UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE
ACT OF 1934
Date of Report (Date of Earliest Event Reported): March 31, 2012
BIOSPECIFICS TECHNOLOGIES CORP.
(Exact name of registrant as specified in its charter)
Delaware | 001-34236 | 11-3054851 |
(State or Other Jurisdiction | (Commission File Number) | (I.R.S. Employer |
Of Incorporation) | Identification No.) |
35 Wilbur Street
Lynbrook, NY 11563
(Address of Principal Executive Office) (Zip Code)
516.593.7000
(Registrants telephone number,
including area code)
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))
EXPLANATORY NOTE
This Amendment to Form 8-K on Form 8-K/A (the Amendment) amends and restates in its entirety the Current Report on Form 8-K of BioSpecifics Technologies Corp. (the Company) filed with the Securities and Exchange Commission (the Commission) on April 5, 2012 (the Original Filing). This Amendment is being filed to (i) amend and restate Item 1.01 of the Original Filing in its entirety to supplement and correct the description of the material definitive agreement set forth in the Original Filing and (ii) to file the revised redacted version of Exhibit 10.1 to the Original Filing in response to comments received from the Staff of the Commission on the confidential treatment request by the Company with respect to such agreement. Confidential treatment has been requested for certain portions of such agreement. Omitted portions of such agreement have been filed separately with the Commission.
INTRODUCTORY COMMENT
Throughout this Current Report on Form 8-K, the terms we, us, our and Company refer to BioSpecifics Technologies Corp. and its subsidiary, Advance Biofactures Corporation.
ITEM 1.01. ENTRY INTO MATERIAL DEFINITIVE AGREEMENT
On March 31, 2012, the Company entered into an amendment to its existing agreement with Dr. Martin K. Geldbard, dated August 27, 2008, related to the Companys future royalty obligations for Peyronies disease. The amendment enables the Company to buy down a portion of its future royalty obligations in exchange for an initial cash payment payable within ten days of signing and five additional cash payments payable upon the occurrence of a milestone event.
A copy of the form of amendment is attached hereto as Exhibit 10.1 and incorporated by reference into this Item 1.01. The foregoing description of the amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the amendment.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
(d) | Exhibits | |
10.1 | Amendment dated March 31, 2012* |
* Portions of Exhibit 10.1 have been omitted pursuant to a request for confidential treatment.
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.
Date: August 8, 2012 | BIOSPECIFICS TECHNOLOGIES CORP. |
(Registrant) | |
/s/ Thomas L. Wegman | |
Thomas L. Wegman | |
President |
EXHIBIT INDEX
Exhibit No. | Description |
10.1 | Amendment made as of March 31, 2012 |
Confidential treatment requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2. The confidential portions of this exhibit have been omitted and are marked accordingly. The confidential portions have been filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request. |
AMENDMENT TO
AMENDED AND RESTATED AGREEMENT
This AMENDMENT TO AMENDED AND RESTATED AGREEMENT is made as of the 31st day of March, 2012 (this Amendment) by and between MARTIN K. GELBARD, M.D., 2601 W. Alameda Avenue, Burbank, CA 91505 (Dr. Gelbard) and ADVANCE BIOFACTURES CORPORATION AND ITS AFFILIATES, 35 Wilbur Street, Lynbrook, NY 11563 (collectively, the Company).
RECITALS
WHEREAS, Dr. Gelbard and the Company are parties to that certain Amended and Restated Agreement, dated as of August 27, 2008 (the Agreement); and
WHEREAS, Dr. Gelbard and the Company desire to amend the Agreement pursuant to the terms, provisions, covenants and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual promises hereinafter set forth, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
AGREEMENT
I. Recitals . The recitals set forth above are incorporated herein by this reference with the same force and effect as if fully set forth hereinafter.
II. Changes to the Agreement . Section 4 of the Agreement is hereby deleted in its entirety and replaced with the following:
4. |
Compensation: |
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a. |
Dr. Gelbard shall receive from the Company in consideration of services to be rendered and rights granted hereunder the following compensation whether or not the Company has terminated his engagement prior thereto: (i) the fees for services described in Section 3 above, <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION >, and the sum of $1,250,000 pursuant to the Agreement, all of which amounts/ <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION> have previously been paid or delivered by BTC to Dr. Gelbard; (ii) within ten (10) business days following March 30, 2012, the sum of $1,500,000; (iii) within ten (10) business days following the date the Biologics License Application (the BLA) in respect of the Product is submitted to the U.S. Food and Drug Administration (the FDA), the sum of <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION >; (iv) upon the FDAs approval of the BLA for general prescription marketing and sale of the Product by the Company and its licensees (the date of such FDA approval, the FDA Approval Date), the sum of <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION >; (v) within ten (10) business days following the FDA Approval Date, the additional sum of <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION >; (vi) <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION >, four additional payments of <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION >, each of which shall be paid within ten (10) business days following each of the first, second, third and fourth anniversaries of the FDA Approval Date (each, an Anniversary Date); and (vii) in addition, <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION> , a royalty of <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION> of Net Sales (as defined in Section 4(c)) of the Product by the Company, BTC or their assignees, licensees or sublicensees for a period of time commencing on the date of the first commercial sale and terminating on the date which is <OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION> following the date of first commercial sale, such royalties to be payable on a quarterly basis together with a royalty statement. Each of the payments set forth in clauses (i) through (vi), inclusive, of this Section 4(a) is non-refundable and shall not be creditable against any obligation of the Company to pay royalties pursuant to clause (vii) of this Section 4(a). |
b. |
<OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION> . |
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c. |
For purposes of this Section 4, Net Sales shall mean the gross amount invoiced on account of sales of the Product to third parties, less the total of (i) trade, cash or quantity discounts not already reflected in the amount invoiced; (ii) excise, sales and other consumption taxes and customs duties to the extent included in the invoice price; (iii) freight, insurance and other transportation charges to the extent specifically included in the invoice price; (iv) returns or retroactive price reductions; and (v) compulsory payments and rebates directly related to sale of the Product accrued, paid or deducted pursuant to governmental regulations. The Company will make a good faith attempt, using commercially reasonable biotech industry practices, to differentiate between Net Sales of the Product and sales of similar products for purposes other than the treatment of Peyronies Disease in calculating the amount of the royalty due hereunder to Dr. Gelbard. Absent manifest error, the Companys good faith differentiation shall be binding and conclusive on Dr. Gelbard; provided that, the quarterly royalty statements sent by the Company to Dr. Gelbard include the sales figures used by Auxilium Pharmaceuticals, Inc. in calculating the royalty amount payable by Auxilium to BTC pursuant to Section 7.1 of the Second Amended and Restated Development and License Agreement, dated August 31, 2011 (as amended, the Development Agreement); and provided further, that said sales figures do not differ materially from other publicly available sales data on the Product. |
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III. Construction Principles . The terms and conditions of this Amendment shall amend, supersede, replace, govern and control over any conflicting or inconsistent terms and conditions in the Agreement, but except as modified in this Amendment, all other terms and conditions of the Agreement shall remain unmodified and in full force and effect and are hereby ratified and reaffirmed by each of the undersigned parties. Unless otherwise defined in this Amendment, all capitalized terms shall have the same meanings as provided in the Agreement.
IV. Governing Law . This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any otherwise applicable principles of conflicts of laws.
V. Counterparts . This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same agreement. Receipt by facsimile or electronic mail message of any executed signature page to this Amendment shall constitute effective delivery of such signature page.
[ Signatures appear on the following page ]
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. |
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IN WITNESS WHEREOF, the parties have executed or caused this Amendment to Amended and Restated Agreement to be executed by their respective officers thereunto duly authorized, as applicable, effective as of the date first above written.
Martin K. Gelbard, M.D. | |
Advance Biofactures Corporation | |
By: | |
Name: Thomas L. Wegman | |
Title: President |