Unassociated Document
SECURITIES
AND EXCHANGE COMMISSION
FORM
8-K/A
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported): May 22, 2009
(Exact
Name of Registrant as Specified in Charter)
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(I.R.S.
Employer
Identification
No.)
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200
Connell Drive
Berkeley
Heights, NJ
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(908) 286-9800
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(Registrant’s
telephone number, including area code)
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(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))
Explanatory Note
Genta
Incorporated (the “Company”) is filing this Form 8-K/A to amend and restate that
certain Form 8-K filed by the Company on May 29, 2009 to clarify that Exhibit
10.1 attached thereto was not the final version of the document and to attach
the correct final version of Exhibit 10.1.
Item
1.01. Entry into a Material
Definitive Agreement.
As
previously reported, on June 5, 2008, Genta Incorporated, a Delaware corporation
(the “Company”) entered into a securities purchase agreement (the “Securities
Purchase Agreement”), with certain accredited institutional investors (the “2008
Note Holders”) for a private placement of senior secured convertible notes
totaling in the aggregate of up to $40 million in gross proceeds (the “2008
Financing”). The Company closed on approximately $20 million of such
Notes on June 9, 2008. On June 9, 2008, in connection with the 2008
Financing, the Company issued a form of senior secured convertible promissory
note due June 9, 2010 to the 2008 Note Holders (the “2008 Note”). For purposes
of this Current Report on Form 8-K, references to the 2008 Note(s) refers to the
2008 Notes issued in June 2008, and not the 2008 Notes issued as payment in kind
in lieu of cash interest payments (“2008 PIK Notes”).
Then, on
April 2, 2009, the Company closed on a securities purchase agreement, with
certain accredited institutional investors listed on the signature page thereto
(the “2009 Note Holders”), to place up to $12 million of senior secured
convertible notes and corresponding warrants to purchase common stock with such
2009 Note Holders (the “2009 Financing”). The Company closed with
gross proceeds of approximately $6 million of such notes and
warrants. In connection with the 2009 Financing, the Company and each
of the 2008 Note Holders entered into a Consent Agreement, dated April 2, 2009
(the “Consent Agreement”), whereby the 2008 Note Holders, for all purposes and
in all respects under the Securities Purchase Agreement, consented to the 2009
Financing and transactions contemplated thereby.
Therefore,
on May 22, 2009, the Company entered into a Note Conversion and Amendment to
Consent Agreement, dated as of May 21, 2009 (the “Amendment”), with the 2008
Note Holders in order to amend the Consent Agreement to:
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remove
the covenant that no 2008 Note Holder may convert any of such holder’s
2008 Notes on any day to the extent that, together with all prior
conversions under such 2008 Notes following the Effective Date (as defined
in the Consent Agreement), the total amount of such 2008 Notes that has
been converted since the Effective Date exceeds (a) 10% of the principal
amount of such 2008 Notes on the Effective Date multiplied by (b) the
number of whole or partial calendar weeks since the Effective
Date;
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amend
the limitation on the 2008 Note Holders’ conversion rights to apply only
to the 2008 PIK Notes, rather than the 2008 Notes;
and
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clarify
the approval required by the 2008 Note Holders in order to waive or amend
the Consent Agreement to require the approval of at least two-thirds of
the then outstanding and unexercised Purchase Rights (as defined in the
Consent Agreement) and the then outstanding principal amount of New Notes
(as defined in the Consent Agreement) issued upon exercise of the Purchase
Rights (together, as one
class).
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The
conversion provisions set forth in the Amendment do not apply to the June 2008
holdings of Dr. Raymond P. Warrell, Jr. and Dr. Loretta M. Itri. Pursuant to the
Amendment, Dr. Warrell and Dr. Itri agreed not to convert such portion of the
2008 Notes beneficially held by each of them as necessary in order for the
Company to authorize and reserve a sufficient number of unissued shares to cover
the conversions set forth in the Amendment and the conversion of all of the 2008
Notes, in each case, other than those held by Dr. Warrell and Dr.
Itri.
Pursuant
to the Amendment, the 2008 Note Holders also agreed:
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to
convert the entire outstanding principal amount of each holder’s 2008
Note, subject to the limitations on conversion set forth in Section 3.4 of
the 2008 Notes and Section 5(b) of the Consent Agreement, on May 22, 2009
(the “Initial Conversion
Date”);
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to
the extent any of the principal amount of such holder’s 2008 Note remains
outstanding following the Initial Conversion Date, to convert any
additional outstanding principal amount of such 2008 Notes, subject to the
conversion limitations contained in Section 3.4 and Section 5(b) of the
Consent Agreement, on May 26, 2009;
and
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not
to sell, assign or transfer any of the shares of Company common stock
received upon conversion of such holder’s 2008 Notes, or any interest
therein, during the period beginning on the effective date of the
Amendment and ending at 11:59 pm EDT May 28,
2009.
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Pursuant
to the Amendment, the consent of holders of at least 95% in outstanding
principal amount of the 2008 Notes was required for the Amendment to be
effective (such consents were ultimately obtained on May 22, 2009).
A complete copy of the Amendment is
attached hereto. The foregoing description of the Amendment and any other
documents or filings referenced herein are qualified in their entirety by
reference to such exhibits, documents or filings.
Item
9.01. Financial
Statements and Exhibits
(d)
Exhibits.
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10.1
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Note
Conversion and Amendment to Consent Agreement, dated as of May 22, 2009,
by and among the Company and each of the 2008 Note
Holders.
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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.
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GENTA
INCORPORATED |
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By:
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/s/GARY
SIEGEL |
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Name:
Gary Siegel |
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Title: Vice
President, Finance |
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