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): December 21, 2012
StemCells, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 000-19871 | 94-3078125 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| 7707 Gateway Blvd, Suite 140, Newark, CA | 94560 | |||
| (Address of principal executive offices) | (Zip Code) | |||
Registrant’s telephone number, including area code: 510.456.4000
Not Applicable
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) |
| ¨ | 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 8.01. Other Events.
On June 5, 2009, StemCells, Inc. (the “Company”) entered into a sales agreement (the “2009 Sales Agreement”) with Cantor Fitzgerald & Co. (“Cantor”) pursuant to which the Company had the option to sell up to $30,000,000 of its common stock, from time to time, in at-the-market offerings, and on December 21, 2012, the Company and Cantor entered into an amendment to the 2009 Sales Agreement (the “Amendment”). Between June 2009 and November 2012, the Company sold common stock under the sales agreement worth approximately $26.7 million, leaving approximately $3.3 million available to sell as of December 2012. The Amendment raises the dollar amount of shares available to sell under the 2009 Sales Agreement back to $30 million (the “Shares”). Sales of common stock pursuant to the 2009 Sales Agreement, as amended, will occur in at-the-market offerings under the Company’s registration statement on Form S-3 (Registration No. 333-170300) or any successor registration statement. A prospectus supplement relating to the sale of Shares pursuant to the 2009 Sales Agreement, as amended, has been filed with the Securities and Exchange Commission.
We are filing certain exhibits with this Current Report on Form 8-K, including the Amendment and an opinion to the Company from Ropes & Gray LLP, counsel to the Company, regarding the validity of the Shares to be sold pursuant to the 2009 Sales Agreement, as amended.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. |
Description | |
| 1.1 | Amendment No. 1 to the Sales Agreement between StemCells, Inc. and Cantor Fitzgerald & Co. dated December 21, 2012. | |
| 5.1 | Opinion of Ropes & Gray LLP. | |
| 23.1 | Consent of Ropes & Gray LLP (contained in Exhibit 5.1 above). | |
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.
| December 28, 2012 | StemCells, Inc. | |||
| /s/ Rodney K. B. Young | ||||
| Name: Rodney K. B. Young Title: Chief Financial Officer | ||||
Exhibit Index
| Exhibit Number |
Description | |
| 1.1 | Amendment No. 1 to the Sales Agreement between StemCells, Inc. and Cantor Fitzgerald & Co. dated December 21, 2012. | |
| 5.1 | Opinion of Ropes & Gray LLP. | |
| 23.1 | Consent of Ropes & Gray LLP (contained in Exhibit 5.1 above). | |
Exhibit 1.1
STEMCELLS, INC.
CONTROLLED EQUITY OFFERINGSM
AMENDMENT NO. 1 TO
SALES AGREEMENT
December 21, 2012
Cantor Fitzgerald & Co.
499 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
Reference is made to the Sales Agreement, dated June 5, 2009, including the Schedules thereto (the “Sales Agreement”), between Cantor Fitzgerald & Co. (“CF&Co”) and StemCells, Inc., a Delaware corporation (the “Company”), pursuant to which the Company could sell through CF&Co, as sales agent, up to $30,000,000 of shares of common stock, par value $0.01 per share, of the Company. All capitalized terms used in this Amendment No. 1 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, effective as of the date hereof:
1. The first sentence of Section 1 of the Sales Agreement is hereby deleted and replaced in its entirety with the following:
“The Company agrees that, from time to time after December 21, 2012 and during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may offer and sell through CF&Co, acting as agent and/or principal, shares (the “Placement Shares”) of common stock of the Company, par value $0.01 per share (the “Common Stock”), having an aggregate offering price of up to $30,000,000, and such amount of Placement Shares available for offer and sale are in addition to any sales of shares under this Agreement made prior to December 21, 2012.”
2. The first sentence of the second paragraph of Section 1 of the Sales Agreement is amended by deleting the parenthetical “(File No. 333-151891)” and replacing it with “(File No. 333-170300).”
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. Section 12 is amended by (i) deleting the words “DLA Piper LLP (US), 1251 Avenue of the Americas, New York, New York 10020, fax no. (212) 884-8494, Attention: Dean M. Colucci” and replacing them with “Reed Smith LLP, 599 Lexington Avenue, New York, NY 10022, fax no. (212) 521-5450, Attention: Daniel I. Goldberg;” (ii) deleting the words “3155 Porter Drive, Palo Alto, CA 94304, fax no. 650-475-3101” and replacing them with “7707 Gateway Blvd, Suite 140, Newark, CA 94560, fax no. (510) 456-4202;” and (iii) deleting the words “One International Place, Boston, MA 02110” and replacing them with “Prudential Tower, 800 Boylston Street, Boston, MA 02199.”
5. Schedule 1 is amended by adding the words “as amended on December 21, 2012” immediately after “June 5, 2009”.
6. Certain Definitions. The following definitions in the Sales Agreement are amended and restated in their entirety:
(a) The definition of “IDEA” found in Section 1 of the Sales Agreement is redefined to mean “the Electronic Data Gathering Analysis and Retrieval System of the Commission (EDGAR).” All references in the Sales Agreement to “IDEA” are replaced with “EDGAR.”
(b) The definition of “Exchange” found in Section 3 of the Sales Agreement is redefined to mean “the NASDAQ Capital Market, or any other national securities exchange on which the Common Stock is then listed.”
7. Schedule 2 shall be amended by deleting “Peter Dippolito (pdippolito@cantor.com)”.
8. Schedule 3 is replaced in its entirety with the following:
COMPENSATION
CF&Co shall be paid compensation equal to up to three percent (3%) of the gross proceeds from the sales of the Placement Shares.
9. The first sentence of the Form of Representation Date Certificate attached as Exhibit 7(m) is amended to add “as amended on December 21, 2012” after “June 5, 2009.”
B. Prospectus Supplement. The Company shall file a 424(b) Prospectus Supplement reflecting this Amendment prior to the issuance of any Placement Notice pursuant to the Sales Agreement. The Company and CF&Co agree that the Prospectus Supplement filed to reflect this Amendment will be limited by the dollar amount of shares then available for offer and sale under the then-current Registration Statement, and this Amendment shall not be deemed to be an offer
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for any sales of shares of Common Stock unless such shares are set forth in a Placement Notice issued by the Company setting forth the number or dollar amount of shares to be sold thereunder and any other parameters in accordance with which the Company desires the Placement Shares to be sold.
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 us, please so indicate in the space provided below for that purpose.
| Very truly yours, | ||
| STEMCELLS, INC. | ||
| By: |
/s/ Rodney K. B. Young | |
| Name: Rodney K. B. Young | ||
| Title: 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 | ||
[SIGNATURE PAGE]
STEMCELLS, INC. – AMENDMENT NO. 1 TO SALES AGREEMENT
Exhibit 5.1
December 28, 2012
StemCells, Inc.
7707 Gateway Blvd, Suite 140
Newark, California 94560
Re: Registration Statement on Form S-3 (File No. 333-170300)
Ladies and Gentlemen:
We have acted as counsel to StemCells, Inc., a Delaware corporation (the “Company”) in connection with its entry into the Controlled Equity Offering Sales Agreement, dated June 5, 2009, by and between the Company and Cantor Fitzgerald & Co., as amended on December 21, 2012 (the “Agreement”). Pursuant to the December 21, 2012 amendment to the Agreement, the Company may issue and sell up to $30,000,000 of shares (the “Shares”) of the common stock, $0.01 par value (the “Common Stock”), of the Company pursuant to the above-referenced registration statement (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Securities Act”).
In connection with this opinion letter, we have examined such certificates, documents and records and have made such investigation of fact and such examination of law as we have deemed appropriate in order to enable us to render the opinions set forth herein. In conducting such investigation, we have relied, without independent verification, upon certificates of officers of the Company, public officials and other appropriate persons.
The opinions expressed below are limited to the Delaware General Corporation Law.
Based upon and subject to the foregoing, we are of the opinion that, when the Shares are issued out of the Company’s duly authorized Common Stock and issued and delivered in accordance with the terms of the Agreement against payment of the consideration set forth therein, the Shares will be duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to your filing this opinion as an exhibit to the Registration Statement and to the use of our name therein and in the related prospectus under the caption “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Sections 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Ropes & Gray LLP |
| ROPES & GRAY LLP |