Item 1.01 Entry into a Material Definitive Agreement
On January 7, 2021, Chimerix, Inc., a Delaware corporation (the "Company"),
Ocean Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of
the Company ("Merger Sub"), Oncoceutics, Inc., a Delaware corporation
("Oncoceutics"), and Fortis Advisors, LLC solely in its capacity as
representative of the securityholders of Oncoceutics (the "Securityholders'
Representative"), entered into an Agreement and Plan of Merger (the "Merger
Agreement"). Concurrently with the execution of the Merger Agreement, Merger
Sub merged with and into Oncoceutics (the "Merger") whereupon the separate
corporate existence of Merger Sub ceased, with Oncoceutics continuing as the
surviving corporation of the Merger as a wholly owned subsidiary of the Company.
As consideration for the Merger, the Company (a) paid an upfront cash payment of
approximately $25.0 million, (b) issued an aggregate of 8,723,769 shares of the
Company's common stock ("Merger Shares"), (c) issued a promissory note to the
Securityholders' Representative in the original principal amount of $14.0
million (the "Seller Note"), to be paid in cash, subject to the terms and
conditions of the Merger Agreement and the Seller Note, upon the one year
anniversary of the closing of the Merger, and (d) agreed to make contingent
payments up to an aggregate of $360.0 million based on the achievement of
certain development, regulatory and commercialization events as set forth in the
Merger Agreement, as well as additional tiered payments based upon future net
sales of ONC-201 and ONC-206 products, subject to certain reductions as set
forth in the Merger Agreement, and a contingent payment in the event the Company
receives any proceeds from the sale of a rare pediatric disease priority review
voucher based on the Oncoceutics products. The Company will also pass through
to the Oncoceutics securityholders the upfront payment received from China
Resources Sanjiu Medical & Pharmaceutical Co., Ltd. pursuant to a license
agreement entered into with Oncoceutics prior to the Merger. The closing payment
may be adjusted after the closing, pursuant to procedures set forth in the
Merger Agreement, in connection with the finalization of the cash, transaction
expenses, debt and working capital amounts at closing.
Each "in-the-money" stock option of Oncoceutics ("Options") that was outstanding
and unexercised immediately prior to the effective time of the Merger (the
"Effective Time") became fully vested and exercisable immediately prior to the
Effective Time and such Options were automatically "net exercised" immediately
prior to the Effective Time with respect to payment of the applicable exercise
price and any applicable tax withholding.
The Merger Agreement contains customary representations, warranties and
covenants and indemnification provisions. The Company has certain diligence
obligations with respect to further development and commercialization of
Oncoceutics' product candidates.
The Merger Shares are not being registered under the Securities Act of 1933, as
amended (the "Securities Act"), and are being offered pursuant to the exemption
provided in Section 4(a)(2) under the Securities Act.
The foregoing descriptions of the Merger Agreement and the Seller Note are
qualified in their entirety by reference to the full text of the Merger
Agreement and Seller Note, copies of which are filed as Exhibit 2.1 and
Exhibit 10.1 hereto and are incorporated herein by reference.
The Merger Agreement has been attached to provide investors and stockholders
with information regarding its terms. It is not intended to provide any other
factual information about the Company, Oncoceutics or Merger Sub. In particular,
the assertions embodied in the representations and warranties contained in the
Merger Agreement have been made solely for the benefit of the parties to the
Merger Agreement and are qualified by information in confidential disclosure
schedules provided by Oncoceutics in connection with the signing of the Merger
Agreement. Moreover, certain representations and warranties in the Merger
Agreement were used for the purpose of allocating risk between the Company and
Oncoceutics rather than establishing matters as facts. Accordingly, the
representations and warranties in the Merger Agreement should not be relied upon
as characterizations of the actual state of facts about the Company or
Oncoceutics.
Item 2.01. Completion of Acquisition or Disposition of Assets.
The information contained in Item 1.01 of this Current Report on Form 8-K is
incorporated by reference into this Item 2.01.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information contained in Item 2.01 of this Current Report on Form 8-K is
incorporated by reference into this Item 2.03.
Item 3.02. Unregistered Sales of Equity Securities.
The information contained in Item 2.01 of this Current Report on Form 8-K is
incorporated by reference into this Item 3.02.
Item 8.01. Other Events
On January 8, 2021, the Company issued a press release regarding the matters
described in Item 1.01 of this Current Report on Form 8-K. A copy of this press
release is attached as Exhibit 99.1 hereto.
Item 9.01 Financial Statements and Exhibits
(a) Financial Statements of Businesses Acquired.
The Company may, if required, file Oncoceutics' financial statements for the
periods required under Rule 8-04(b) of Regulation S-X by amendment to this
Current Report on Form 8-K no later than 71 calendar days after the date that
this Current Report on Form 8-K is required to be filed.
(b) Pro Forma Financial Information.
The Company may, if required, file the pro forma financial information required
by Item 9.01(b) of this Current Report on Form 8-K by amendment to this Current
Report on Form 8-K no later than 71 calendar days after the date that this
Current Report on Form 8-K is required to be filed.
(d) Exhibits
Exhibit No. Description
2.1*+ Agreement and Plan of Merger, dated January 7, 2021, by and among the
Company, Oncoceutics, Merger Sub and Fortis Advisors, LLC solely in its
capacity as Securityholders' Representative.
10.1 Promissory Note, dated January 7, 2021, by and between the Company
and Fortis Advisors, LLC, solely in its capacity as Securityholders'
Representative.
99.1 Press Release dated January 8, 2021.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
* Schedules and exhibits to the Agreement have been omitted pursuant to Item
601(a)(5) of Regulation S-K. A copy of any omitted schedule and/or exhibit will
be furnished to the Securities and Exchange Commission upon request.
+ Certain portions of this exhibit are omitted because they are not material and
would likely cause competitive harm to the Company if publicly disclosed.
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