ENTEROMEDICS INC. (NASDAQ:ETRM) Files An 8-K Entry into a Material Definitive Agreement

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ENTEROMEDICS INC. (NASDAQ:ETRM) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01 Entry Into a Material Definitive Agreement.

On August16, 2017, EnteroMedics Inc. (the “Company”) completed its previously announced firm commitment underwritten public offering (the “Offering”) of 20,000 units consisting of one share of SeriesB Convertible Preferred Stock, par value $0.01 per share (the “SeriesB Preferred Stock”), which is convertible into 435 shares of common stock, par value $0.01 share (the “Common Stock”), at a conversion price of $2.30 per share, and one seven-year warrant to purchase 435 shares of Common Stock at an exercise price of $2.30 per share (the “Warrants”), at a public offering price of $1,000 per unit. The Offering was completed to the terms of an underwriting agreement dated as of August11, 2017 (the “Underwriting Agreement”) between the Company and Ladenburg Thalmann& Co. Inc., as representative of the underwriters named therein (collectively, the “Underwriters”).

The net proceeds received by the Company from the sale of the units was approximately $18,140,000, after deducting underwriting discounts and estimated offering expenses. The Company currently intends to use the net proceeds from the Offering to continue its commercialization efforts, for clinical and product development activities and for other working capital and general corporate purposes.

The Offering was made to the Company’s effective shelf registration statement on FormS-3(FileNo.333-216600)and a related prospectus supplement filed with the Securities and Exchange Commission.

Prior to the closing of the Offering, certain purchasers of the units sold in the Offering notified the Company of their election to convert the shares of SeriesB Preferred Stock underlying such units into shares of Common Stock upon completion of the Offering. Following the completion of the Offering, as of August16, 2017, the Company had outstanding 10,181,136 shares of Common Stock and 15,664 shares of SeriesB Preferred Stock.

In connection with the closing of the Offering, the Company entered into a warrant agency agreement (the “Warrant Agency Agreement”) with Wells Fargo Bank, National Association (“Wells Fargo”) on August16, 2017, to which Wells Fargo will serve as the Company’s Warrant Agent for the Offering.

On August16, 2017, the Company also issued warrants to purchase an aggregate of 2,575,000 shares of Common Stock to certain parties (each, a “Holder”) to the Securities Purchase Agreement (as amended, the “Purchase Agreement”), dated November4, 2015, between the Company and the other parties named therein, as consideration for the waiver by each of the Holders of their right to participate in future securities offerings by the Company, which rights were granted to the Purchase Agreement. These warrants are in substantially the same form, and on the same terms as, the Warrants issued to the Offering. The Company previously disclosed in a Form8-K filed on August11, 2017 that the total number of warrants to be issued to the holders was 2,581,750. However, based on the final aggregate amount invested by the Holders in the Offering, the total number of warrants issued to the Holders was reduced to 2,575,000.

The Underwriting Agreement contains customary representations, warranties and agreements, as well as indemnification obligations of the Company and the Underwriters, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. 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. The above description of the Underwriting Agreement, the Warrants and the Warrant Agency Agreement is qualified in its entirety by reference to the full text of the Underwriting Agreement, form of Warrant and Warrant Agency Agreement, copies of which are filed as Exhibit1.1, Exhibit10.1 and Exhibit10.2 hereto, respectively, and are incorporated herein by reference.

A copy of the opinion of Fox Rothschild LLP relating to the validity of the securities offered by the Company is attached as Exhibit5.1 hereto.

Item 3.03 Material Modification to Rights of Security Holders.

The information disclosed in Item 1.01 and Item 5.03 of this Current Report on Form8-K is incorporated by reference into this Item 3.03.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On August14, 2017, the Company filed with the Delaware Secretary of State a Certificate of Designation of Preferences, Rights and Limitations of SeriesB Convertible Preferred Stock (the “Certificate of Designation”), that created its new SeriesB Preferred Stock, authorized 20,000 shares of SeriesB Preferred Stock and designated the preferences, rights and limitations of the SeriesB Preferred Stock. The terms of the SeriesB Preferred Stock are set forth in the Certificate of Designation which is filed as Exhibit3.1 hereto and incorporated by reference herein.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

ExhibitNo.

Description

1.1

Underwriting Agreement, dated August11, 2017, among EnteroMedics Inc. and Ladenburg Thalmann& Co. Inc., as representative of the underwriters named therein (filed herewith)

3.1

Certificate of Designation for SeriesB Preferred Stock (filed herewith)

5.1

Opinion of Fox Rothschild LLP (filed herewith)

10.1

Formof Warrant (filed herewith)

10.2

Warrant Agency Agreement, by and between EnteroMedics Inc. and Wells Fargo Bank, National Association, dated August16, 2017 (filed herewith)

23.1

Consent of Fox Rothschild LLP (included in Exhibit5.1)


EnteroMedics Inc Exhibit
EX-1.1 2 a17-18695_3ex1d1.htm EX-1.1 Exhibit 1.1   20,…
To view the full exhibit click here

About ENTEROMEDICS INC. (NASDAQ:ETRM)

EnteroMedics Inc. (EnteroMedics) is a medical device company. The Company is focused on the design and development of devices that use neuroblocking technology to treat obesity, metabolic diseases and other gastrointestinal disorders. The Company’s neuroblocking technology, which is referred to as VBLOC therapy, is designed to intermittently block the vagus nerve. The Company’s initial product is the Maestro Rechargeable System, which uses VBLOC therapy to limit the expansion of the stomach, help control hunger sensations between meals, reduce the frequency and intensity of stomach contractions and produce a feeling of early and prolonged fullness. The Company’s VBLOC therapy is designed to block the gastrointestinal effects of the vagus nerve by replicating a vagotomy using high-frequency, low-energy electrical impulses to intermittently interrupt naturally occurring neural impulses on the vagus nerve between the brain and the digestive system.