SEC Form SC 13D/A filed by Heron Therapeutics Inc. (Amendment)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-2(a)

(Amendment No. 1)¹

Heron Therapeutics, Inc.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

427746102

(CUSIP Number)

Ryan Nebel

Olshan Frome Wolosky LLP

1325 Avenue of the Americas

New York, New York 10019

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

February 21, 2023

(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 § 240.13d-7 for other parties to whom copies are to be sent.

1              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).

The following constitutes Amendment No. 1 to the Schedule 13D filed by the undersigned (“Amendment No. 1”). This Amendment No. 1 amends the Schedule 13D as specifically set forth herein.

Item 2 is hereby amended to add the following:

In connection with the execution of the Cooperation Agreement, as defined and described in Item 4 below, and pursuant to the applicable termination provision in the Group Agreement, as defined and described in the initial Schedule 13D, Velan Master, Velan GP, Velan Capital, Velan IM GP, Adam Morgan and Balaji Venkataraman (collectively, “Velan”) are no longer members of a Section 13(d) group with Rubric Capital and David Rosen (together, “Rubric”) and shall cease to be Reporting Persons as of the filing of this Amendment No. 1 to the Schedule 13D. Rubric will continue filing statements on Schedule 13D with respect to its beneficial ownership of securities of the Issuer to the extent required by applicable law. The members of Rubric have entered into a Joint Filing Agreement, as further described in Item 6 below.

Item 4 is hereby amended to add the following:

On February 21, 2023, Rubric and Velan (together, the “Investor Group”) entered into a Cooperation Agreement with the Issuer (the “Cooperation Agreement”) regarding the composition of the Issuer’s Board of Directors (the “Board”) and certain other matters.

Pursuant to the terms of the Cooperation Agreement, the Issuer agreed, among other things, to (i) increase the size of the Board from seven to eight directors (and fix the size of the Board at such size during the Cooperation Period (as defined below)); (ii) appoint each of Adam Morgan (the “Velan Principal Appointee”) and Craig A. Collard (the “Investor Group Independent Appointee,” and together with the Velan Principal Appointee, the “Investor Group Appointees”) and Kevin Kotler (together with the Investor Group Appointees, the “New Directors”) as a director of the Issuer; (iii) cause Mr. Morgan to be appointed to the Nominating & Corporate Governance Committee, Mr. Collard to be appointed to the Compensation Committee and Mr. Kotler to be appointed to the Audit Committee and Compensation Committee; and (iv) include the New Directors in the Issuer’s slate of nominees for the election of directors at the Issuer’s 2023 annual meeting of stockholders (the “2023 Annual Meeting”). Following the conclusion of the 2023 Annual Meeting, the Issuer has agreed to separate the positions of Chairman of the Board and Chief Executive Officer.

Pursuant to the Cooperation Agreement, the Investor Group is subject to certain customary standstill restrictions from the period beginning upon the execution and delivery of the Cooperation Agreement until the earlier of (a) 30 days prior to the deadline for director nominations and stockholder proposals for the Issuer’s 2024 annual meeting of stockholders (the “2024 Annual Meeting”) and (b) 120 days prior to the first anniversary of the 2023 Annual Meeting (such date, the “Initial Trigger Date,” and such period, the “Cooperation Period”); provided, however, that the Cooperation Period will be extended until the date that is the earlier of (i) 30 days prior to the deadline for director nominations and stockholder proposals for the Issuer’s 2025 annual meeting of stockholders and (ii) 120 days prior to the first anniversary of the 2024 Annual Meeting if (A) the Issuer notifies the Investor Group and the Investor Group Appointees in writing at least 10 days prior to the Initial Trigger Date that the Board irrevocably offers to nominate each of the Investor Group Appointees for election at the 2024 Annual Meeting and (B) the Investor Group and the Investor Group Appointees agree to such nomination within 10 days of receipt of such notice. If the Investor Group does not accept such re-nomination within such 10-day period, then the Cooperation Period will terminate as scheduled and each Investor Group Appointee will resign from the Board if the Investor Group delivers a notice of an intent to nominate directors for election at the 2024 Annual Meeting. During the Cooperation Period, the Investor Group also agreed not to acquire ownership of more than 15.0% of the outstanding Shares. In addition, the Velan Principal Appointee agreed to resign from the Board if Velan’s ownership level falls below the lesser of (x) 3.5% of the outstanding Shares and (y) 4,161,084 Shares (which the Board may accept or reject in its sole discretion). During the Cooperation Period, the Investor Group further agreed to appear in person or by proxy at each annual or special meeting of stockholders of the Issuer and vote all of their Shares (A) in favor of the slate of directors recommended by the Board, (B) against the election of any nominee for director not approved, recommended and nominated by the Board and (C) in accordance with the Board’s recommendation with respect to any other matter presented at such meeting; provided, however, that if Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) both make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the Issuer’s stockholders at any such meeting (other than as related to the election or removal of directors), the Investor Group is permitted to vote in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Investor Group is permitted to vote in its sole discretion with respect to any proposals relating to an Extraordinary Transaction (as defined in the Cooperation Agreement).

The foregoing description of the Cooperation Agreement does not purport to be complete and is qualified in its entirety by reference to the Cooperation Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.  

Item 6 is hereby amended to add the following:

On February 21, 2023, Rubric, Velan and the Issuer entered into the Cooperation Agreement as defined and described in Item 4 above and attached as Exhibit 99.1 hereto.

On February 21, 2023, effective upon the execution of the Cooperation Agreement, the Group Agreement, as defined and described in the initial Schedule 13D, between Rubric and Velan terminated pursuant to its terms.

On February 22, 2023, Rubric Capital and Mr. Rosen entered into a Joint Filing Agreement pursuant to which they agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable law. A copy of the Joint Filing Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

Item 7 is hereby amended to add the following exhibits:

SIGNATURES

After reasonable inquiry and to the best of his or its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: February 22, 2023