Item 1.01 Entry Into a Material Definitive Agreement.
Effective as of
Advances under the Term Loan Facility will bear interest at a rate equal to the
greater of either (i) the Prime Rate (as reported in The Wall Street Journal)
plus 6.10%, and (ii) 9.35%. The Company will make interest only payments through
The Company paid Hercules a commitment fee of
The Company may prepay advances under the Loan Agreement, in whole or in part, at any time subject to a prepayment charge (the "Prepayment Premium") equal to 1.50% of amounts so prepaid, if such prepayment occurs during the first three years following the Closing Date.
Upon prepayment or repayment of all or any of the term loans under the Term Loan Facility, the Company will pay (in addition to any Prepayment Premium) an end of term charge of 6.25% of the aggregate amount of the term loans being prepaid or repaid.
The Term Loan Facility is secured by substantially all of the Company's assets, other than the Company's intellectual property. The Company has agreed to not pledge or secure its intellectual property to others.
The Term Loan Facility includes affirmative and negative covenants applicable to
the Company. The affirmative covenants include, among others, covenants
requiring the Company to maintain its legal existence and governmental
approvals, deliver certain financial reports and maintain insurance coverage.
The negative covenants include, among others, restrictions on the Company's
transferring collateral, making changes to the nature of the business of the
Company, incurring additional indebtedness, engaging in mergers, acquisitions
and in-bound licensing, paying dividends or making other distributions, making
investments, engaging in transactions with affiliates, creating liens and
selling assets, in each case subject to certain exceptions, including, among
others, the ability for the Company to issue up to
The Term Loan Facility also includes events of default, the occurrence and continuance of which provide Hercules with the right to demand immediate repayment of all principal and unpaid interest under the Term Loan Facility, and to exercise remedies against the Company and the collateral securing the Term Loan Facility. These events of default include, among other things and subject to customary exceptions: (i) insolvency, liquidation, bankruptcy or similar events; (ii) failure to pay any debts due under the Loan Agreement or other loan documents on a timely basis; (iii) failure to observe certain covenants under the Loan Agreement; (v) occurrence of a material adverse effect; (vi) material misrepresentation by the Company; (vii) occurrence of any default under any other agreement involving material indebtedness; and (viii) certain material money judgments.
The foregoing description of the Loan Agreement does not purport to be complete and is qualified in its entirety by reference to the Loan Agreement filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
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Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report on Form 8-K relating to the Loan Agreement is incorporated by reference into this Item 2.03.
Item 7.01 Regulation FD Disclosure.
On
The information in this Item 7.01 of this Current Report on Form 8-K, including the attached Exhibit 99.1, is being furnished and shall not be deemed to be "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing made by the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
Item 9.01 Exhibits.
Reference is made to the Exhibit Index attached hereto.
Forward-Looking Statements
Any statements contained in this Form 8-K regarding matters that are not
historical facts are "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Because such statements are
subject to risks and uncertainties, actual results may differ materially from
those expressed or implied by such forward-looking statements. Such statements
include, but are not limited to, statements regarding: the Company's
expectations regarding the timing and availability of the full amount of
proceeds under the loan agreement; and the Company's expectations regarding the
sufficiency of its cash resources. Risks and uncertainties that contribute to
the uncertain nature of the forward-looking statements include: the satisfaction
of closing conditions for each subsequent tranche of the loan agreement; the
expectation that the Company will need additional funds to finance its
operations; the unpredictability of the regulatory process; the Company's
reliance on third parties for the manufacture of its product candidates;
possible regulatory developments in
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