- Current report filing (8-K)
October 14 2009 - 3:15PM
Edgar (US Regulatory)
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):
October 14, 2009
Cell
Genesys, Inc.
(Exact name of
registrant as specified in its charter)
Delaware
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000-19986
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94-3061375
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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
Number)
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400 Oyster Point Boulevard, Suite 525,
South San Francisco, California
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94080
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(Address of
Principal Executive Offices)
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(Zip Code)
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(650) 266-3000
(Registrants telephone number, including area code)
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:
o
Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Item
2.01.
Completion
of Acquisition or Disposition of Assets.
On October 14, 2009, Cell Genesys, Inc. (Cell
Genesys) completed its previously announced merger with BioSante
Pharmaceuticals, Inc. (BioSante).
Pursuant to the terms of an agreement and plan of merger dated as of June 29,
2009 between BioSante and Cell Genesys (the Merger Agreement), Cell Genesys
merged with and into BioSante, with BioSante continuing as the surviving
company (the Merger). The Merger
Agreement and the transactions contemplated thereby, including the Merger, were
approved by the board of directors and stockholders of each of BioSante and
Cell Genesys. The stockholders of
BioSante and Cell Genesys approved the Merger Agreement and the transactions
contemplated thereby, including the Merger and, in the case of the BioSante
stockholders, the issuance of shares of BioSante common stock in the Merger, at
respective special meetings of the stockholders held on September 30,
2009, in the case of the BioSante special meeting, and October 14, 2009,
in the case of the Cell Genesys special meeting.
Subject to the terms and conditions of the Merger Agreement,
at the effective time of and as a result of the Merger, each share of common
stock of Cell Genesys issued and outstanding immediately prior to the effective
time of the Merger was converted into the right to receive 0.1828 of a share of
BioSante common stock (the Exchange Ratio).
No fractional shares of BioSante common stock were issued in connection
with the Merger, and holders of Cell Genesys common stock are entitled to
receive cash in lieu thereof.
In addition, under the terms of the Merger Agreement, all
options to purchase shares of Cell Genesys common stock, other than certain
designated options held by Cell Genesyss current officers (the Specified
Company Stock Options), became fully vested and exercisable until immediately
prior to the effective time of the Merger.
Upon the effective time of the Merger, such unexercised options other
than the Specified Company Stock Options terminated. The Specified Company Stock Options were
assumed by BioSante and will remain outstanding following the Merger, but
converted into and became options to purchase shares of BioSante common stock
on terms substantially identical to those in effect prior to the Merger, except
for adjustments to the underlying number of shares and the exercise price based
on the Exchange Ratio. All warrants to
purchase shares of Cell Genesys common stock which by their terms survived the
Merger were assumed by BioSante, but were converted into and became warrants to
purchase shares of BioSante common stock on terms substantially identical to
those in effect prior to the Merger, except for adjustments to the underlying
number of shares and the exercise price based on the Exchange Ratio. In addition, as a result of the Merger,
BioSante assumed $1.2 million in principal amount of 3.125% convertible senior
notes due in November 2011 and $20.8 million in principal amount of 3.125%
convertible senior notes due in May 2013 issued by Cell Genesys, and such
notes became convertible into shares of BioSante common stock as a result of
the merger in accordance with the terms of the indentures governing such notes
as supplemented by supplemental indentures entered in to between BioSante and
the trustees thereunder.
In the aggregate, BioSante issued approximately 20.2 million
shares of its common stock to former Cell Genesys stockholders in connection
with the Merger. The issuance of
BioSante common stock to the Cell Genesys stockholders in connection with the
Merger was registered under the Securities Act of 1933, as amended, pursuant to
a registration statement on Form S-4 (File No. 333-161181), initially
filed by BioSante with the Securities and Exchange Commission on August 7,
2009 and declared effective on August 21, 2009. BioSantes Form S-4
registration statement, including the joint proxy statement/prospectus included
therein, contains additional information about the Merger and the related
transactions.
Item 3.01.
Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
(d)
Following
completion of the Merger on October 14, 2009, Cell Genesys notified the
NASDAQ Global Market that the Merger had been completed and that as a result of
the merger, each outstanding share of Cell Genesys common stock was converted
into the right to receive the merger
2
consideration,
as described above under the heading Item 2.01. Completion of Acquisition or
Disposition of Assets. Cell Genesys
requested that NASDAQ file with the Securities and Exchange Commission an
application on Form 25 to strike Cell Genesys common stock from listing on
NASDAQ and from registration under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the Exchange Act). Cell Genesys intends to file a certification
on Form 15 to terminate the registration of its common stock under Section 12(g) of
the Exchange Act (and its corresponding reporting obligation under Section 13(a) of
the Exchange Act) and to suspend its reporting obligations under Section 15(d) of
the Exchange Act.
Item
3.03.
Material
Modification to Rights of Security Holders.
Pursuant
to the Merger Agreement, each outstanding share of Cell Genesys common stock
issued and outstanding prior to the effective time of the Merger was converted
into the right to receive the merger consideration, as described above under
the heading Item 2.01. Completion of Acquisition or Disposition of Assets,
which description is incorporated by reference herein.
Item 5.01.
Changes in Control of Registrant.
Upon the closing of the Merger on October 14,
2009, a change in control of Cell Genesys occurred. Pursuant to the terms of
the Merger Agreement, Cell Genesys merged with and into BioSante, with BioSante
continuing as the surviving company, as described above under the heading Item
2.01. Completion of Acquisition or Disposition of Assets, which description is
incorporated by reference herein.
In the
aggregate, BioSante issued approximately 20.2 million shares of its common
stock to former Cell Genesys stockholders in connection with the Merger.
As a result
of the Merger, the stockholders of BioSante prior to the Merger own
approximately 62 percent of the outstanding common stock of the combined
company and the former Cell Genesys stockholders own approximately 38 percent
of the outstanding common stock of the combined company.
Pursuant to the terms of the Merger Agreement and as a
result of and by virtue of the Merger, Stephen A. Sherwin, M.D. and John T.
Potts, Jr., M.D., both former directors of Cell Genesys, joined the board
of directors of BioSante at the effective time of the Merger.
Item 5.02
Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b)
Pursuant to the terms of the Merger Agreement, David W. Carter, Nancy M.
Crowell, James M. Gower, Thomas E. Shenk, Ph.D., Eugene L. Step, Inder M. Verma,
Ph.D. and Dennis L. Winger, former members of the Cell Genesys board of
directors, resigned immediately prior to the completion of the Merger.
Immediately after the completion of the Merger,
BioSante terminated the employment of each of Stephen A. Sherwin, M.D., the
former chairman of the board and chief executive officer of Cell Genesys,
Sharon E. Tetlow, the former senior vice president and chief financial officer
of Cell Genesys, Marc L. Belsky, the former vice president, finance and chief
accounting officer of Cell Genesys, and Robert H. Tidwell, the former senior
vice president, corporate development of Cell Genesys, effective immediately.
Item 7.01
Regulation FD Disclosure.
On October 14, 2009, Cell Genesys issued a news
release announcing the completion of the Merger. A copy of the news release is
furnished as Exhibit 99.1 to this Current Report on Form 8-K and is
incorporated herein by reference.
The information contained in this Item 7.01 and Exhibit 99.1
to this report shall not be deemed to be
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filed for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended, or otherwise subject to the
liability of that section, and shall not be incorporated by reference into any
filings made by Cell Genesys under the Securities Act of 1933, as amended, or
the Securities Exchange Act of 1934, as amended, except as may be expressly set
forth by specific reference in such filing.
Item 9.01.
Financial Statements and Exhibits.
(d)
Exhibits
.
Exhibit No.
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Description
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Method of Filing
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2.1
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Agreement
and Plan of Merger dated as of June 29, 2009 by and between BioSante
Pharmaceuticals, Inc. and Cell Genesys, Inc.*
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Incorporated by reference to Exhibit 2.1 to Cell Genesyss
Current Report on Form 8-K filed with the Securities and Exchange
Commission on
June 30,
2009
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99.1
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News
release issued by Cell Genesys, Inc. on October 14, 2009
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Furnished herewith
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*
All exhibits
and schedules to this exhibit have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. Cell Genesys will furnish the omitted exhibits and schedules to
the Securities and Exchange Commission upon request by the Securities and
Exchange Commission.
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SIGNATURE
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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CELL GENESYS, INC.
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By:
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/s/ Phillip B. Donenberg
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Phillip B. Donenberg, Chief Financial Officer,
Treasurer and Secretary of BioSante Pharmaceuticals,
Inc., successor in interest to Cell Genesys, Inc. and
Authorized Person
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Date: October 14,
2009
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CELL GENESYS, INC.
CURRENT
REPORT ON FORM 8-K
EXHIBIT
INDEX
Exhibit No.
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Description
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Method
of Filing
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2.1
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Agreement
and Plan of Merger dated as of June 29, 2009 by and between BioSante
Pharmaceuticals, Inc. and Cell Genesys, Inc.*
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Incorporated by reference to Exhibit 2.1 to Cell Genesyss
Current Report on Form 8-K filed with the Securities and Exchange
Commission on
June 30,
2009
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99.1
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News
release issued by Cell Genesys, Inc. on October 14, 2009
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Furnished herewith
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*
All exhibits
and schedules to this exhibit have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. Cell Genesys will furnish the omitted exhibits and schedules to
the Securities and Exchange Commission upon request by the Securities and
Exchange Commission.
6
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