SECOND SIGHT MEDICAL PRODUCTS Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
Subject to the terms and conditions of the Merger Agreement, which has been unanimously approved by the board of directors of the Company (the "Board") and the board of directors of NPM, if the Merger is completed, the securities of NPM will be converted into the right to receive an aggregate of approximately 134,349,464 of shares of the Company's common stock (the "Merger Shares") representing approximately 77.32% of the total issued and outstanding shares of common stock of the Company on a fully converted basis, including, without limitation, giving effect to the conversion of all options, warrants, and any and all other convertible securities.
As a result of the Merger, at the Effective Time (as defined in the Merger Agreement) and without any further action on the part of the parties to the Merger Agreement or any shareholders of NPM, the following transactions will occur subject to the conditions set forth in the Merger Agreement:
(i) any shares of common stock, no par value per share, of NPM ("
Stock") held as treasury stock prior to the Effective Time shall be cancelled
and retired and shall cease to exist, and no consideration shall be delivered
in exchange therefor;
(ii) any shares of NPM Capital Stock held by the Company or Merger Sub prior to
the Effective Time shall be cancelled and retired and shall cease to exist,
and no consideration shall be delivered in exchange therefor;
(iii) the following securities of each NPM securityholder will be converted into
the right to receive the Pro Rata Portion (as defined in the Merger
Agreement) of the Merger Shares, provided, however, that no fractional
shares of the Company will be issued as a result of the Merger: (x) the
aggregate number of issued and outstanding shares of NPM Capital Stock
prior to the Effective Time; (y) the aggregate number shares of NPM Capital
Stock issuable upon the exercise of all NPM stock options outstanding as of
immediately prior to the Effective Time, as if exercised by means of a net
cashless exercise and subject to the assumptions under the Merger
Agreement; and (z) the aggregate number of shares of NPM Capital Stock
issuable upon exercise of NPM warrants outstanding as of immediately prior
to the Effective Time that are converted into the right to acquire
securities of the Company in accordance with their terms and subject to the
assumptions under the Merger Agreement, provided that each NPM stock option
that is outstanding shall be cancelled and the Company will assume and/or
issue in exchange a Company's replacement stock option, under its then
effective Equity incentive plan(s) of the Company. In the event that any
such NPM stock option is unable to be so cancelled, the parties of the
Merger Agreement shall negotiate in good faith and use commercially
reasonable efforts to mutually agree as promptly as practicable to such
amendments to the Merger Agreement as are necessary to reflect an
assumption, exchange, or similar accommodation, provided that such
assumption, exchange or similar accommodation shall be reasonably
satisfactory to each party of the Merger Agreement;
2
(iv) it is anticipated that outstanding NPM warrants will have been "net"
exercised prior to the closing in exchange for shares of NPM Capital Stock
in accordance with their terms and shall no longer be outstanding and shall
automatically be cancelled, extinguished, and retired and shall cease to
exist, provided, however, that in the event that any such NPM warrants are
not so exercised, to the extent that by their terms they do not continue to
represent the right to acquire securities of the Company on comparable terms
to those of NPM warrants, then the parties of the Merger Agreement shall
negotiate in good faith and use commercially reasonable efforts to mutually
agree as promptly as practicable to such amendments the Merger Agreement as
are necessary to reflect an assumption, exchange or similar accommodation
for such NPM warrants, provided that such assumption, exchange or similar
accommodation shall be reasonably satisfactory to each party of the Merger
Agreement; and
(v) each share of common stock, no par value per share, of Merger Sub issued and
outstanding immediately prior to the Effective Time shall be converted into
and exchanged for one validly issued, fully paid, and nonassessable share of
NPM Capital Stock.
The Merger Agreement also contemplates that the Company, as promptly as
practicable following the receipt of the Required Financial Statements (as
defined in the Merger Agreement), will prepare and file with the
(i) the adoption and approval of the transactions contemplated by the Merger
Agreement;
(ii) the adoption and approval of the issuance of the Merger Shares;
(iii) the adoption and approval of the amendment to the Company's articles of
incorporation and bylaws (to the extent necessary to effect the Merger
Agreement and the entirety of transactions contemplated therein); and
(iv) the adoption and approval of any other proposal including (x) the
adjournment proposal and (y) any proposal in connection with amendments of
then-existing or approval of new equity incentive plan(s) including a
performance equity plan authorizing the issuance of 35,000,000 shares of
common stock of the Company, as reasonably necessary to consummate the
Merger Agreement.
The Merger Agreement contains customary representations, warranties, and covenants made by each of the Company and NPM, including, inter alia, covenants by each party to (i) continue conducting its respective businesses in the ordinary course, consistent with past practice during the interim period between the execution of the Merger Agreement and consummation of the Merger, (ii) not engage in certain specified kinds of transactions during that period, and (iii) unless the Merger Agreement is validly terminated, hold a meeting of its shareholders to vote upon the transactions contemplated therein following the effectiveness of the Registration Statement.
The consummation of the Merger is subject to certain conditions, including (i) the approval and adoption of the Merger Agreement and the transactions contemplated therein by NPM shareholders, (ii) the approval of the issuance of the Merger Shares and other aforementioned proposals by the Company's shareholders, (iii) the effectiveness of the Registration Statement, (iv) no material adverse effect, (v) the Company's receipt of an opinion of a reputable financial adviser of national standing that based upon and subject to the qualifications and assumptions set forth therein, the issuance of the Merger Shares is fair, from a financial point of view, to the Company's shareholders, (vi) execution of certain lock-up agreements by the management and certain shareholders of NPM, and (vii) other customary conditions.
3
The Company and NPM have agreed that, during the period commencing upon the execution of the Merger Agreement and ending at the earlier of the date of termination of the Merger Agreement and the Effective Time, the Company and NPM will be subject to "non-solicitation" restrictions and will not, subject to certain exceptions set forth in the Merger Agreement including but not limited to those exceptions connected to superior proposals, (i) initiate, solicit, seek or knowingly encourage or support any inquiries, proposals or offers relating to alternative acquisition transactions, (ii) engage in discussions or negotiations regarding, or provide any non-public information in connection with, alternative business combination transactions with third parties, or (iii) enter any letter of intent, definitive agreement, or other similar type of arrangement requiring the respective party to abandon, terminate or fail to consummate the Merger. . . .
Item 7.01 Regulation FD Disclosure.
On
Additionally, in connection with the announcement, the Company and NPM will host
an investor presentation on
Forward-Looking Statements
Statements contained herein that are not historical facts may be considered
forward-looking statements under federal securities laws and may be identified
by words such as "anticipates," "believes," "estimates," "expects," "intends,"
"plans," "potential," "predicts," "projects," "seeks," "should," "will," or
words of similar meaning and include, but are not limited to, statements
regarding the proposed Merger and the outlook of the future business and
financial performance if the Merger is consummated. Such forward-looking
statements are based on the current beliefs of the Company's and NPM's
respective management as well as assumptions made by and information currently
available to them, which are subject to inherent uncertainties, risks, and
changes in circumstances that are difficult to predict. Actual outcomes and
results may vary materially from these forward-looking statements based on a
variety of risks and uncertainties including: the occurrence of any event,
change or other circumstances that could give rise to the termination of the
Merger Agreement; the inability to obtain Company's or NPM's respective
shareholder approval or the failure to satisfy other conditions to completion of
the proposed Merger on a timely basis or at all; risks that the proposed Merger
disrupts each company's current plans and operations; the diversion of the
attention of the respective management teams of Company and NPM from their
respective ongoing business operations; the ability of either Company, NPM, or
the combined company to retain key personnel; the ability to realize the
benefits of the proposed Merger; the ability to successfully integrate NPM's
business with Company's business or to integrate the businesses within the
anticipated timeframe; the outcome of any legal proceedings that may be
instituted against Company, NPM, or others following announcement of the
proposed Merger; the amount of the costs, fees, expenses and charges related to
the proposed Merger; the uncertainty of the impact of the COVID-19 pandemic and
measures taken in response thereto; the effect of economic, market, or business
conditions, including competition, consumer demand and the discretionary
spending patterns of customers, or changes in such conditions, have on
Company's, NPM's and the combined company's operations, revenue, cash flow,
operating expenses, employee hiring and retention, relationships with business
partners, customer engagement, and retention and growth; the impact of changes
in interest rates by the
5
Other important factors and information are contained in Company's most recent
Annual Report on Form 10-K, including the risks summarized in the section
entitled "Risk Factors," Company's most recent Quarterly Report on Form 10-
Additional Information and Where to Find It
This communication relates to a proposed business combination of Company and NPM
that will become the subject of a Registration Statement on Form S-4 to be filed
by the Company with the
No Offer or Solicitation
This communication is for informational purposes only and is not intended to and does not constitute an offer to subscribe for, buy or sell, the solicitation of an offer to subscribe for, buy or sell or an invitation to subscribe for, buy or sell any securities or the solicitation of any vote or approval in any jurisdiction pursuant to or in connection with the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer 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, and otherwise in accordance with applicable law.
Participants in the Solicitation
The Company and its respective directors and executive officers may be deemed to
be participants in any solicitation of proxies in connection with the proposed
business combination. Information about the Company's directors and executive
officers is available in the Company's Annual Report on Form 10-K, as amended,
for the fiscal year ended
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1* Merger Agreement datedFebruary 4, 2022 10.1 SAFE Agreement datedFebruary 4, 2022 99.1 Joint Press Release datedFebruary 7, 2022 99.2 Joint Investor Presentation datedFebruary 7, 2022 104 The cover page of this Current Report on Form 8-K, formatted in Inline XBRL
* Certain schedules, exhibits, and similar attachments have been omitted
pursuant to Item 601(a)(5) of Regulation S-K.
6
© Edgar Online, source