not purport to be complete and is qualified in its entirety by reference to the Note, Warrant and Registration Rights Amendment and Waiver, which is filed as Exhibit 10.9 to this Current Report on Form 8-K and is incorporated by reference herein.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The information called for by this item is contained in Item 1.01, which is incorporated by reference herein.
| Item 3.03 | Material Modification to Rights of Security Holders |
The information called for by this item is contained in Item 1.01 above and Item 5.03 below, which are incorporated by reference herein.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On September 11, 2017, each of Robin Smith Hoke, a Class I Director, and Donald J. Griffith, a Class II Director, tendered their resignations from the Board, effective as of the closing of the initial sale of the Series A to the Investor.
Accordingly, effective September 11, 2017, the Board elected Faisal G. Sukhtian and Joe Thomas, each of whom was designated by the Investor to the Investor Rights Agreement, to fill the newly created vacancies to be created by such resignations, effective as of the closing of the initial sale of the Series A to the Investor. Mr. Sukhtian was designated as a Class I Director to serve the remainder of Ms. Smith Hoke’s term and appointed to the Company’s Audit Committee. Mr. Thomas was designated as a Class II Director, to serve the remainder of Mr. Griffith’s term, and was appointed to the Company’s Nominating and Corporate Governance Committee. The Board has not yet awarded either new director any compensation in connection with such appointment, however it is anticipated that such directors will participate in the Company’s non-employee director compensation programs on the same terms as other non-employee directors.
The foregoing description of the Investor Rights Agreement and the Board nomination rights contained therein is a summary of the material terms of such agreement, does not purport to be complete and is qualified in its entirety by reference to the Investor Rights Agreement, which is filed as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated by reference herein.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
to the Purchase Agreement, the Company amended its certificate of incorporation by filing with the Secretary of State of the State of Delaware the Certificate of Designation prior to the closing of the initial sale of the Series A. The description of the agreed rights and preferences of the Series A and Series B in Item 1.01 of this Current Report is incorporated by reference herein.
On September 8, 2017, the Company issued a press release announcing the execution of the Purchase Agreement and the Exchange Agreement, as well as the other actions contemplated thereby and in connection therewith, which is filed as Exhibit 99.1 to this Current Report on Form 8-K and incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits |
(d) Exhibits.
| Exhibit No. | Description |
| 3.1 | Certificate of Designation of Series A Convertible Preferred Stock and of Series B Convertible Preferred Stock of Oncobiologics, Inc. |
| 4.1 | Form of Warrant to Purchase Common Stock of Oncobiologics, Inc. |
| 10.1 | Purchase Agreement by and between Oncobiologics, Inc. and the Investor named therein, dated September 7, 2017. |
| 10.2 | Purchase and Exchange Agreement by and between Oncobiologics, Inc. and the Noteholders named therein, dated September 7, 2017. |
| 10.3 | Investor Rights Agreement by and between Oncobiologics, Inc. and the Investor named therein, dated September 11, 2017. |
| 10.4 | Form of Voting and Lock-up Agreement by and between the Investor named therein and the Director or Executive Officer of Oncobiologics, Inc. party thereto, dated September 7, 2017. |
| 10.5 | Voting and Lock-up Agreement by and between the Investor named therein and Todd Brady, Director Oncobiologics, Inc., dated September 7, 2017. |
| 10.6 | Form of Voting and Lock-up Agreement by and between the Investor named therein and the Stockholder of Oncobiologics, Inc. party thereto, dated September 7, 2017. |
| 10.7 | Form of Voting and Lock-up Agreement by and between the Investor named therein and the Noteholder named therein, dated September 7, 2017. |
| 10.8 | Lock-up Agreement by and among Oncobiologics, Inc., the Investor named therein and Pankaj Mohan, Ph.D., dated September 7, 2017. |
| 10.9 | Note, Warrant and Registration Rights Amendment and Waiver, dated September 7, 2017. |
| 99.1 | Press Release dated September 8, 2017. |
Oncobiologics, Inc. ExhibitEX-3.1 2 v474908_ex3-1.htm EXHIBIT 3.1 Exhibit 3.1 Delaware The First State Page 1 I,…To view the full exhibit click here
About Oncobiologics, Inc. (NASDAQ:ONS)
Oncobiologics, Inc. is a clinical-stage biopharmaceutical company. The Company focuses on identifying, developing, manufacturing and commercializing complex biosimilar therapeutics. It focuses on monoclonal antibodies (mAbs) in the disease areas of immunology and oncology. The Company’s BioSymphony Platform focuses on developing and commercializing mAb biosimilars. The Company is developing a portfolio of approximately eight mAb biosimilars. The Company has advanced two product candidates into clinical trials: ONS-3010 and ONS-1045. ONS-3010 is a Phase III-ready biosimilar to adalimumab (Humira). ONS-1045 is a Phase III-ready biosimilar to bevacizumab (Avastin). The Company has identified multiple other biosimilar product candidates, including approximately six candidates that are in preclinical development. ONS-1050 is its trastuzumab (Herceptin) biosimilar. Its other product candidates include ONS-4010, ONS-1055, ONS-3030, ONS-3035 and ONS-3040.
