UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of
1934
(Amendment No. 6)*
| Alliqua BioMedical, Inc. |
(Name of Issuer)
| Common Stock, $0.001 par value |
(Title of Class of Securities)
| 019621200 |
(CUSIP Number)
|
Mark J. Alles Chief Executive Officer 86 Morris Avenue Summit, New Jersey 07901 (908) 673-9000
|
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
| March 27, 2017 |
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g) check the following box: ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
| * | The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
SCHEDULE 13D
CUSIP No. 019621200 | |
| 1 | NAME OF REPORTING
PERSON: CELGENE CORPORATION |
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ¨ (b) ¨ |
| 3 | SEC USE ONLY
|
| 4 | SOURCE OF FUNDS* WC |
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION Delaware, U.S.A. |
|
NUMBER OF WITH |
7 |
SOLE VOTING POWER 8,025,194 (1) |
| 8 |
SHARED VOTING POWER -0- | |
| 9 |
SOLE DISPOSITIVE POWER 8,025,194 (1) | |
| 10 |
SHARED DISPOSITIVE POWER -0- |
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,025,194 (1) |
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES* ¨ |
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 19.9% (2) |
| 14 |
TYPE OF REPORTING PERSON* CO |
(1) Includes 7,046,100 shares of Common Stock and 979,094 shares of Common Stock underlying warrants that are exercisable immediately; provided, however, that the exercise of the warrants is subject to the Ownership Cap described in Item 6 herein.
(2) The percentage ownership is based on 36,137,486 shares of Common Stock outstanding as of February 28, 2017, which includes (i) 35,158,392 shares of Common Stock outstanding as reported by Alliqua BioMedical, Inc. to Celgene Corporation on such date, and (ii) 979,094 shares of Common Stock underlying warrants held by Celgene Corporation that are exercisable immediately; provided, however, that the exercise of the warrants is subject to the Ownership Cap described in Item 6 herein.
This Amendment No. 6 amends the Schedule 13D (the “Schedule 13D”) filed with the Securities and Exchange Commission (the “Commission”) on November 27, 2013, as amended by Amendment No. 1 filed with the Commission on March 7, 2014, Amendment No. 2 filed with the Commission on April 15, 2014, Amendment No. 3 filed with the Commission on May 4, 2015, Amendment No. 4 filed with the Commission on March 1, 2017, and Amendment No. 5 filed with the Commission on March 16, 2017, by Celgene Corporation (“Celgene”) with respect to common stock, par value $0.001 per share (“Common Stock”), of Alliqua BioMedical, Inc., a Delaware corporation (“Alliqua”). Capitalized terms used, but not defined herein, have the meanings ascribed to them in the Schedule 13D.
| Item 1. | Security and Issuer. |
No modification.
| Item 2. | Identity and Background. |
Item 2 is hereby amended and supplemented by adding the Schedule A hereto. During the past five years, none of the Reporting Persons, nor, to the knowledge of the Reporting Persons, any of the persons listed on Schedule A hereto, has been (i) convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
| Item 3. | Source and Amount of Funds or Other Consideration. |
No modification.
| Item 4. | Purpose of Transaction. |
Item 4 is hereby amended and supplemented by adding the following:
On March 27, 2017, Celgene entered into the Side Letter (as described in Item 6 herein).
| Item 5. | Interest in Securities of the Issuer. |
No modification.
| Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Item 6 is hereby amended and supplemented by adding the following:
In connection with a potential public offering of shares of Common Stock by Alliqua (the “Offering”), Celgene entered into a lock-up agreement with H.C. Wainright & Co., LLC (“Wainwright”), as the underwriter of the Offering. The lock-up agreement prevents Celgene from selling, offering for sale, granting a call option or otherwise disposing of shares of Common Stock or any other equity securities or securities exercisable for or convertible into equity securities of the Company (the “Locked-Up Securities”) for a period beginning on March 27, 2017 and through and including the date that is the 90th day after the date of the underwriting agreement to be entered into between Wainwright and Alliqua (the “Lock-Up Period”), without the prior written consent of Wainwright. The Lock-Up Period is subject to certain exceptions under certain circumstances. The foregoing description of the lock-up agreement is a summary of, and is subject to and qualified by reference to, the provisions of such agreement, which is filed as an exhibit to this Schedule 13D and incorporated herein by reference.
| Item 7. | Material to Be Filed as Exhibits. |
Item 7 is hereby amended and supplemented by adding the following:
Exhibit 8 – Lock-Up Agreement, dated March 27, 2017, between Celgene Corporation and H.C. Wainright & Co., LLC
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
March 28, 2017
| CELGENE CORPORATION | ||
| By: | /s/ Peter N. Kellogg | |
| Peter N. Kellogg | ||
| Executive Vice President and Chief Financial Officer | ||
SCHEDULE A
Name, business address, present principal
occupation or employment and place of citizenship of the directors
and executive officers of the Reporting Person
The name, business address and present principal occupation or employment of each of the directors and executive officers of the Reporting Person are set forth below. The business address of each director and executive officer is c/o 86 Morris Avenue, Summit, New Jersey 07901. Unless otherwise indicated, each director and executive officer is a citizen of the United States.
CELGENE CORPORATION — BOARD OF DIRECTORS
| Name and Position | Present Principal Occupation or Employment | |
|
Robert J. Hugin Executive Chairman |
Executive Chairman of Celgene Corporation | |
|
Mark J. Alles Chief Executive Officer |
Chief Executive Officer of Celgene Corporation | |
|
Jacqualyn A. Fouse, Ph.D. President and Chief Operating Officer |
President and Chief Operating Officer of Celgene Corporation; Director of Dick’s Sporting Goods | |
|
Richard W. Barker, D.Phil. Director (Citizen of the United Kingdom) |
Director of the Centre for Accelerating Medical Innovations; Chairman of the Health Innovation Network of South London, UK; Chairman of International Health Partners; Chairman of Precision Medicine Catapult plc. | |
|
Michael W. Bonney Director |
Formerly Chief Executive Officer and a director of Cubist Pharmaceuticals Inc.; Chairman of the Board of Alynylam Pharmaceuticals, Inc.; member of the Board of Directors of Global Blood Therapeutics, Inc.; Trustee of the Tekla complex of life sciences and dedicated funds; Board of Trustee Chair of Bates College | |
|
Michael D. Casey Director |
Formerly Chairman, President, Chief Executive Officer and a director of Matrix Pharmaceutical, Inc.; Director of Abaxis, Inc. | |
|
Carrie S. Cox Director |
Chairman of the Board of Directors and Chief Executive Officer of Humacyte, Inc.; member of Board of Directors of Texas Instruments; member of Board of Directors of Cardinal Health, Inc. | |
|
Michael A. Friedman, M.D. Director |
Emeritus Chief Executive Officer of City of Hope; member of Board of Directors of MannKind Corporation; member of Board of Directors of Smith & Nephew plc; member of the Board of Directors of Intuitive Surgical Inc.; member of Board of Trustees of Tulane University | |
|
Julia A. Haller, M.D. Director |
Ophthalmologist-in-Chief of the Wills Eye Hospital, Philadelphia, PA; Professor and Chair of the Department of Ophthalmology at Jefferson Medical College of Thomas Jefferson University and Thomas Jefferson University Hospitals | |
|
Gilla Kaplan, Ph.D. Director |
Director of the Global Health Program, Tuberculosis, at the Bill and Melinda Gates Foundation | |
|
James J. Loughlin Director |
Formerly National Director of the Pharmaceuticals Practice at KPMG LLP; member of Board of Directors of each of Edge Therapeutics, Inc. | |
|
Ernest Mario, Ph.D. Director |
Chairman of the Board of each of Capnia, Inc. and Chimerix Inc.; member of the Board of Directors of Tonix Pharmaceutical Holding Corp. |
CELGENE CORPORATION — EXECUTIVE OFFICERS
| Name | Title | |
| Robert J. Hugin | Executive Chairman | |
| Mark J. Alles | Chief Executive Officer | |
| Jacqualyn A. Fouse, Ph.D. | President and Chief Operating Officer | |
| Peter N. Kellogg | Executive Vice President and Chief Financial Officer | |
| Gerald Masoudi | Executive Vice President, General Counsel and Corporate Secretary | |
| Michael Pehl | President, Hematology & Oncology | |
| Scott A. Smith | President, Inflammation & Immunology | |
| Rupert Vessey | President, Research and Early Development |
Exhibit 8
Lock-Up Agreement
March 27, 2017
H.C. Wainwright & Co., LLC
430 Park Avenue, 4th Floor
New York, New York 10022
As Underwriter
Re: Alliqua BioMedical, Inc. – Registration Statement on Form S-3 for Shares of Common Stock
Ladies and Gentlemen:
This Agreement is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”) between Alliqua BioMedical, Inc., a Delaware corporation (the “Company”) and H.C. Wainwright & Co., LLC, as underwriter (the “Underwriter”) relating to the proposed public offering of shares of the common stock (the “Offering”), par value $0.001 per share (the “Common Stock”) of the Company.
In order to induce you to enter into the Underwriting Agreement, and in light of the benefits that the offering of the Common Stock will confer upon the undersigned in its capacity as a securityholder and/or an officer, director or employee of the Company, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with the Underwriter that, during the period beginning on the date hereof through and including the date that is the 90th day after the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Underwriter, directly or indirectly, (i) offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of, or announce the intention to otherwise dispose of, any shares of Common Stock (including, without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations promulgated under the Securities Act of 1933, as the same may be amended or supplemented from time to time (the “Securities Act”) (such shares, the “Beneficially Owned Shares”)) or securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap, hedge or similar agreement or arrangement that transfers in whole or in part, the economic risk of ownership of the Beneficially Owned Shares or securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or (iii) engage in any short selling of the Common Stock or securities convertible into or exercisable or exchangeable for Common Stock.
The restrictions set forth in the preceding paragraphs shall not apply to:
(1) if the undersigned is a natural person, any transfers made by the undersigned (a) as a bona fide gift to any member of the immediate family (as defined below) of the undersigned or to a trust the beneficiaries of which are exclusively the undersigned or members of the undersigned’s immediate family, (b) by will or intestate succession upon the death of the undersigned or (c) as a bona fide gift to a charity or educational institution,
(2) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfers to any stockholder, partner or member of, or owner of a similar equity interest in, the undersigned, as the case may be, if, in any such case, such transfer is not for value,
(3) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer made by the undersigned (a) in connection with the sale or other bona fide transfer in a single
transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (b) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate (as defined below) of the undersigned and such transfer is not for value,
(4) if the undersigned is a director or officer of the Company, any transfers of Common Stock solely in connection with (a) the “cashless” exercise of any equity awards outstanding on the date of the Underwriting Agreement granted pursuant to the Company’s equity plans, provided that any shares of Common Stock received upon such exercise shall be subject to the restrictions provided for in this Agreement, or (b) the surrender or forfeiture to the Company of shares of Common Stock to the Company in partial or full settlement of any withholding tax obligation of the undersigned accruing upon the exercise or vesting of any equity award outstanding on the date of the Underwriting Agreement granted pursuant to the Company’s equity plans ; and
provided, however, that (A) in the case of any transfer described in clause (1), (2) or (3) above, it shall be a condition to the transfer that the transferee executes and delivers to the Underwriter, not later than one business day prior to such transfer, a written agreement, in substantially the form of this agreement (it being understood that any references to “immediate family” in the agreement executed by such transferee shall expressly refer only to the immediate family of the undersigned and not to the immediate family of the transferee) and otherwise satisfactory in form and substance to the Underwriter, and (B) in the case of any transfer described in clause (1), (2), (3) or (4) above, if the undersigned is required to file a report under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock or Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable for Common Stock or Beneficially Owned Shares during the Lock-Up Period (as the same may be extended as described above), the undersigned shall include a statement in such report to the effect that, (A) in the case of any transfer pursuant to clause (1) above, such transfer is being made as a gift or by will or intestate succession, (B) in the case of any transfer pursuant to clause (2) above, such transfer is being made to a stockholder, partner or member of, or owner of a similar equity interest in, the undersigned and is not a transfer for value, (C) in the case of any transfer pursuant to clause (3) above, such transfer is being made either (a) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets or (b) to another corporation, partnership, limited liability company or other business entity that is an affiliate of the undersigned and such transfer is not for value, and (D) in the case of any transfer pursuant to clause (4) above, such transfers or dispositions are solely for the purpose of tax withholding obligations or cashless net exercise, as the case may be. For purposes of this paragraph, “immediate family” shall mean a spouse, child, grandchild or other lineal descendant (including by adoption), father, mother, brother or sister of the undersigned; and “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act.
For the avoidance of doubt, nothing in this Agreement prohibits the undersigned from exercising any options or warrants to purchase Common Stock (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis), it being understood that any Common Stock issued upon any such exercise will be subject to the restrictions of this Agreement.
In order to enable this covenant to be enforced, the undersigned hereby consents to the placing of legends or stop transfer instructions with the Company’s transfer agent with respect to any Common Stock or securities convertible into or exercisable or exchangeable for Common Stock.
| 2 |
The undersigned further agrees that it will not, during the Lock-Up Period (as the same may be extended as described above), make any demand or request for or exercise any right with respect to the registration under the Securities Act, of any shares of Common Stock or other Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable for Common Stock or other Beneficially Owned Shares.
This Agreement and all authority herein conferred are irrevocable and shall survive the death or incapacity of the undersigned and shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this agreement and that this agreement has been duly authorized (if the undersigned is not a natural person), executed and delivered by the undersigned and is a valid and binding agreement of the undersigned. This agreement and all authority herein conferred are irrevocable and shall survive the death or incapacity of the undersigned (if a natural person) and shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such state.
If (i) the Company notifies the Underwriter in writing that it does not intend to proceed with the Offering, (ii) the Underwriting Agreement is not executed by June 30, 2017, or (iii) the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated for any reason prior to payment for and delivery of any Common Stock to be sold thereunder, then this Agreement shall immediately be terminated and the undersigned shall automatically be released from all of his or her obligations under this Agreement. The undersigned acknowledges and agrees that whether or not any public offering of Common Stock actually occurs depends on a number of factors, including market conditions.
[Signature page follows]
| 3 |
| Very truly yours, | |
| CELGENE CORPORATION | |
| /s/ Jonathan Biller | |
| Jonathan Biller | |
| Senior Vice President, Tax & Treasury |