XOMA CORPORATION (NASDAQ:XOMA) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01 Entry into a Material Definitive Agreement.
On February10, 2017, XOMA Corporation (XOMA or the Company)
entered into a Subscription Agreement with Biotechnology Value
Fund, L.P. (BVF), an existing stockholder of the Company, and
certain entities affiliated with BVF (the Subscription
Agreement). to the Subscription Agreement, the Company agreed to
issue directly to BVF in a registered direct offering (the
Offering) 1,200,000 shares of the Companys common stock, $0.0075
par value per share, and 5,003 shares of the Companys Series X
Preferred Stock, $0.05 par value per share.
The offering price of the shares of common stock is $4.03 per
share (the closing price of XOMA common stock on February10,
2017, as reported on the NASDAQ Global Market).
Each share of Series X Preferred Stock will have a stated value
of $4,030 per share and will be convertible into 1,000 shares of
registered common stock based on a conversion price of $4.03 per
share of common stock. The total number of shares of common stock
issued upon conversion of all issued Series X Preferred Stock
will be 5,003,000 shares. Each share will be convertible at the
option of the holder at any time, provided that the holder will
be prohibited from converting into common stock if, as a result
of such conversion, the holder, together with its affiliates,
would beneficially own a number of shares above a conversion
blocker, which is initially set at 19.99% of the total common
stock then issued and outstanding immediately following the
conversion of such shares. In the event of the Companys
liquidation, dissolution or winding up, holders of Series X
Preferred Stock will participatepari passuwith any distribution
of proceeds to holders of common stock. Holders of Series X
Preferred Stock are entitled to receive dividends on shares of
Series X Preferred Stock equal (on an as if converted to common
stock basis) to and in the same form as dividends actually paid
on the Companys common stock or other junior securities. Shares
of Series X Preferred Stock will generally have no voting rights,
except as required by law and except that the consent of the
holders of the outstanding Series X Preferred Stock will be
required to amend the terms of the Series X Preferred Stock and
to approve certain corporate actions.
The net proceeds from the Offering, after deducting estimated
offering expenses, are expected to be approximately $24.9million.
No underwriter or placement agent participated in the Offering.
The above description of the Subscription Agreement does not
purport to be complete and is qualified in its entirety by
reference to the Subscription Agreement filed as Exhibit 10.1 to
this Current Report on Form 8-K which is incorporated herein by
reference.
The Offering was made to the Companys shelf registration
statement previously filed with the Securities and Exchange
Commission (the SEC), which the SEC declared effective on
February13, 2015 (File No.333-201882), as
supplemented by the prospectus supplement filed with the SEC on
February13, 2017.
The Company closed
the Offering on February16, 2017. Immediately following the
closing of the Offering, the Company had a total of 7,520,822
shares of common stock issued and outstanding, excluding shares
of common stock underlying the Series X Preferred Stock.
The Company plans
to use the net proceeds from the Offering to prepay certain
outstanding indebtedness, fund the clinical development of XOMA
358, fund additional preclinical and regulatory activities for
other product candidates, and for other general corporate
purposes.
A copy of the
opinion of Cooley LLP relating to the legality of the issuance
and sale of the common stock and Series X Preferred Stock in the
Offering is filed herewith as Exhibit 5.1.
Item 3.03
Material Modification to Rights of Security
Holders.
On February14,
2017, the Company, in connection with the registered direct
offering of its Series X Preferred Stock described above,
designated 5,003 shares of its authorized and unissued preferred
stock as Series X Preferred Stock and filed a Certificate of
Designation of Preferences, Rights and Limitations of Series X
Convertible Preferred Stock (the Certificate of Designation) with
the Secretary of State of Delaware, which is attached hereto as
Exhibit 3.1. A summary of the rights, preferences and privileges
of the Series X Preferred Stock is included above under Item 1.01
Entry into a Material Definitive Agreement, which is incorporated
by reference herein.
The above
description of the Certificate of Designation does not purport to
be complete and is qualified in its entirety by reference to the
Certificate of Designation filed as Exhibit 3.1 to this Current
Report on Form 8-K which is incorporated herein by
reference.
Item 5.02
Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
Effective February
15, 2017, upon the recommendation of the Nominating and
Governance Committee of the Board of Directors of the Company
(the Board), the Board appointed Matthew Perry to the Companys
Board.
The appointment of
Mr. Perry was made by the Company in accordance with the
Subscription Agreement described in Item 1.01 above, to which BVF
has the right to nominate a single director for election to the
Board so long as BVF continues to beneficially own in excess of
19.9% of the Companys outstanding common stock (determined on an
as-converted basis and without regard to any conversion
blockers). Mr. Perry is President of BVF Partners L.P., an entity
affiliated with BVF. The description of the Subscription
Agreement is qualified in its entirety by reference to the
Subscription Agreement filed as Exhibit 10.1 to this Current
Report on Form 8-K which is incorporated herein by
reference.
Mr. Perry will be
compensated for his service on the Board in accordance with the
Companys Director Compensation Policy as described in the
Companys 2016 Proxy Statement filed with the SEC on April 8,
2016.
In connection with
his appointment, Mr. Perry will enter into an indemnification
agreement with the Company substantially in the form of the
Amended and Restated Indemnification Agreement for Non-employee
Directors previously approved by the Board, which is filed as
Exhibit 10.8 to the Companys Annual Report on Form 10-K for the
Fiscal Year Ended December 31, 2006 filed with the SEC on March
8, 2007, and is incorporated by reference herein.
Item5.03
Amendments to Articles of Incorporation or Bylaws; Changes in
Fiscal Year.
On February14,
2017, the Company filed the Certificate of Designation, a copy of
which is attached hereto as Exhibit 3.1. The Certificate of
Designation, establishes and designates the Series X Preferred
Stock and the rights, preferences and privileges thereof.
The description of
the Certificate of Designation contained in Item1.01 and Item
3.03 is incorporated herein by reference.
Item9.01
Financial Statements and Exhibits
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IncorporationbyReference |
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Number |
Exhibit Description |
Form |
SEC File No. |
Exhibit |
Filing Date |
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| 3.1 |
Certificate of Designation of Preferences, Rights and Limitations of Series X Convertible Preferred Stock |
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| 4.1 | Form of Series X Preferred Stock Certificate | |||||||||||||||||
| 5.1 | Opinion of Cooley LLP | |||||||||||||||||
| 10.1 | Subscription Agreement, dated February10, 2017 | 424(b)(5) | 333-201882 | AnnexA | February13,2017 | |||||||||||||
| 23.1 | Consent of Cooley LLP (included in Exhibit 5.1) |
| Filed Herewith |
XOMA CORPORATION (NASDAQ:XOMA) Recent Trading Information
XOMA CORPORATION (NASDAQ:XOMA) closed its last trading session down -0.41 at 5.15 with 212,279 shares trading hands.