Item 1.01 Entry into a Material Definitive Agreement.
Arrangement Agreement
On
On the terms and subject to the conditions of the Arrangement Agreement and the
Plan of Arrangement, at the effective time of the Arrangement (the "Effective
Time"), each common share of Neovasc that is issued and outstanding immediately
prior to the Effective Time will be transferred to Shockwave in exchange for
On the terms and subject to the conditions of the Arrangement Agreement and the Plan of Arrangement, at the Effective Time, (a) each restricted share unit in respect of Neovasc common shares ("RSU") and each share appreciation right in respect of Neovasc common shares ("SAR") outstanding immediately prior to the Effective Time shall be deemed to have vested and been transferred to Neovasc in exchange for the Per Share Consideration, net of applicable tax withholding, and (b) each option in respect of Neovasc common shares ("Option") for which the Cash Consideration exceeds the per share exercise price of such Option shall be deemed to have vested and been transferred to Neovasc in exchange for an amount equal to the Cash Consideration less the applicable exercise price in respect of such Option and one CVR, net of applicable tax withholding.
The closing of the Arrangement is conditioned on (a) the approval of the
Arrangement by: (i) the affirmative vote of at least 66 2/3% of the votes cast
by Neovasc shareholders present in person or represented by proxy at a meeting
of shareholders held for the purpose of approving the Arrangement (the
"Meeting") and (ii) the affirmative vote of not less than a majority of the
votes cast by Neovasc shareholders present in person or represented by proxy at
the Meeting, excluding those votes that are excluded for this purpose under
applicable Canadian securities regulation; (b) the issuance of interim and final
orders approving the Arrangement by the
The Arrangement Agreement may be terminated by mutual written consent of
Shockwave and Neovasc. The Arrangement Agreement also contains certain customary
termination rights for each of Shockwave and Neovasc, including, among others
and subject to certain conditions, if (a) the requisite Neovasc shareholder
approval is not obtained; (b) any law, injunction or other governmental order
enjoins, makes illegal or otherwise prohibits the consummation of the
Arrangement, or (c) the Effective Time does not occur on or before
Support and Voting Agreements
In connection with the Arrangement Agreement, Neovasc directors and certain Neovasc officers have entered into support and voting agreements with Shockwave (each, a "D&O Support Agreement"), pursuant to which, among other things, they agree to support and vote in favor of the Arrangement. Further, the holder of Neovasc's Restated Senior Secured Convertible Note (the "Convertible Note") entered into a conversion, support and voting agreement with Shockwave and Neovasc (the "Noteholder Conversion and Support Agreement"), pursuant to which, among other things, such holder agreed to convert the Convertible Note into Neovasc common shares in accordance with the terms thereof and to support and vote in favor of the Arrangement. Collectively, such Neovasc directors and officers and the holder of the Convertible Note hold approximately 9.23% of Neovasc's outstanding common shares.
The foregoing descriptions of the Arrangement Agreement, the D&O Support Agreements and the Noteholder Conversion and Support Agreement do not purport to be complete and are qualified entirely by reference to each of the Arrangement Agreement, the Form of D&O Support Agreement and the Form of Noteholder Conversion and Support Agreement, which are attached hereto as Exhibits 2.1, 10.1 and 10.2, respectively. Shockwave encourages you to read the Arrangement
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Agreement for a more complete understanding of the transaction. The Arrangement
Agreement has been attached as an exhibit to this report to provide investors
and security holders with information regarding its terms. The Arrangement
Agreement is not intended to provide any factual information about Shockwave or
Neovasc. Further, the representations, warranties, covenants and agreements
contained in the Arrangement Agreement, which were made only for purposes of
that agreement and as of specific dates, may be subject to limitations agreed
upon by the contracting parties (including being qualified by confidential
disclosures made for the purposes of allocating contractual risk between the
parties to the Arrangement Agreement instead of establishing these matters as
facts) and may be subject to standards of materiality applicable to the
contracting parties that differ from those applicable to investors and
stockholders. Moreover, information concerning the subject matter of the
representations and warranties may change after the date of the Arrangement
Agreement, which subsequent information may or may not be fully reflected in
Shockwave or Neovasc's public disclosures. The Arrangement Agreement should not
be read alone, but should instead be read in conjunction with the other
information regarding Shockwave that is or will be contained in, or incorporated
by reference into, Shockwave's most recent Annual Report on Form 10-K filed with
the
Item 2.02. Results of Operations and Financial Condition.
On
Shockwave's audited financial statements for the year ended
The information furnished with this Item 2.02, including Exhibit 99.1, shall not be deemed "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any other filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995 including, but
not limited to, the information contained in Exhibit 99.1. All statements, other
than statements of historical facts, are statements that could be deemed
forward-looking. In some cases, you can identify these statements by
forward-looking words such as "may," "might," "will," "should," "expects,"
"plans," "anticipates," "believes," "estimates," "predicts," "potential," or
"continue," and similar expressions, and the negative of these terms. You are
cautioned not to place undue reliance on these forward-looking statements.
Forward-looking statements are only predictions based on Shockwave's current
plans, expectations, estimates, and assumptions, valid only as of the date they
are made, and subject to risks and uncertainties, some of which we are not
currently aware. Important factors that could cause Shockwave's actual results
to differ materially from those indicated in the forward-looking statements
include, among others: whether the Arrangement is completed on anticipated terms
and timing, including obtaining Neovasc shareholder approval of the Arrangement
and the issuance by the
Additional Information and Where to Find It
This communication is being made in respect of a proposed arrangement involving Shockwave and Neovasc. Further details of this transaction will be included in a management information circular to be mailed to Neovasc shareholders in accordance with applicable securities laws. Copies of the Arrangement Agreement and the information circular will be filed with Canadian securities regulators and will be accessible on SEDAR at www.sedar.com. The information circular
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and this communication are not offers to sell Shockwave's securities, are not soliciting an offer to buy Shockwave's securities in any state where the offer and sale is not permitted and are not a solicitation of any vote or approval.
Item 9.01. Financial Statements and Exhibits. (d) Exhibits Exhibit Number Description Arrangement Agreement, dated as ofJanuary 16, 2023 betweenShockwave Medical , 2.1 Inc. and Neovasc Inc. 10.1 Form of D&O Support Agreement. 10.2 Form of Noteholder Conversion and Support Agreement. 99.1 Press Release ofShockwave Medical, Inc. , datedJanuary 17, 2023 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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