Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
OnDecember 21, 2022 ,IsoPlexis Corporation , aDelaware corporation ("IsoPlexis"), Berkeley Lights, Inc., aDelaware corporation ("Berkeley Lights"), andIceland Merger Sub Inc. , aDelaware corporation and a wholly owned subsidiary of Berkeley Lights ("Merger Sub"), entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which, upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the Delaware General Corporation Law, Merger Sub will be merged with and intoIsoPlexis (the "Merger"), withIsoPlexis surviving the Merger as a wholly owned subsidiary of Berkeley Lights. The Merger Agreement was unanimously approved by the board of directors ofIsoPlexis (the "IsoPlexis Board") and the board of directors of Berkeley Lights (the "Berkeley Lights Board"). Pursuant to the Merger Agreement, at the effective time of the Merger (the "Effective Time"), each share of common stock, par value$0.001 , ofIsoPlexis ("IsoPlexis Common Stock") issued and outstanding immediately prior to the Effective Time (other than shares of IsoPlexis Common Stock owned (i) byIsoPlexis as treasury stock, (ii) by Berkeley Lights or Merger Sub (unless owned by Berkeley Lights or Merger Sub in a fiduciary, representative or other capacity on behalf of other persons) or (iii) by any wholly owned subsidiary ofIsoPlexis or Berkeley Lights (other than Merger Sub and unless held in a fiduciary, representative or other capacity on behalf of other persons)) will be converted into the right to receive 0.6120 fully paid and nonassessable shares (the "Exchange Ratio") of common stock, par value$0.00005 , of Berkeley Lights ("Berkeley Lights Common Stock") (the "Merger Consideration"), together with cash in lieu of fractional shares of Berkeley Lights Common Stock, if any, and any unpaid dividends or other distributions. It is expected that the Merger will qualify as a tax-free reorganization forU.S. federal income tax purposes. At the Effective Time, (i) outstandingIsoPlexis stock options (whether vested or unvested) held by continuing employees will (a) if the per-share exercise price is equal to or greater than the average closing trading price for a share of IsoPlexis Common Stock rounded to the nearest one-tenth of a cent, as reported on The Nasdaq Global Select Market for the five most recent trading days ending on and including the third business day prior to the Effective Time (the "Company Trading Price"), be canceled for no consideration and (b) if the per-share exercise price is less than the Company Trading Price, convert into Berkeley Lights stock options of approximately equivalent value and generally on the same terms and conditions applicable immediately prior to the Effective Time, (ii) outstandingIsoPlexis stock options held byIsoPlexis service providers (other than continuing employees) that are (a) vested and unexercised or (b) would vest solely as a result of the consummation of the Merger will, in each case, be exercisable prior to the Effective Time and, to the extent unexercised at the Effective Time, will be canceled for no consideration, and (iii) outstandingIsoPlexis restricted shares will convert into restricted shares of Berkeley Lights Common Stock generally on the same terms and conditions applicable immediately prior to the Effective Time. In addition, at the Effective Time, the outstanding warrant for shares of IsoPlexis Common Stock issued byIsoPlexis toPerceptive Credit Holdings III, LP ("Perceptive") will become exercisable for the Merger Consideration in accordance with the terms of the Warrant Certificate, datedMarch 30, 2022 , betweenIsoPlexis and Perceptive. The consummation of the Merger is subject to customary closing conditions, including, among others, (i) the adoption of the Merger Agreement byIsoPlexis' stockholders and the approval by Berkeley Lights' stockholders of the issuance of Berkeley Lights Common Stock toIsoPlexis stockholders in connection with the Merger (the "Share Issuance"), (ii) termination or expiration of any waiting period applicable to the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iii) effectiveness of the Berkeley Lights' registration statement on Form S-4 to be filed with theSecurities and Exchange Commission (the "SEC") pursuant to the Merger Agreement, (iv) approval of the listing on The Nasdaq Global Select Market of the shares of Berkeley Lights Common Stock issuable as Merger Consideration, subject to official notice of issuance and (v) the absence of a judgment or law that prevents, makes illegal, enjoins or prohibits the consummation of the Merger. The obligation of each party to consummate the Merger is also conditioned upon the other party's representations and warranties being true and correct, subject to the materiality standards set forth in the Merger Agreement, and the other party having performed in all material respects its obligations under the Merger Agreement, in each case as set forth in the Merger Agreement. The obligation ofIsoPlexis to consummate the Merger is further conditioned upon the receipt of a tax opinion of legal counsel toIsoPlexis . -------------------------------------------------------------------------------- The Merger Agreement contains customary representations, warranties and covenants of Berkeley Lights andIsoPlexis . Pursuant to the Merger Agreement, each of Berkeley Lights andIsoPlexis is required, among other things, (i) subject to certain exceptions, to use commercially reasonable efforts to conduct its business in the ordinary course consistent with past practice in all material respects during the interim period between the execution of the Merger Agreement and the consummation of the Merger, (ii) not to solicit alternative transactions and (iii) subject to certain exceptions, not to participate in discussions or negotiations regarding alternative transactions. In addition, the Merger Agreement contains covenants that require each of Berkeley Lights andIsoPlexis to call and hold special stockholder meetings and, subject to certain exceptions, require the IsoPlexis Board to recommend toIsoPlexis' stockholders the adoption of the Merger Agreement and require the Berkeley Lights Board to recommend to Berkeley Lights' stockholders the approval of the Share Issuance. Prior to the adoption of the Merger Agreement byIsoPlexis' stockholders, the IsoPlexis Board may, among other things, change its recommendation thatIsoPlexis' stockholders adopt the Merger Agreement. Prior to the approval of the share issuance by Berkeley Lights' stockholders, the Berkeley Lights Board may, among other things, change its recommendation that Berkeley Lights' stockholders approve the Share Issuance. Neither the IsoPlexis Board nor the Berkeley Lights Board, as applicable, may terminate the Merger Agreement to enter into a definitive acquisition agreement providing for a superior alternative transaction. Notwithstanding a change in the recommendation by theIsoPlexis Board or the Berkeley Lights Board, as applicable, each party is still required to convene the meeting of its stockholders to vote on the adoption of the Merger Agreement or the approval of the Share Issuance, as applicable. The Merger Agreement provides for certain termination rights of both Berkeley Lights andIsoPlexis , including, among others, in the event that (i) the Merger is not consummated on or beforeJune 21, 2023 (the "End Date"), which date may be extended, under certain circumstances, for up to two three-month periods up toDecember 21, 2023 ; (ii) the approval of the stockholders ofIsoPlexis or the stockholders of Berkeley Lights is not obtained; or (iii) (a) by Berkeley Lights if the IsoPlexis Board changes its recommendation thatIsoPlexis stockholders adopt the Merger Agreement and (b) byIsoPlexis if the Berkeley Lights Board changes its recommendation that Berkeley Lights stockholders approve the Share Issuance. The Merger Agreement further provides that, on termination of the Merger Agreement under specified circumstances, Berkeley Lights may be required to pay toIsoPlexis a termination fee of$2.3 million orIsoPlexis may be required to pay to Berkeley Lights a termination fee of$2.3 million , as applicable.
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
The Merger Agreement and the above description of the Merger Agreement have been included to provide investors with information regarding the terms of the Merger Agreement. It is not intended to provide any other factual information about Berkeley Lights,IsoPlexis or their respective subsidiaries or affiliates. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of the Merger Agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the parties in connection with negotiating the terms of the Merger Agreement, including being qualified by confidential disclosures made by each party to the other for the purposes of allocating contractual risk between the parties rather than establishing matters as facts, and may be subject to a contractual standard of materiality that differs from those generally applicable to investors. Information concerning the subject matter of the representations, warranties and covenants may change after the date of the . . . Item 8.01 Other Events. OnDecember 21, 2022 ,IsoPlexis and Berkeley Lights issued a joint press release announcing the entry into the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Investor Presentation
OnDecember 21, 2022 ,IsoPlexis and Berkeley Lights released a joint investor presentation. A copy of the joint investor presentation is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
Letter to Employees
On
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1 Agreement and Plan of Merger, dated as ofDecember 21, 2022 , amongIsoPlexis Corporation , Berkeley Lights, Inc. andIceland Merger Sub Inc. * 10.1 Voting Agreement, dated as ofDecember 21 ,
2022, among Berkeley Lights,
Inc.,Iceland Merger Sub Inc. , IsoPlexis
Corporation and the stockholders
party thereto 10.2 Voting Agreement, dated as ofDecember 21, 2022 , amongIsoPlexis Corporation , Berkeley Lights, Inc.,Iceland Merger Sub Inc. and the stockholders party thereto 99.1 Joint Press Release, datedDecember 21, 2022 99.2 Joint Investor Presentation 99.3 Letter to Employees 104 Cover Page Interactive Data File (embedded
within the Inline XBRL document)
* Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrant agrees to furnish supplementally to theSEC a copy of any omitted schedule upon request by theSEC .
Forward-Looking Statements
Certain statements in this communication regarding the proposed transaction between Berkeley Lights andIsoPlexis , the expected timetable for completing the transaction, benefits and synergies of the transaction, future opportunities for the combined company and products and any other statements regarding Berkeley Lights's andIsoPlexis' future expectations, beliefs, plans, objectives, financial conditions, assumptions or future events or performance that are not historical facts are "forward-looking" statements made within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are often, but not always, made through the use of words or phrases such as "may", "believe," "anticipate," "would," "could", "should," "intend," "seek," "plan," "will," "expect(s)," "estimate(s)," "predict(s)," "project(s)," "target(s)," "forecast(s)", "continue(s)," "contemplate(s)," "positioned," "potential," "strategy," "outlook," "forward," "continuing," "ongoing" and similar expressions. All such forward-looking statements involve estimates and assumptions that are subject to risks, uncertainties and other factors that could cause actual results to differ materially from the results expressed in the statements. Among the key factors that could cause actual results to differ materially from those projected in the forward-looking statements are the following: the risk that the proposed transaction may not be completed in a timely manner or at all; the failure to receive, on a timely basis or otherwise, the required approvals of the proposed transaction by both Berkeley Lights's stockholders andIsoPlexis' stockholders; the possibility that any or all of the various conditions to the consummation of the proposed transaction may not be satisfied or waived, including the failure to receive any required regulatory approvals from any applicable governmental entities (or any conditions, limitations or restrictions placed on such approvals); the occurrence of any event, change or other circumstance that could give rise -------------------------------------------------------------------------------- to the termination of the definitive transaction agreement relating to the proposed transaction, including in circumstances which would require Berkeley Lights orIsoPlexis to pay a termination fee; the effect of the announcement, pendency or completion of the proposed transaction on each of Berkeley Lights's andIsoPlexis' ability to attract, motivate or retain key employees, its ability to maintain relationships with its customers, suppliers, distributors and others with whom it does business, or its operating results and business generally; risks related to the proposed transaction diverting management's attention from each of Berkeley Lights's andIsoPlexis' ongoing business operations; the risk of stockholder litigation in connection with the proposed transaction, including resulting expense or delay; the possibility that the parties may be unable to achieve expected synergies and operating efficiencies in connection with the proposed transaction within the expected timeframes or at all and to successfully integrateIsoPlexis' operations into those of Berkeley Lights; the integration ofIsoPlexis' operations into those of Berkeley Lights being more difficult, time-consuming or costly than expected; effects relating to the announcement of the proposed transaction or any further announcements or the consummation of the proposed transaction on the market price of the common stock of each of Berkeley Lights andIsoPlexis ; the possibility that each of Berkeley Lights's andIsoPlexis' expectations as to expenses, cash usage and cash needs may prove not to be correct for reasons such as changes in plans or actual events being different than its assumptions; the impacts of changes in general economic and business conditions, including changes in the financial markets; the implementation of each of Berkeley Lights's andIsoPlexis' business model and strategic plans for its products and technologies, and challenges inherent in developing, manufacturing, launching, marketing and selling existing and new products; uncertainties in contractual relationships, including interruptions or delays in the supply of components or materials for, or manufacturing of, products for each of Berkeley Lights andIsoPlexis ; the ability of each of Berkeley Lights andIsoPlexis to establish and maintain intellectual property protection for products or avoid or defend claims of infringement; risks relating to competition within the industry in which each of Berkeley Lights andIsoPlexis operate; the impacts of potential product performance and quality issues; changes to and the impact of the laws, rules and regulations that regulate each of Berkeley Lights's andIsoPlexis' operations; and any other risks discussed in each of Berkeley Lights's andIsoPlexis' filings with theSEC , including Berkeley Lights's andIsoPlexis' Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. Berkeley Lights andIsoPlexis assume no obligation to update or revise publicly the information in this communication, whether as a result of new information, future events or otherwise, except as otherwise required by law. Readers are cautioned not to place undue reliance on these forward-looking statements that speak only as of the date hereof.
Participants in the Solicitation
Berkeley Lights,IsoPlexis and their respective directors, executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies in connection with the proposed transaction between Berkeley Lights andIsoPlexis under the rules of theSEC . Information regarding Berkeley Lights's directors and executive officers is set forth in Berkeley Lights's Proxy Statement on Schedule 14A for its 2022 Annual Meeting of Stockholders, which was filed with theSEC onApril 15, 2022 , and in certain of Berkeley Lights's Current Reports on Form 8-K. To the extent holdings of Berkeley Lights's securities by Berkeley Lights's directors and executive officers have changed since the amounts set forth in such proxy statement, such changes have been or will be reflected on subsequent statements of beneficial ownership filed with theSEC . Information regardingIsoPlexis' directors and executive officers is set forth inIsoPlexis' revised Proxy Statement on Schedule 14A for its 2022 Annual Meeting of Stockholders, which was filed with theSEC onApril 29, 2022 , and in certain ofIsoPlexis' Current Reports on Form 8-K. To the extent holdings ofIsoPlexis' securities byIsoPlexis' directors and executive officers have changed since the amounts set forth in such proxy statement, such changes have been or will be reflected on subsequent statements of beneficial ownership filed with theSEC . These documents can be obtained free of charge from the sources indicated below. Additional information regarding the interests of these participants will be set forth in the joint proxy statement/prospectus relating to the proposed transaction when it becomes available.
Additional Information and Where to Find It
In connection with the proposed transaction between Berkeley Lights andIsoPlexis , Berkeley Lights andIsoPlexis intend to file relevant materials with theSEC , including a Berkeley Lights registration statement on Form S-4 that will include a joint proxy statement of Berkeley Lights andIsoPlexis that also constitutes a prospectus of Berkeley Lights. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE JOINT PROXY -------------------------------------------------------------------------------- STATEMENT/PROSPECTUS AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT BERKELEY LIGHTS, ISOPLEXIS AND THE PROPOSED TRANSACTION. The joint proxy statement/prospectus and other documents relating to the proposed transaction (when they are available) can be obtained free of charge from theSEC's website at www.sec.gov. These documents (when they are available) can also be obtained free of charge from Berkeley Lights's investor relations website at www.investors.berkeleylights.com or fromIsoPlexis' investor relations website at www.investors.isoplexis.com.
No Offer or Solicitation
This communication is not intended to and shall not constitute an offer to buy or sell or the solicitation of an offer to buy or sell any securities, nor shall there be any offer, solicitation or sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
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