IMMUNE PHARMACEUTICALS INC. (NASDAQ:IMNP) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01 Entry into a Material Definitive Agreement.
2016 Note Offering
On November 17, 2016 (the Closing Date), Immune Pharmaceuticals
Inc. (the Company) entered into a securities purchase agreement
(the Purchase Agreement) with HLHW IV, LLC an accredited investor
(the Investor or Buyer) to which the Investor purchased an
aggregate principal amount of $1,050,000 of Subordinated
Convertible Notes for an aggregate purchase price of $1,050,000
(the Notes).
The Notes bear interest at a rate of 7.0% per annum, payable in
arrears on the maturity date of November 17, 2017 (the Maturity
Date). The Notes are convertible into shares of the Companys
common stock at any time from the date of issuance of the Notes,
at a conversion price equal to eighty percent (80%) of the lowest
intraday bid price on the date of conversion (Conversion Date);
provided the lowest intraday bid price on such Conversion Date is
above the lowest Closing Bid Price on the Closing Date (the
Market Price). In the event on the Conversion Date, the lowest
intraday bid price is less than the Market Price, then in that
instance, the Conversion Price on that Conversion Date will be
equal to the lowest intraday bid price.
On the Maturity Date, the Company shall have the option to pay
the amount being redeemed, including accrued but unpaid interest,
in cash, shares or any combination of cash and shares of common
stock. In addition, if at any time the lowest intraday bid price
drops below $0.25 per share, the holder may elect to redeem up to
$350,000 of the outstanding principal, interest and any amounts
due under the Notes; provided, however, the Company may only use
the proceeds from the sale of common stock to the terms of the
Common Stock Purchase Agreement, dated November 17, 2016 (the CS
Purchase Agreement) entered into with Investor to redeem the
Notes. The Notes are subordinated to the Loan Agreement with
Hercules Capital.
In connection with the issuance of the Notes, we entered into a
registration rights agreement with the Investor (the Registration
Rights Agreement) to which the Company has agreed to file, on or
before November 29, 2016 (the Filing Date), the registration
statement to register the resale of the shares of our common
stock issuable upon conversion of the Notes, and to cause such
registration statement to become effective prior to the
15th day following the Filing Date.
The Notes contain certain customary negative covenants preventing
the Company from undertaking certain actions without the consent
of the Investor, including but not limited to, limitations on its
ability to incur additional indebtedness (subject to certain
exceptions) and issuance shares of unregistered securities as
well as certain events of default, including, but not limited to,
the Companys failure to pay principal and interest, material
defaults under the other transaction documents, material defaults
in other payment obligations, failure of the Company to comply
with its reporting requirements with the Securities and Exchange
Commission, the placing of a chill on the Companys common stock
by the Depositary Trust Company, failure of the Company to meet
the current public information requirements under Rule 144
promulgated under the Securities Act (as defined below), the
Companys failure to deliver certificates representing the shares
of Common Stock after a conversion date and a change of control
transaction (as defined in the Notes). The full principal amount
of the Notes is due upon a default under the terms of the Notes.
The Notes are unsecured and subordinated in right of payment to
our existing and future senior indebtedness. During the existence
and continuance of an event of default under the Notes as
defined, the outstanding principal amount of the Notes shall
incur interest at a rate of 18% per annum. At any time after the
Holder becoming aware of an Event of Default, the Investor may
require the Company to redeem all or any portion of the Notes.
As of the date hereof, the Company is obligated on $1,050,000
face amount of Notes issued to the Investor. The Notes are a debt
obligation arising other than in the ordinary course of business,
which constitute a direct financial obligation of the Company.
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The securities sold in the private placement were not registered
under the Securities Act of 1933, as amended (the Securities
Act), or the securities laws of any state, and were offered and
sold in reliance on the exemption from registration afforded by
Section 4(a)(2) under the Securities Act and Regulation D
promulgated thereunder and corresponding provisions of state
securities laws, which exempt transactions by an issuer not
involving any public offering. The Investor is an accredited
investor as such term is defined in Regulation D promulgated
under the Securities Act. This Current Report shall not
constitute an offer to sell or the solicitation of an offer to
buy, nor shall such securities be offered or sold in the United
States absent registration or an applicable exemption from the
registration requirements and certificates evidencing such shares
contain a legend stating the same.
The foregoing information is a summary of the agreements involved
in the transaction described above, is not complete, and is
qualified in its entirety by reference to the full text of such
agreements, copies of which are filed as Exhibits 10.1, 10.2 and
10.3 to this Current Report on Form 8-K. Readers should review
such agreements for a complete understanding of the terms and
conditions associated with this transaction.
Common Stock Purchase Agreement
On November 17, 2016, the Company entered into the CS Purchase
Agreement with Buyer, which provides that, upon the terms and
subject to the conditions and limitations set forth therein, the
Company has the right to sell to Buyer up to $10.0 million shares
of the Companys common stock.
Beginning on the day following November 17, 2016, the date that
certain closing conditions in the CS Purchase Agreement were
satisfied (the Commencement Date), the Company shall have the
right, but not the obligation, to direct Buyer via written notice
(a Purchase Notice) to purchase up to a specific number of shares
of the Companys common stock (the Purchase Shares). The per share
purchase price to such Purchase Notice (the Purchase Price) shall
be equal to: (i) from 9:30am to 4:00pm Eastern Time of the
regular session of any trading day, lowest intra-day bid price or
(ii) if after the close of the regular session on any trading
day, then such trading days closing bid price on NASDAQ. The
number of Purchase Shares that may be purchased under each
Purchase Notice is subject to a ceiling of up to 500,000 Purchase
Shares or an aggregate purchase amount of $250,000 in Purchase
Shares, unless Buyer and the Company mutually agree otherwise.
The Company and Buyer may mutually agree to increase the number
of Purchase Shares that may be sold to a Purchase Notice to as
much as an additional 2,000,000 Purchase Shares per business day.
The foregoing notwithstanding, the Company shall have the
obligation to sell and Buyer shall have the obligation to
purchase at the Purchase Price a number of Purchase Shares with
an aggregate value of $2,000,000 of Purchase Shares on or before
December 31, 2016.
The Company shall also have the right but not the obligation to
direct the Buyer to buy up to an additional 30% of the trading
volume of the common stock for the next business day at the
lowest intra-day bid price of the Companys common stock on such
date of purchase. The Company may deliver notice to the Buyer on
or before 9:00 a.m. Eastern time on a date on which (i) the
Company also submitted a Purchase Notice for a purchase of at
least 200,000 Purchase Shares to the Buyer and (ii) the closing
bid price of the Companys common stock is higher than $0.10.The
Company may deliver additional Purchase Notices to Buyer from
time to time so long as the most recent purchase has been
completed. The Purchase Price is additionally subject to a floor
price equal to $0.10 per share. The Purchase Shares and
Additional Purchase Shares are subject to volume limitations of
the Companys common stock as defined in the CS Purchase
Agreement.
The Company shall not issue, and the Buyer shall not purchase any
shares of common stock under the CS Purchase Agreement, if such
shares proposed to be issued and sold, when aggregated with all
other shares of common stock then owned beneficially (as
calculated to Section 13(d) of the 1934 Act and Rule 13d-3
promulgated thereunder) by the Buyer and its affiliates would
result in the beneficial ownership by the Buyer and its
affiliates of more than 4.99% of the then issued and outstanding
shares of common stock of the Company, unless waived in writing
by Buyer.
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As additional consideration for the CS Purchase Agreement, the
Company agreed to deliver to Buyer two days following the filing
date of the Prospectus Supplement (the Effective Date) $700,000
of cash and/or shares of Common Stock (the Commitment Shares), or
a combination thereof, at the election of Buyer. The Commitment
Shares will be issued based on a per share price equal to the
lowest intraday bid price on the Effective Date.
Shares of Common Stock will be issued to the Companys shelf
registration statement on Form S-3 (File No. 333-198647),
previously filed with the U.S. Securities and Exchange Committee
(SEC) on September 8, 2014, as amended on October3, 2014, and
that was declared effective by the SEC on October 28, 2014 (the
Registration Statement) or on a new registration statement to be
filed with the SEC after the date of this Current Report on Form
8-K. This Current Report on Form 8-K shall not constitute an
offer to sell or the solicitation of an offer to buy the shares
discussed herein, nor shall there be any offer, solicitation, or
sale of the shares in any state or country in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state or
country.
At any time after the Commencement Date, the CS Purchase
Agreement may be terminated by the mutual written consent of the
Company and Buyer and upon the meeting of certain conditions as
defined in the CS Purchase Agreement. In addition, at any time
after the Commencement Date, the Company shall have the option to
terminate the CS Purchase Agreement for any reason or for no
reason by delivering notice to Buyer electing to terminate the CS
Purchase Agreement without any liability whatsoever except that
the Company must transmit to Buyer a termination fee of $250,000
in cash or shares, at Buyers election with such shares to be
valued at the Purchase Price, within two (2) Business Days
following delivery of such notice of termination.
Net proceeds to the Company will depend on the Purchase Price and
the frequency of the Companys sales of Purchase Shares to Buyer.
The Companys delivery of Purchase Notices will be made subject to
market conditions, in light of the Companys capital needs from
time to time and under the limitations contained in the CS
Purchase Agreement. The Company will use the net proceeds from
the offering as described in the prospectus supplement filed in
connection with the transaction.
The foregoing information is a summary of the agreements involved
in the transaction described above, is not complete, and is
qualified in its entirety by reference to the full text of such
agreements, copies of which are filed as Exhibits 10.4 and 10.5
to this Current Report on Form 8-K. Readers should review such
agreements for a complete understanding of the terms and
conditions associated with this transaction.
A copy of the opinion of Sheppard, Mullin, Richter Hampton LLP
relating to the legality of the issuance and sale of the Purchase
Shares to the Common Stock Purchase Agreement is attached as
Exhibit 5.1 hereto.
Item 2.03 Creation of a Direct Financial Obligation or an
Obligation Under an Off-Balance Sheet Arrangement of a
Registrant
The information reported above under Item 1.01 of this Current
Report on Form8-K regarding the 2016 Note Offering is
incorporated herein by reference.
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Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits. |
| Exhibit No. | Description | |
| 5.1 | Opinion of Sheppard, Mullin, Richter Hampton LLP | |
| 10.1* |
Securities Purchase Agreement, dated as of November 17, 2016, by and between the Company and HLHW, IV LLC. |
|
| 10.2* | Form of Convertible Note, dated as of November 17, 2016. | |
| 10.3* |
Registration Rights Agreement, dated as of November 17, 2016, by and between the Company and HLHW, IV LLC. |
|
| 10.4* |
Common Stock Purchase Agreement, dated as of November 17, 2016, by and between the Company and HLHW IV, LLC. |
|
| 23.1 |
Consent of Sheppard, Mullin, Richter Hampton LLP (included in Exhibit 5.1 hereto). |
* The Securities Purchase Agreement and Common Stock Purchase
Agreement have been included to provide information regarding
their terms. They are not intended to provide any other factual
information about the Company. The representations, warranties
and covenants contained in the Securities Purchase Agreement and
Common Stock Purchase Agreement were made only for purposes of
such agreements 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 Securities
Purchase Agreement and Common Stock Purchase Agreement. The
representations and warranties 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.
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About IMMUNE PHARMACEUTICALS INC. (NASDAQ:IMNP)
Immune Pharmaceuticals Inc. is a clinical-stage biopharmaceutical company. The Company is engaged in the development and commercialization of targeted therapeutics in the fields of immuno-inflammation and immuno-oncology. The Company’s segment is acquiring, developing and commercializing prescription drug products. Its Immuno-inflammation product pipeline includes bertilimumab, a fully human antibody targeting eotaxin-1, a regulator of immuno-inflammation; a portfolio of immune oncology products, and NanoCyclo, a topical nanocapsule formulation of cyclosporine-A, for the treatment of atopic dermatitis and psoriasis. Its immuno-oncology pipeline includes Ceplene, a small molecule targeting the Histamine-2 Receptor to overcome immunosuppression in Acute Myeloid Leukemia and other malignancies. Azixa and crolibulin are vascular disrupting agents. NanomAbs is a technology platform that allows the targeted delivery of chemotherapeutics into cancer cells. IMMUNE PHARMACEUTICALS INC. (NASDAQ:IMNP) Recent Trading Information
IMMUNE PHARMACEUTICALS INC. (NASDAQ:IMNP) closed its last trading session down -0.015 at 0.175 with 3,009,852 shares trading hands.