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): November 7, 2014
BAXANO SURGICAL, 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)
(919) 800-0020
(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:
| ¨ | 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 1.03 |
Bankruptcy or Receivership. |
On November 12, 2014, Baxano Surgical, Inc.
(the “Company”) filed a voluntary petition for relief (the “Bankruptcy Filing”) under Chapter 11 of Title
11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware
(the “Bankruptcy Court”) Case No. 14-12545 (the “Chapter 11 Case”). All documents filed with the Bankruptcy
Court are available for inspection at the Office of the Clerk of the Bankruptcy Court or by visiting http://dm.epiq11.com. The
Company will continue to operate its businesses as “debtors-in-possession” under the jurisdiction of the Bankruptcy
Court and in accordance with the applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court.
The Company currently intends to seek approval
from the Bankruptcy Court for an auction and sale of its assets under Section 363 of the Bankruptcy Code.
A copy of the press release the Company
issued to announce the Chapter 11 Case is attached as Exhibit 99.1 to this Current Report on Form 8-K.
| Item 2.04 |
Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement. |
On November 7, 2014, the Company
received a notice from Hercules Technology Growth Capital, Inc. (“Hercules”) that an event of default has
occurred under the Loan and Security Agreement (the “Loan and Security Agreement”), dated December 3, 2013,
between the Company and Hercules, due to the Company’s insolvency and failure to make a principal payment thereunder.
In addition, the Company’s Bankruptcy Filing described in Item 1.03 above constitutes an event of default that
accelerates the Company’s obligations under the Loan and Security Agreement. As of November 13, 2014, an aggregate
amount of approximately $7.6 million is immediately due and payable. As a result of the default, the loan accrues an
additional three percent (3%) per annum default interest rate.
The Company believes that the ability of
Hercules to seek remedies to enforce its rights against the Company under this and other agreements are stayed as a result of the
Bankruptcy Filing and creditor rights of enforcement against the Company are subject to the applicable provisions of the Bankruptcy
Code.
| Item 3.01 |
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On November 13, 2014, the Company announced
that its Board of Directors has approved a plan to (i) voluntarily delist its common stock from the NASDAQ Stock Market LLC (the
“NASDAQ”) and (ii) deregister the Company’s common stock under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and therefore, terminate its obligations to file periodic and current reports with the Securities
and Exchange Commission (“SEC”). The Company has submitted written notice to NASDAQ of its decision to voluntarily
delist its common stock and to terminate the registration of its common stock under the Exchange Act.
The Company intends to file a Form 25 with
the SEC to effect the voluntary withdrawal of the listing of its common stock from NASDAQ as soon as possible. Delisting from NASDAQ
will become effective 10 days after the filing date of the Form 25. Provided that the Company continues to meet the applicable
legal requirements, it intends to file a Form 15 with the SEC as soon as possible to deregister the Company’s common stock
under the Exchange Act and to suspend the Company’s duty to file reports under Sections 13(a) and 15(d) of the Exchange Act.
The Company expects the termination of registration will become effective 90 days after the date of the filing of the Form 15 with
the SEC.
A copy of the Company’s press release
announcing this plan has been furnished as Exhibit 99.2 to this Current Report on Form 8-K.
| Item 9.01 |
Financial Statements and Exhibits. |
| Exhibit No. |
|
Description |
| 99.1 |
|
Press Release of Baxano Surgical, Inc. dated November 13, 2014. |
| 99.2 |
|
Press Release of Baxano Surgical, Inc. dated November 13, 2014. |
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.
| |
BAXANO SURGICAL, INC. |
| |
|
| Date: November 14, 2014 |
By: |
/s/ Ken Reali |
| |
|
Ken Reali |
| |
|
President and Chief Executive Officer |
EXHIBIT INDEX
| Exhibit No. |
|
Description |
| 99.1 |
|
Press Release of Baxano Surgical, Inc. dated November 13, 2014. |
| 99.2 |
|
Press Release of Baxano Surgical, Inc. dated November 13, 2014. |
Exhibit 99.1
Baxano Surgical To Sell Product Lines Through Voluntary Chapter
11 Court Supervised Auction Process
DIP Financing to Support Baxano Surgical’s Operations
Raleigh, NC – November 13, 2014 (GLOBE
NEWSWIRE) -- Baxano Surgical, Inc. (Nasdaq:BAXS), a medical
device company focused on designing, developing and marketing minimally invasive products to treat degenerative conditions of the
lumbar spine, today announced that the Company has filed a voluntary petition for relief under Chapter 11 of the U.S. Bankruptcy
Code in the U.S. Bankruptcy Court for the District of Delaware. The bankruptcy filing was effected in order to facilitate a going
concern sale of the Baxano Surgical minimally invasive products under Section 363 of the Bankruptcy Code.
“We believe this is the best course of action for the
company at this point in time and is in the best interests of all of our stakeholders,” stated Ken Reali, President and CEO
of Baxano Surgical. “As we move through this transaction process we will continue to focus on supporting our commercial business
and the surgeons and hospitals that use our products.”
In conjunction with the bankruptcy filing, Hercules Technology
Growth Capital, Inc., Baxano Surgical’s pre-petition secured lender, has agreed to provide “debtor in possession”
financing on the terms set forth in the applicable loan documents and subject to Bankruptcy Court approval to support Baxano Surgical’s
continued operations during the pendency of the sale process.
Any sale of Baxano Surgical’s products in connection with
the bankruptcy case will be subject to bankruptcy court approval. In addition, such sale may be subject to antitrust approval,
other approvals as may be required by law, and customary conditions. As a result, there can be no assurance that such sale will
be consummated.
Stevens & Lee. P.C. is serving as legal advisors, Houlihan
Lokey is serving as investment banker and Tamarack Associates is serving as restructuring advisor to Baxano Surgical.
About Baxano Surgical, Inc.
Baxano Surgical, Inc. is a medical
device company focused on designing, developing, and marketing minimally invasive products to treat degenerative conditions of
the spine affecting the lumbar region. Baxano Surgical currently markets the AxiaLIF® family of products for single
and two level lower lumbar fusion, the VEO® lateral access and interbody fusion system featuring the REVEAL retractor®,
the iO-Flex® system, a proprietary set of flexible instruments used by surgeons during spinal decompression procedures,
the iO-Tome® instrument, which rapidly and precisely removes bone, specifically the facet joints, which is commonly
performed in spinal fusion procedures and Avance, an MIS pedicle screw system used in lumbar fusion procedures. Baxano Surgical
was founded in May 2000 and is headquartered in Raleigh, North Carolina. For more information, visit www.baxanosurgical.com.
AxiaLIF, VEO, REVEAL, iO-Tome and iO-Flex
are all registered trademarks of Baxano Surgical.
CONTACT:
Baxano Surgical, Inc.
Ken Reali, President and Chief Executive Officer
919-825-0867
Exhibit 99.2
BAXANO
SURGICAL, INC. ANNOUNCES TERMINATION OF ITS NASDAQ LISTING
RALEIGH,
N.C. (November 13, 2014) – Baxano Surgical, Inc. (NASDAQ: BAXS) announced
today that it is terminating its listing on The Nasdaq Global Market as of the close of business on November 24, 2014. The company
has previously received notices from Nasdaq that it has failed to maintain a minimum bid price of $1.00 per share. In light of
its current financial condition, the company does not anticipate that it will be able to meet such minimums or continue to meet
other Nasdaq listing standards in the future. In addition, the company has filed a voluntary petition for relief under Chapter
11 of the U.S. Bankruptcy Code in order to facilitate a going concern sale of the company. Following the termination of its listing
on Nasdaq, the company intends to terminate its public reporting obligations under the Exchange Act as soon as possible.
Forward Looking Statements
This Press Release contains “forward-looking
statements” within the meaning of the Private Securities Litigation Reform Act of 1995, including forward-looking statements
about the anticipated timing of our delisting and deregistration. These statements are based on management’s expectations
as of the date of this document and are subject to uncertainties and changes in circumstances. Actual results may differ materially
from these expectations due to risks and uncertainties including, but not limited to, our ability to complete and maintain our
delisting and deregistration in a timely and efficient manner. These and other risks are detailed from time to time in our filings
with the SEC, including our annual report on Form 10-K for the year ended December 31, 2013 our quarterly reports on Form 10-Q
for the periods ended March 31, 2014 and June 30, 2014 and other periodic reports. In addition, while management may elect to update
forward-looking statements at some point in the future, management specifically disclaims any obligation to do so, even if its
estimates change. Any reference to our website in this press release is not intended to incorporate the contents thereof into this
press release or any other public announcement.
CONTACT:
Baxano Surgical, Inc.
Ken Reali, President and Chief Executive Officer
919-825-0867