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): April 16, 2013
TRANS1 INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-33744 | 33-0909022 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
110 Horizon Drive, Suite 230
Raleigh, North Carolina 27615
(Address of principal executive offices)
(Zip Code)
(866) 256-1206
(Registrant’s 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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
ý 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 1.01 Entry into a Material Definitive Agreement.
On April 16, 2013, Baxano, Inc. (“Baxano”) issued a promissory note (the “Bridge Note”) to TranS1 Inc. (the “Company”) in the principal amount of $800,000 as contemplated by the First Amendment, dated April 10, 2013 (the “First Amendment”), to Agreement and Plan of Merger, dated March 3, 2013, by and among the Company, RacerX Acquisition Corp., a wholly-owned subsidiary of the Company (“Merger Sub”), Baxano, and Sumeet Jain and David Schulte solely as Securityholder Representatives (the “Merger Agreement”). Pursuant to the Merger Agreement, the Company intends to acquire Baxano through a merger of Merger Sub with and into Baxano (the “Merger”).
The Bridge Note bears interest at a rate of 6% per annum. The Bridge Note is not secured by any collateral; is subordinated in right of payment to the loan evidenced by the Loan and Security Agreement dated as of March 15, 2012, among Oxford Finance LLC, Silicon Valley Bank, and Baxano; and is senior in right of payment to the convertible promissory notes issued pursuant to the Note and Warrant Purchase Agreement dated as of March 7, 2012, among Baxano and the investors set forth therein (the “Baxano Notes”).
The Bridge Note will be cancelled immediately prior to the effective time of the Merger without consideration, repayment, or any other right of the Company to be repaid or otherwise compensated. All outstanding principal and interest under the Bridge Note will be due and payable on demand by the Company any time on or after September 7, 2013 if the effective time of the Merger has not occurred by such date. Additionally, all principal and accrued interest under the Bridge Note shall be due and payable upon the consummation of any sale by Baxano of its equity securities to venture capital, institutional, or private investors, including at least one investor that is not an existing noteholder or stockholder of Baxano, resulting in aggregate cash proceeds to Baxano of at least $15,000,000 (excluding any amount invested by cancellation or conversion of the indebtedness represented by the Baxano Notes).
The foregoing description of the Bridge Note does not purport to be complete and is qualified in its entirety by reference to Attachment A to the First Amendment, a copy of which is filed as Exhibit 2.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on April 10, 2013, and is incorporated herein by reference.
Cautionary Statement
The Merger discussed above involves the sale of securities in a private transaction that will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be subject to the resale restrictions under that act. Such securities may not be offered or sold absent registration or an applicable exemption from registration requirements. This document does not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of securities in any state or jurisdiction in which such an offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
Forward Looking Statements
Statements in this Current Report on Form 8-K regarding the Merger constitute “forward looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, and are intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. Such statements are subject to risks and uncertainties that are often difficult to predict, are beyond the Company’s control, and which may cause results to differ materially from expectations. Factors that could cause actual results to differ materially from those described include, but are not limited to, the ability to consummate the transactions on the proposed timeline or at all, failure to receive the approval of the stockholders of the Company, the risk that the Merger Agreement could be terminated under circumstances that would require the Company to pay a termination fee, the effect on the Company’s business of existing and new regulatory requirements, uncertainty surrounding the outcome of the matters relating to the subpoena issued to the Company by the Department of Health and Human Services, Office of Inspector General, stockholder class action lawsuits, and other economic and competitive factors, and the other factors described in the Company’s filings with the Securities and Exchange Commission (the “SEC”), including its Annual Report on Form 10-K for the year ended December 31, 2012 and subsequent reports. You are cautioned not to place undue reliance on theseforward looking statements, which are based on the Company's expectations as of the date of this Form 8-K and speak only as of the date of this Form 8-K. The Company undertakes no obligation to publicly update or revise any forward looking statement, whether as a result of new information, future events, or otherwise.
Additional Information and Where to Find It
This communication may be deemed to be solicitation material in respect of the Merger described in the revised preliminary proxy statement on Schedule 14A filed by the Company on April 10, 2013. The Company will file a definitive proxy statement (when available) and other documents regarding the Merger described in this Form 8-K with the SEC. STOCKHOLDERS OF THE COMPANY ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC, INCLUDING THE REVISED PRELIMINARY PROXY STATEMENT ON SCHEDULE 14A FILED BY THE COMPANY ON APRIL 10, 2013 AND, WHEN AVAILABLE, THE COMPANY’S DEFINITIVE PROXY STATEMENT, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE MERGER. The definitive proxy statement (when available) will be mailed to stockholders. Stockholders will be able to obtain, without charge, a copy of the revised preliminary proxy statement, the definitive proxy statement (when available), and other documents the Company files with the SEC from the SEC’s website at www.sec.gov. The revised preliminary proxy statement, definitive proxy statement (when available), and other relevant documents will also be available, without charge, by directing a request by mail or telephone to the Company, Attn: Corporate Secretary, 110 Horizon Drive, Suite 230, Raleigh, NC 27615, by calling the Company at (866) 256-1206, by emailing the Company at merger@trans1.com, or from the Company’s website, www.trans1.com.
The Company and its directors, executive officers, certain members of management, and employees may have interests in the Merger or be deemed to be participants in the solicitation of proxies of the Company’s stockholders to approve the issuance of the Company’s stock in connection with the Merger. Stockholders may obtain additional information regarding the participants and their interests in the solicitation by reading the revised preliminary proxy statement on Schedule 14A filed by the Company on April 10, 2013 and the definitive proxy statement (when available).
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| TRANS1 INC. | ||
| Date: April 22, 2013 | By: | /s/ Joseph P. Slattery |
| Joseph P. Slattery | ||
Executive Vice President and Chief Financial Officer | ||