a6130392.htm
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event reported): December 30,
2009
Anika
Therapeutics, Inc.
(Exact
name of registrant as specified in its charter)
____________________
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Massachusetts
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000-21326
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04-3145961
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(State
or other jurisdiction of
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Commission
file number
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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32
Wiggins Avenue, Bedford, MA 01730
(Address
of principal executive offices) (Zip code)
Registrant’s telephone number,
including area code: 781-457-9000
(Former
name or former address, if changed since last report)
____________________
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Section
1—Registrant’s Business and Operations
Item
1.01 Entry into a Material Definitive Agreement
Purchase
Agreement
On
December 30, 2009, Anika Therapeutics, Inc. (the “Company”) entered into a Sale
and Purchase Agreement (the “Purchase Agreement”) with Fidia Farmaceutici
S.p.A., a privately held Italian corporation (the “Seller”) pursuant to which
the Company acquired 100% of the issued and outstanding stock of Fidia Advanced
Biopolymers S.r.l., a privately held Italian corporation (“FAB”) for a purchase
price consisting of $17.1 million in cash and 1,981,192 shares of the
Company’s common stock (the “Acquisition”), and is subject to potential
post-closing adjustments. The completion of the Acquisition occurred
simultaneously with the signing of the Purchase Agreement. In
connection with the Acquisition, the parties also entered into certain other
on-going ancillary agreements, some of which are described below.
The
Purchase Agreement contains customary representations, warranties and
indemnification provisions. A portion of the shares issued as part of
the purchase price have been placed in escrow for a period of up to 18 months in
order to secure the indemnification obligations of the Seller. The Purchase
Agreement also contains non-competition and non-solicitation provisions pursuant
to which the Seller agrees not to engage in certain competitive activities for a
period of five years following the closing, including customary restrictions
relating to employees. In addition, the Purchase Agreement provides
that the Seller may request that the Company appoint an unaffiliated independent
board designee to the Company’s Board of Directors, which right shall terminate
automatically at such time as the Seller ceases to hold, directly or indirectly,
at least 1,400,000 shares of the Company’s common stock (as adjusted for stock
splits, stock dividends, recapitalizations or the like).
The above
description of the Purchase Agreement does not purport to be complete and is
qualified in its entirety by reference to the full text of the Purchase
Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and
incorporated herein by reference.
On
December 31, 2009, the Company issued a press release that announced the closing
of the Acquisition. Such press release is attached hereto as Exhibit
99.1.
Registration
Rights Agreement
On
December 30, 2009, in connection with the Acquisition, the Company entered into
a registration rights agreement (the “Registration Rights Agreement”) with the
Seller. The Registration Rights Agreement provides for certain
so-called “piggyback” registration rights and that the Company will file a
“resale” registration statement covering all of the shares issued in connection
with the Acquisition upon request from the Seller no earlier than 12 months from
the completion of the Acquisition. The Registration Rights Agreement
terminates at such time as the Seller may sell its shares of Company common
stock without restriction under Rule 144 promulgated under the Securities
Act of 1933, as amended.
The above
description of the Registration Rights Agreement does not purport to be complete
and is qualified in its entirety by reference to the full text of the
Registration Rights Agreement, which is filed as Exhibit 10.1 to this Current
Report on Form 8-K and incorporated herein by reference.
Lease
Agreement
In
connection with the Acquisition, FAB entered into a Lease Agreement with the
Seller, dated as of December 30, 2009 (the “Lease Agreement”), whereby FAB will
lease approximately 26,000 square feet of office, manufacturing, research and
warehouse space from the Seller for a monthly rent of Euro 34,026, for an
initial term of six years, with early termination rights, and the option to
renew for another six-year term, upon six months prior notice.
The above
description of the Lease Agreement does not purport to be complete and is
qualified in its entirety by reference to the full text of the Lease Agreement,
which is filed as Exhibit 10.2 to this Current Report on Form 8-K and
incorporated herein by reference.
Tolling
Agreement
In
connection with the Acquisition, FAB entered into a Tolling Agreement with the
Seller, dated as of December 30, 2009 (the “Tolling Agreement”), whereby the
Seller will manufacture certain product intermediates and finished products for
FAB. The initial term of the Tolling Agreement is for five years,
with the initial term expiring on December 31, 2014. FAB has the
option to renew the Tolling Agreement for subsequent two year renewal terms by
providing six-months notice to Seller prior to the end of the then-current term,
unless the Tolling Agreement has been terminated earlier pursuant to the terms
of the agreement. The Tolling Agreement provides that FAB will make
annual forecasts to the Seller of its estimated requirements of products set
forth in each such forecast, and a certain percentage of the aggregate volume
forecasted in each such forecast shall be binding upon FAB.
The above
description of the Tolling Agreement does not purport to be complete and is
qualified in its entirety by reference to the full text of the Tolling
Agreement, which is filed as Exhibit 10.3 to this Current Report on Form 8-K and
incorporated herein by reference.
Amendment to Credit
Agreement
On
December 30, 2009, the Company entered into a Consent and First Amendment (the
“Consent Agreement”) to the Credit Agreement, dated as of January 31, 2008,
among the Company, Anika Securities, Inc., and the lenders from time to time
party thereto and Bank of America, N.A., as administrative agent (the “Credit
Agreement”), pursuant to which the lenders consented to the Acquisition on the
terms and conditions set forth in the Purchase Agreement and amended certain
provisions under the Credit Agreement.
The
Consent Agreement contains customary representations and warranties of the
Company, affirmative and negative covenants regarding the Company’s operations
and financial covenants and a condition subsequent that by February 26, 2010,
the Company enter into a pledge and security agreement among the Company, FAB
and the Administrative Agent, in form and substance reasonably satisfactory to
the Administrative Agent, providing for a pledge by the Company of 65% of the
equity of FAB in favor of the Administrative Agent. In connection
with the closing of the Consent Agreement, the applicable interest rate
associated with Eurodollar rate loans was increased from 0.75% to 1.25%, the
Company paid an a non-refundable amendment fee to Bank of America of $74,000 and
agreed to pay Bank of American’s invoiced costs and expenses (including
reasonable attorneys’ fees) incurred on behalf of the Administrative Agent in
connection with the Consent Agreement.
The above
description of the Consent Agreement does not purport to be complete and is
qualified in its entirety by reference to the full text of the Consent
Agreement, which is filed as Exhibit 10.4 to this Current Report on Form 8-K and
incorporated herein by reference.
Section
2--Financial Information
Item
2.01 Completion of Acquisition or Disposition of Assets.
Please
see the disclosure set forth above under Item 1.01 relating to the Purchase
Agreement, which is hereby incorporated by reference into this Item 2.01
and its qualified in its entirety by reference to the full text of the Purchase
Agreement, a copy of which is attached hereto as Exhibit 2.01 and incorporate
herein by reference.
Section
3—Securities and Trading Markets
Item
3.02 Unregistered Sales of Equity Securities.
The
information set forth in Item 1.01 of this Current Report on Form 8-K
with respect to the Purchase Agreement is incorporated herein
by reference into this Item 3.02. The shares issued in
connection with the Acquisition were issued in reliance upon the exemptions from
the registration provisions of Section 4(2) of the Securities Act of 1933, as
amended (and the regulations promulgated thereunder) relating to sales by an
issuer not involving a public offering.The Seller has represented to the Company
in the Purchase Agreement that it is acquiring the shares for investment and not
for distribution, that it can bear the risks of the investment and that it has
had an opportunity to ask questions of, and receive answers from, the Company
regarding the terms and conditions of the issuance of the shares pursuant to the
Purchase Agreement.
Section
9--Financial Statements and Exhibits
Item
9.01. Financial Statements and Exhibits.
(a) Financial
statements of businesses acquired.
The
financial statements required by Item 9.01(a) of Form 8-K will be
filed no later than 75 days from the date of the Acquisition.
(b) Pro
forma financial information.
The
pro forma financial statements required by Item 9.01(b) of Form 8-K
will be filed no later than 75 days from the date of the
Acquisition.
(d) Exhibits
Exhibit
Number Description
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2.1*
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Sales
and Purchase Agreement, dated December 30, 2009, between Anika
Therapeutics, Inc. and Fidia Farmaceutici
S.p.A.
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10.1
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Registration
Rights Agreement, dated December 30, 2009, between Anika Therapeutics,
Inc. and Fidia Farmaceutici S.p.A .
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10.2
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Lease
Agreement, dated as of December 30, 2009, between Fidia Farmaceutici
S.p.A. and Fidia Advanced Biopolymers
S.r.l.
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10.3
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Tolling
Agreement, dated as of December 30, 2009, between Fidia Farmaceutici
S.p.A. and Fidia Advanced Biopolymers
S.r.l.
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10.4
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Consent
and First Amendment, dated as of December 30, 2009, to the Credit
Agreement, dated as of January 31, 2008, among Anika Therapeutics, Inc.,
Anika Securities, Inc., and the lenders from time to time party thereto
and Bank of America, N.A., as administrative
agent.
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99.1
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Press
Release of Anika Therapeutics, Inc., dated December 31,
2009.
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* The
Company has omitted certain schedules and exhibits pursuant to Item 601 (b)(2)
of Regulation S-K and shall furnish supplementally to the Commission copies of
any of the schedules or exhibits upon request.
[Remainder
of page left blank intentionally]
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be filed on its behalf by the undersigned hereunto
duly authorized.
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Anika
Therapeutics, Inc. |
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Dated: January
6, 2010
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By:
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/s/ Kevin
W. Quinlan |
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Kevin
W. Quinlan |
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Chief
Financial Officer |
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Exhibit
Index
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2.1*
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Sales
and Purchase Agreement, dated December 30, 2009, between Anika
Therapeutics, Inc. and Fidia Farmaceutici S.P.A
.
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10.1
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Registration
Rights Agreement, dated December 30, 2009, between Anika Therapeutics,
Inc. and Fidia Farmaceutici S.P.A.
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10.2
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Lease
Agreement, dated as of December 30, 2009, between Fidia Farmaceutici
S.p.A. and Fidia Advanced Biopolymers
S.r.l.
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10.3
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Tolling
Agreement, dated as of December 30, 2009, between Fidia Farmaceutici
S.p.A. and Fidia Advanced Biopolymers
S.r.l.
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10.4
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Consent
and First Amendment, dated as of December 30, 2009, to the Credit
Agreement, dated as of January 31, 2008, among Anika Therapeutics, Inc.,
Anika Securities, Inc., and the lenders from time to time party thereto
and Bank of America, N.A., as administrative
agent.
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99.1
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Press
Release of Anika Therapeutics, Inc., dated December 31,
2009.
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* The
Company has omitted certain schedules and exhibits pursuant to Item 601 (b)(2)
of Regulation S-K and shall furnish supplementally to the Commission copies of
any of the schedules or exhibits upon request.