0001564590-19-023664.txt : 20190627 0001564590-19-023664.hdr.sgml : 20190627 20190627080038 ACCESSION NUMBER: 0001564590-19-023664 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20190626 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Termination of a Material Definitive Agreement ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20190627 DATE AS OF CHANGE: 20190627 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANTARES PHARMA, INC. CENTRAL INDEX KEY: 0001016169 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 411350192 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32302 FILM NUMBER: 19922977 BUSINESS ADDRESS: STREET 1: 100 PRINCETON SOUTH STREET 2: SUITE 300 CITY: EWING STATE: NJ ZIP: 08628 BUSINESS PHONE: 609-359-3020 MAIL ADDRESS: STREET 1: 100 PRINCETON SOUTH STREET 2: SUITE 300 CITY: EWING STATE: NJ ZIP: 08628 FORMER COMPANY: FORMER CONFORMED NAME: ANTARES PHARMA INC DATE OF NAME CHANGE: 20060120 FORMER COMPANY: FORMER CONFORMED NAME: ANTARES PHARMA INC DATE OF NAME CHANGE: 20020520 FORMER COMPANY: FORMER CONFORMED NAME: ANTARES PHARMA INC /MN/ DATE OF NAME CHANGE: 20010604 8-K 1 atrs-8k_20190626.htm 8-K atrs-8k_20190626.htm

 

UNITED STATES

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): June 26, 2019

 

ANTARES PHARMA, INC.

(Exact name of registrant specified in its charter)

 

 

Delaware

 

1-32302

 

41-1350192

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

 

 

 

 

100 Princeton South, Suite 300, Ewing, NJ

 

08628

(Address of Principal Executive Offices)

 

(Zip Code)

(609) 359-3020

(Registrant’s Telephone Number, Including Area Code)

Not Applicable

(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 (see General Instruction A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange on which registered

Common Stock, par value $0.01 per share

 

ATRS

 

NASDAQ

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).  

Emerging growth company    

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.    

 

 

 


Item 1.01Entry into a Material Definitive Agreement.

On June 26, 2019, Antares Pharma, Inc. (the “Company”) entered into a First Amendment (the “Amendment”) to its Loan and Security Agreement, dated June 6, 2017, with Hercules Capital, Inc. (“Hercules”), as a lender and agent for the several banks and other financial institutions or entities from time to time party thereto (collectively, the “Lenders”) (the “Loan Agreement”). The Amendment increases the aggregate principal amount of the existing term loan provided for in the Loan Agreement (the “Term Loan”) from $35.0 million to $50.0 million.

The first tranche of $25.0 million was funded upon execution of the Loan Agreement in June 2017. A new $15.0 million tranche loan (the “Tranche II Loan”) was funded upon the signing of the Amendment. Under the terms of the Amendment, the Company may, but is not obligated to, request one or more additional advances of at least $5.0 million, not to exceed $10.0 million in the aggregate (the “Tranche III Loan”). The Company’s option to request additional advances will be available between January 1, 2020 and September 15, 2020. The Term Loan maturity date remains July 1, 2022 under the Amendment, but may be extended to July 1, 2024 contingent upon satisfaction of a certain loan extension milestone.

The Company must pay the Lenders an end of term fee equal to 3.95% of the Tranche II Loan and Tranche III Loan, payable upon the earlier of July 1, 2022 or repayment. The interest rate for all loans is equal to the lesser of (a) a calculated prime-based variable rate plus 4.50% and (b) 9.50%. The Amendment extends the interest-only payment period to August 1, 2021, but the interest-only period may be extended to August 1, 2022 if the Company achieves a certain loan extension milestone.

The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment, which is filed as Exhibit 10.1 to this Form 8-K and is incorporated herein by reference.  

 

Item 1.02 Termination of a Material Definitive Agreement.

 

On June 26, 2019, the Company delivered written notice to Cowen and Company, LLC that it was terminating its Sales Agreement, dated August 11, 2017, (the “Sales Agreement”), pursuant to Section 11(b) of the Sales Agreement, effective on July 6, 2019. Under this “at-the-market” equity offering facility (the “ATM Facility”) under the Sales Agreement, the Company sold 4,444,007 shares, representing gross proceeds of approximately $15.6 million to the Company. With the provision of such notice, the ATM Facility is no longer available for use.

 

A copy of the Sales Agreement was filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on August 11, 2017 (the “Prior Form 8-K”). The description of the Sales Agreement contained in this Current Report on Form 8-K does not purport to be complete and is qualified in its entirety by reference to the copy of the Sales Agreement filed as Exhibit 1.1 to the Prior Form 8-K.

 

 

Item 2.03Creation of a Direct Financial Obligation of a Registrant.

 

The information set forth in Item 1.01 of this Current Report on Form 8-K pertaining to the Loan Agreement and the Amendment is incorporated by reference into this Item 2.03.

 

 

Item 7.01 Regulation FD Disclosure.

 

A copy of the press release announcing the Amendment is attached hereto as Exhibit 99.1 and incorporated herein by reference.

 

Item 9.01

           Financial Statements and Exhibits.

 

(d)

Exhibits

 


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

 

 

ANTARES PHARMA, INC.

 

 

 

 

 

Date:

 

June 27, 2019

 

By:

 

/s/ Peter J. Graham

 

 

 

 

Name:

 

Peter J. Graham

 

 

 

 

Title:

 

Executive Vice President, General Counsel, Chief Compliance Officer, Human Resources, and Corporate Secretary

 

 

 

EX-10.1 2 atrs-ex101_22.htm EX-10.1 FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT atrs-ex101_22.htm

EX 10.1

First AMENDMENT

TO

LOAN AND SECURITY AGREEMENT

 

This First Amendment to Loan and Security Agreement (this “Amendment”) is dated as of June 26, 2019 and is entered into by and between (a) ANTARES PHARMA, INC., a Delaware corporation (“Borrower”), (b) the several banks and other financial institutions or entities from time to time parties to the Loan Agreement (collectively, referred to as “Lender”) and (c) HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, the “Agent”).  Capitalized terms used herein without definition shall have the same meanings given them in the Loan Agreement (as defined below).

 

Recitals

A.Borrower, Agent and Lender have entered into that certain Loan and Security Agreement dated as of June 6, 2017 (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), pursuant to which Lender has agreed to extend and make available to Borrower certain advances of money.

B.In accordance with Section 11.3 of the Loan Agreement, Borrower and Lender have agreed to amend the Loan Agreement upon the terms and conditions more fully set forth herein.

Agreement

NOW, THEREFORE, in consideration of the foregoing Recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:

1.Amendments.  Subject to the satisfaction of the conditions set forth in Section 3 of this Amendment, the Loan Agreement is hereby amended as follows:

1.1The Loan Agreement shall be amended by deleting the Recital A thereof in its entirety and inserting in lieu thereof the following:

“A.Borrower has requested Lender to make available to Borrower a loan or loans in an aggregate principal amount of up to Fifty Million Dollars ($50,000,000.00) (the “Term Loan”); and”

1.2The Loan Agreement shall be amended by deleting the following definitions appearing in Section 1.1 thereof (Definitions and Rules of Construction) and inserting in lieu thereof the following:

“Amortization Date” means August 1, 2021; provided however, if all of the Interest Only Extension Conditions are satisfied on or prior to July 31, 2021, the “Amortization Date” shall mean August 1, 2022 (except that if the Term Loan Maturity Date is July 1, 2022, then “Amortization Date”, upon the satisfaction of the Interest Only Extension Conditions, shall mean July 1, 2022).”

“Interest Only Extension Conditions” shall mean satisfaction of each of the following events on or before July 31, 2021:  (a) Borrower has requested in writing that Lender extend the Amortization Date to August 1, 2022; (b) no default or Event of Default

 


 

shall have occurred; (c) Agent shall have confirmed, in its sole and absolute discretion, that Borrower has achieved, with respect to the trailing twelve (12) month period ending on June 30, 2021, aggregate net revenue from the sale of products and from royalties (as classified on Borrower’s form 10-K and form 10-Q and generally consistent with the classification as of the First Amendment Closing Date; for the avoidance of doubt, not to include license fees, development revenue and other project milestones, and expense reimbursement), determined in accordance with GAAP, of greater than or equal to One Hundred Twenty Million Dollars ($120,000,000.00); and (b) payment by Borrower to Agent of the Extension Fee.”

“Secured Obligations” means Borrower’s obligations under this Agreement and any Loan Document, including any obligation to pay any amount now owing or later arising (including, without limitation, the End of Term Charge, the Prepayment Charge and the Extension Fee).”

“Term Loan Interest Rate” means a floating per annum rate of interest equal to the lesser of (a) the Prime Rate plus four and one-half of one percent (4.50%), and (b) nine and one-half of one percent (9.50%).”

“Term Loan Maturity Date” means July 1, 2022; provided, however, if all of the Interest Only Extension Conditions are satisfied on or prior to July 31, 2021, upon Borrower’s written request to Agent to extend the Term Loan Maturity Date, the “Term Loan Maturity Date” shall mean July 1, 2024.”

1.3The Loan Agreement shall be amended by inserting the following new definitions to appear in proper alphabetical order in Section 1.1 thereof (Definitions and Rules of Construction):

End of Term Charge” means, collectively, (a) the Term A End of Term Charge, (b) the Term B End of Term Charge, and (c) the Term C End of Term Charge.”

“Extension Fee” means a charge equal to one-half of one percent (0.50%) of the principal amount outstanding under the Term Loan Advances as of July 31, 2021.”

“First Amendment Closing Date” means June 26, 2019.”

“Term A End of Term Charge” shall have the meaning assigned to such term in Section 2.5(a).”

“Term B End of Term Charge” shall have the meaning assigned to such term in Section 2.5(b).”

“Term B Loan Advance” has the meaning assigned to such term in Section 2.1(a).”

“Term C Draw Period” means the period of time commencing upon January 1, 2020 and continuing through the earlier to occur of (a) September 15, 2020 and (b) an Event of Default.”

“Term C End of Term Charge” shall have the meaning assigned to such term in Section 2.5(c).”

 

 


 

“Term C Loan Advance” and “Term C Loan Advances” shall each have the meaning assigned to such terms in Section 2.1(a).”

1.4The Loan Agreement shall be amended by deleting the following definitions appearing in Section 1.1 thereof (Definitions and Rules of Construction):

“Term B Draw Period” means the period of time commencing upon the occurrence of the Term B Milestone Event and continuing through the earlier to occur of (a) September 30, 2018 and (b) an Event of Default.

“Term B Loan Advance” and “Term B Loan Advances” shall each have the meaning assigned to such terms in Section 2.1(a).

“Term B Milestone Event” shall mean that (a) no Event of Default shall have occurred, and (b) Agent shall have confirmed, in its sole and absolute discretion, each of the following: (i) that Borrower has obtained marketing approval from the Food and Drug Administration for QST with a label claim generally consistent with the desired label claim included in Borrower’s NDA filing, subject to verification by Agent in its reasonable discretion, and (ii) that Borrower has achieved aggregate revenue from the commercial sale of QST, determined in accordance with GAAP, of greater than or equal to Five Million Dollars ($5,000,000.00) prior to September 30, 2018.

1.5The Loan Agreement shall be amended by deleting Section 2.1(a) thereof (Advances) in its entirety and inserting in lieu thereof the following:

“(a)Advances.  Subject to the terms and conditions of this Agreement, Lender will severally (and not jointly) make, in an amount not to exceed its respective Term Commitment with respect to such Term Loan, and Borrower agrees to draw, one (1) advance in a principal amount of Twenty-Five Million Dollars ($25,000,000.00) on the Closing Date (the “Term A Loan Advance”).  Subject to the terms and conditions of this Agreement, Lender will severally (and not jointly) make, in an amount not to exceed its respective Term Commitment with respect to such Term Loan, and Borrower agrees to draw, one (1) advance in a principal amount of Fifteen Million Dollars ($15,000,000.00) on the First Amendment Closing Date (the “Term B Loan Advance”).  Subject to the terms and conditions of this Agreement, during the Term C Draw Period, upon Borrower’s written request in accordance with this Agreement, Lender will severally (and not jointly) make, in an amount not to exceed its respective Term Commitment with respect to such Term Loan, an advance or advances each in a principal amount of greater than or equal to Five Million Dollars ($5,000,000.00), but in an aggregate principal amount for all such advances not to exceed Ten Million Dollars ($10,000,000.00) (each a “Term C Loan Advance” and collectively, the “Term C Loan Advances”).  The Term A Loan Advance, the Term B Loan Advance and the Term C Loan Advances are hereinafter referred to individually as a “Term Loan Advance” and collectively as the “Term Loan Advances”.  The aggregate outstanding principal amount of Term Loan Advances shall not exceed the Term Loan amount.  Proceeds of any Term Loan Advance (other than the Term A Loan Advance which shall be deposited into Borrower’s Merrill Lynch account) shall be deposited into an account that is subject to a first priority perfected security interest in favor of Agent perfected by an Account Control Agreement.”

1.6The Loan Agreement shall be amended by deleting Section 2.4 thereof (Prepayment) in its entirety and inserting in lieu thereof the following:

 

 


 

“2.4Prepayment.  At its option, Borrower may at any time prepay all or any portion of the outstanding Term Loan Advances by paying the entire principal balance (or any portion thereof) with respect to the principal balance being prepaid, all accrued and unpaid interest thereon, together with a prepayment charge equal to the following percentage of the Term Loan Advance amount being prepaid: (a) with respect to the Term A Loan Advance, if the Term A Loan Advance is prepaid in any of the first twelve (12) months following the Closing Date, three percent (3%); on or after twelve (12) months but prior to twenty-four (24) months, two percent (2%), and thereafter, one percent (1%) and (b) with respect to the Term B Loan Advance and the Term C Loan Advances, if the Term B Loan Advance and/or the Term C Loan Advances are prepaid in any of the first twelve (12) months following the First Amendment Closing Date, three percent (3%); on or after twelve (12) months but prior to twenty-four (24) months, two percent (2%), and thereafter, one percent (1%) (each charge under (a) and (b), a “Prepayment Charge”).  Borrower agrees that the Prepayment Charge is a reasonable calculation of Lender’s lost profits in view of the difficulties and impracticality of determining actual damages resulting from an early repayment of the Advances.  Borrower shall prepay the outstanding amount of all principal and accrued interest through the prepayment date and the Prepayment Charge upon the occurrence of a Change in Control.  Notwithstanding the foregoing, Agent and Lender agree to waive the Prepayment Charge if Agent and Lender (in its sole and absolute discretion) agree in writing to refinance the Advances prior to the Term Loan Maturity Date.”

1.7The Loan Agreement shall be amended by deleting Section 2.5 thereof (End of Term Charge) in its entirety and inserting in lieu thereof the following:

“2.5End of Term Charge.  

(a)On the earliest to occur of (i) July 1, 2022, (ii) the date that Borrower prepays the outstanding Secured Obligations (other than any inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement) in full, or (iii) the date that the Secured Obligations become due and payable, Borrower shall pay Lender a charge in the amount of $1,062,500 (the “Term A End of Term Charge”). Notwithstanding the required payment date of such charge, it shall be deemed earned by Lender as of the Closing Date.

(b)On the earliest to occur of (i) July 1, 2022, (ii) the date that Borrower prepays the outstanding Secured Obligations (other than any inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement) in full, or (iii) the date that the Secured Obligations become due and payable, Borrower shall pay Lender a charge in the amount of $592,500 (the “Term B End of Term Charge”). Notwithstanding the required payment date of such charge, it shall be deemed earned by Lender as of the First Amendment Closing Date.

(b)On the earliest to occur of (i) July 1, 2022, (ii) the date that Borrower prepays the outstanding Secured Obligations (other than any inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement) in full, or (iii) the date that the Secured Obligations become due and payable, Borrower shall pay Lender a charge of three and ninety-five hundredths of one percent (3.95%) of the total original principal

 

 


 

amount of all Term C Loan Advances made hereunder (the “Term C End of Term Charge”). Notwithstanding the required payment date of such charge, the applicable pro rata of such charge shall be deemed earned by Lender as of each date a Term C Loan Advance is made.”

1.8A new Section 2.8 is added to the Loan Agreement to read as follows:

“2.8Treatment of Prepayment Charge and End of Term Charge.  Borrower agrees that any Prepayment Charge and any End of Term Charge payable shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination, and Borrower agrees that it is reasonable under the circumstances existing as of the Closing Date and the First Amendment Closing Date.  The Prepayment Charge and the End of Term Charge shall also be payable in the event the Secured Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure, or by any other means.  Borrower expressly waives (to the fullest extent it may lawfully do so) the provisions of any present or future statute or law that prohibits or may prohibit the collection of the foregoing Prepayment Charge and End of Term Charge in connection with any such acceleration.  Borrower agrees (to the fullest extent that each may lawfully do so): (a) each of the Prepayment Charge and the End of Term Charge is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (b) each of the Prepayment Charge and the End of Term Charge shall be payable notwithstanding the then prevailing market rates at the time payment is made; (c) there has been a course of conduct between the Lenders and Borrower giving specific consideration in this transaction for such agreement to pay the Prepayment Charge and the End of Term Charge as a charge (and not interest) in the event of prepayment or acceleration; (d) Borrower shall be estopped from claiming differently than as agreed to in this paragraph.  Borrower expressly acknowledges that their agreement to pay each of the Prepayment Charge and the End of Term Charge to the Lenders as herein described was on the Closing Date and the First Amendment Closing Date, as applicable, and continues to be a material inducement to the Lenders to provide the Term Loans.”

1.9Schedule 1.1 is hereby amended and restated in its entirety with the Schedule 1.1 appearing as Schedule 1 hereto.

2.Borrower’s Representations And Warranties.  Borrower represents and warrants that:

2.1Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete (a) except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date, after giving effect in all cases to any standard(s) of materiality contained in the Loan Agreement as to such representations and warranties and (b) except with respect to Section 5.12 (Financial Accounts), which is true, accurate and complete subject to the updated Exhibit E attached hereto, (ii) no fact or condition exists that could (or could, with the passage of time, the giving of notice, or both) reasonably be expected to constitute an Event of Default and (iii) no event that has had or could reasonably be expected to have a Material adverse Effect has occurred or is continuing.

 

 


 

2.2Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment.

2.3The certificate of incorporation, bylaws and other organizational documents of Borrower delivered to Agent and/or Lender on the Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect.

2.4The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower.

2.5This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights.

2.6As of the date hereof, it has no defenses against the obligations to pay any amounts under the Secured Obligations.  Borrower acknowledges that each of Agent and Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents.

Borrower understands and acknowledges that each of Agent and Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.

3.Limitation.  The amendments set forth in this Amendment shall be limited precisely as written and shall not be deemed (a) to be a waiver or modification of any other term or condition of the Loan Agreement or of any other instrument or agreement referred to therein or to prejudice any right or remedy which Agent and/or Lender may now have or may have in the future under or in connection with the Loan Agreement (as amended hereby) or any instrument or agreement referred to therein; or (b) to be a consent to any future amendment or modification or waiver to any instrument or agreement the execution and delivery of which is consented to hereby, or to any waiver of any of the provisions thereof.  Except as expressly amended hereby, the Loan Agreement shall continue in full force and effect.

4.Effectiveness.  This Amendment shall become effective upon the satisfaction of all the following conditions precedent:

4.1Amendment.  Borrower, Agent and Lender shall have duly executed and delivered this Amendment to Lender and such other documents as Agent may reasonably request.

4.22019 Facility Charge. Agent shall have received a nonrefundable, fully earned facility charge in the amount of One Hundred Twenty-Five Thousand Dollars ($125,000.00) in good and collected funds.

4.3Secretary’s Certificate and Borrowing Resolutions.  A secretary’s certificate, together with a certified copy of resolutions of certified copy of resolutions of the Board of Directors evidencing approval of this Amendment.

 

 


 

4.4Certificates of Good Standing.  A certificate of good standing for Borrower from its state of incorporation and similar certificates from all other jurisdictions in which Borrower does business and where the failure to be qualified would have a Material Adverse Effect.

4.5Organizational Documents.  Certified copies of the Certificate of Incorporation and the By-Laws, as amended, of Borrower.

4.6Perfection Certificate.  A completed perfection certificate of Borrower.

4.7Opinion.  A legal opinion of Borrower’s counsel.

4.8Payment of Lender Expenses.  Borrower shall have paid all Lender expenses (including all attorneys' fees and expenses) incurred through the date of this Amendment for the documentation and negotiation of this Amendment.

5.Post-Closing Conditions.  Borrower shall deliver, in form and substance satisfactory to Agent (a) evidence showing lender’s loss payable and/or additional insured clauses and cancellation notice (or endorsements reflecting same) in favor of Agent on or prior to July 19, 2019 and (b) on or prior to July 10, 2019 (i) evidence that Borrower has closed its money market account with Wells Fargo Bank, N.A. or (ii) an Account Control Agreement from Wells Fargo Bank, N.A., together with the duly executed signatures thereto, with respect to Borrower’s money market account; provided that amounts in such account do not exceed Five Hundred Fifty Thousand Dollars ($550,000.00) in the aggregate at any time (collectively, (a) and (b) the “Post-Closing Deliverables”).  The failure of Borrower to deliver the Post-Closing Deliverables to Agent pursuant to the terms hereof shall result in an immediate Event of Default for which there shall be no grace or cure period.

6.Release.  In consideration of the agreements of Agent and each Lender contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, on behalf of itself and its successors, assigns, and other legal representatives, hereby to the extent possible under applicable law fully, absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent and each Lender, and its successors and assigns, and its present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent, Lender and all such other persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which Borrower, or any of its successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment, for or on account of, or in relation to, or in any way in connection with the Loan Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.  Borrower understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.  Borrower agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.  Borrower waives the provisions of California Civil Code section 1542, which states:

 

 


 

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

 

7.Counterparts.  This Amendment may be signed in any number of counterparts, and by different parties hereto in separate counterparts, with the same effect as if the signatures to each such counterpart were upon a single instrument.  All counterparts shall be deemed an original of this Amendment.  This Amendment may be executed by facsimile, portable document format (.pdf) or similar technology signature, and such signature shall constitute an original for all purposes.

8.Incorporation By Reference.  The provisions of Section 11 of the Loan Agreement shall be deemed incorporated herein by reference, mutatis mutandis.

[Signature Page Follows]


 

 


 

In Witness Whereof, the parties have duly authorized and caused this Amendment to be executed as of the date first written above.

 

BORROWER:

 

ANTARES PHARMA, INC.

Signature:/s/ Robert F. Apple

Print Name:Robert F. Apple

Title:             President and Chief Executive

                          Officer

 

 

AGENT:

HERCULES CAPITAL, INC.

Signature:/s/ Jennifer Choe

Print Name:Jennifer Choe

Title:Assistant General Counsel

 

LENDER:

 

HERCULES CAPITAL, INC.

Signature:/s/ Jennifer Choe

Print Name:Jennifer Choe

Title:Assistant General Counsel

 

HERCULES TECHNOLOGY III, L.P.

 

Signature:/s/ Jennifer Choe

Print Name:Jennifer Choe

Title:Assistant General Counsel

 

HERCULES CAPITAL FUNDING TRUST 2018-1

 

Signature:/s/ Jennifer Choe

Print Name:Jennifer Choe

Title:Assistant General Counsel

 

 

 

 


EX 10.1

Schedule 1

 

 

SCHEDULE 1.1

COMMITMENTS

LENDER

TRANCHE

TERM COMMITMENT

Hercules Technology III, L.P.

Term A Loan Advance

$20,000,000

Hercules Capital Funding Trust 2018-1

Term A Loan Advance

$5,000,000

Hercules Capital, Inc.

Term B Loan Advance

$15,000,000

Hercules Capital, Inc.

Term C Loan Advances

$10,000,000

TOTAL COMMITMENTS

 

$50,000,000

 

 

 

EX-99.1 3 atrs-ex991_6.htm EX-99.1 PRESS RELEASE atrs-ex991_6.htm

EX 99.1

 

  

 

 

 

 

 

NEWS RELEASE

  

 

 

ANTARES PHARMA ANNOUNCES AMENDMENT TO EXISTING LOAN AND SECURITY AGREEMENT WITH HERCULES CAPITAL

 

Amendment Increases Loan By Up To $25 Million in Non-Dilutive Debt Financing

 

 

EWING, NJ, June 27, 2019 -- Antares Pharma, Inc. (NASDAQ: ATRS) (“Antares” or “the Company”) today announced that it has entered into an amendment to its existing loan and security agreement with Hercules Capital, Inc. (NYSE: HTGC), (“Hercules”), to increase the available debt capital by $25 million for a term loan of up to $50 million. The Company originally borrowed $25 million from Hercules under the existing loan agreement in June 2017.

 

At the same time Antares also provided notice of the termination of the At-The-Market (“ATM”) equity offering facility which will be effective on July 6, 2019. The Company has not sold any shares under the ATM offering facility since March 31, 2019 and will make no further sales under the ATM offering facility between now and the effective date.

 

“Today’s announcement of the amendment to the existing agreement with Hercules further enhances our cash position and provides us with additional non-dilutive capital to support current growth in both our proprietary and alliance business as well as to continue to invest in our strategic plan for what we believe will be sustained long-term growth,” stated Fred M. Powell, Executive Vice President, Chief Financial Officer of Antares Pharma.  “We are pleased that Hercules remains a supportive capital partner to Antares Pharma.”  

 

Hercules is pleased to expand and extend our financing partnership with Antares at this important stage as the Company continues to focus on the development of both its propriety and partnered products,” said R. Bryan Jadot, Senior Managing Director and Group Head - Life Sciences at Hercules.  “This growth investment in Antares provides another example of the breadth of our platform and our ability to finance life sciences companies through their growth stages. We are excited to continue our partnership with the Antares management team.”

 

The first tranche of $25 million was funded upon execution of the original loan agreement in June 2017.  A new $15 million loan was funded upon execution of the amendment.  Under the terms of the amended agreement, Antares has the option to draw up to an additional $10 million at the Company’s option commencing on January 1, 2020 and continuing through September 15, 2020.  The term of the loan is three years and payments under the loan are interest only for the initial 24-month period, followed by equal monthly payments of principal and interest thereafter until the end of the three-year term. The interest-only period may be extended to 36 months contingent upon Antares achieving a certain milestone. The term loan maturity date may also be extended contingent upon satisfaction of certain loan extension milestones.  The interest rate on the loan is equal to the lesser of the Prime Rate plus 4.5%, and 9.5%.  There are no equity components to the amended agreement.

 

 

 


About Antares Pharma

 

Antares Pharma, Inc. is a combination drug device company focused on the development and commercialization of self-administered parenteral pharmaceutical products using advanced drug delivery auto injector technology.  The Company has a portfolio of proprietary and partnered commercial products with several product candidates in advanced stages of development, as well as significant strategic alliances with industry leading pharmaceutical companies including Teva Pharmaceutical Industries, Ltd. (Teva), AMAG Pharmaceuticals, Inc. and Pfizer Inc. (Pfizer).  Antares Pharma’s proprietary products include XYOSTED (testosterone enanthate) injection, OTREXUP® (methotrexate) injection for subcutaneous use and Sumatriptan Injection USP, which is distributed by Teva.

 

About Hercules Capital, Inc.

 

Hercules Capital, Inc. is the leading and largest specialty finance company focused on providing senior secured venture growth loans to high-growth, innovative venture capital-backed companies in a broad variety of technology, life sciences and sustainable and renewable technology industries.  Since inception (December 2003), Hercules has committed more than $8.9 billion to over 460 emerging growth companies and is the lender of choice for entrepreneurs and venture capital firms seeking growth capital financing.

 

SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995

 

This press release contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.  Forward-looking statements are subject to certain risks and uncertainties that can cause actual results to differ materially from those described.  Factors that may cause such differences include, but are not limited to: the Company’s ability to meet loan extension and interest only payment milestones and the ability to repay the debt obligation; market acceptance, adequate reimbursement coverage and commercial success of XYOSTED™ and future revenue from the same; market acceptance of Teva’s generic epinephrine auto-injector product and future revenue from the same; successful completion of the transaction with Ferring International Center, S.A.; future market acceptance and revenue from Makena® subcutaneous auto injector; Teva’s ability to successfully commercialize VIBEX® Sumatriptan Injection USP and the amount of revenue from the same; continued growth of prescriptions and sales of OTREXUP®;  the timing and results of the Company’s or its partners’ research projects or clinical trials of product candidates in development including projects with Teva and Pfizer and our proprietary programs  for ATRS-1701 and our development program for the use of subcutaneous methotrexate for the treatment of ectopic pregnancy; actions by the FDA or other regulatory agencies with respect to the Company’s products or product candidates of its partners; continued growth in product, development, licensing and royalty revenue; achievement of the 2019 revenue guidance; the Company’s ability to obtain financial and other resources for its research, development, clinical, and commercial activities and other statements regarding matters that are not historical facts, and involve predictions. These statements involve known and unknown risks, uncertainties and other factors that may cause actual results, performance, achievements or prospects to be materially different from any future results, performance, achievements or prospects expressed in or implied by such forward-looking statements. In some cases you can identify forward-looking statements by terminology such as ''may'', ''will'', ''should'', ''would'', ''expect'', ''intend'', ''plan'', ''anticipate'', ''believe'', ''estimate'', ''predict'', ''potential'', ''seem'', ''seek'', ''future'', ''continue'', or ''appear'' or the negative of these terms or similar expressions, although not all forward-looking statements contain these identifying words. Additional information concerning these and other factors that may cause actual results to differ materially from those anticipated in the forward-looking statements is contained in the "Risk Factors" section of the Company's Annual Report on Form 10-K, and in the Company's other periodic reports and filings with the Securities and Exchange Commission.  The Company cautions investors not to place undue reliance on the forward-looking statements contained in this press release. All forward-looking statements are based on information currently available

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to the Company on the date hereof, and the Company undertakes no obligation to revise or update these forward-looking statements to reflect events or circumstances after the date of this press release, except as required by law.

 

 

 

 

 

 

Contact:

 

Jack Howarth

Vice President, Corporate Affairs

609-359-3016

jhowarth@antarespharma.com

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