GenVec, Inc. (NASDAQ:GNVC) Files An 8-K Entry into a Material Definitive Agreement
Item1.01.
| Entry into a Material Definitive Agreement. |
Agreement and Plan of Merger
On January24, 2017, GenVec, Inc., a Delaware corporation
(GenVec), Intrexon Corporation, a Virginia corporation
(Intrexon), and Intrexon GV Holding, Inc., a Delaware corporation
and wholly owned subsidiary of Intrexon (Merger Sub), entered
into an Agreement and Plan of Merger (the Merger Agreement), to
which, and on the terms and conditions set forth in the Merger
Agreement, Merger Sub will merge with and into GenVec (the
Merger). GenVec will survive the Merger as a wholly owned
subsidiary of Intrexon.
Subject to the terms and conditions set forth in the Merger
Agreement, at the effective time of the Merger (the Effective
Time), each share of common stock of GenVec (the GenVec Shares)
issued and outstanding immediately prior to the Effective Time
(other than shares held directly by Intrexon or Merger Sub and
shares owned by GenVec stockholders who have exercised their
appraisal rights under Delaware law) will be converted into the
right to receive merger consideration consisting of (i) 0.297
validly issued, fully paid and non-assessable shares of Intrexons
common stock (Intrexon Common Stock), plus (ii) an
amount equal to half of certain payments actually received by
GenVec or its successor or any of their affiliates from or on
behalf of Novartis Institutes for BioMedical Research, Inc.
(Novartis) under the Research Collaboration and License
Agreement, dated January 13, 2010, as amended, between GenVec and
Novartis, on account of milestone payments or royalties due in
relation to the period ending 36 months after the closing date
divided by the number of GenVec Shares having rights to
the Merger Consideration, including any warrants that are
exercised, in each case, subject to any withholding of taxes
required by applicable law (the Merger Consideration). The
exchange ratio for the stock portion of the Merger Consideration
represents $7.00 per GenVec Share based on Intrexons five-day
volume weighted average price as of January 23, 2017.
The Merger Agreement contains customary representations and
warranties of GenVec, Intrexon and Merger Sub, and customary
pre-closing covenants, including covenants requiring GenVec (i)to
use reasonable best efforts to cause the consummation of the
transactions contemplated by the Merger Agreement, (ii)to conduct
its business in the ordinary course, and (iii)to refrain from
taking certain actions without Intrexons consent.
In addition, the Merger Agreement requires that GenVec refrain
from soliciting proposals relating to alternative transactions
or, subject to certain exceptions, enter into discussions
concerning or provide information in connection with alternative
transactions. Prior to the adoption of the Merger Agreement by
GenVecs stockholders, GenVecs Board of Directors may not, without
first complying with certain conditions set forth in the Merger
Agreement and solely in response to an Intervening Event or a
Superior Proposal (as such terms are defined in the Merger
Agreement), (i)withdraw, modify or qualify its recommendation
that GenVecs stockholders adopt the Merger Agreement,
(ii)recommend any Acquisition Proposal (as defined in the Merger
Agreement), (iii) fail to recommend against any tender offer that
constitutes an Acquisition Proposal subject to Regulation 14D
under the Exchange Act, (iv)fail to include in the proxy
statement to be filed in connection with the Merger the Board of
Directors recommendation that GenVecs stockholders adopt the
Merger Agreement, or (v)approve of any acquisition agreement or
similar agreement relating to any Acquisition Proposal
(collectively, a Change of Board Recommendation).
Consummation of the Merger is subject to customary conditions,
including, among others, (i) adoption of the Merger Agreement by
the requisite vote of GenVecs stockholders, (ii) the
effectiveness of a Registration Statement of Intrexon on Form S-4
relating to the shares of Intrexon Common Stock to be issued to
the GenVec stockholders in the Merger, and (iii) the approval for
listing on NYSE of the shares of Intrexon Common Stock issuable
to GenVec stockholders in the Merger. The obligation of each
party to consummate the Merger is also conditioned upon certain
of the other partys representations and warranties being true and
correct and the other party having performed in all material
respects its obligations under the Merger Agreement.
The Merger Agreement may be terminated by mutual written consent
of Intrexon and GenVec, and by either party if (i) the requisite
GenVec stockholder approval has not been obtained at the meeting
of GenVecs stockholders, (ii) any governmental order restraining
or prohibiting the Merger becomes final and non-appealable, (iii)
the Merger is not consummated by July 24, 2017 (the Outside
Date), or (iv) the other party breaches any of its
representations, warranties, covenants or agreements in the
Merger Agreement such that conditions to close the Merger that
relate to compliance with representations and warranties and
other obligations under the Merger Agreement are not reasonably
capable of being satisfied while the breach is continuing and the
breach is incapable of a cure sufficient to allow satisfaction of
the conditions prior to the Outside Date (a Specified Breach). In
addition, Intrexon may terminate the Merger Agreement if GenVec
effects a Change of Board Recommendation, and GenVec may
terminate the Merger Agreement if it effects a Change of Board
Recommendation in respect of a Superior Proposal and
substantially concurrently with termination enters into a
definitive agreement with respect to such Superior Proposal.
If the Merger Agreement is terminated by either party as a result
of a Change of Board Recommendation, or by Intrexon in the event
of a Specified Breach by GenVec, then GenVec must pay Intrexon a
termination fee equal to $550,000 (the Termination Fee). The
Termination Fee is also payable if the Merger Agreement is
terminated by either party as a result of the Merger not being
consummated by the Outside Date and an Acquisition Proposal has
been announced publicly or made to GenVec, and GenVec enters into
an agreement in respect of the Acquisition Proposal within 12
months of termination of the Merger Agreement. GenVec will also
be obligated to pay Intrexon an expense reimbursement of up to
$400,000 (the Expense Reimbursement) if the Merger Agreement is
terminated by Intrexon because of a Specified Breach by GenVec.
In addition, if GenVec willfully breaches its non-solicitation
covenants, then in circumstances in which an Expense
Reimbursement is paid, GenVec will also be oligated to pay
Intrexon an additional $200,000 (the Additional Expense Amount).
If GenVec pays Intrexon the Expense Reimbursement, including the
Additional Expense Amount to the extent applicable, and the
Termination Fee thereafter becomes payable, then the Termination
Fee will be reduced by the amount of the previously paid Expense
Reimbursement and the Additional Expense Amount, as applicable.
Amendment to Rights Agreement
In connection with the execution of the Merger Agreement, GenVec
executed Amendment No. 1 to Rights Agreement, dated January 24,
2017 (the Rights Amendment), amending the Rights Agreement, dated
August 11, 2011, by and between GenVec and American Stock
Transfer Trust Company, LLC, as rights agent (as amended, the
Rights Agreement). The Rights Amendment amends the Rights
Agreement to provide, among other things, that: (i) none of
Intrexon, Merger Sub or any of their respective affiliates or
associates shall become an Acquiring Person (as defined in the
Rights Agreement) as a result of (a) the approval, execution,
delivery, performance or public announcement of the Merger
Agreement (including any amendments, modifications or supplements
thereto), (b) the consummation of the Merger, (c) the execution,
delivery or performance of the Contingent Payment Rights
Agreement to be entered into in connection with the Merger or (d)
consummation of any other transactions contemplated by the Merger
Agreement or the Contingent Payment Rights Agreement, including,
but not limited to, the potential future payments thereunder
(collectively, the Exempted Transactions); (ii) a Distribution
Date (as defined in the Rights Agreement) shall not be deemed to
occur as a result of the Exempted Transactions; (iii) the Rights
(as defined in the Rights Agreement) of the holders of GenVec
Shares shall not be adjusted as a result of the Exempted
Transactions; and (iv) the right to obtain shares of common stock
of an Acquiring Person under the Rights Agreement in the event of
a merger shall not be applicable to the Exempted Transactions.
The foregoing descriptions of the Merger Agreement and the Rights
Amendment do not purport to be complete and are subject to, and
qualified in their entirety by, the full text of the Merger
Agreement and the form of Rights Amendment, which are filed as
Exhibit 2.1 and Exhibit 4.1, respectively, to this Current Report
on Form 8-K and incorporated herein by reference.
| Item3.03. |
Material Modification to Rights of Security Holders. |
As described above, GenVec has executed the Rights Amendment. The
material terms of the Rights Amendment are described in Item
1.01, under the heading of Amendment to Rights Agreement above
and are incorporated herein by reference.
| Item8.01. | Other Events. |
On January 24, 2017, GenVec and Intrexon issued a joint press
release announcing the entry into the Merger Agreement. A copy of
the press release is attached hereto as Exhibit 99.1, and is
incorporated by reference herein.
Safe Harbor Statement
This current report contains forward-looking statements within
the meaning of Section 21E of the Securities Exchange Act of
1934, as amended, and the Private Securities Litigation Reform
Act of 1995, known as the PSLRA. These statements, as they relate
to Intrexon or GenVec, the management of either such company, or
the proposed transaction between Intrexon and GenVec, involve
risks and uncertainties that may cause results to differ
materially from those set forth in the statements. These
statements are based on current plans, estimates and projections,
and therefore, you are cautioned not to place undue reliance on
them. No forward-looking statement can be guaranteed, and actual
results may differ materially from those projected. Intrexon and
GenVec undertake no obligation to publicly update any
forward-looking statement, whether as a result of new
information, future events or otherwise, except to the extent
required by law. Forward-looking statements are not historical
facts, but rather are based on current expectations, estimates,
assumptions and projections about the business and future
financial results of the biotechnology industry, and other legal,
regulatory and economic developments. We use words such as
anticipates, believes, plans, expects, projects, future, intends,
may, will, should, could, estimates, predicts, potential,
continue, guidance, and similar expressions to identify these
forward-looking statements that are intended to be covered by the
safe harbor provisions of the PSLRA. Actual results could differ
materially from the results contemplated by these forward-looking
statements due to a number of factors, including, but not limited
to, those described in the documents Intrexon and GenVec have
filed with the U.S. Securities and Exchange Commission (the SEC)
as well as the possibility that (1) Intrexon and GenVec may be
unable to obtain stockholder or regulatory approvals required for
the proposed transaction or may be required to accept conditions
that could reduce the anticipated benefits of the merger as a
condition to obtaining regulatory approvals; (2) the length of
time necessary to consummate the proposed transaction may be
longer than anticipated; (3) problems may arise in successfully
integrating the business and technologies of Intrexon and GenVec;
(4) the proposed transaction may involve unexpected costs; (5)
the businesses may suffer as a result of uncertainty surrounding
the proposed transaction, including difficulties in maintaining
relationships with third parties or retaining key employees; (6)
the parties may be unable to meet expectations regarding the
timing, completion and accounting and tax treatments of the
transaction; or (7) the industry may be subject to future risks
that are described in the Risk Factors section of the Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q and other
documents filed from time to time with the SEC by Intrexon and
GenVec. Neither Intrexon nor GenVec gives any assurance that
either Intrexon or GenVec will achieve its expectations.
The foregoing list of factors is not exhaustive. You should
carefully consider the foregoing factors and the other risks and
uncertainties that affect the businesses of Intrexon and GenVec
described in the Risk Factors section of their respective Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q and other
documents filed by either of them from time to time with the SEC.
All forward-looking statements included in this document are
based upon information available to Intrexon and GenVec on the
date hereof, and neither Intrexon nor GenVec assumes any
obligation to update or revise any such forward-looking
statements.
Additional Information and Where to Find It
This current report relates to a proposed transaction between
GenVec and Intrexon, which will become the subject of a
registration statement and joint proxy statement/prospectus
forming a part thereof to be filed with the SEC by Intrexon. This
document is not a substitute for the registration statement and
joint proxy statement/prospectus that Intrexon will file with the
SEC or any other documents that GenVec or Intrexon may file with
the SEC or send to stockholders in connection with the proposed
transaction. Before making any voting decision, investors and
security holders are urged to read the registration statement,
joint proxy statement/prospectus and all other relevant documents
filed or that will be filed with the SEC in connection with the
proposed transaction as they become available because they will
contain important information about the proposed transaction and
related matters.
Investors and security holders will be able to obtain free copies
of the registration statement, joint proxy statement/prospectus
and all other relevant documents filed or that will be filed with
the SEC by GenVec or Intrexon through the website maintained by
the SEC at www.sec.gov.
In addition, investors and security holders will be able to
obtain free copies of the joint proxy statement/prospectus, once
it is filed, from GenVec by accessing GenVecs website at
ir.genvec.com/all-sec-filings or upon written request to
ir@genvec.com.
Participants in Solicitation
Intrexon, GenVec and their respective directors and executive
officers may be deemed to be participants in the solicitation of
proxies from GenVecs stockholders in connection with the proposed
transaction. Information regarding GenVecs directors and
executive officers is contained in the proxy statement for
GenVecs 2016 Annual Meeting of Stockholders, which was filed with
the SEC on September 12, 2016. You can obtain a free copy of this
document at the SECs website at www.sec.gov or by accessing
GenVecs website at ir.genvec.com/all-sec-filings. Information
regarding Intrexons executive officers and directors is contained
in the proxy statement for Intrexons 2016 Annual Meeting of
Stockholders filed with the SEC on April 29, 2016. You can obtain
a free copy of this document at the SECs website at www.sec.gov
or by accessing Intrexons website at www.dna.com. Additional
information regarding the interests of those persons and other
persons who may be deemed participants in the proposed
transaction may be obtained by reading the joint proxy
statement/prospectus regarding the proposed transaction when it
becomes available. You may obtain free copies of this document as
described in the preceding paragraph.
| Item9.01. | Financial Statements and Exhibits. |
(d) Exhibits
| ExhibitNo. | Description | |
| 2.1* |
Agreement and Plan of Merger, dated as of January 24, 2017, by and among Intrexon Corporation, Intrexon GV Holding, Inc., and GenVec, Inc. |
|
| 4.1 |
Form of Amendment No. 1 to Rights Agreement, dated as of January 24, 2017, by and between GenVec, Inc. and American Stock Transfer Trust Company, LLC. |
|
| 99.1 | Joint Press Release of Intrexon Corporation and GenVec, Inc. |
* Schedules have been omitted to Item 601(b)(2) of Regulation
S-K. GenVec agrees to furnish a supplemental copy of any omitted
schedule to the SEC upon request.
to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
| GENVEC, INC. | |||
| By: | /s/ Douglas J. Swirsky | ||
| Douglas J. Swirsky | |||
| President, Chief Executive Officer and Corporate Secretary | |||
Dated: January 24, 2017
EXHIBIT INDEX
| ExhibitNo. | Description | |
| 2.1* |
Agreement and Plan of Merger, dated as of January 24, 2017, by and among Intrexon Corporation, Intrexon GV Holding, Inc., and GenVec, Inc. |
|
| 4.1 |
Form of Amendment No. 1 to Rights Agreement, dated as of January 24, 2017, by and between GenVec, Inc. and American Stock Transfer Trust Company, LLC. |
|
| 99.1 | Joint Press Release of Intrexon Corporation and GenVec, Inc. | |
* Schedules have been omitted
About GenVec, Inc. (NASDAQ:GNVC)
GenVec, Inc. (GenVec) is a clinical-stage biopharmaceutical company, engaged in the development of therapeutics and vaccines. The Company designs, tests and manufactures adenoviral-based product candidates. The Company’s development programs address therapeutic areas, such as hearing loss and balance disorders, as well as vaccines against infectious diseases, including respiratory syncytial virus (RSV), herpes simplex virus (HSV), Enterovirus D68 (EV-D68) and malaria. In the area of animal health, it is developing vaccines against foot-and-mouth disease (FMD). The Company develops and commercializes its product candidates through collaborations. The Company’s lead product candidate is CGF166. The Company’s vaccine candidates include preventative vaccines against RSV and malaria, and a therapeutic vaccine for HSV. The Company is developing vaccine and anti-viral candidates for the prevention and containment of FMD outbreaks. GenVec, Inc. (NASDAQ:GNVC) Recent Trading Information
GenVec, Inc. (NASDAQ:GNVC) closed its last trading session down -0.17 at 6.40 with 1,669,954 shares trading hands.