SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934*
Vermillion, Inc.
(Name of Issuer)
Common Stock, Par Value $0.001 Per Share
(Title of Class of Securities)
92407M206
(CUSIP Number)
Larry N. Feinberg
c/o Oracle Investment Management, Inc.
200 Greenwich Avenue
Greenwich, CT 06830
(203) 862-7900
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
With a copy to:
Rita Molesworth, Esq.
Jeffrey Hochman, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
May 13, 2013
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: ¨
NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent.
| * | The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
SCHEDULE 13D
| CUSIP No. 92407M206 | Page 2 of 14 pages |
| 1 |
NAMES OF REPORTING PERSONS
Larry N. Feinberg | |||||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
| 3 | SEC USE ONLY
| |||||
| 4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
| 5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
| |||||
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION
United States | |||||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
-0- | ||||
| 8 | SHARED VOTING POWER
2,799,980 | |||||
| 9 | SOLE DISPOSITIVE POWER
-0- | |||||
| 10 | SHARED DISPOSITIVE POWER
2,799,980 | |||||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,799,980 | |||||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.06%* | |||||
| 14 | TYPE OF REPORTING PERSON (See Instructions)
IN | |||||
| * | Calculated based on 23,213,246 shares of common stock outstanding as of May 14, 2013, according to information furnished by Vermillion, Inc. on May 21, 2013. |
SCHEDULE 13D
| CUSIP No. 92407M206 | Page 3 of 14 pages |
| 1 |
NAMES OF REPORTING PERSONS
Oracle Associates, LLC | |||||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
| 3 | SEC USE ONLY
| |||||
| 4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
| 5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
| |||||
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
-0- | ||||
| 8 | SHARED VOTING POWER
2,799,980 | |||||
| 9 | SOLE DISPOSITIVE POWER
-0- | |||||
| 10 | SHARED DISPOSITIVE POWER
2,799,980 | |||||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,799,980 | |||||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.06%* | |||||
| 14 | TYPE OF REPORTING PERSON (See Instructions)
OO | |||||
| * | Calculated based on 23,213,246 shares of common stock outstanding as of May 14, 2013, according to information furnished by Vermillion, Inc. on May 21, 2013. |
SCHEDULE 13D
| CUSIP No. 92407M206 | Page 4 of 14 pages |
| 1 |
NAMES OF REPORTING PERSONS
Oracle Partners, L.P. | |||||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
| 3 | SEC USE ONLY
| |||||
| 4 | SOURCE OF FUNDS (See Instructions)
OO | |||||
| 5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
| |||||
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
-0- | ||||
| 8 | SHARED VOTING POWER
1,781,990 | |||||
| 9 | SOLE DISPOSITIVE POWER
-0- | |||||
| 10 | SHARED DISPOSITIVE POWER
1,781,990 | |||||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,781,990 | |||||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.68%* | |||||
| 14 | TYPE OF REPORTING PERSON (See Instructions)
PN | |||||
| * | Calculated based on 23,213,246 shares of common stock outstanding as of May 14, 2013, according to information furnished by Vermillion, Inc. on May 21, 2013. |
SCHEDULE 13D
| CUSIP No. 92407M206 | Page 5 of 14 pages |
| 1 |
NAMES OF REPORTING PERSONS
Oracle Investment Management, Inc. | |||||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
| 3 | SEC USE ONLY
| |||||
| 4 | SOURCE OF FUNDS (See Instructions)
N/A | |||||
| 5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
| |||||
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
-0- | ||||
| 8 | SHARED VOTING POWER
1,017,990 | |||||
| 9 | SOLE DISPOSITIVE POWER
-0- | |||||
| 10 | SHARED DISPOSITIVE POWER
1,017,990 | |||||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,017,990 | |||||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.39%* | |||||
| 14 | TYPE OF REPORTING PERSON (See Instructions)
CO | |||||
| * | Calculated based on 23,213,246 shares of common stock outstanding as of May 14, 2013, according to information furnished by Vermillion, Inc. on May 21, 2013. |
SCHEDULE 13D
| CUSIP No. 92407M206 | Page 6 of 14 pages |
| 1 |
NAMES OF REPORTING PERSONS
Oracle Ten Fund Master, LP | |||||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
| 3 | SEC USE ONLY
| |||||
| 4 | SOURCE OF FUNDS (See Instructions)
OO | |||||
| 5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
| |||||
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands | |||||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
-0- | ||||
| 8 | SHARED VOTING POWER
1,017,990 | |||||
| 9 | SOLE DISPOSITIVE POWER
-0- | |||||
| 10 | SHARED DISPOSITIVE POWER
1,017,990 | |||||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,017,990 | |||||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.39%* | |||||
| 14 | TYPE OF REPORTING PERSON (See Instructions)
OO | |||||
| * | Calculated based on 23,213,246 shares of common stock outstanding as of May 14, 2013, according to information furnished by Vermillion, Inc. on May 21, 2013. |
| Item 1. | Security and Issuer. |
This statement on Schedule 13D (this “Schedule 13D”) relates to the common stock, par value $0.001 per share (“Common Stock”), of Vermillion, Inc., a Delaware corporation (the “Company”), and is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The address of the principal executive offices of the Company is 12117 Bee Caves Road, Building Three, Suite 100, Austin, Texas 78738.
| Item 2. | Identity and Background. |
(a) This Schedule 13D is being filed on behalf of Oracle Partners, L.P., a Delaware limited partnership (“Oracle Partners”), Oracle Ten Fund Master, LP, a Cayman Islands exempted company (“Oracle Ten Fund”), Oracle Associates, LLC, a Delaware limited liability company and the general partner of Oracle Partners and Oracle Ten Fund (“Oracle Associates”), Oracle Investment Management, Inc., a Delaware corporation and the investment manager to Oracle Ten Fund (“Investment Manager”) and Larry N. Feinberg, the managing member of Oracle Associates and the sole shareholder, director and president of the Investment Manager (each of the foregoing, a “Reporting Person” and collectively, the “Reporting Persons”). The agreement among the Reporting Persons to file this Schedule 13D jointly in accordance with Rule 13d-1(k) of the Exchange Act is attached hereto as Exhibit 1.
(b) The address of the principal office of the Reporting Persons is c/o Oracle Investment Management, Inc., 200 Greenwich Avenue, Greenwich, Connecticut 06830. Ms. Aileen Wiate is the chief financial officer of the Investment Manager. Ms. Wiate’s business address is c/o Oracle Investment Management, Inc., 200 Greenwich Avenue, Greenwich, Connecticut 06830. There are no other members of Oracle Associates or executive officers or directors of the Investment Manager.
(c) The principal business of Oracle Partners and Oracle Ten Fund is to invest in securities. The principal business of Oracle Associates is to act as general partner to, and, as applicable, exercise investment discretion over securities held by, Oracle Partners, Oracle Ten Fund and certain other entities. The principal business of the Investment Manager is to exercise investment discretion over Oracle Ten Fund and certain other entities. The principal business of Mr. Feinberg is to invest in securities through Oracle Associates, the Investment Manager and certain other entities. Ms. Wiate’s principal occupation is to act as chief financial officer to the Investment Manager.
(d) None of the Reporting Persons has, nor, to their knowledge, has Ms. Wiate, during the last five years been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) None of the Reporting Persons has, nor, to their knowledge, has Ms. Wiate, during the last five years been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
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(f) Each of Oracle Partners, Oracle Associates and Investment Manager is organized under the laws of Delaware. Oracle Ten Fund is organized under the laws of the Cayman Islands. Mr. Feinberg is a citizen of the United States of America. Ms. Wiate is a citizen of the United States of America.
| Item 3. | Source and Amount of Funds or Other Consideration. |
The aggregate purchase price for the 1,781,990 shares of Common Stock acquired by Oracle Partners was $2,601,705.40. The aggregate purchase price for the 1,017,990 shares of Common Stock acquired by Oracle Ten Fund was $1,486,265.40.
In connection with this purchase of Common Stock, Oracle Partners and Oracle Ten Fund acquired warrants (the “Warrants”) to purchase 2,761,990 and 1,577,990 shares of Common Stock, respectively, at an exercise price of $1.46 per share of Common Stock for an aggregate purchase price of $345,248.75 and $197,248.75, respectively. The Warrants are not exercisable until the date that is ninety days following the date of issuance and thus the Common Stock underlying such Warrants is not currently deemed beneficially owned by the Reporting Persons.
All of the funds required to acquire the shares of Common Stock and Warrants were furnished from the working capital of Oracle Partners and Oracle Ten Fund, respectively.
| Item 4. | Purpose of Transaction. |
The acquisition by Oracle Partners and Oracle Ten Fund of the Common Stock and the Warrants was effected because of the belief of the Reporting Persons that the Common Stock represented, and continues to represent, an attractive investment. The Reporting Persons intend to review their investment in the Company on a continuing basis and will routinely monitor a wide variety of investment considerations, including, without limitation, current and anticipated future trading prices for the Common Stock and other securities of the Company, if any, the Company’s financial position, operations, assets, prospects, strategic direction and business and other developments affecting the Company and its subsidiaries, the Company’s management, board of directors, Company-related competitive and strategic matters, conditions in the securities and financial markets, tax considerations, general market, economic and industry conditions, other investment and business opportunities available to the Reporting Persons and other factors considered relevant. Subject to any limitations otherwise disclosed in this Item 4, the Reporting Persons may from time to time take such actions with respect to their investment in the Company as they deem appropriate, including, without limitation, (i) acquiring additional shares or disposing of some or all of their shares of Common Stock (or other securities of the Company) or engaging in discussions with the Company and its subsidiaries concerning future transactions with the Company and its subsidiaries, including, without limitation, extraordinary corporate transactions and acquisitions or dispositions of shares of capital stock or other securities of the Company or any subsidiary thereof, (ii) changing their current intentions with respect to any or all matters referred to in this Item 4 and (iii) engaging in hedging, derivative or similar transactions with respect to any securities of the Company. Any acquisition or disposition of the Company’s securities may be made by means of open-market purchases or dispositions, privately negotiated transactions, direct acquisitions from or dispositions to the Company or a subsidiary thereof or otherwise.
8
As discussed below, Oracle Partners and Oracle Ten Fund are entitled to, but have not as of the date hereof appointed, a Board Designee (as defined below). As part of the Reporting Persons’ continuing evaluation of, and preservation of the value of, their investment in the Common Stock or other securities of the Company, the Reporting Persons and their representatives, including, without limitation, the Board Designee (as defined below), if any, may from time to time engage in discussions with, respond to inquiries from or make proposals to various persons, including, without limitation, the Company’s management, the board of directors, existing or potential strategic partners of the Company, other shareholders, industry analysts and other relevant parties concerning matters with respect to the Company and the Reporting Persons’ investment in the Common Stock and other securities of the Company, if any, including, without limitation, the business, operations, prospects, governance, management, strategy and the future plans of the Company.
On May 8, 2013, Oracle Partners and Oracle Ten Fund entered into a Securities Purchase Agreement (the “Purchase Agreement”) with the Company and other purchasers named therein. Pursuant to the terms of the Purchase Agreement, on May 13, 2013, the date of the closing, (i) Oracle Partners purchased 1,781,990 shares of Common Stock for an aggregate purchase price of $2,601,705.40, (ii) Oracle Ten Fund purchased 1,017,990 shares of Common Stock for an aggregate purchase price of $1,486,265.40, (iii) Oracle Partners acquired a Warrant for an aggregate purchase price of $345,248.75 to purchase 2,761,990 shares of Common Stock, (iv) Oracle Ten Fund acquired a Warrant for an aggregate purchase price of $197,248.75 to purchase 1,577,990 shares of Common Stock and (v) Oracle Partners and Oracle Ten Fund entered into a stockholders agreement (the “Stockholders Agreement”) with the Company and the other purchasers named therein.
The following summaries of the Purchase Agreement, the Stockholders Agreement and the Warrants are not intended to be complete. The Purchase Agreement, the Stockholders Agreement and the form of Warrant, copies of which are attached hereto as Exhibit 2, 3 and 4, respectively, are incorporated herein by reference and the following summaries are qualified in their entirety by reference thereto. This Schedule 13D does not purport to amend, qualify or in any way modify such agreements.
Purchase Agreement
Pursuant to the Purchase Agreement, and the transactions contemplated thereby, on May 13, 2013, the Company sold pursuant to Section 4(2) of the Securities Act of 1933, as amended, and Rule 506 promulgated thereunder, to the purchasers named in the Purchase Agreement, including Oracle Partners and Oracle Ten Fund, an aggregate of 8,000,000 shares of Common Stock at a price per share equal to $1.46 and Warrants to purchase an aggregate of 12,500,000 shares of Common Stock for a price of $0.125 per share of Common Stock subject to such Warrants with an exercise price of $1.46 per share.
9
The Purchase Agreement also provided for the manner of allocation of the fees and expenses between the parties, and the entry of the Company and the purchasers into the Stockholders Agreement.
Stockholders Agreement
As noted above, on May 13, 2013, the Company and the purchasers named therein, including Oracle Partners and Oracle Ten Fund, entered into the Stockholders Agreement.
Pursuant to the Stockholders Agreement, the Company is prohibited from taking certain material actions without the consent of at least one Principal Purchaser (as defined in the Stockholders Agreement), which includes but is not limited to Oracle Partners and Oracle Ten Fund, provided such Principal Purchaser has beneficial ownership of the Shares, Warrants or Warrant Shares (in each case, as defined in the Stockholders Agreement) in the aggregate equal to at least 50% of the Shares and Warrants, in the aggregate, issued to such Principal Purchaser on closing.
The Stockholders Agreement also provides that Oracle Partners and Oracle Ten Fund are, collectively, entitled to designate an individual to be nominated by the Company to serve on the board of directors (“Board Designee”) for long as Oracle Partners and Oracle Ten Fund have beneficial ownership of Shares, Warrants or Warrant Shares, in the aggregate, equal to at least 50% of the Shares and Warrants, in the aggregate, issued to Oracle Partners and Oracle Ten Fund at closing. The Stockholders Agreement also grants another purchaser a right to designate an individual to be nominated by the Company to serve on the board of directors. Oracle Partners and Oracle Ten Fund have not as of the date hereof appointed a Board Designee, though the Company has increased the size of the board of directors for such designees. For so long as such membership does not conflict with applicable law or regulation or listing requirements of a securities exchange on which the Common Stock is listed, the Board Designee is also entitled to serve as a member of, or observer to, committees of the board of directors.
Oracle Partners and Oracle Ten Fund further agreed in the Stockholders Agreement not to sell their Shares, Warrants or Warrant Shares on or prior to May 13, 2014, subject to specified exceptions.
The Stockholders Agreement provides for demand registration rights for Oracle Partners and Oracle Ten Fund, among others, that will require the Company to register their shares of Common Stock with the Securities Exchange Commission and permit Oracle Partners and Oracle Ten Fund to sell such registered shares of Common Stock to the public, subject to specified conditions therein. Furthermore, pursuant to the Stockholders Agreement, if the Company proposes to register any of its Common Stock at any time prior to May 13, 2018, Oracle Partners and Oracle Ten Fund, among others, will have the right to request that all or any part of their registrable shares be included in the registration, subject to specified exceptions.
In addition, the Stockholders Agreement provides that, in the event the Company makes an offering of Common Stock or securities convertible into Common Stock for cash (other than
10
offerings related to employee benefits or in connection with a merger or acquisition), Substantial Purchasers (as defined in the Stockholders Agreement), including but not limited to Oracle Partners and Oracle Ten Fund, have the right to acquire from the Company for the same price and on the same terms as such securities are proposed to be offered to others an aggregate amount of securities up to an amount necessary to enable it to maintain its current percentage of ownership interest. This right continues for so long as such Substantial Purchaser has beneficial ownership of Shares, Warrants or Warrant Shares, in the aggregate, equal to at least 50% of the Shares and Warrants, in the aggregate, issued at closing.
Warrants
Pursuant to the Warrants, issued on May 13, 2013, Oracle Partners has a right to purchase 2,761,990 shares of Common Stock and Oracle Ten Fund has a right to purchase 1,577,990 shares of Common Stock, in each case at an exercise price per share equal to $1.46. The warrants are exercisable commencing on the date that is ninety days following the date of issuance until the date that is three years after the date of issuance. The exercise price and number of shares of Common Stock subject to the Warrants are subject to adjustment from time to time in accordance with the terms set forth therein.
Additional Disclosure
Except as set forth herein, none of the Reporting Persons has, nor, to the knowledge of the Reporting Persons, has Ms. Wiate, any plans or proposals that relate to or would result in: (a) the acquisitions by any person of additional securities of the Company, or the disposition of securities of the Company; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries; (d) any change in the present board of directors or management of the Company, including any plans or proposals to change the number or term of the directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Company; (f) any other material change in the Company’s business or corporate structure; (g) changes in the Company’s charter, by-laws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (h) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar to any of those enumerated above.
| Item 5. | Interest in Securities of the Issuer. |
(a) As of May 13, 2013, Oracle Partners may be deemed to beneficially own 1,781,990 shares of Common Stock, representing 7.68% of the outstanding shares of Common Stock (based on 23,213,246 shares of Common Stock outstanding as of May 14, 2013 as reported by the Company to representatives of the Reporting Persons). As of May 13, 2013,
11
Oracle Ten Fund and Investment Manager, due to its relationship with Oracle Ten Fund, may be deemed to beneficially own 1,017,990 shares of Common Stock, representing 4.39% of the outstanding shares of Common Stock (based on 23,213,246 shares of Common Stock outstanding as of May 14, 2013 as reported by the Company to representatives of the Reporting Persons). As of May 13, 2013, Oracle Associates, due to its relationship with Oracle Partners and Oracle Ten Fund, and Mr. Feinberg, due to his respective relationships with the other Reporting Persons, may be deemed to beneficially own 2,799,980 shares of Common Stock, representing 12.06% of the outstanding shares of Common Stock (based on 23,213,246 shares of Common Stock outstanding as of May 14, 2013 as reported by the Company to representatives of the Reporting Persons). The Reporting Persons may be deemed to constitute a “person” or “group” within the meaning of Section 13(d)(3) of the Exchange Act. The filing of this Schedule 13D shall not be construed as an admission of such beneficial ownership or that the Reporting Persons constitute a person or a group.
(b) Each of the Reporting Persons shares the power to vote or to direct the vote and to dispose or to direct the disposition of the shares of Common Stock it may be deemed to beneficially own as described in Item 5(a) above.
(c) As set forth above, pursuant to the Purchase Agreement, on May 13, 2013, (i) Oracle Partners purchased 1,781,990 shares of Common Stock for an aggregate purchase price of $2,601,705.40, (ii) Oracle Ten Fund purchased 1,017,990 shares of Common Stock for an aggregate purchase price of $1,486,265.40, (iii) Oracle Partners acquired a Warrant for an aggregate purchase price of $345,248.75 to purchase 2,761,990 shares of Common Stock and (iv) Oracle Ten Fund acquired a Warrant for an aggregate purchase price of $197,248.75 to purchase 1,577,990 shares of Common Stock. The Warrants are not exercisable until the date that is ninety days following the date of issuance and thus the Common Stock underlying such Warrants is not currently deemed beneficially owned by the Reporting Persons.
(d) Except as set forth in this Item 5 and for persons referred to in Item 2 above, no person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Stock that may be deemed to be beneficially owned by the Reporting Persons.
(e) Not applicable.
| Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Pursuant to Rule 13d-1(k) promulgated under the Exchange Act, the Reporting Persons have entered into an agreement on May 23, 2013 with respect to the joint filing of this Schedule 13D and any amendment or amendments hereto (the “Joint Filing Agreement”). The Joint Filing Agreement is attached hereto as Exhibit 1 and incorporated herein by reference.
As described in Item 4 hereto, (i) Oracle Partners, Oracle Ten Fund, and the other purchasers named therein, and the Company have entered into a Purchase Agreement, (ii) Oracle Partners, Oracle Ten Fund, and the other purchasers named therein, and the Company have
12
entered into a Stockholders Agreement and (iii) Oracle Partners and Oracle Ten Fund have each acquired Warrants. The information set forth in Item 4 with respect to the Purchase Agreement, the Stockholders Agreement and the Warrants is incorporated into this Item 6 by reference.
| Item 7. | Material to Be Filed as Exhibits. |
| Exhibit 1. | Joint Filing Agreement, dated as of May 23, 2013, by and among Oracle Partners, L.P., Oracle Ten Fund Master, LP, Oracle Associates, LLC, Oracle Investment Management, Inc. and Larry N. Feinberg. | |
| Exhibit 2. | Securities Purchase Agreement, dated as of May 8, 2013, by and among the Company, Oracle Partners, L.P., Oracle Ten Fund Master, LP and the other purchasers named therein. | |
| Exhibit 3. | Stockholders Agreement, dated as of May 13, 2013, by and among the Company, Oracle Partners, L.P., Oracle Ten Fund Master, LP and the other purchasers named therein. | |
| Exhibit 4. | Form of Warrant as to the purchase by Oracle Partners, L.P. or Oracle Ten Fund Master, LP, as applicable, of shares of Common Stock of the Company. | |
13
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
| Dated: May 23, 2013 | ORACLE PARTNERS, L.P. | |||||||
| By: ORACLE ASSOCIATES, LLC, its general partner | ||||||||
| By: | /s/ Larry N. Feinberg | |||||||
| Name: | Larry N. Feinberg | |||||||
| Title: | Managing Member | |||||||
| Dated: May 23, 2013 | ORACLE TEN FUND MASTER, LP | |||||||
| By: ORACLE ASSOCIATES, LLC, its general partner | ||||||||
| By: | /s/ Larry N. Feinberg | |||||||
| Name: | Larry N. Feinberg | |||||||
| Title: | Managing Member | |||||||
| Dated: May 23, 2013 | ORACLE ASSOCIATES, LLC | |||||||
| By: | /s/ Larry N. Feinberg | |||||||
| Name: | Larry N. Feinberg | |||||||
| Title: | Managing Member | |||||||
| Dated: May 23, 2013 | ORACLE INVESTMENT MANAGEMENT, INC. | |||||||
| By: | /s/ Larry N. Feinberg | |||||||
| Name: | Larry N. Feinberg | |||||||
| Title: | President and Director | |||||||
| Dated: May 23, 2013 | LARRY N. FEINBERG | |||||||
| By: | /s/ Larry N. Feinberg | |||||||