UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of
1934
Date of Report (Date of earliest event reported): October 28, 2010
BMP SUNSTONE CORPORATION
(Exact name of registrant specified in its charter)
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Delaware
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001-32980
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20-0434726
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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600 W. Germantown Pike, Suite 400,
Plymouth Meeting, Pennsylvania
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19462
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone, including area code: (610) 940-1675
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):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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x
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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This Amendment No.1 on Form 8-K/A is being filed to amend and restate the Current Report on
Form 8-K (the Initial 8-K) filed with the Securities and Exchange Commission on November 2, 2010 by BMP Sunstone Corporation (the Company) to include disclosure of the First Amendment to Agreement and Plan of Merger
referred to in Item 1.01 below, to revise the disclosure of the Support Agreement referred to in Item 1.01 below and to include disclosure of the IP Transfer Agreement referred to in Item 1.01 below relating to the transfer of certain
intellectual property by Han Zhiqiang to Sunstone (Tangshan) Pharmaceutical Co., Ltd., a subsidiary of the Company.
Item 1.01.
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Entry into a Material Definitive Agreement.
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Merger Agreement
On October 28, 2010, BMP Sunstone
Corporation, a Delaware corporation (the Company), sanofi-aventis, a French société anonyme (Parent), and Star 2010, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (Merger Sub),
entered into an Agreement and Plan of Merger, which was amended by the First Amendment to Agreement and Plan of Merger, dated as of November 22, 2010 (the Merger Agreement), pursuant to which Merger Sub will merge with and into the
Company, the Company will become a wholly-owned subsidiary of Parent (the Merger), and all outstanding shares of common stock of the Company (other than shares held by the Companys holders who have properly exercised their
dissenters rights under Section 262 of the Delaware General Corporation Law) will be converted into the right to receive $10.00 per share in cash (the Merger Consideration). The Merger Agreement also calls for all
outstanding stock options to be cancelled and each holder of options to be paid an amount equal to the number of shares underlying each option multiplied by the difference between the Merger Consideration and the exercise price of the option.
The Company has agreed not to solicit or initiate discussions with third parties regarding other proposals to acquire the
Company and to certain restrictions on its ability to respond to such proposals. The Merger Agreement also provides that, in connection with the termination of the Merger Agreement under specified circumstances, the Company will be required to
pay Parent a termination fee of $20,800,000.
In connection with the Merger, in the event any of the Companys currently
outstanding convertible notes (the Convertible Notes) are still outstanding immediately before the closing of the Merger, the Company has agreed to use its reasonable best efforts to procure that the pledge agreement, dated as of
January 20, 2009 and amended as of March 12, 2009 (the Pledge Agreement), among the Company, the noteholders identified on the signature pages thereto (the Noteholders), and Les Baledge, as agent for the
Noteholders, shall be terminated and all liens on the collateral set forth in the Pledge Agreement shall be released.
The
Company agreed to call and hold a special stockholder meeting as soon as reasonably practicable for the purpose of voting on the adoption of the Merger Agreement and approval of the Merger and, subject to certain exceptions, the Companys Board
of Directors will recommend approval of the Merger. Consummation of the Merger is subject to customary conditions, including, among other things, (i) approval of the Merger Agreement by the holders of a majority of the outstanding shares of the
Companys common stock, (ii) the absence of certain laws or orders prohibiting the consummation of the Merger and (iii) the expiration, termination or satisfaction any applicable requirements under the Anti-Monopoly Law of the
Peoples Republic of China.
The foregoing description of the Merger Agreement is qualified in its entirety by reference
to the full text of the Merger Agreement, which is attached as Exhibit 2.1 to this report and is incorporated in this report by reference, and to the full text of the First Amendment to Agreement and Plan of Merger, which is attached as Exhibit 2.2
to this report and is incorporated in this report by reference. The Merger Agreement has been attached to provide investors with information regarding its items. It is not intended to provide any other factual information about the Company,
Merger Sub or Parent. In particular, the
assertions embodied in the representations and warranties contained in the Merger Agreement are qualified by information in confidential disclosure schedules provided by the Company to Parent and
Merger Sub in connection with the signing of the Merger Agreement. These disclosure schedules contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Merger
Agreement. Moreover, certain representations and warranties in the Merger Agreement were used for the purpose of allocating risk between the Company and Parent and Merger Sub, rather than establishing matters as facts. Accordingly, you
should not rely on the representations and warranties in the Merger Agreement as characterizations of the actual state of facts about the Company, Parent or Merger Sub.
Support Agreement
In connection with the execution of the Merger
Agreement, Parent concurrently entered into a Stockholder Support Agreement (the Support Agreement) with the directors and certain officers of the Company who beneficially own approximately 22% of the Companys outstanding common
stock on a fully-diluted basis and 17% on an undiluted basis. Pursuant to the Support Agreement, each signatory director and officer of the Company agrees to vote their shares of the Companys common stock in favor of the Merger.
The foregoing description of the Support Agreement is qualified in its entirety by reference to the full text of the Support
Agreement, which is attached as Exhibit 99.1 to this report and is incorporated in this report by reference.
Intellectual Property
Transfer Agreement
Prior to the execution of the Merger Agreement, on October 28, 2010 the Company entered into
an intellectual property transfer agreement (the IP Transfer Agreement) with Han Zhiqiang, the former President and Chief Operating Officer of the Company, and Baishan China Limited, an entity in which Mr. Han and his wife are the sole
interest holders.
Pursuant to the terms and conditions of the IP Transfer Agreement, Mr. Han and Baishan China Limited
transferred ownership of 14 trademarks relating to certain Sunstone (Tangshan) Pharmaceutical Co., Ltd. (Sunstone) products and 46 patents relating to production technology, production devices and package design in connection with
certain Sunstone products, to Sunstone, a subsidiary of the Company. Furthermore, Mr. Han and Baishan China Limited both agreed not to, now or at any time in the future, apply for or use any trademark or other mark identical or confusingly
similar to the trademarks identified in the IP Transfer Agreement or any other mark registered to Sunstone or entities controlled by Sunstone. In consideration, the Company agreed to accelerate the removal of the restrictive legend from
3.2 million shares of the Companys common stock held by Han Zhiqiang from February 18, 2011 to no later than December 12, 2010 (45 days after the execution of the IP Transfer Agreement).
The foregoing description of the IP Transfer Agreement is qualified in its entirety by reference to the full text of the IP Transfer
Agreement, which is attached as Exhibit 99.2 to this report and is incorporated in this report by reference.
In connection
with the Merger, the Company intends to file proxy materials and other relevant documents with the Securities and Exchange Commission (the SEC). Stockholders are urged to read the proxy statement (and any other relevant documents
filed) with the SEC when they become available, because they will contain important information about the Merger.
The Company will mail the definitive proxy statement to the Companys stockholders. In addition, stockholders may
obtain free copies of the final proxy statement, as well as the Companys other filings, without charge, at the SECs website (www.sec.gov) when they become available. Copies of the filings may also be obtained without charge from the
Company by directing a request to 600 W. Germantown Pike, Suite 400, Plymouth Meeting, Pennsylvania 19462, Attention: Fred M. Powell, Chief Financial Officer.
The Companys directors, executive officers and other members of management and
employees may be deemed to be participants in the solicitation of proxies from stockholders in respect of the Merger. Information regarding the Companys directors and executive officers is available in the Companys Annual Report on
Form 10-K for the year ended December 31, 2009, filed with the SEC on March 15, 2010, and the Companys proxy statement for its 2010 annual meeting of stockholders, filed with the SEC on April 1, 2010. Additional information
regarding the interests of such potential participants will be included in the proxy statement and the other relevant documents filed with the SEC when they become available.
Item 9.01
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Financial Statements and Exhibits.
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Exhibit
Number
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Description of Exhibit
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2.1
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Agreement and Plan of Merger , dated as of October 28, 2010, by and among BMP Sunstone Corporation, a Delaware corporation, sanofi-aventis, a French société anonyme,
and Star 2010, Inc., a Delaware corporation and a wholly owned subsidiary of sanofi-aventis.*
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2.2
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First Amendment to Agreement and Plan of Merger, dated as of November 22, 2010, by and among BMP Sunstone Corporation, a Delaware corporation, sanofi-aventis, a French
société anonyme, and Star 2010, Inc., a Delaware corporation and a wholly-owned subsidiary of sanofi-aventis.
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99.1
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Form of Stockholder Support Agreement, dated as of October 28, 2010, among sanofi-aventis, a French société anonyme, and the stockholders party
thereto.
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99.2
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Intellectual Property Transfer Agreement, dated as of October 28, 2010, by and among BMP Sunstone Corporation, a Delaware corporation, Han Zhiqiang and Baishan China
Limited.
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*
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Schedules and similar attachments have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company undertakes to furnish supplementally copies of
any of the omitted schedules and exhibits upon request by the U.S. Securities and Exchange Commission.
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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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BMP SUNSTONE CORPORATION
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Date:
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January 24, 2011
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By:
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/s/ Fred M. Powell
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Name:
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Fred M. Powell
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Title:
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Chief Financial Officer
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EXHIBIT INDEX
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Exhibit
Number
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Description of Exhibit
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2.1
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Agreement and Plan of Merger , dated as of October 28, 2010, by and among BMP Sunstone Corporation, a Delaware corporation, sanofi-aventis, a French société anonyme,
and Star 2010, Inc., a Delaware corporation and a wholly owned subsidiary of sanofi-aventis.*
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2.2
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First Amendment to Agreement and Plan of Merger, dated as of November 22, 2010, by and among BMP Sunstone Corporation, a Delaware corporation, sanofi-aventis, a French
société anonyme, and Star 2010, Inc., a Delaware corporation and a wholly-owned subsidiary of sanofi-aventis.
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99.1
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Form of Stockholder Support Agreement, dated as of October 28, 2010, among sanofi-aventis, a French société anonyme, and the stockholders party
thereto.
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99.2
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Intellectual Property Transfer Agreement, dated as of October 28, 2010, by and among BMP Sunstone Corporation, a Delaware corporation, Han Zhiqiang and Baishan China
Limited.
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*
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Schedules and similar attachments have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company undertakes to furnish supplementally copies of
any of the omitted schedules and exhibits upon request by the U.S. Securities and Exchange Commission.
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Bmp Sunstone Corp. (MM) (NASDAQ:BJGP)
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Bmp Sunstone Corp. (MM) (NASDAQ:BJGP)
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