UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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): May 13, 2010
DUSA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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New Jersey
(State or other
jurisdiction of
incorporation)
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001-31533
(Commission File
Number)
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22-3103129
(IRS Employer
Identification
Number) |
25 Upton Drive
Wilmington, Massachusetts 01887
(Address of principal executive offices, including ZIP code)
(978) 657-7500
(Registrants 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 (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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Soliciting material pursuant to Rule 14a-12 under the Securities 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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Item 1.01 |
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Entry Into A Material Definitive Agreement. |
On May 13, 2010, DUSA Pharmaceuticals, Inc.® (the Company), entered into an agreement
(the Agreement) with SRB Management, L.P., SRB Greenway Opportunity Fund, (QP), L.P., SRB
Greenway Opportunity Fund, L.P., BC Advisors, LLC, Steven R. Becker and Matthew A. Drapkin
(collectively, SRB) to avoid a proxy contest for the election of directors at the Companys 2010
Annual Meeting of Shareholders (2010 Annual Meeting). A press release announcing the date of
and the slate of nominees for election at the 2010 Annual Meeting is attached as Exhibit 99.1 to
this Form 8-K filing and is incorporated herein by reference.
Under the Agreement, SRB will withdraw its letter to the Secretary of the Company dated February
26, 2010 in which it stated its intention to nominate four (4) directors, (consisting of three (3) new directors and one (1) current
director) and to support four (4) other current directors for election to the Board at the 2010 Annual Meeting.
The Agreement memorializes the Companys agreement to nominate for election to the Board at the 2010 Annual Meeting David M. Wurzer (Wurzer) who was one of
SRBs proposed nominees. In addition, the Company has agreed to nominate seven (7) additional
persons for election at the 2010 Annual Meeting, namely, Jay M. Haft, Esq., Chairman, Alfred
Altomari (Altomari), David M. Bartash, Alexander W. Casdin (Casdin), Robert F. Doman, Paul
Hondros and Magnus Moliteus. The Agreement also provides that (i) Altomari, Casdin and Wurzer will
be included in the Companys slate of nominees for election to the Board at the Companys 2011
Annual Meeting of Shareholders (the 2011 Annual Meeting), (ii) to appoint Wurzer to both the
Audit Committee and the Compensation Committee of the Board, (iii) to appoint Altomari to both the
Compensation Committee and the Nominating and Corporate Governance Committee of the Board and (iv)
to appoint Casdin to both the Compensation Committee and the Nominating and Corporate Governance
Committee of the Board. Furthermore, the Agreement obligates SRB to vote or cause to be voted the
shares of common stock beneficially owned by SRB, as of the record date for the 2010 Annual Meeting
and the 2011 Annual Meeting, in favor of all of the Companys nominees for director at the 2010 Annual
Meeting and the 2011 Annual Meeting, respectively, and to abide by certain standstill provisions
until the second anniversary of the Agreement.
The full text of the Agreement is attached as Exhibit 10.1 to this Form 8-K filing and is
incorporated herein by reference. The foregoing is a brief description of the terms of the
Agreement and is qualified in its entirety by reference to Exhibit 10.1.
Except for historical information, this report, including the exhibits, contains certain
forward-looking statements that represent our current expectations and beliefs concerning future
events, and involve certain known and unknown risk and uncertainties. These forward-looking
statements relate to intentions regarding nominees and certain committee assignments and certain
obligations under the Agreement. These forward-looking statements are further qualified by
important factors that could cause actual results to differ materially from future results,
performance or achievements expressed or implied by those in the forward-looking statements made in
this release. These factors include, without limitation, action of third parties and other risks
and uncertainties identified in DUSAs Form 10-K for the year ended December 31, 2009 and other SEC
filings from time to time.