UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 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): June 2, 2010
BIO-PATH
HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
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Utah
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000-53404
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87-0652870
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer Identification
No.)
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3293
Harrison Blvd., Ste. 230, Ogden, UT
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84403
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(Address
of principal executive offices)
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(Zip
Code)
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801-399-5500
(Registrant’s
Telephone Number, Including Area Code)
(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 (see General
Instruction A.2. below):
¨ 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
1.01 Entry into a Material Definitive
Agreement.
On June
2, 2010, Bio-Path Holdings, Inc. (the “Company”) signed a purchase agreement
with Lincoln Park Capital Fund, LLC, an Illinois limited liability company
(“LPC”), whereby LPC committed to purchase up to $7 million of shares of the
Company’s common stock. Upon signing the purchase agreement, the Company
received $200,000 from LPC as an initial purchase in exchange for 571,429 shares
(“Initial Purchase Shares”) of the Company’s common stock and warrants to
purchase 571,429 shares of the Company’s common stock at an exercise price of
$1.50 per share. The Company also entered into a registration rights
agreement with LPC whereby it agreed to file a registration statement with the
U.S. Securities and Exchange Commission (“SEC”) covering the sale of shares that
have been or may be issued to LPC under the purchase agreement. The sale
of Initial Purchase Shares and the shares of common stock underlying the
warrants will not be registered on the registration statement. Pursuant to
the terms of the purchase agreement, LPC has also committed to purchase an
additional 375,000 shares for a purchase price of $150,000 after the
effectiveness of the registration statement. Thereafter, the Company has
the right over a 24 month period to sell shares of its common stock to LPC in
amounts ranging from $50,000 and up to $1,000,000 per sale, depending on certain
conditions as set forth in the purchase agreement, up to the aggregate
commitment of $7 million.
There are
no upper limits to the price per share which LPC may pay to purchase the
Company’s common stock under the purchase agreement, and the purchase price of
such shares related to the $6.65 million of future funding will be based on the
prevailing market prices of shares of the Company’s common stock at the time of
sales without any fixed discount. The Company will control the timing and
amount of any future sales of shares of common stock to LPC. LPC shall not
have the right or the obligation to purchase any shares of the Company’s common
stock on any business day that the price of its common stock is below
$0.20.
In
consideration for entering into the purchase agreement, the Company issued to
LPC 566,801 shares of its common stock as a commitment fee and shall issue up to
283,401 shares pro rata as LPC purchases the $6.8 million of such shares.
The purchase agreement may be terminated by the Company at any time at its
discretion without any cost to the Company. Except for a limitation on
variable priced financings, there are no negative covenants, restrictions on
future fundings, penalties or liquidated damages in the purchase
agreement. The proceeds received by the Company under the purchase
agreement are expected to be used for the Phase I clinical trial expenses for
the Company’s lead cancer compound and for general working capital.
The
foregoing description of the purchase agreement and the registration rights
agreement are qualified in their entirety by reference to the full text of the
purchase agreement and the registration rights agreement, a copy of each of
which is attached hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and
each of which is incorporated herein in its entirety by reference.
Item
3.02 Unregistered Sales of Equity
Securities.
On May
20, 2010, the Company entered into subscription agreements with certain
investors, pursuant to which the Company issued an aggregate of 780,000 shares
of common stock and warrants to purchase an aggregate of 780,000 shares of
common stock at an exercise price of $1.50 per share. The warrants are
exercisable at any time for a period of two years from the date of
issuance. The Company received aggregate proceeds from the sale of such
securities of $273,000. As the Company’s commission agent for such
offering, ACAP Financial, Inc. received 10% of the aggregate proceeds and
received 78,000 shares of common stock.
The
information contained above in Item 1.01 is hereby incorporated by
reference into this Item 3.02.
Such
securities were sold by the Company pursuant to Section 4(2) and/or Rule 506 of
Regulation D promulgated under the Securities Exchange Act of 1933, as
amended.
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit
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Number
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Description
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4.1
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Form
of Warrant issued to Lincoln Park Capital Fund, LLC.
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10.1
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Purchase
Agreement, dated as of June 2, 2010, by and between the Company and
Lincoln Park Capital Fund, LLC.
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10.2
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Registration
Rights Agreement, dated as of June 2, 2010, by and between the Company and
Lincoln Park Capital Fund, LLC.
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99.1
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Press
Release dated June 4,
2010.
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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.
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BIO-PATH
HOLDINGS, INC. |
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Dated: June
4, 2010
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By:
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/s/ Peter H. Nielsen
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Peter
H. Nielsen
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President
and Chief Executive
Officer
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EXHIBIT
INDEX
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Exhibit
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Number
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Description
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4.1
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Form
of Warrant issued to Lincoln Park Capital Fund, LLC.
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10.1
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Purchase
Agreement, dated as of June 2, 2010, by and between the Company and
Lincoln Park Capital Fund, LLC.
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10.2
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Registration
Rights Agreement, dated as of June 2, 2010, by and between the Company and
Lincoln Park Capital Fund, LLC.
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99.1
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Press
Release dated June 4,
2010.
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