UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or Section 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 21, 2018 (May 20, 2018)

 

 

BioDelivery Sciences International, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-31361   35-2089858
(State or other jurisdiction
of incorporation) 		  (Commission
File Number) 		 

(IRS Employer

Identification No.)

 

4131 ParkLake Ave., Suite #225

Raleigh, NC

  27612
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: 919-582-9050

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 to 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))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 

Item 1.01 Entry into a Material Definitive Agreement

On May 20, 2018, BioDelivery Sciences International, Inc., a Delaware corporation (the “Company”), and Broadfin Healthcare Master Fund, Ltd., a Cayman Islands exempted company (“Broadfin Healthcare”), and its affiliates (such Affiliates together with Broadfin Healthcare, “Broadfin”) entered into an amendment to agreement (the “Amendment”) to amend an agreement, dated May 17, 2018 (the “Agreement”) by and among the Company and Broadfin, so as to ensure the Agreement comports with the rules and policies of The Nasdaq Stock Market.

The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the text of the Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits

 

10.1    Amendment, dated May 20, 2018, by and among the Company and Broadfin.

Cautionary Note Regarding Forward-Looking Statements

This Current Report on Form 8-K and any statements of representatives and partners of the Company related thereto contain, or may contain, among other things, certain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements involve significant risks and uncertainties. Such statements may include, without limitation, statements with respect to the Company’s plans, objectives, projections, expectations and intentions and other statements identified by words such as “projects,” “may,” “will,” “could,” “would,” “should,” “believes,” “expects,” “anticipates,” “estimates,” “intends,” “plans,” “potential” or similar expressions. These statements are based upon the current beliefs and expectations of the Company’s management and are subject to significant risks and uncertainties, including those detailed in the Company’s filings with the Securities and Exchange Commission. Actual results (including, without limitation, the results of the Agreement and the Amendment) may differ significantly from those set forth in the forward-looking statements. These forward-looking statements involve certain risks and uncertainties that are subject to change based on various factors (many of which are beyond the Company’s control). The Company undertakes no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

May 21, 2018     BIODELIVERY SCIENCES INTERNATIONAL, INC.
    By:  

/s/ Ernest R. De Paolantonio

      Name:   Ernest R. De Paolantonio
      Title:   Chief Financial Officer, Secretary and Treasurer

Exhibit 10.1

AMENDMENT TO AGREEMENT

This amendment to agreement (this “ Amendment ”) is made and entered into as of May 20, 2018, by and between BioDelivery Sciences International, Inc., a Delaware corporation (the “ Company ”), and Broadfin Healthcare Master Fund, Ltd., a Cayman Islands exempted company (“ Broadfin Healthcare ”), and its affiliates (such Affiliates (as defined herein) together with Broadfin Healthcare, “ Broadfin ”). Each of the Company and Broadfin is referred to herein as a “ Party ” and, collectively, as the “ Parties ”.

WHEREAS, the Parties have heretofore entered in an agreement, dated May 17, 2018 (the “ Agreement ”), with respect to the composition of the Board and certain other matters as provided for in the Agreement; and

WHEREAS, the Parties now desire to amend certain aspects of the Agreement so as to ensure the Agreement comports with the rules and policies of The Nasdaq Stock Market.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the Agreement and herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in accordance with Section 13 of the Agreement, the Parties, intending to be legally bound, hereby agree to amend the Agreement as follows:

1. Capitalized Terms . All capitalized terms not defined herein shall have the same meanings as set forth in the Agreement.

2. Amendment to Section  1(b)(iii) of the Agreement . Section 1(b)(iii) is hereby amended by adding the following proviso at the conclusion of such section: “ and , provided , further , that, notwithstanding the provisions of this Section 1(b)(iii), if the election of either or both of the 2018 Nominees is not approved by the Company’s stockholders at the 2018 Annual Meeting, the resulting vacancy or vacancies (as the case may be) on the Board shall not be filled in accordance with the provisions of the Section 1(b)(iii) but rather shall be filled with the approval of a majority of the remaining Board members.”

3. Ratification of Agreement . Except as expressly modified and amended by this Amendment, all of the terms, provisions and conditions of the Agreement are hereby ratified and confirmed by the Parties.

4. Counterparts . This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same instrument. A signed copy of this Amendment delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Amendment.

[Signature Page Follows]

IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the duly authorized signatories of the Parties as of the date first written above.

 

COMPANY:

 

BIODELIVERY SCIENCES INTERNATIONAL, INC.

By:   /s/ Frank E. O’Donnell, Jr.
Name:   Frank E. O’Donnell, Jr.
Title:   Chairman of the Board

 

BROADFIN:

 

BROADFIN HEALTHCARE MASTER FUND, LTD.

By:   /s/ Kevin Kotler
Name:   Kevin Kotler
Title:   Director