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): November 26, 2012
| CHELSEA THERAPEUTICS INTERNATIONAL, LTD. | ||
| (Exact name of registrant as specified in its charter) |
| Delaware | 000-51462 | 20-3174202 |
| (State or other jurisdiction of incorporation) | (Commission File Number) |
(IRS Employer ID Number) |
| 3530 Toringdon Way, Suite 200, Charlotte, North Carolina 28277 | |
| (Address of principal executive offices) | (Zip Code) |
| Registrant’s telephone number, including area code | (704) 341-1516 |
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) |
| ¨ | 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 1.01. Entry into a Material Definitive Agreement.
On November 26, 2012, we entered into an amendment to our existing Controlled Equity OfferingSM sales agreement with Cantor Fitzgerald & Co., or Cantor, pursuant to which we may offer and sell shares of our common stock having an aggregate offering price of up to $20,000,000 from time to time through Cantor acting as agent and/or principal. Sales through Cantor, if any, will be made on The NASDAQ Capital Market by means of ordinary brokers’ transactions at market prices, in block transactions or as otherwise agreed by Cantor and us. Cantor will use its commercially reasonable efforts to sell our common stock from time to time based upon our instructions (including any price, time or size limits or other customary parameters or conditions we may impose). We will pay Cantor a commission rate ranging between 3.0% and 5.0% of the gross sales price per share of any common stock sold through Cantor as agent under the sales agreement. We also agreed to reimburse Cantor for certain specified expenses and have provided Cantor with customary indemnification rights.
The foregoing description of the amendment to the sales agreement is not complete and is qualified in its entirety by reference to the full text of such amendment, a copy of which is filed herewith as Exhibit 10.20 to this Current Report on Form 8-K and is incorporated herein by reference. This Current Report on Form 8-K also incorporates by reference the amendment to the sales agreement into our shelf registration statement on Form S-3 (File No. 333-179183) previously filed with the Securities and Exchange Commission.
Item 9.01. Financial Statements and Exhibits.
| (d) | Exhibits |
| Exhibit No. | Description | |
| 5.1 | Opinion of Wyrick Robbins Yates & Ponton, LLP. | |
| 10.20 | Amendment No. 3, dated November 26, 2012, to Sales Agreement, dated July 2, 2010, between Chelsea Therapeutics International, Ltd. and Cantor Fitzgerald & Co, as amended on July 26, 2011 and December 28, 2011. | |
| 23.1 | Consent of Wyrick Robbins Yates & Ponton, LLP (included in Exhibit 5.1). |
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.
| CHELSEA THERAPEUTICS INTERNATIONAL, LTD. | ||
| Date: November 26, 2012 | /s/ J. Nick Riehle | |
| J. Nick Riehle, Chief Financial Officer | ||
Exhibit 5.1
November 26, 2012
Chelsea Therapeutics International, Ltd.
3530 Torringdon Way, Suite 200
Charlotte, North Carolina 28277
Gentlemen:
We have acted as counsel to Chelsea Therapeutics International, Ltd., a Delaware corporation (the “Company”), in connection with the sale of up to $20,000,000 of its common stock, par value $0.0001 per share (the “Shares”), pursuant to a Registration Statement on Form S-3 (File No. 333-179183) (the “Registration Statement”) and the related Prospectus and Prospectus Supplement, as amended, filed with the Securities and Exchange Commission (the “Commission”). All of the Shares are to be sold by the Company as described in the Registration Statement and related Prospectus and Prospectus Supplement, as amended.
In connection with this opinion, we have examined the Registration Statement and related Prospectus and Prospectus Supplement, as amended, your Certificate of Incorporation and Bylaws, as currently in effect and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. Further, we have assumed that the aggregate gross amount of Shares sold will not exceed $20,000,000.
Our opinion is expressed only with respect to the federal laws of the United States of America and the General Corporation Law of the State of Delaware. We express no opinion as to whether the laws of any particular jurisdiction other than those identified above are applicable to the subject matter hereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Registration Statement and related Prospectus and Prospectus Supplement, as amended, will be validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K filed with the Commission on or about November 26, 2012.
| Sincerely, | |
| /s/ Wyrick Robbins Yates & Ponton LLP |
Exhibit 10.20
CHELSEA THERAPEUTICS INTERNATIONAL, LTD.
CONTROLLED EQUITY OFFERINGSM
Amendment No. 3 to
SALES AGREEMENT
November 26, 2012
Cantor Fitzgerald & Co.
499 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
Reference is made to the Sales Agreement, dated July 2, 2010, as amended by Amendment No. 1 dated July 26, 2011 and Amendment No. 2 dated December 28, 2011 (the “Sales Agreement”), between Cantor Fitzgerald & Co. (“CF&Co”) and Chelsea Therapeutics International, Ltd., a Delaware corporation (the “Company”), pursuant to which the Company agreed to sell through CF&Co, as sales agent, up to $19,750,000 of shares of common stock, par value $0.0001 per share, of the Company. All capitalized terms used in this Amendment No. 3 to Sales Agreement between CF&Co and the Company (this “Amendment”) and not otherwise defined herein shall have the respective meanings assigned to such terms in the Sales Agreement. CF&Co and the Company agree as follows:
| A. | Amendments to Sales Agreement. The Sales Agreement is amended as follows: | |
| 1. | The first sentence of the first paragraph of Section 1 of the Sales Agreement is hereby amended to replace the term “$19,750,000” with “$20,000,000”. | |
| 2. | The first sentence of the second paragraph of Section 1 of the Sales Agreement is hereby amended to replace the term “Form S-3 (File No. 333-161236)” with “Form S-3 (File No. 333-179183)”. | |
| 3. | The following sentence shall be added as the third sentence, to the second paragraph of Section 1 of the Sales Agreement: | |
“The Company may file one or more additional registration statements from time to time that will contain a base prospectus and/or prospectus supplement with respect to the Placement Shares.”
| 4. | The first sentence of the Placement Notice attached as Schedule 1 to the Sales Agreement shall be amended to add “as amended on July 26, 2011, December 28, 2011 and November 26, 2012” immediately after “July 2, 2010”. | |
| 5. | Schedule 3 shall be amended by deleting “Simon Pedder (simon.pedder@chelsearx.com)” and “Peter Dippolito (pdippolito@cantor.com)” and adding “Joseph Oliveto (oliveto@chelsearx.com)” under “The Company.” | |
| 6. | The first sentence of the Form of Representation Date Certificate attached as Exhibit 7(l) to the Sales Agreement is amended to add “as amended on July 26, 2011, December 28, 2011 and November 26, 2012” immediately before “(the “Sales Agreement”)”. |
B. Prospectus Supplement. The Company shall file a 424(b) Prospectus Supplement reflecting this Amendment within 2 business days of the date hereof.
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C. No Other Amendments. Except as set forth in Part A above, all the terms and provisions of the Sales Agreement shall continue in full force and effect.
D. Counterparts.
This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile
or email transmission.
E. Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws.
[Remainder of page intentionally left blank.]
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If the foregoing correctly sets forth the understanding between the Company and CF&Co, please so indicate in the space provided below for that purpose, whereupon this Amendment No. 3 to Sales Agreement shall constitute a binding agreement between the Company and CF&Co.
| Very truly yours, | |||
| CHELSEA THERAPEUTICS | |||
| INTERNATIONAL, LTD. | |||
| By: | /s/ J. Nick Riehle | ||
| Name: J. Nick Riehle | |||
| Title: Vice President and Chief Financial Officer | |||
ACCEPTED as of the date first-above written:
CANTOR FITZGERALD & CO.
| By: | /s/ Jeffrey Lumby |
| Name: Jeffrey Lumby | |
| Title: Senior Managing Director | |