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Subsequent Event
3 Months Ended
Mar. 31, 2016
Subsequent Events [Abstract]  
Subsequent Events

13. Subsequent Events

On April 15, 2016, we received the third tranche of $1,000,000 from the Ferrer Note. On May 9, 2016, we amended and restated the Ferrer Note in order to, among other things (i) increase  the maximum principal amount of the Ferrer Note to $6,300,000, (ii) extend the maturity date of the Ferrer Note to September 30, 2016, and (iii) provide for certain events of default under the Ferrer Note in connection with the Merger. We received the final tranche of $1,300,000 on May 11, 2016 which brought the principal balance outstanding on the Ferrer Note to $6,300,000.

On May 9, 2016, we entered into the Merger Agreement with Ferrer and Purchaser. Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, Purchaser has agreed to commence the Offer for a purchase price of $0.90 per share, net to the holders thereof in cash, subject to reduction for any applicable withholding taxes in respect thereof, without interest, or the Cash Consideration, plus one contractual contingent value right per share of our common stock, or a CVR, which shall represent the right to receive a pro-rata share of up to four payment categories in an aggregate (i.e., to all CVR holders assuming all four payments are made) maximum amount of $35,000,000 (subject to certain deductions) if certain licensing payments and revenue milestones are achieved and subject to the terms and conditions of the contingent value rights agreement to be entered into by Ferrer and the rights agent thereunder prior to the closing of the Offer, net to the holder thereof in cash, subject to reduction for any applicable withholding taxes in respect thereof, without interest, or together with the Cash Consideration, the Offer Price. On May 9, 2016, both our board of directors and the board of directors of Ferrer approved the terms of the Merger Agreement. Prior to entering into the Merger Agreement, Ferrer was the holder of greater than 10% of our outstanding voting securities and the Ferrer Note and our commercial partner for ADASUVE in the Ferrer Territories.

 

The consummation of the Offer will be conditioned on (i) at least a number of shares of our common stock having been validly tendered into and not withdrawn from the Offer which equals, when added to any shares of our common stock owned by Ferrer or Purchaser or any of their respective subsidiaries, at least a majority of the then outstanding shares of our common stock, (ii) the accuracy of the representations and warranties contained in the Merger Agreement, subject to certain qualifications, (iii) our performance certain covenants contained in the Merger Agreement, subject to certain conditions, (iv) the Second Forbearance Agreement  continuing in full force and effect, without any default, and performance of any required condition thereunder, as of the closing of the Offer, (v) the aggregate number of shares of our common stock held by persons who properly exercise appraisal rights under Section 262 of the Delaware General Corporate Law represents no more than 20% of the shares of our common stock then outstanding and (vi) other customary conditions. The Offer is not subject to a financing condition.

 

Following the consummation of the Offer, the Merger Agreement provides that Purchaser will merge with and into us in the Merger, and we will become a wholly owned subsidiary of Ferrer Therapeutics, Inc., a Delaware corporation and subsidiary of Ferrer. In the Merger, each outstanding share of our common stock (other than shares owned by Ferrer, us or Purchaser or any of their direct or indirect wholly owned subsidiaries and shares with respect to which appraisal rights are properly exercised in accordance with Delaware law) will be converted into the right to receive the Offer Price. The consummation of the Merger is subject to certain closing conditions.

 

The transactions described above are expected to close in the second quarter of 2016 and are subject to customary closing conditions.

 

In addition, in connection with the transactions contemplated by the Merger Agreement, the vesting of all our unvested options and unvested restricted stock units will be accelerated to be vested in full and, with respect to the options, immediately exercisable at least six days prior to the closing of the Offer.  Any options that are not exercised prior to the closing of the Offer will be cancelled. Additionally, pursuant to the terms of the Merger Agreement, (i) each holder of a warrant originally issued by us on October 5, 2009 or February 23, 2012 will receive a lump-sum cash payment equal to (A) the total number of shares of our common stock issuable to such holder upon the exercise of the applicable warrant, multiplied by (B) the value of such warrant to purchase one share of our common stock, calculated in accordance with Appendix B of such warrant; and (ii) each holder of the 2014 Warrants will receive (A) a lump-sum cash payment equal to (1) the total number of shares of our common stock issuable to such holder upon the exercise of the applicable warrant, multiplied by (2) the excess of (x) the Cash Consideration over (y) the per-share exercise price for such warrant and (B) one CVR for each share of our common stock underlying such warrant.

 

The Merger Agreement contains customary representations, warranties and covenants of the parties. We have agreed to refrain from engaging in certain activities until the effective time of the Merger. In addition, under the terms of the Merger Agreement, we have agreed not to solicit or support any alternative acquisition proposals, subject to customary exceptions for us to respond to and support unsolicited proposals in the exercise of the fiduciary duties of our board of directors. We are obligated to pay a termination fee of $1,000,000 to Ferrer in certain circumstances following termination of the Merger Agreement.  Additionally, if either we or Ferrer terminate the Merger Agreement in accordance with its terms, then all outstanding unpaid principal and accrued interest owed on the Ferrer Note by us will become immediately due and payable to Ferrer.

 

In connection with the execution of the Merger Agreement, we entered into the Second Forbearance Agreement with Atlas, Purchaser and the holders of the 2014 Warrants and the Notes. Pursuant to the terms of the Second Forbearance Agreement, the holders of the Notes agreed (i) to forbear on exercising all rights and remedies under the Indenture and the other documentation relating to the Notes and Atlas through the earlier of November 9, 2016 (subject to extension under certain circumstances) and the termination of the Merger Agreement and (ii) to ratify certain amendments to the Teva Agreement.  Pursuant to the terms of the Second Forbearance Agreement, the holders of the Notes also agreed to the cancellation of the Notes and the discharge of the Indenture in connection with the consummation of the Offer and to take any and all actions necessary to effect the foregoing.  In addition, the holders of the 2014 Warrants agreed to the treatment of the 2014 Warrants in connection with the Offer as described in the Merger Agreement effective as of the Merger.  Each of the holders of the Notes, the holders of the 2014 Warrants, Atlas and us also agreed to certain releases of claims effective upon the consummation of the Offer or, in the case of claims with respect to Purchaser and its affiliates, upon the execution of the Second Forbearance Agreement.

In connection with the execution of the Merger Agreement, the holders of the Notes each entered into a participation agreement with Atlas pursuant to which Atlas agreed to grant to the holders of the Notes contractual rights to receive payments from Atlas upon the receipt of certain payments and achievement of certain milestones in respect of the commercialization of ADASUVE within the Unites States.