CORPORATION (NASDAQ:CORP) Files An 8-K Entry into a Material Definitive Agreement
Item1.01 Entry into a Material Definitive Agreement
On January6, 2017, RXi Pharmaceuticals Corporation (the
Company) entered into a Stock Purchase Agreement (the
Stock Purchase Agreement) by and among the Company, RXi
Merger Sub, LLC, a Delaware limited liability company and wholly
owned subsidiary of the Company (RXi Merger Sub),
MirImmune Inc., a Delaware corporation (MirImmune), the
stockholders of MirImmune set forth on the pages thereto (each a
Seller and collectively, the Sellers), and Alexey
Wolfson, Ph.D., in his capacity as the Sellers Representative. to
the Stock Purchase Agreement, on January6, 2017, the Company
acquired from the Sellers 50% of the issued and outstanding
shares of capital stock of MirImmune for an aggregate of
2,750,371 shares of common stock of the Company, par value
$0.0001 per share (the Common Stock) and an aggregate of
1,115,579 shares of Series C Convertible Preferred Stock, par
value $0.0001 per share (the Series C Preferred Stock),
subject to a holdback of 3% of the aggregate closing
consideration for any purchase-price adjustments. Such
consideration represents in the aggregate a number of shares of
capital stock equal to approximately 19.99% of the outstanding
Common Stock immediately prior to the execution of the Stock
Purchase Agreement, plus approximately 19.99% of the Common Stock
underlying the Series B Convertible Preferred Stock previously
issued in the Companys registered securities offering to a
registration statement on Form S-1 (File No.333-214199) (the
Financing). The Stock Purchase Agreement contains
customary representations and warranties and pre- and
post-closing covenants and closing conditions.
Under the terms of the Stock Purchase Agreement, if certain
development or commercial milestones are achieved within two
years, the Company will be required to either: (i)issue to the
Sellers a number of shares of Common Stock (the Milestone Shares)
equal to the sum of 2,519,091 shares of Common Stock (which
represents 13% of the outstanding Common Stock and 13% of the
Common Stock underlying the shares of Series B Convertible
Preferred Stock, in each case as of immediately following the
closing of the Financing), plus an additional number of shares of
Common Stock equal to 13% of the Common Stock issued upon
exercise of any warrants issued under the Financing, but only to
the extent that such warrants have been exercised prior to the
milestone being achieved; or (ii)pay the equivalent value of the
Milestone Shares in cash to the Sellers, subject to certain
adjustments set forth in the Stock Purchase Agreement. In certain
circumstances, if the Company has not received stockholder
approval for the issuance of the Milestone Shares, the Company
may be required to instead issue shares of Series C Convertible
Preferred Stock in lieu of part or all of the Common Stock
otherwise issuable as Milestone Shares.
In connection with and promptly following the closing of the
Stock Purchase Agreement, MirImmune was merged with and into RXi
Merger Sub (the Merger), with RXi Merger Sub continuing as
the surviving entity and changing its name to MirImmune, LLC. As
a result of the Merger, MirImmune, LLC remains and will operate
as a wholly owned subsidiary of the Company.
In connection with the Stock Purchase Agreement, Alexey Eliseev,
Ph.D., the former Chief Executive Officer of MirImmune, entered
into an employment agreement with the Company, effective as of
January6, 2017, whereby Dr.Eliseev became the Chief Business
Officer of the Company. Further, in connection with the Stock
Purchase Agreement, Dr.Eliseev and Dr.Wolfson each executed and
delivered non-compete agreements with the Company.
The issuances of Common Stock and Series C Preferred Stock in
connection with the Stock Purchase Agreement were not registered
under the Securities Act of 1933, as amended (the Securities
Act), in reliance upon the exemption from registration
provided by Section4(a)(2) of the Securities Act, based upon the
following factors:, (i)the number of offerees and purchasers,
(ii)the absence of general solicitation, (iii)investment
representations obtained from the Sellers, (iv)the provision of
appropriate disclosure, and (v)the placement of restrictive
legends on the certificates or book-entry notations reflecting
the securities. These securities may not be offered or sold
absent registration or an applicable exemption from the
registration requirement. At any time after 180 days following
the closing of the Stock Purchase Agreement, the Company has
agreed to file a registration statement to cover the resale of
the securities issued under the Stock Purchase Agreement if
requested to do so by Sellers holding at least 50% of the Common
Stock issued under the Stock Purchase Agreement.
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Prior to its acquisition by the Company, MirImmune was a
privately held biopharmaceutical company engaged in the
development of cancer immunotherapies. The Company previously
entered into an exclusive option agreement, dated October7, 2016,
to acquire all outstanding capital stock of MirImmune. Further,
the Company previously granted an exclusive license to MirImmune
to utilize the Companys novel and proprietary sd-rxRNA technology
for use in developing ex vivo cell-based cancer immunotherapies.
This foregoing description of the Stock Purchase Agreement does
not purport to be complete and is qualified in its entirety by
reference to the complete text of the Stock Purchase Agreement,
which is attached hereto and incorporated herein. The Stock
Purchase Agreement is being filed herewith to provide investors
and security holders with information regarding their terms. It
is not intended to provide any other factual information about
the Company or MirImmune or their respective subsidiaries and
affiliates. The Share Purchase Agreement contains representations
and warranties by MirImmune and the Sellers, on the one hand, and
by the Company, on the other hand, made solely for the benefit of
the other. The assertions embodied in those representations and
warranties are qualified by information in confidential
disclosure schedules delivered by each party in connection with
the signing of the Stock Purchase Agreement, certain
representations and warranties in the Stock Purchase Agreement
were made as of a specified date, may be subject to a contractual
standard of materiality different from what might be viewed as
material to investors, or may have been used for the purpose of
allocating risk among the parties. Accordingly, the
representations and warranties in the Stock Purchase Agreement
should not be relied on by any persons as characterizations of
the actual state of facts about the Company or MirImmune at the
time they were made or otherwise.
Item2.01 Completion or Acquisition or Disposition of
Assets
The information set forth under Item1.01 is incorporated by
reference herein.
Item3.01 Unregistered Sales of Equity Securities
The information set forth under Item1.01 and Item5.03 is
incorporated by reference herein.
Item5.02 Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers
On January6, 2017, Alexey Eliseev was appointed as the Chief
Business Officer of the Company.
Dr.Alexey Eliseev, 51, was previously the Founder and Chief
Executive Officer of MirImmune. Dr.Eliseevs career includes over
twenty years of experience in academia, biotechnology industry
and venture capital. He received his Ph.D. in Bioorganic
Chemistry from Moscow State University and MBA from the MIT Sloan
School of Management. Alexey has been working in the U.S. and
Europe since 1992. Following three years of postdoctoral research
in Germany and in the U.S., he joined the faculty at SUNY Buffalo
in 1995 where he was awarded tenure in 2000. In 1999 he
co-founded the company Therascope, later Alantos Pharmaceuticals,
with a number of prominent founders including French Nobel
Laureate Jean-Marie Lehn. He then became CTO of Alantos and
President of Alantoss U.S. division. Alantos was acquired by
Amgen in 2007. Dr.Eliseev was also among the founders of AC
Immune (Switzerland) and Boston BioCom LLC. Over the recent years
he has worked with Maxwell Biotech Venture Fund as its Managing
Director and ran the investment activity of the fund in the
United States. Dr.Eliseev is a member of the board of directors
of BioNevia Pharmaceuticals.
On January6, 2017, Dr.Eliseev entered into an employment
agreement with the Company, whereby Dr.Eliseev became the Chief
Business Officer of the Company. Under the employment agreement,
the Company will pay Dr.Eliseev an annual base salary of $300,000
and a target bonus equal to 35% of the annual base salary, along
with other perquisites and benefits customary for a Chief
Business Officer. Further, on January6, 2017, Dr.Eliseev was
granted an option to purchase 174,384 shares of Common Stock,
with an exercise price equal to the fair market value of the
Common Stock on January6, 2017. The shares that are subject to
the option shall vest and become exercisable in monthly
installments over four years, beginning on February1, 2017,
provided that Dr.Eliseev remains employed by the Company through
each such monthly vesting date. The option shall have a term of
ten years and be subject to the terms and conditions of the RXi
Pharmaceuticals Corporation 2012 Long Term Incentive Plan and the
standard form of stock option award agreement used by the Company
thereunder.
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If Dr.Eliseevs employment is terminated without cause, or if
Dr.Eliseev terminates his employment agreement for good reason
(as defined in the employment agreement), then the Company will
continue for six months to pay Dr.Eliseevs salary and to provide
his Company-provided health benefits. If Dr.Eliseevs employment
is terminated without cause within twelve months following a
change of control, then the Company will continue for twelve
months to pay Dr.Eliseevs salary and to provide his
Company-provided health benefits, and the vesting portion of
Dr.Eliseevs outstanding equity awards granted by the Company that
would have vested over the 24 months following his termination
(or, if greater, 50% of the unvested portion of such awards) will
accelerate, subject to the terms of his employment agreement.
Upon termination of Dr.Eliseevs employment agreement, whether
upon a change of control or for any other reason, Dr.Eliseev will
be prohibited from disclosing or using the Companys proprietary
information and trade secrets and be subject to non-compete and
non-solicitation obligations.
Prior to the closing of the Stock Purchase Agreement, Dr.Eliseev
held 29.7% of the outstanding shares of capital stock of
MirImmune on a fully-diluted basis. As such, Dr.Eliseev was party
to the Stock Purchase Agreement as a Seller, and transferred such
capital stock to the Company in return for 817,813 shares of
Common Stock and 331,713 shares of Series C Preferred Stock,
subject to a holdback of 3% of such consideration for any
purchase price adjustment. If certain milestones are achieved,
Dr.Eliseev will be entitled to receive 29.7% of the Milestone
Shares (or any cash payment made in lieu of such Milestone
Shares), as set forth in the Stock Purchase Agreement. In
connection with the Stock Purchase Agreement, Dr.Eliseev also
entered into a three-year non-compete agreement with the Company.
The information set forth under Item1.01 is incorporated by
reference herein.
Item5.03. Amendments to Articles of Incorporation; Change
in Fiscal Year
In connection with the Stock Purchase Agreement, on January5,
2017, the Company filed a Certificate of Designation of
Preferences, Rights and Limitations of Series C Convertible
Preferred Stock (the Series C Convertible Preferred Stock
Certificate of Designation) with the Secretary of State of
the State of Delaware. The Series C Convertible Preferred Stock
Certificate of Designation provides for the issuance of up to
1,800,000 shares of Series C Convertible Preferred Stock (the
Series C Convertible Preferred Shares).
The Series C Convertible Preferred Stock Certificate of
Designation provides, among other things, that holders of SeriesC
Convertible Preferred Stock shall receive dividends on an
as-converted basis at the same time and in the same form as any
dividends paid out on shares of our Common Stock. Other than as
set forth in the previous sentence, the Series C Convertible
Preferred Stock Certificate of Designation provides that no other
dividends shall be paid on Series C Convertible Preferred Stock.
The SeriesC Convertible Preferred Stock Certificate of
Designation does not provide for any restriction on the
repurchase of SeriesC Convertible Preferred Stock by the Company
while there is any arrearage in the payment of dividends on the
SeriesC Convertible Preferred Stock. There are no sinking fund
provisions applicable to the Series C Convertible Preferred
Stock.
With certain exceptions, as described in the Series C Convertible
Preferred Stock Certificate of Designation, the SeriesC
Convertible Preferred Stock have no voting rights. However, as
long as any shares of SeriesC Convertible Preferred Stock remain
outstanding, the Series C Convertible Preferred Stock Certificate
of Designation provides that the Company shall not, without the
affirmative vote of holders of a majority of the then-outstanding
Series C Convertible Preferred Stock, (a)alter or change
adversely the powers, preferences or rights given to the Series C
Convertible Preferred Stock or alter or amend the Series C
Convertible Preferred Stock Certificate of Designation, (b)enter
into any agreement with respect to the foregoing or (c)effect a
stock split or reverse stock split of the Series C Convertible
Preferred Stock or any like event.
Upon approval by the Companys stockholders in accordance with the
stockholder approval requirements of Nasdaq Marketplace Rule
5635, each Series C Convertible Preferred Share shall be
automatically
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converted into one share of Common Stock, subject to adjustment
for stock splits, stock dividends, distributions, subdivisions
and combinations. The Company shall not convert any of the Series
C Convertible Preferred Shares into Common Stock to the extent
that such conversion has not been approved by the Companys
stockholders in accordance with the above.
This foregoing description of the Series C Convertible Preferred
Stock Certificate of Designation does not purport to be complete
and is qualified in its entirety by reference to the complete
text of such certificate, which is attached hereto as Exhibit 3.1
and incorporated herein.
Item9.01. Financial Statements and Exhibits.
(d) |
Exhibits. |
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| 2.1 |
Stock Purchase Agreement, dated as of January 6, 2017 by and among RXi Pharmaceuticals Corporation, RXi Merger Sub, LLC, MirImmune Inc., certain stockholders named therein and Alexey Wolfson, Ph.D., in his capacity as Sellers Representative.* |
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| 3.1 |
Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock, filed with the Delaware Secretary of State on January 5, 2017. |
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The registrant has omitted certain immaterial schedules and exhibits to this exhibit to the provisions of Regulation S-K, Item601(b)(2). The registrant will furnish a copy of any of the omitted schedules and exhibits to the Securities and Exchange Commission upon request. |
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