Item 1.01 Entry into a Material Definitive Agreement
On
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions described therein, Merger Sub will commence a tender offer (the
"Offer") to purchase all of the outstanding shares of common stock of Chembio,
par value
The obligation of Merger Sub to consummate the Offer is subject to customary closing conditions, including (i) shares of Chembio stock representing at least a majority of the then-outstanding shares of Chembio stock having been validly tendered and not properly withdrawn, (ii) the absence of any law or order issued by a governmental authority of competent jurisdiction prohibiting the consummation of the Merger and (iii) other customary conditions set forth in Annex A of the Merger Agreement. Accordingly, no vote of Chembio stockholders will be required in connection with the Merger if Merger Sub consummates the Offer. The Merger Agreement contemplates that, if the Offer is completed, the Merger will be effected pursuant to Section 92A.133 of the Nevada Revised Statutes, which permits completion of a merger without a stockholder vote as soon as practicable following the successful consummation of an offer for all of the outstanding stock of a corporation that has a class of stock listed on a national securities exchange.
At the effective time of the Merger (the "Effective Time"), each share of Chembio stock issued and outstanding immediately prior to the Effective Time (including shares paid to a holder of a vested Chembio equity-based award) will be converted into the right to receive the Transaction Consideration.
The Offer and the withdrawal rights of Chembio's stockholders will expire at
At the Effective Time, each Chembio stock option that is then outstanding immediately prior to the Effective Time will automatically terminate for no consideration. At the Effective Time, each unvested Chembio restricted stock unit that is outstanding immediately prior to the Effective Time (including each unvested Chembio restricted stock unit that becomes vested at the Effective Time or at the acceptance time of the Offer) shall automatically be canceled and converted into the right to receive an amount of cash equal to the Transaction Consideration.
The Merger Agreement and the consummation of the transactions contemplated thereby have been unanimously approved by Chembio's Board of Directors, and the Board of Directors has resolved to recommend to the stockholders of Chembio to accept the Offer and tender their Chembio shares to Merger Sub pursuant to the Offer.
The Merger Agreement contains representations, warranties and covenants of Biosynex, Merger Sub and Chembio that are customary for a transaction of this nature, including among others, covenants regarding the conduct of their respective businesses during the pendency of the transactions contemplated by the Merger Agreement, public disclosures and the use of reasonable best efforts to cause the conditions to such transactions to be satisfied.
Pursuant to the Merger Agreement, prior to the acceptance time of the Offer,
Chembio is not permitted to solicit, initiate or knowingly encourage or
facilitate any alternative transaction proposals from third parties or to
participate in any discussions or negotiations with third parties with respect
to any alternative transaction proposals. Notwithstanding this limitation, prior
to the acceptance time of the Offer, subject to customary limitations and
conditions, Chembio may provide information and participate in discussions or
negotiations with any third party from whom Chembio receives an unsolicited
alternative transaction proposal that Chembio's Board of Directors determines in
good faith constitutes or is reasonably likely to lead to a "superior proposal"
(as defined in the Merger Agreement). In addition, upon termination of the
Merger Agreement under specified circumstances, including, among others, the
termination by Biosynex in the event Chembio's Board of Directors withholds,
modifies, or removes its recommendation of the Offer or by Chembio in order to
accept a "superior offer," Chembio must pay Biosynex a termination fee of
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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, which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
A copy of the Merger Agreement has been included to provide security holders with information regarding its terms and is not intended to provide any factual information about Biosynex or Chembio. The representations, warranties and covenants contained in the Merger Agreement have been made solely for the purposes of the Merger Agreement and as of specific dates; were solely for the benefit of the parties to the Merger Agreement; are not intended as statements of fact to be relied upon by security holders, but rather as a way of allocating the risk between the parties to the Merger Agreement in the event the statements therein prove to be inaccurate; have been modified or qualified by certain confidential disclosures that were made between the parties in connection with the negotiation of the Merger Agreement, which disclosures are not reflected in the Merger Agreement itself; may no longer be true as of a given date; and may apply standards of materiality in a way that is different from what may be viewed as material by security holders. Security holders are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of Biosynex, Merger Sub or Chembio. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Biosynex's or Chembio's public disclosures.
Item 8.01 Other Events.
On
Additional Information and Where to Find It
This filing relates to a pending business combination between Biosynex and
Chembio. The tender offer referenced in this filing has not yet commenced. This
filing is for informational purposes only and does not constitute an offer to
purchase or a solicitation of an offer to sell shares of Chembio, nor is it a
substitute for any tender offer materials that the parties will file with the
Cautionary Statement Regarding Forward Looking Statements
This filing contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements involve inherent risks and uncertainties and you are cautioned that a number of important factors could cause actual results to differ materially from those contained in any such forward-looking statement. These statements can otherwise be identified by the use of words such as "anticipate," "believe," "could," "estimate," "expect," "feel," "forecast," "intend," "may," "plan," "potential," "predict," "project," "seek," "should," "would," "will," and similar expressions intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. The forward-looking statements contained in this filing include, but are not limited to, statements related to Biosynex's and Chembio's plans, objectives, expectations and intentions with respect to the proposed transaction and the combined company, the anticipated timing of the proposed transaction, the conditions precedent to the closing of the proposed transaction and the potential impact the transaction will have on Chembio or Biosynex and other matters related to either or both of them. The forward-looking statements are based on assumptions regarding current plans and estimates of management of Biosynex and Chembio. Such management believes these assumptions to be reasonable, but there is no assurance that they will prove to be accurate.
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Factors that could cause actual results to differ materially from those
described in this filing include, among others: changes in expectations as to
the closing of the transaction including timing and changes in the method of
financing the transaction; the satisfaction of the conditions precedent to the
consummation of the proposed transaction (including a sufficient number of
Chembio shares being validly tendered into the tender offer to meet the minimum
condition); the risk of litigation and regulatory action related to the proposed
transactions; expected synergies and cost savings are not achieved or achieved
at a slower pace than expected; integration problems, delays or other related
costs; retention of customers and suppliers; and unanticipated changes in laws,
regulations, or other industry standards affecting the companies; and other
risks and important factors contained and identified in Chembio's filings with
the
The foregoing list of factors is not exhaustive. Readers are cautioned not to
place undue reliance on any forward-looking statements, which speak only as of
the date hereof. Readers are urged to carefully review and consider the various
disclosures, including but not limited to risk factors contained in Chembio's
Annual Reports on Form 10-K and its quarterly reports on Form 10-Q, as well as
other filings with the
Item 9.01 Financial Statements and Exhibits
Exhibit No. Description
2.1* Agreement and Plan of Merger, dated as ofJanuary 31, 2023 , by and amongBiosynex SA ,Project Merci Merger Sub, Inc. andChembio Diagnostic, Inc. 99.1 Joint Press Release ofBiosynex SA andChembio Diagnostics, Inc. , datedJanuary 31, 2023
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules and Exhibits have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. The registrant hereby agrees to supplementally furnish to the
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