Nivalis Therapeutics,Inc. (NASDAQ:NVLS) Files An 8-K Entry into a Material Definitive Agreement
Item1.01 Entry into a Material Definitive
Agreement.
Agreement and Plan of Merger
On April18, 2017, Nivalis Therapeutics,Inc., a Delaware
corporation (Nivalis),
Nautilus Merger Sub,Inc., a Delaware corporation and a wholly
owned subsidiary of Nivalis (Merger Sub), and
Alpine Immune Sciences,Inc., a Delaware corporation
(Alpine), entered
into an Agreement and Plan of Merger and Reorganization (the
Merger
Agreement), to which, among other matters, and
subject to the satisfaction or waiver of the conditions set forth
in the Merger Agreement, Merger Sub will merge with and into
Alpine, with Alpine continuing as a wholly owned subsidiary of
Nivalis and the surviving corporation of the merger (the
Merger). The
Merger is intended to qualify for federal income tax purposes as
a tax-free reorganization under the provisions of Section368(a)of
the Internal Revenue Code of 1986, as amended.
Subject to the terms and conditions of the Merger Agreement, at
the closing of the Merger, each outstanding share of Alpine
common stock will be converted into the right to receive shares
of Nivalis common stock (subject to the payment of cash in lieu
of fractional shares and after giving effect to a reverse stock
split of Nivalis common stock if determined necessary or
appropriate by Nivalis, Alpine and Merger Sub) such that,
immediately following the effective time of the Merger,
preexisting Nivalis stockholders are expected to own
approximately 26% of the outstanding capital stock of Nivalis on
a fully diluted basis, and preexisting Alpine stockholders are
expected to own approximately 74% of the outstanding capital
stock of Nivalis on a fully diluted basis.
Prior to the execution and delivery of the Merger Agreement, and
as a condition of the willingness of Nivalis to enter into the
Merger Agreement, certain existing stockholders of Alpine have
entered into agreements with Alpine to which such stockholders
have agreed, subject to the terms and conditions of such
agreements, to purchase prior to the consummation of the Merger
shares of Alpines capital stock for an aggregate purchase price
of approximately $17 million. The consummation of the
transactions contemplated by such agreements is conditioned upon
the satisfaction or waiver of the conditions set forth in the
Merger Agreement.
Consummation of the Merger is subject to certain closing
conditions, including, among other things, approval by the
stockholders of Nivalis and Alpine, and satisfaction of minimum
net cash thresholds by each of Nivalis and Alpine. In accordance
with the terms of the Merger Agreement, (i)certain executive
officers, directors and stockholders of Alpine (solely in their
respective capacities as Alpine stockholders) have entered into
support agreements with Nivalis to vote all of their shares of
Alpine capital stock in favor of adoption of the Merger Agreement
(the Alpine
Support Agreements) and (ii)certain executive
officers, directors and stockholders of Nivalis (solely in their
respective capacities as Nivalis stockholders) have entered into
support agreements with Alpine to vote all of their shares of
Nivalis common stock in favor of approval of the Merger Agreement
(the Nivalis
Support Agreements, together with the Alpine
Support Agreements, the Support
Agreements). The Support Agreements include
covenants with respect to the voting of such shares in favor of
approving the transactions contemplated by the Merger Agreement
and against any competing acquisition proposals and, other than
the Nivalis Support Agreement delivered by The Estate of Arnold
H. Snider,III, place certain restrictions on the transfer of the
shares of Nivalis and Alpine held by the respective signatories
thereto. The Support Agreements to be executed by certain
stockholders of Nivalis affiliated with Deerfield Management
Company, L.P. (the Deerfield
Signatories) contain certain exceptions to the
transfer of the shares of Nivalis held by the respective
signatories thereto.
The Merger Agreement contains certain termination rights for both
Nivalis and Alpine, and further provides that, upon termination
of the Merger Agreement under specified circumstances, either
party may be required to pay the other party a termination fee of
$2,500,000, or in some circumstances reimburse the other partys
expenses up to a maximum of $1,000,000.
At the effective time of the Merger, the Board of Directors of
Nivalis is expected to consist of seven members, four of whom
will be designated by Alpine, two of whom will be designated by
Nivalis and one of whom will be an independent director
designated by a majority of the other members of the Nivalis
Board of Directors.
The preceding summary does not purport to be complete and is
qualified in its entirety by reference to the Merger Agreement,
the form of Alpine Support Agreement and the forms of Nivalis
Support Agreements, which are filed as Exhibits 2.1, 2.2, 2.3,
2.4 and 2.5, respectively, and which are incorporated herein by
reference. The Merger Agreement has been attached as an exhibit
to this Current Report on Form8-K to provide investors and
securityholders with information regarding its terms. It is not
intended to provide any other factual information about Alpine or
Nivalis or to modify or supplement any factual disclosures about
Nivalis in its public reports
filed with the SEC. The Merger Agreement includes
representations, warranties and covenants of Alpine and Nivalis
made solely for the purpose of the Merger Agreement and solely
for the benefit of the parties thereto in connection with the
negotiated terms of the Merger Agreement. Investors should not
rely on the representations, warranties and covenants in the
Merger Agreement or any descriptions thereof as
characterizations of the actual state of facts or conditions of
Alpine, Nivalis or any of their respective affiliates.
Moreover, certain of those representations and warranties may
not be accurate or complete as of any specified date, may be
subject to a contractual standard of materiality different from
those generally applicable to SEC filings or may have been used
for purposes of allocating risk among the parties to the Merger
Agreement, rather than establishing matters of fact.
Forward-Looking Statements
This communication contains forward-looking statements
(including within the meaning of Section21E of the United
States Securities Exchange Act of 1934, as amended, and
Section27A of the United States Securities Act of 1933, as
amended) concerning Nivalis, Alpine, the proposed transaction
and other matters. These statements may discuss goals,
intentions and expectations as to future plans, trends, events,
results of operations or financial condition, or otherwise,
based on current beliefs of the management of Nivalis, as well
as assumptions made by, and information currently available to,
management. Forward-looking statements generally include
statements that are predictive in nature and depend upon or
refer to future events or conditions, and include words such as
may, will, should, would, expect, anticipate, plan, likely,
believe, estimate, project, intend, and other similar
expressions among others. Statements that are not historical
facts are forward-looking statements. Forward-looking
statements are based on current beliefs and assumptions that
are subject to risks and uncertainties and are not guarantees
of future performance. Actual results could differ materially
from those contained in any forward-looking statement as a
result of various factors, including, without limitation: the
risk that the conditions to the closing of the transaction are
not satisfied, including the failure to timely or at all obtain
stockholder approval for the transaction; uncertainties as to
the timing of the consummation of the transaction and the
ability of each of Nivalis and Alpine to consummate the
transaction; risks related to Nivalis ability to correctly
estimate its operating expenses and its expenses associated
with the transaction; risks related to the market price of
Nivalis common stock relative to the exchange ratio; the
ability of Nivalis or Alpine to protect their respective
intellectual property rights; competitive responses to the
transaction; unexpected costs, charges or expenses resulting
from the transaction; potential adverse reactions or changes to
business relationships resulting from the announcement or
completion of the transaction; and legislative, regulatory,
political and economic developments. The foregoing review of
important factors that could cause actual events to differ from
expectations should not be construed as exhaustive and should
be read in conjunction with statements that are included herein
and elsewhere, including the risk factors included in Nivalis
most recent Annual Report on Form10-K, and Nivalis recent
Quarterly Report on Form10-Q and Current Reports on Form8-K
filed with the SEC. Nivalis can give no assurance that the
conditions to the transaction will be satisfied. Except as
required by applicable law, Nivalis undertakes no obligation to
revise or update any forward-looking statement, or to make any
other forward-looking statements, whether as a result of new
information, future events or otherwise.
No Offer or Solicitation
This communication is not intended to and does not constitute
an offer to sell or the solicitation of an offer to subscribe
for or buy or an invitation to purchase or subscribe for any
securities or the solicitation of any vote in any jurisdiction
to 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 Section10 of the United States
Securities Act of 1933, as amended. Subject to certain
exceptions to be approved by the relevant regulators or certain
facts to be ascertained, the public offer will not be made
directly or indirectly, in or into any jurisdiction where to do
so would constitute a violation of the laws of such
jurisdiction, or by use of the mails or by any means or
instrumentality (including without limitation, facsimile
transmission, telephone and the internet) of interstate or
foreign commerce, or any facility of a national securities
exchange, of any such jurisdiction.
Important Additional Information Will be Filed with
the SEC
In connection with the proposed transaction between Nivalis and
Alpine, Nivalis intends to file relevant materials with the
SEC, including a registration statement that will contain a
proxy statement and prospectus. NIVALIS URGES INVESTORS
AND STOCKHOLDERS TO READ THESE MATERIALS CAREFULLY AND IN THEIR
ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION ABOUT NIVALIS, THE PROPOSED
TRANSACTION AND RELATED MATTERS. Investors and
shareholders will be able to obtain free copies of the proxy
statement, prospectus and other documents filed by Nivalis with
the SEC (when they become available) through the website
maintained by the SEC at www.sec.gov. In addition, investors
and shareholders will be able to obtain free copies of the
proxy statement, prospectus and other documents filed by
Nivalis with the SEC by contacting Investor Relations by mail
at Attn: Investor Relations, 3122 Sterling Circle, Boulder,
Colorado, 80301. Investors and stockholders are urged to read
the proxy statement, prospectus and the other relevant
materials when they become available before making any voting
or investment decision with respect to the proposed
transaction.
Participants in the Solicitation
Nivalis and Alpine, and each of their respective directors and
executive officers and certain of their other members of
management and employees, may be deemed to be participants in
the solicitation of proxies in connection with the proposed
transaction. Information about Nivalis directors and executive
officers is included in Nivalis Annual Report on Form10-K for
the year ended December31, 2016, filed with the SEC on
February13, 2017, and the proxy statement for Nivalis 2017
annual meeting of stockholders, filed with the SEC on April6,
2017. Additional information regarding these persons and their
interests in the transaction will be included in the proxy
statement relating to the transaction when it is filed with the
SEC. These documents can be obtained free of charge from the
sources indicated below.
Item7.01 Regulation FD Disclosure.
Nivalis and Alpine will host a joint conference call on
April18, 2017 at 4:30 p.m. Eastern Time to discuss the proposed
Merger. A live audio webcast of the management presentation
will be available at ir.nivalis.com. Alternatively, callers may
listen to the conference call by phone by dialing
1-877-451-6152 (domestic) or 1-201-389-0879 (international).
The conference ID number is 13660534. The webcast will be
archived on Nivalis website for at least 30 days.
By filing the information in this Item 7.01 of this Current
Report on Form8-K, Nivalis makes no admission as to the
materiality of any information in this report. The information
contained herein is intended to be considered in the context of
Nivalis filings with the SEC and other public announcements
that Nivalis makes, by press release or otherwise, from time to
time. Nivalis undertakes no duty or obligation to publicly
update or revise the information contained in this report,
although it may do so from time to time as its management
believes is appropriate. Any such updating may be made through
the filing of other reports or documents with the SEC, through
press releases or through other public disclosure.
Item 8.01 Other Events.
Attached as Exhibit99.1 is a copy of the joint press release
issued by Nivalis and Alpine on April18, 2017 announcing the
execution of the Merger Agreement.
Item 9.01 Financial Statements and Exhibits
Reference is made to the ExhibitIndex included with this
Current Report on Form8-K.
to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
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Date: April18, 2017 |
NIVALIS THERAPEUTICS,INC. |
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By: |
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/s/ R. Michael Carruthers |
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Name: R. Michael Carruthers |
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Title: Interim President and Chief Financial Officer |
EXHIBITINDEX
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ExhibitNo. |
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Description |
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2.1* |
Agreement and Plan of Merger, dated as of April18, 2017, |
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2.2 |
Formof Support Agreement, by and between Nivalis |
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2.3 |
Formof Support Agreement, by and between Alpine Immune |
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2.4 |
Formof Support Agreement, by and between Alpine Immune |
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2.5 |
Formof Support Agreement, by and between Alpine Immune |
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99.1 |
Joint Press Release issued April18, 2017 by Nivalis |
* All schedules and exhibits to the Merger Agreement have been
omitted
About Nivalis Therapeutics, Inc. (NASDAQ:NVLS)
Nivalis Therapeutics, Inc. is a pharmaceutical company. The Company focuses on the discovery and development of product candidates for patients with cystic fibrosis (CF). Its drug candidate portfolio consists of multiple compounds, which are designed for oral, intravenous (IV) or inhaled administration. The Company’s S-nitrosoglutathione reductase (GSNOR) inhibitors selectively target GSNOR. Depleted levels of S-nitrosoglutathione (GSNO) have been associated with CF, asthma, inflammatory bowel diseases and certain cardiovascular diseases. The Company’s lead product candidate, cavosonstat (N91115), is a small molecule inhibitor of GSNOR. cavosonstat is a pill that is in two Phase II clinical trials intended to address a defect in CF transmembrane conductance regulator (CFTR), resulting from mutations in the CFTR gene. Its preclinical studies have shown that cavosonstat is a selective and reversible inhibitor of GSNOR. Nivalis Therapeutics, Inc. (NASDAQ:NVLS) Recent Trading Information
Nivalis Therapeutics, Inc. (NASDAQ:NVLS) closed its last trading session down -0.13 at 2.64 with 26,567 shares trading hands.
