SYNERGY PHARMACEUTICALS, INC. (Form: 8-K, Received: 01/17/2013 16:09:27)

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): January 15, 2013

Synergy Pharmaceuticals Inc.

(Exact name of Registrant as specified in its charter)

Delaware

001-35268

33-0505269

(State or other jurisdiction of

incorporation or organization)

(Commission

File Number)

(I.R.S. Employer

Identification No.)

420 Lexington Avenue, Suite 1609

New York, NY

10170

(Address of principal executive offices)

(Zip code)

(212) 297-0020

(Registrant’s telephone number including area code)

N/A

(Former name and 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):

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 January 17, 2013 (the “Effective Date”), Synergy Pharmaceuticals Inc. (the “Company”) completed its acquisition of Callisto Pharmaceuticals, Inc. (“Callisto”) by means of the merger of Callisto with and into the Company (the “Merger”). As a result of the Merger, each outstanding share of Callisto common stock was converted into the right to receive 0.1799 of one share of Synergy common stock (the “Exchange Ratio”) and the 22,295,000 shares of the Company held by Callisto were canceled. In addition, each stock option exercisable for shares of Callisto common stock that was outstanding on the Effective Date was assumed by the Company and converted into a stock option to purchase the number of shares of the Company’s common stock that the holder would have received if such holder had exercised such stock option for shares of Callisto common stock prior to the Merger and exchanged such shares for shares of the Company’s common stock in accordance with the Exchange Ratio. In addition, each Callisto stock option exercisable for shares of Company common stock outstanding on the Effective Date was assumed by the Company and each outstanding warrant or obligation to issue a warrant to purchase shares of Callisto common stock, whether or not vested, was cancelled.

In connection with the consummation of the Merger, the Company expects to issue a total of approximately 28,605,354 shares of its common stock to former Callisto stockholders in exchange for their shares of Callisto common stock. The shares of Company common stock issued to Callisto stockholders represent approximately 39% of the Company’s issued and outstanding common stock following the Merger. Each share of Company Common Stock received in connection with the Merger will be subject to a lock-up beginning on the Effective Date and ending on the earlier of (i) the twenty-four (24) months after such date, (ii) a Change in Control (as defined in the merger agreement), or (iii) written consent of the Company, at the Company’s sole discretion, provided the Company’s consent shall apply to all shares issued pursuant to the Merger.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On January 15, 2013, the Company filed an amendment to its second amended and restated certificate of incorporation (the “Amendment”) to increase the number of authorized shares of common stock from 100,000,000 to 200,000,000, which was approved by the stockholders at the Company’s 2012 annual meeting held on January 14, 2013. A copy of the Amendment filed with the Secretary of State of the State of Delaware is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 7.01 Regulation FD Disclosure

On January 17, 2013, the Company issued a press release announcing the completion of the Merger. A copy of the press release is attached hereto as Exhibit 99.1.

The information in this Item 7.01 disclosure, including Exhibit 99.1, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities under that Section. In addition, the information in this Item 7.01 disclosure, including Exhibit 99.1, shall not be incorporated by reference into the filings of the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.

Item 9.01 Financial Statements and Exhibits.

The following exhibits are furnished as part of this Current Report on Form 8-K:

(d) Exhibits.

3.1	Amendment to the Second Amended and Restated Certificate of Incorporation, effective January 15, 2013
99.1	Press Release, dated January 17, 2013.

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.

	SYNERGY PHARMACEUTICALS INC.


Date: January 17, 2013	By:	/s/ Gary S. Jacob
		Name: Gary S. Jacob, Ph.D.
		Title: Chief Executive Officer

Exhibit 3.1

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “SYNERGY PHARMACEUTICALS INC.”, FILED IN THIS OFFICE ON THE FIFTEENTH DAY OF JANUARY, A.D. 2013, AT 9:30 O’CLOCK A.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. /s/ Jeffrey W. Bullock Jeffrey W. Bullock, Secretary of State 2287768 8100 AUTHENTICATION: 0144311 130048579 DATE: 01-15-13 You may verify this certificate online at corp.delaware.gov/authver.shtml

CERTIFICATE OF AMENDMENT OF SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF SYNERGY PHARMACEUTICALS INC. (a Delaware Corporation) State of Delaware Secretary of State Division of Corporations Delivered 09:33 AM 01/15/2013 FILED 09:30 AM 01/15/2013 SRV 130048579 - 2287768 FILE PURSUANT TO SECTIONS 242 OF THE DELAWARE GENERAL CORPORATION LAW SYNERGY PHARMACEUTICALS INC., a corporation existing under the laws of the State of Delaware (the “Corporation”), does hereby certify that: 1. The name of the Corporation is Synergy Pharmaceuticals Inc. The date of filing the original Certificate of Incorporation with the Secretary of State of Delaware was February 11, 1992 (the “Original Certificate”). The Original Certificate was amended and restated by the Amended and Restated Certificate of Incorporation that was filed with the Secretary of State of the State of Delaware on December 24, 1997 (the “Amended and Restated Certificate”). The Amended and Restated Certificate was amended and restated by the Second Amended and Restated Certificate of Incorporation that was filed with the Secretary of State of the State of Delaware on February 2, 2012 (the “Second Amended and Restated Certificate”). 2. Article FOURTH of the Second Amended and Restated Certificate of Incorporation of the Corporation is hereby superseded and replaced as follows: “ A. Number and Class of Shares Authorized; Par Value. The Corporation is authorized to issue the following shares of capital stock: (1) Common Stock. The aggregate number of shares of common stock (referred to in this Certificate of Incorporation as “Common Stock”) which the Corporation shall have authority to issue is 200,000,000 with a par value of $0.0001 per share. (2) Preferred Stock. The aggregate number of shares of preferred stock (referred to in this Certificate of Incorporation as “Preferred Stock”) which the Corporation shall have authority to issue is 20,000,000 with a par value of $.001 per share. B. Description of Shares of Preferred Stock. The terms, preferences, limitations and relative rights of the shares of Preferred Stock are as follows: (1) The Board of Directors is expressly authorized at any time and from time to time to provide for the issuance of shares of Preferred Stock in one or more series, with such voting powers, full or limited (including, by way of illustration and not limitation, in excess of one vote per share), or without voting powers, and with such designations, preferences and relative participating, option or other rights, qualifications, limitations or restrictions, as shall be fixed and determined in the resolution or resolutions providing for the issuance thereof adopted by the Board of Directors, and as are not stated and expressed in these Articles of Incorporation or any amendment hereto, including (but without limiting the generality of the foregoing) the following: (a) The distinctive designation of such series and the number of shares which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors in creating such series) or decreased (but not below the number of shares thereof then outstanding) from time to time by resolution of the Board of Directors; and (b) The rate and manner of payment of dividends payable on shares of such series, including the dividend rate, date of declaration and payment, whether dividends shall be cumulative, and the conditions upon which and the date from which such dividends shall be cumulative; and (c) Whether shares of such series shall be redeemed, the time or times when, and the price or prices at which, shares of such series shall be redeemable, the redemption price, the terms and conditions of redemption, and the sinking fund provisions, if any, for the purchase or redemption of such shares; and (d) The amount payable on shares of such series and the rights of holders of such shares in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation; and

(e) The rights, if any, of the holders of shares of such series to convert such shares into, or exchange such shares for, shares of Common Stock, other securities, or shares of any other class or series of Preferred Stock and the terms and conditions of such conversion or exchange; and (f) The voting rights, if any, and whether full or limited, of the shares of such series, which may include no voting rights, one vote per share, or such higher number of votes per share as may be designated by the Board of Directors; and (g) The preemptive or preferential rights, if any, of the holders of shares of such series to subscribe for, purchase, receive, or otherwise acquire any part of any new or additional issue of stock of any class, whether now or hereafter authorized, or of any bonds, debentures, notes, or other securities of the Corporation, whether or not convertible into shares of stock with the Corporation. (2) Except in respect of the relative rights and preferences that may be provided by the Board of Directors as hereinbefore provided, all shares of Preferred Stock shall be identical, and each share of a series shall be identical in all respects with the other shares of the same series. When payment of the consideration for which shares of Preferred Stock are to be issued shall have been received by the Corporation, such shares shall be deemed to be fully paid and nonassessable. C. Common Stock Voting Rights. Each record holder of Common Stock shall be entitled to one vote for each share held. Holders of Common Stock shall have no cumulative voting rights in any election of directors of the Corporation.” 3. The foregoing amendment of the Second Amended and Restated Certificate of Incorporation of the Corporation has been duly adopted by the Corporation’s Board of Directors in accordance with the applicable provisions of Section 141 and 242 of the General Corporation Law of the State of Delaware and duly adopted by a majority of the outstanding shares of the Corporation’s common stock in accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware at an annual meeting of the stockholders duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 15th day of January, 2013. /s/ Gary S. Jacob Gary S. Jacob Chief Executive Officer

Exhibit 99.1

SYNERGY PHARMACEUTICALS ANNOUNCES CLOSING OF MERGER WITH CALLISTO PHARMACEUTICALS

New York, New York — January 17, 2013 — Synergy Pharmaceuticals Inc. (Nasdaq: SGYP), a developer of new drugs to treat gastrointestinal disorders and diseases, today announced that its previously announced merger with Callisto Pharmaceuticals, Inc. (formerly OTC QB: CLSP) closed effective today.

Under the terms of the merger agreement, as amended, each outstanding share of Callisto common stock was converted into the right to receive 0.1799 of one share of Synergy common stock and the approximately 22.3 million shares of Synergy held by Callisto were canceled. Consequently, effective as of the close of business today, Callisto’s common stock will no longer be traded on the OTC QB.

Each share of Synergy common stock received in connection with the merger will be subject to a lock-up beginning January 17, 2013 and ending on the earlier of (i) January 17, 2015, (ii) a Change in Control of Synergy (as defined in the merger agreement), or (iii) written consent of Synergy, at Synergy’s sole discretion, provided that such.consent shall apply to all shares issued pursuant to the merger.

Philadelphia Stock Transfer, Inc., Synergy’s transfer agent, will mail letters of transmittal to all Callisto stockholders of record immediately prior to the merger with instructions on how to deliver their stock certificates in exchange for the merger consideration. Callisto stockholders should not surrender their stock certificates until they have completed the letter of transmittal. Callisto stockholders who held their shares in “street name” through a bank or broker should contact their bank or broker to determine what actions they must take to receive the merger consideration.

About Synergy

Synergy is a biopharmaceutical company focused on the development of new drugs to treat gastrointestinal disorders and diseases. Synergy’s lead proprietary drug candidate plecanatide is a synthetic analog of the human gastrointestinal hormone uroguanylin, and functions by activating the guanylate cyclase C receptor on epithelial cells of the GI tract. Synergy completed a Phase I study of plecanatide in healthy volunteers, a Phase IIa clinical trial in CIC patients, and has recently completed a major Phase IIb/III clinical trial of plecanatide to treat CIC. Plecanatide is also being developed to treat IBS-C, with the first trial in IBS-C patients initiated in the fourth quarter of 2012. Synergy’s second GC-C agonist SP-333 is in clinical development to treat inflammatory bowel diseases, and has just completed its first Phase I trial in healthy volunteers. More information is available at http://www.synergypharma.com.

Contact:

Investor Contact Information:
Danielle Spangler
The Trout Group
synergy@troutgroup.com
(646) 378-2924