UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM8-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): February 8, 2017
pSivida Corp.
(Exact name of registrant as specified in its charter)
| | | | |
| Delaware | | 000-51122 | | 26-2774444 |
(State or other jurisdiction of incorporation) | | (Commission File Number) | | (IRS Employer Identification No.) |
| | |
480 Pleasant Street Watertown, MA | | 02472 |
| (Address of principal executive offices) | | (Zip Code) |
Registrant’s telephone number, including area code: (617)926-5000
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form8-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 toRule 14a-12 under the Exchange Act (17 CFR240.14a-12) |
| ☐ | Pre-commencement communications pursuant toRule 14d-2(b) under the Exchange Act (17 CFR240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant toRule 13e-4(c) under the Exchange Act (17 CFR240.13e-4(c)) |
| Item 1.01. | Entry Into a Material Definitive Agreement. |
On February 8, 2017, pSivida Corp. (the “Company”) entered into an At Market Issuance Sales Agreement (the “SalesAgreement”) with FBR Capital Markets & Co. (“FBR”) to create an at the market equity program under which the Company from time to time may offer and sell shares of its common stock, par value $0.001 per share, having an aggregate offering price of up to $20,000,000 (the “Shares”) through FBR.
Subject to the terms and conditions of the Sales Agreement, FBR will use its commercially reasonable efforts to sell the Shares from time to time, based upon the Company’s instructions. The Company has provided the FBR with customary indemnification rights, and FBR will be entitled to a commission at a commission rate in an amount equal to up to 3.0% of the gross proceeds from each sale of the Shares.
Sales of the Shares, if any, under the Sales Agreement may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended (the “SecuritiesAct”), including sales made by means of ordinary brokers’ transactions, including on The NASDAQ Global Market, at market prices or as otherwise agreed with FBR. Subject to the terms of the Company’s instructions, FBR may also sell the Shares by any other method permitted by law, including, but not limited to negotiated transactions, subject to the prior express written consent of the Company. The Company has no obligation to sell any of the Shares and may at any time suspend offers under the Sales Agreement. The offering of the Shares pursuant to the Sales Agreement will terminate upon the earlier of (a) the sale of all of the Shares or (b) the termination of the Sales Agreement by the Company or FBR, as provided therein.
This description of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the Sales Agreement, which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
The Shares to be sold under the Sales Agreement, if any, will be issued and sold pursuant to the Company’s shelf registration statement onForm S-3 (File No333-208115), previously filed with the Securities and Exchange Commission (“SEC”) on November 19, 2015 and declared effective by the SEC on December 2, 2015. A prospectus supplement related to the Company’s at the market equity program will be filed with the SEC. This Current Report onForm 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Shares nor shall there be any sale of the Shares in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
The legal opinion of Hogan Lovells US LLP relating to the legality of the issuance and sale of the Shares is attached as Exhibit 5.1 to this Current Report onForm 8-K and is incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
| | |
Exhibit
No. | | Description |
| |
| 5.1 | | Legal Opinion of Hogan Lovells US LLP |
| |
| 10.1 | | At Market Issuance Sales Agreement, dated February 8, 2017, between pSivida Corp. and FBR Capital Markets & Co. |
| |
| 23.1 | | Consent of Hogan Lovells US LLP (included in Exhibit 5.1) |
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.
| | | | | | |
| | | | pSivida Corp. |
| | | |
| Date: February 8, 2017 | | | | By: | | /s/ Nancy Lurker |
| | | | Name: | | Nancy Lurker |
| | | | Title | | President and Chief Executive Officer |
EXHIBIT INDEX
| | |
Exhibit
No. | | Description |
| |
| 5.1 | | Legal Opinion of Hogan Lovells US LLP |
| |
| 10.1 | | At Market Issuance Sales Agreement, dated February 8, 2017, between pSivida Corp. and FBR Capital Markets & Co. |
| |
| 23.1 | | Consent of Hogan Lovells US LLP (included in Exhibit 5.1) |
