KemPharm, Inc. (NASDAQ:KMPH) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01 Entry into a Material Definitive Agreement.
December 2019 Exchange Agreement and Amendment to Facility Agreement, Senior Secured Convertible Notes and Warrants
On December 17, 2019, KemPharm, Inc., a Delaware corporation (the Company), entered into a December 2019 Exchange Agreement and Amendment to Facility Agreement, Senior Secured Convertible Notes and Warrants (the December 2019 Exchange Agreement) with Deerfield Private Design Fund III, L.P., Deerfield Special Situations Fund, L.P. (together with Deerfield Private Design Fund III, L.P., the Deerfield Lenders) and Delaware Street Capital Master Fund, L.P. (DSC and, collectively with the Deerfield Lenders, the Holders). Under the Exchange Agreement, the Company is issuing senior secured convertible notes in the aggregate principal amount of $71,418,011.21 (the December 2019 Notes), in exchange for the cancellation of an aggregate of $71,418,011.21 principal amount and accrued interest of the Companys 5.50% Senior Convertible Notes due 2021 (the Indenture Notes). Upon entering into the December 2019 Exchange Agreement, the Company agreed to pay the Holders, in the aggregate, an interest payment of $745,011.21, which represents 50% of the accrued interest, as of December 18, 2019, on the Indenture Notes owned by the Holders. The remainder of such interest will be included in the principal amount of the December 2019 Notes.
The December 2019 Notes bear interest at 6.75% per annum. The December 2019 Notes are convertible into shares of the Companys common stock at an initial conversion price of $17.11 per share (which represents the conversion price of the Indenture Notes), subject to adjustment in accordance with the terms of the December 2019 Notes. As of the date of issuance, the December 2019 Notes are convertible, by their terms, into an aggregate of 4,174,051 shares of the Companys common stock. The conversion price of the December 2019 Notes will be adjusted downward if the Company issues or sells any shares of common stock, convertible securities, warrants or options at a sale or exercise price per share less than the greater of the December 2019 Notes conversion price or the closing sale price of the Companys common stock as reported on the Nasdaq Global Market on the last trading date immediately prior to such issuance, or, in the case of a firm commitment underwritten offering, on the date of execution of the underwriting agreement between the Company and the underwriters for such offering. However, if the Company effects an at the market offering as defined in Rule 415 of the Securities Act or 1933, as amended (the Securities Act), of its common stock, the conversion price of the December 2019 Notes will be adjusted downward to this anti-dilution adjustment only if such sales are made at a price less than $17.11 per share, provided that this anti-dilution adjustment will not apply to any sales made under (x) that certain Purchase Agreement, dated February 28, 2019, by and between the Company and Lincoln Park Capital Fund, LLC, (y) that certain Common Stock Sales Agreement, dated as of September 4, 2018, by and between the Company and RBC Capital Markets, LLC, or (z) that certain September 2019 Exchange Agreement and Amendment to Facility Agreement, dated as of September 3, 2019, by and among the Company, Deerfield Private Design Fund III, L.P. and Deerfield Special Situations Fund, L.P. (as amended). Notwithstanding anything in the contrary in the December 2019 Notes, the anti-dilution adjustment of such notes shall not result in the conversion price of the December 2019 Notes being less than $0.38 per share, representing the closing price of the Companys common stock on the Nasdaq Global Market (as reflected on Nasdaq.com) on December 17, 2019. The December 2019 Notes are convertible at any time at the option of the holders thereof, provided that a holder of a December 2019 Note is prohibited from converting such note into shares of the Companys common stock if, as a result of such conversion, such holder (together with certain affiliates and group members) would beneficially own more than 4.985% of the total number of shares of common stock then issued and outstanding. However, the December 2019 Note issued to DSC, due to the fact DSC was a beneficial owner of more than 4.985% of the total number of shares of the Companys common stock then issued and outstanding, has a beneficial ownership cap equal to 19.985% of the total number of shares of the Companys common stock then issued and outstanding. to the December 2019 Notes, the Holders have the option to demand repayment of all outstanding principal, and any unpaid interest accrued thereon, in connection with a Major Transaction (as defined in the December 2019 Notes), which shall include, among others, any acquisition or other change of control of the Company; a liquidation, bankruptcy or other dissolution of the Company; or if at any time after March 31, 2021, shares of the Companys common stock are not listed on an Eligible Market (as defined in the December 2019 Notes). The December 2019 Notes are subject to specified events of default, the occurrence of which would entitle the Holders to immediately demand repayment of all outstanding principal and accrued interest on the December 2019 Notes. Such events of default include, among others, failure to make any payment under the December 2019 Notes when due, failure to observe or perform any covenant under the Facility Agreement (as defined below) or the other transaction documents related thereto (subject to a standard cure period), the failure of the Company to be able to pay debts as they come due, the commencement of bankruptcy or insolvency proceedings against the Company, a material judgement levied against the Company and a material default by the Company under the Warrant, the December 2019 Notes or the Restated Note.
The December 2019 Exchange Agreement amends that certain Facility Agreement dated as of June 2, 2014, as amended (the Facility Agreement), by and between the Company and Deerfield Private Design Fund III, L.P, in order to, among other things, (i) provide for the Facility Agreement to govern the December 2019 Notes received by the Holders to the December 2019 Exchange Agreement, (ii) extend the maturity of the Senior Secured Convertible Notes (as defined in the Facility Agreement) from February 14, 2020 and June 1, 2020, as applicable, to March 31, 2021, (iii) defer interest payments on the Senior Secured Convertible Notes (as defined in the Facility Agreement) until March 31, 2021 (which such interest shall accrue as payment-in-kind interest), (iv) designate DSC as a Lender under (and as defined in the Facility Agreement), (v) name Deerfield Private Design Fund III, L.P. as the Collateral Agent for all Lenders and (vi) modify the terms and conditions under which the Company may issue additional pari passu and subordinated indebtedness under the Facility Agreement (subject to certain conditions specified in the Facility Agreement).
As a result of the transactions contemplated under the December 2019 Exchange Agreement, the Holders have agreed to defer any payments due (including all future accrued interest) under the Indenture Notes until March 31, 2021 and waived any put right under the Indenture Notes with regard to any delisting of the Companys common stock until March 31, 2021.
The December 2019 Exchange Agreement also amends and restates that certain 6.75% senior secured note due 2020 that the Company previously issued to Deerfield Private Design Fund III, L.P. under the Facility Agreement (the Restated Deerfield Note) to conform the definitions of Eligible Market and Major Transactions to the definition in the December 2019 Notes, to remove provisions that were only applicable prior to the Companys initial public offering and to make certain other changes to conform to the December 2019 Notes. The conversion price for the Restated Deerfield Note remains $5.85 per share, subject to adjustment on the same basis as the existing senior secured convertible notes, but subject to a floor price of $0.38.