NEOS THERAPEUTICS, INC. Item 1.01 Entry into Material Definitive Agreement
Merger Agreement
On
In the Merger, each share of Neos common stock issued and outstanding immediately prior to the effective time of the Merger (excluding any Excluded Shares) will automatically be converted into the right to receive (1) 0.1088 shares of Aytu common stock (the "Exchange Ratio") (provided that the Exchange Ratio is subject to adjustment with respect to the Bridge Note Adjustment (as defined below)) and (2) any cash in lieu of fractional shares of Aytu common stock.
Completion of the Merger is subject to customary closing conditions, including (1) the adoption of the Merger Agreement by a majority of the holders of the outstanding shares of Neos common stock, (2) approval of the issuance of Aytu common stock by a majority of the votes cast by Aytu stockholders on the matter, (3) that the conditions to the Debt Facility Letters (as defined below) have been satisfied as of the time of closing, and that the lenders do not dispute the satisfaction thereof, (4) accuracy of each party's representations and warranties, subject to certain materiality standards set forth in the Merger Agreement, (5) the absence of a material adverse effect of either party and (6) compliance in all material respects with each party's obligations under the Merger Agreement and certain other conditions.
Either Neos or Aytu may terminate the Merger Agreement in certain circumstances,
including if (1) the Merger is not completed on or before
The foregoing description of the Merger and the Merger Agreement is not complete and is qualified in its entirety by the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and the terms of which are incorporated herein by reference.
Important Statement Regarding the Merger Agreement
The Merger Agreement has been included to provide investors and security holders
with information regarding its terms. It is not intended to provide any other
factual information about Aytu, Merger Sub, Neos or their respective
subsidiaries and affiliates. The Merger Agreement contains representations and
warranties by Aytu and Merger Sub, on the one hand, and by Neos, on the other
hand, made solely for the benefit of the other. The assertions embodied in those
representations and warranties are qualified by information in confidential
disclosure schedules delivered by each party in connection with the signing of
the Merger Agreement. Moreover, certain representations and warranties in the
Merger Agreement were made as of a specified date, may be subject to a
contractual standard of materiality different from what might be viewed as
material to stockholders or may have been used for the purpose of allocating
risk between Aytu and Merger Sub, on the one hand, and Neos, on the other hand.
Accordingly, the representations and warranties in the Merger Agreement should
not be relied on by any persons as characterizations of the actual state of
facts about Aytu or Neos at the time they were made or otherwise. In addition,
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 Aytu's or Neos' public disclosures. The
Merger Agreement should not be read alone but should instead be read in
conjunction with the other information regarding the Merger Agreement, the
Merger, Aytu, Neos, their respective affiliates and their respective businesses,
that will be contained in, or incorporated by reference into, the Registration
Statement on Form S-4 that will include a joint proxy statement of Neos and Aytu
and a prospectus of Aytu, as well as in the Forms 10-K, Forms 10-Q and other
filings that each of Aytu and Neos make with the
Voting Agreements
In connection with the execution and delivery of the Merger Agreement, certain stockholders of Aytu and Neos holding approximately 2% and 1%, respectively, of the companies' outstanding voting shares entered into voting agreements with Neos (the "Aytu Stockholder Voting Agreements") and Aytu, as applicable (the "Neos Stockholder Voting Agreements" and, together with the Aytu Stockholder Voting Agreements, the "Voting Agreements").
Pursuant to the Voting Agreements, each of the stockholders of Aytu and Neos, as applicable, have agreed, among other things, to vote their shares of Aytu common stock, or Neos common stock, as applicable, that such stockholder owns in favor of the issuance of shares of Aytu common stock in connection with the Merger, or the adoption of the Merger Agreement, as applicable.
Each Voting Agreement contains restrictions on transfer that, subject to limited exceptions, prevent each stockholder from transferring their shares of Aytu's or Neos' common stock, as applicable. Each Voting Agreement will terminate upon the earliest to occur of (1) the effective time of the Merger, (2) the termination of the Merger Agreement in accordance with its terms and (3) such date and time as any amendment or change to the Merger Agreement is effected without such stockholder's prior written consent that materially and adversely affects such stockholder.
The foregoing description of the Voting Agreements is not complete and is qualified in its entirety by reference to the form of Aytu Stockholder Voting Agreement and the form of Neos Stockholder Voting Agreement, which are filed as Exhibits 10.1 and 10.2 hereto, respectively, and are incorporated herein by reference.
Bridge Financing
In connection with the execution of the Merger Agreement, Aytu and Neos have
entered into a Commitment Letter (the "Bridge Commitment Letter") and an
Unsecured Convertible Promissory Note (the "Promissory Note") for Aytu to
provide financing to Neos under an unsecured convertible note, in an aggregate
amount of up to
If drawn down on, the convertible note will be cancelled in the event the Merger
is consummated. If the Merger is not consummated and the Merger Agreement is
terminated, at any time beginning 30 days following such termination, Aytu will
have the right to elect to convert principal and accrued interest amounts
outstanding under the note at a conversion price equal to the greater of
Item 7.01 Regulation FD Disclosure
Aytu is scheduled to make presentations to investors and other parties on or
after
Additional Information about the Proposed Merger Transaction and Where to Find It
This communication relates to the proposed merger transaction pursuant to the
terms of the Agreement and Plan of Merger, dated as of
Certain Information Regarding Participants
Aytu and Neos 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 respect of the proposed merger transaction. You can
find information about Aytu's executive officers and directors in Aytu's
definitive proxy statement filed with the
No Offer or Solicitation
This communication 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 merger transaction or otherwise. No offering 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 (the "Securities Act") and otherwise in accordance with applicable law.
Cautionary Statement Regarding Forward-Looking Statements
This communication includes forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, or the Exchange Act. All statements other than
statements of historical facts contained in this communication, are
forward-looking statements. Forward-looking statements are generally written in
the future tense and/or are preceded by words such as ''may,'' ''will,''
''should,'' ''forecast,'' ''could,'' ''expect,'' ''suggest,'' ''believe,''
''estimate,'' ''continue,'' ''anticipate,'' ''intend,'' ''plan,'' or similar
words, or the negatives of such terms or other variations on such terms or
comparable terminology. All statements other than statements of historical facts
contained in this presentation, are forward-looking statements, including but
not limited to any statements regarding the expected timetable for completing
the proposed merger transaction, the results, effects, benefits and synergies of
the proposed merger transaction, future, opportunities for the combined company,
future financial performance and condition, the executive and board structure of
Aytu, guidance and any other statements regarding Aytu's or Neos' future
expectations, beliefs plans, objectives, financial conditions, assumptions or
future events or performance. These statements are just predictions and are
subject to risks and uncertainties that could cause the actual events or results
to differ materially. These risks and uncertainties include, among others: the
outcome of any legal proceedings that may be instituted against the companies
and others related to the proposed merger transaction; unanticipated
difficulties or expenditures relating to the proposed merger transaction, the
response of business partners and competitors to the announcement of the
proposed merger transaction, and/or potential difficulties in employee retention
as a result of the announcement and pendency of the proposed merger transaction;
the diversion of management time on transaction-related issues; the ultimate
timing, outcome and results of integrating the operations of Aytu and Neos; the
effects of the business combination of Aytu and Neos, including the combined
company's future financial condition, results of operations, strategy and plans;
the ability of the combined company to realize anticipated synergies in the
timeframe expected or at all; changes in capital markets and the ability of the
combined company to finance operations in the manner expected; risks relating to
gaining market acceptance of our products, obtaining reimbursement by
third-party payors, the potential future commercialization of the combined
company's product candidates, the anticipated start dates, durations and
completion dates, as well as the potential future results, of the combined
company's ongoing and future clinical trials, the anticipated designs of the
combined company's future clinical trials, anticipated future regulatory
submissions and events, the combined company's anticipated future cash position
and future events under current and potential future collaboration; risks
associated with the companies' ability to obtain the stockholder approvals
required to consummate the proposed merger transaction and the timing of the
closing of the proposed merger transaction, including the risks that a condition
to closing would not be satisfied within the expected timeframe or at all or
that the closing of the proposed merger transaction will not occur; and those
additional risks and factors discussed in reports filed with the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. EXHIBIT NUMBER DESCRIPTION 2.1* Agreement and Plan of Merger, dated as ofDecember 10 , by and amongNeos, Therapeutics, Inc. , Aytu BioScience, Inc. andNeutron Acquisition Sub, Inc. 10.1 Form of Parent Stockholder Voting Agreement. 10.2 Form of Company Stockholder Voting Agreement. 10.3 Commitment Letter, dated as ofDecember 10, 2020 , by and between Aytu BioScience, Inc. andNeos Therapeutics, Inc. 10.4 Form of Unsecured Convertible Promissory Note, by and between Neos and Aytu 10.5 Deerfield Consent Letter, dated as ofDecember 10, 2020 , by and among Aytu, Neos and the Deerfield Lenders 10.6 Limited Waiver, dated as ofDecember 10, 2020 , by and between Neos and the Deerfield Lenders 10.7 Commitment Letter, dated as ofDecember 10, 2020 , by and between Encina,Encina Business Credit SPV, LLC , Neos and Aytu. 10.8 Limited Waiver to Loan and Security Agreement, dated as ofDecember 10, 2020 , by and between Neos,Encina and Encina Business Credit SPV, LLC 99.1 Investor Presentation titled "Aytu BioScience to Acquire NeosTherapeutics, Inc. " datedDecember 10, 2020 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Exhibits and schedules to this Exhibit have been omitted in accordance with
Item 601(b)(2) of Regulation S-K. The registrant agrees to furnish
supplementally a copy of all omitted exhibits and schedules to the
request.
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