UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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): February 21, 2017 (February 17, 2017)
Transgenomic, Inc.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 001-36439 | 91-1789357 | ||
|
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
12325 Emmet Street, Omaha, NE 68164
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code: (402) 452-5400
N/A
(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:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| x | 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)) |
| Item 3.01. | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On February 17, 2017, Transgenomic, Inc. (the “Company”) received a notification letter from the staff of the Nasdaq Stock Market LLC. On February 21, 2017, the Company issued a press release reporting a change in the Company’s listing status. The full text of this press release and the Nasdaq letter are attached hereto as Exhibits 99.1 and 99.2, respectively, and incorporated herein by reference.
In connection with the proposed merger, the Company has filed with the SEC a preliminary proxy statement relating to the approval of the merger agreement. The information in the preliminary proxy statement is not complete and may be changed. The preliminary proxy statement and this Current Report on Form 8-K are not offers to sell Company securities and are not soliciting an offer to buy Company securities in any state where the offer and sale is not permitted.
The definitive proxy statement will be mailed to stockholders of the Company. THE COMPANY URGES INVESTORS AND SECURITY HOLDERS TO READ THE DEFINITIVE PROXY STATEMENT AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders will be able to obtain free copies of the definitive proxy statement (when available) and other documents filed with the SEC by the Company through the web site maintained by the SEC at www.sec.gov. Free copies of the definitive proxy statement (when available) and other documents filed with the SEC can also be obtained on the Company’s website at www.transgenomic.com/ir/investor-information.
The Company and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the merger. Information about the directors and executive officers of the Company is set forth in the Company’s proxy statement filed with the SEC on April 29, 2016. Additional information regarding the interests of these participants and other persons who may be deemed participants in the merger may be obtained by reading the definitive proxy statement regarding the proposed transaction when it becomes available.
Certain statements in this Current Report on Form 8-K constitute “forward-looking statements” of the Company within the meaning of the Private Securities Litigation Reform Act of 1995, which involve known and unknown risks, uncertainties and other factors that may cause actual results to be materially different from any future results, performance or achievements expressed or implied by such statements. The known risks, uncertainties and other factors affecting these forward-looking statements are described from time to time in the Company’s filings with the SEC, including in the Company’s Annual Report on Form 10-K for the year ended December 31, 2015, filed with the SEC on April 14, 2016, and its Quarterly Report on Form 10-Q for the quarter ended September 30, 2016, filed with the SEC on November 14, 2016. Any change in such factors, risks and uncertainties may cause the actual results, events and performance to differ materially from those referred to in such statements. Accordingly, the Company claims the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 with respect to all statements contained in this Current Report on Form 8-K. All information in this Current Report on Form 8-K is as of the date of this report and the Company does not undertake any duty to update this information, including any forward-looking statements, unless required by law.
| Item 8.01 | Other Events. |
The information disclose in Item 3.01 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits: |
| 99.1 | Press release of Transgenomic, Inc., dated February 21, 2017. | |
| 99.2 | Letter from Nasdaq to Transgenomic, Inc., dated February 17, 2017. |
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.
| Transgenomic, Inc. | |||
| Date: February 21, 2017 | By: | /s/ Paul Kinnon | |
| Paul Kinnon | |||
| President and Chief Executive Officer | |||
EXHIBIT INDEX
| Exhibit Number |
Description |
| 99.1 | Press release of Transgenomic, Inc., dated February 21, 2017. |
| 99.2 | Letter from Nasdaq to Transgenomic, Inc., dated February 17, 2017. |
Exhibit 99.1
TRANSGENOMIC PROVIDES UPDATE ON ITS PLANNED MERGER AND REPORTS CHANGE IN LISTING STATUS
OMAHA, Neb. (February 21, 2017) -- Transgenomic, Inc. (TBIO) (OTQB: TBIO) today reported that trading in its shares will begin on the OTCQB exchange under the ticker “TBIO” effective at the open of business on February 22, 2017. On February 17, 2017, the Company received written notification from the staff of the Nasdaq Stock Market LLC (“Nasdaq”) that it had determined to delist the Company’s shares from Nasdaq and accordingly, trading in the Company’s shares will be suspended effective at the open of business on February 22, 2017, as a result of the Company no longer meeting certain Nasdaq continued listing requirements. As previously disclosed, Nasdaq had informed Transgenomic that its shares would no longer continue to trade on Nasdaq, unless the Company met the minimum share price and shareholder equity requirements on or before February 19, 2017. Nasdaq will complete the delisting by filing a Form 25 Notification of Delisting with the Securities and Exchange Commission (the “SEC”), after the applicable appeal periods have elapsed.
On February 3, 2017, Transgenomic filed a preliminary proxy statement with the SEC with respect to the previously announced merger of its wholly owned subsidiary, New Haven Labs Inc., with Precipio Diagnostics, LLC in a transaction which has been structured, in part, to result in a combined entity that will meet all initial listing standards for the Nasdaq Capital Market. Additionally, the new company that will be created by the merger, and which will be known as Precipio, has applied in advance to Nasdaq to list its shares, and trading on the Nasdaq Capital Market is expected to resume when the merger closes, under the proposed ticker “PRPO”. Transgenomic currently expects that the merger, which is subject to approval of the Transgenomic stockholders and certain other conditions, will close during the second quarter of 2017.
Paul Kinnon, President and Chief Executive Officer of Transgenomic, commented, “We are working diligently toward completion of the merger and we are excited about the opportunities the combination will create and believe that the combined company will be well positioned to build on its unique assets in the rapidly growing fields of advanced diagnostics and personalized medicine.”
Ilan Danieli, Precipio’s founder and Chief Executive Officer noted, “We look forward to the closing of our merger with Transgenomic so that we can begin the process of integrating our teams, technologies, services and growing this platform. We believe the distinctive strengths of our two companies are complementary and, together, we expect to be a dynamic, growing, value-added player in the rapidly changing healthcare sector.”
About Transgenomic
Transgenomic, Inc. is a global biotechnology company advancing personalized medicine in oncology and inherited diseases through advanced diagnostic technologies, such as its revolutionary ICE COLD-PCR, which enables use of liquid biopsies for mutation detection. The company also provides specialized clinical and research services to biopharmaceutical companies developing targeted therapies. Transgenomic’s diagnostic technologies are designed to improve medical diagnoses and patient outcomes.
About Precipio
Precipio Diagnostics has built a platform to harness the intellect, expertise and technology developed within academia, delivering quality diagnostic information to physicians and patients worldwide. Through its collaborations with world-class academic institutions specializing in cancer research, diagnostics and treatment, and its experience delivering quality service, Precipio Diagnostics offers a new standard of diagnostic accuracy enabling the highest level of patient care. For more information, visit www.precipiodx.com.
Forward-Looking Statements
Certain statements in this press release constitute “forward-looking statements” of Transgenomic within the meaning of the Private Securities Litigation Reform Act of 1995, which involve known and unknown risks, uncertainties and other factors that may cause actual results to be materially different from any future results, performance or achievements expressed or implied by such statements. Forward-looking statements include, but are not limited to, those with respect to management's current views and estimates of future economic circumstances, industry conditions, company performance and financial results, including the ability of the Company to grow its involvement in the diagnostic products and services markets, expectations regarding new clients, projects and prospects, and MX-ICP’s ability to accelerate the Company’s growth and generate revenue. The known risks, uncertainties and other factors affecting these forward-looking statements are described from time to time in Transgenomic's filings with the Securities and Exchange Commission. Any change in such factors, risks and uncertainties may cause the actual results, events and performance to differ materially from those referred to in such statements. Accordingly, the Company claims the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 with respect to all statements contained in this press release. All information in this press release is as of the date of the release and Transgenomic does not undertake any duty to update this information, including any forward-looking statements, unless required by law.
Additional Information for Transgenomic Common Stockholders
In connection with the proposed merger, Transgenomic has filed with the SEC a preliminary proxy statement relating to the approval of the merger agreement. The information in the preliminary proxy statement is not complete and may be changed. The preliminary proxy statement and this press release are not offers to sell Transgenomic securities and are not soliciting an offer to buy Transgenomic securities in any state where the offer and sale is not permitted.
The definitive proxy statement will be mailed to stockholders of Transgenomic. TRANSGENOMIC URGES INVESTORS AND SECURITY HOLDERS TO READ THE DEFINITIVE PROXY STATEMENT AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders will be able to obtain free copies of the definitive proxy statement (when available) and other documents filed with the SEC by Transgenomic through the web site maintained by the SEC at www.sec.gov. Free copies of the definitive proxy statement (when available) and other documents filed with the SEC can also be obtained on Transgenomic’s website at www.transgenomic.com/ir/investor-information.
Transgenomic and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of Transgenomic in connection with the merger. Information about the directors and executive officers of Transgenomic is set forth in Transgenomic’s proxy statement filed with the SEC on April 29, 2016. Additional information regarding the interests of these participants and other persons who may be deemed participants in the merger may be obtained by reading the definitive proxy statement regarding the proposed transaction when it becomes available.
Transgenomic Contacts:
Media:
Barbara Lindheim
BLL Partners
212-584-2276
blindheim@bllbiopartners.com
Investors:
Transgenomic Investor Relations
investor.relations@transgenomic.com
Exhibit 99.2
Sent via electronic delivery
February 17, 2017
Paul Kinnon
Chief executive Officer
Transgenomic, Inc.
12325 Emmet Street
Omaha, NE 68164
RE: Transgenomic, Inc. (Symbol: TBIO)
Nasdaq Listing Qualifications Hearings
Docket No. NQ 6166C-16
Dear Mr. Kinnon:
This is to inform you that the Nasdaq Hearings Panel has determined to delist the shares of Transgenomic Inc. (the Company) from the Nasdaq Stock Market. Suspension of trading in the shares will be effective at the open of business on February 22, 2017.
The Company was before the Panel on October 13, 2016, after Nasdaq Staff notified the Company that it was not in compliance with the minimum bid price requirement for continued listing in Listing Rule 5450(a)(1) or the minimum $2,500,000 in stockholders’ equity in Listing Rule 5450(b)(1). At the hearing, the Company asked that the Panel continue its listing to allow it to close a merger with Precipio Diagnostics, LLC, a private company. The business combination, which was to involve a change of control, would result in a new entity that the Company stated would meet all initial listing standards for the Capital Market, although it would need to implement a reverse stock split to ensure compliance with the bid price rule.
The Panel issued decisions on November 1, 2016, and again on December 27, 2016, ultimately allowing the Company to remain listed until February 19, 2017, while it worked to complete the merger. The Panel required periodic progress updates, which the Company provided. February 19, 2017, represents the full extent of the Panel’s authority to allow continued listing while the Company remains non-compliant.
The Company has informed the Panel that it will not complete the transaction by February 19, 2017.
Accordingly, the Panel has determined to delist the Company’s shares from the Nasdaq Stock Market, and will suspend trading in those shares effective at the open of business on February 22, 2017. The Nasdaq Stock Market will complete the delisting by filing a Form 25 Notification of Delisting with the Securities Exchange Commission, after applicable appeal periods have lapsed.
The Company may request that the Nasdaq Listing and Hearing Review Council review this decision. A written request for review must be received within 15 days from the date of this decision, and should be sent by e-mail to the Office of Appeals and Review at appeals@nasdaq.com. Pursuant to Nasal Listing Rule 5820(a), the Company must submit a fee of $10,000.00 to The Nasdaq Stock Market LLC to cover the cost of the review. Instructions for submitting the fee are on the enclosed Appeals Payment Form. Please include evidence of this payment with the e-mailed request for review by attaching a PDF copy of the wire instructions or check.
The Company should be aware that the Nasdaq Listing and Hearing Review Council may, on its own motion, determine to review any Panel decision within 45 calendar days after issuance of the written decision. If the Listing Council determines to review this decision, it may affirm, modify, reverse, dismiss or remand the decision to the Panel. The Company will be immediately notified in the event the Listing Council determines that this matter will be called for review.
Should you have any questions, please do not hesitate to contact me at (240) 417-2528.
Sincerely,
/s/ Amy Horton
Amy Horton
Hearings Advisor
Nasdaq Office of General Counsel