Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On
Subject to the terms of the Merger Agreement, at the effective time of the Merger (the "Effective Time"), each share of Neon common stock issued and outstanding immediately prior to the Effective Time shall automatically be cancelled and converted into the right to receive 0.063 of an American Depositary Share of Parent ("Parent ADS"), with each Parent ADS representing one ordinary share of Parent, without interest but subject to any withholding required under applicable law (the "Merger Consideration").
At the Effective Time, (i) each Neon stock option, whether or not then vested or
exercisable, that is outstanding immediately prior to the Effective Time will be
cancelled and converted automatically into the right to receive, as soon as
reasonably practicable after the Effective Time (but no later than ten business
days thereafter), a cash payment in an amount equal to the product of (x) the
total number of Shares (as defined in the Merger Agreement) subject to such
stock option immediately prior to such cancellation and (y) the excess, if any,
of the Merger Consideration over the exercise price per share subject to such
stock option immediately prior to such cancellation; (ii) each share of Neon
restricted stock that is outstanding as of immediately prior to the Effective
Time shall vest in full and each such share of Neon restricted stock shall be
cancelled and converted automatically into the right to receive the Merger
Consideration in the same manner as the other outstanding Shares; and (iii) each
Neon restricted stock unit ("RSU") that is held by any current Neon employee and
is outstanding as of immediately prior to the Effective Time shall vest in full
and each such RSU shall be cancelled and converted automatically into the right
to receive from the
The Merger Agreement contains customary representations, warranties and covenants of Neon and the Acquiring Parties, including, among others, covenants by Neon to conduct its business in the ordinary course of business during the period between execution of the Merger Agreement and consummation of the Merger (the "Closing") and prohibiting Neon from engaging in certain kinds of activities during such period without the consent of Parent. The Merger Agreement also contains customary termination provisions for both Neon and Parent, as discussed in more detail below.
The Merger is conditioned upon, among other things, the approval of the Merger Agreement by the affirmative vote of holders of at least a majority of the shareholders of Neon (the "Shareholders") present at a meeting of the Shareholders held for such purpose, the delivery of tax opinions confirming the transaction is tax-free and other customary closing conditions. The Closing is not subject to a financing condition.
The Merger Agreement contains a customary "no-shop" provision whereby, subject to certain exceptions, Neon will be prohibited from (i) entering into discussions concerning, or providing confidential information in connection with, any alternative transaction proposal and (ii) withholding, withdrawing, or modifying in any manner adverse to Parent the recommendation of the Board that the Shareholders adopt the Merger Agreement, subject to certain exceptions. Neon is also subject to a "force the vote" provision, which requires Neon to hold a meeting of its Shareholders even if the Board changes its recommendation.
The Merger Agreement contains certain termination rights for both Neon and
Parent, and provides that, upon termination of the Merger Agreement under
specified circumstances, the Company will be required to pay to Parent a
termination fee of approximately
The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, which accompanies this Current Report on Form 8-K as Exhibit 2.1 and which is incorporated herein by reference.
The Merger Agreement is attached to provide investors with information regarding its terms and is not intended to provide any other factual information about Neon, Parent or Merger Sub. The Merger Agreement also contains representations and warranties of each of Neon, Parent and Merger Sub. The assertions embodied in those representations and warranties were made for purposes of the Merger Agreement and are subject to qualifications and limitations agreed to by the respective parties in connection with negotiating the terms of the Merger Agreement, including information contained in certain disclosures between the parties. Accordingly, investors and security holders should not rely on such representations and warranties as characterizations of the actual state of facts or circumstances, since they were only made as of a specific date and are modified in important part by the disclosures between the parties. In addition, certain representations and warranties may be subject to a contractual standard of materiality different from what might be viewed as material to Shareholders, or may have been used for purposes of allocating risk between the respective parties rather than establishing matters of fact. Moreover, information concerning the subject matter of such representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Neon's or the Acquiring Parties' public disclosures.
Voting Agreements
In connection with the execution and delivery of the Merger Agreement, certain
directors, executive officers and
Item 8.01. Other Events.
On
Important Additional Information and Where to Find It
In connection with the proposed Merger, Parent will file with the
Investors and security holders may obtain copies of these documents free of
charge through the website maintained by the
No Offer or Solicitation
This Current Report on Form 8-K does not constitute an offer to sell or the
solicitation of an offer to buy any securities nor a solicitation of any vote or
approval with respect to the proposed transaction or otherwise. No offering of
securities shall be made except by means of a prospectus meeting the
requirements of Section 10 of the
Participants in Solicitation
Parent and Neon and certain of their respective directors and executive officers
and other members of management and employees may be deemed to be participants
in the solicitation of proxies from the Shareholders of Neon in respect of the
proposed merger under the rules of the
Forward-Looking Statements
This Current Report on Form 8-K contains "forward-looking statements" of Parent
and Neon within the meaning of the Private Securities Litigation Reform Act of
1995. These forward-looking statements may include, but may not be limited to,
express or implied statements regarding the expected impact of this proposed
merger on Parent's and Neon's business; the timing of the closing of the
proposed merger; the creation of long-term value for Parent and Neon
shareholders; potential synergies between Parent and Neon and their pipelines;
and Parent's global expansion strategy. Any forward-looking statements in this
press release are based on Parent and Neon management's current expectations and
beliefs of future events, and are subject to a number of risks and uncertainties
that could cause actual results to differ materially and adversely from those
set forth in or implied by such forward-looking statements. These risks and
uncertainties include, but are not limited to: the possibility that the proposed
merger may not close, the reaction to the proposed merger of Neon's business
partners, the reaction of competitors to the proposed merger, the retention of
Neon employees, Parent's plans for Neon, the future growth of Neon's and
Parent's businesses and the possibility that integration following the proposed
merger may be more difficult than expected, uncertainties related to the
initiation, timing and conduct of studies and other development requirements for
Neon's product candidates; the risk that any one or more of Neon's product
candidates will not be successfully developed and commercialized; the risk that
the results of preclinical studies and clinical trials may not be predictive of
future results in connection with future studies or trials; the risk that Neon's
collaborations will not continue or will not be successful; risks related to
Neon's ability to protect and maintain Neon's intellectual property position;
risks related to Neon's capital requirements, use of capital and unexpected
expenditures, including Neon's ability to manage operating expenses or obtain
funding to support planned business activities or to explore and establish
strategic alternative transactions; risks related to Neon's ability to attract
and retain personnel; and risks related to the ability of Neon's licensors to
protect and maintain their intellectual property position. For a discussion of
these and other risks and uncertainties, and other important factors, any of
which could cause Parent's or Neon's actual results to differ from those
contained in the forward-looking statements, see the section entitled "Risk
Factors" and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" in Parent's Registration Statement on Form F-1 filed with
the
Item 9.01 - Financial Statements and Exhibits.
(d) Exhibits Exhibit Number Description 2.1 Agreement and Plan of Merger, datedJanuary 15, 2020 , by and amongNeon Therapeutics, Inc. ,BioNTech SE , andEndor Lights, Inc. 99.1 Form of Voting Agreement 99.2 Joint Press Release, datedJanuary 16, 2020 -BioNTech to acquire Neon to strengthen global leadership position in T Cell Therapy
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