UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
December 24, 2021
Aditxt, Inc.
(Exact name of registrant as specified in its charter)
Delaware
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001-39336
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82-03204328
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(State or other jurisdiction
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(Commission File Number)
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(I.R.S. Employer
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of incorporation)
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Identification No.)
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737 N. Fifth Street, Suite 200 Richmond, VA 23219
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(Address of principal executive offices, including zip code)
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Registrant’s telephone number, including
area code: (650) 870-1200
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box
below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
Title of each class
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Trading Symbol(s)
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Name of each exchange
on which registered
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Common Stock, par value $0.001
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ADTX
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The Nasdaq Stock Market LLC
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Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item
1.01. Entry into a Material Definitive Agreement
Share Exchange Agreement
On December 28, 2021, Aditxt,
Inc. (the “Company”) and AiPharma Group Ltd. (“AiPharma”) entered into a Share Exchange Agreement (“Share
Exchange Agreement”) pursuant to which, among other things, the Company will: (i) acquire 9.5% of the issued and outstanding
equity interests in AiPharma in exchange for the issuance of 4,816,193 shares of common stock of Aditxt (the “Initial Purchaser
Shares”) and a cash payment of $250,000, at an initial closing, which is expected to occur on or before January 31, 2022 (the
“Initial Closing”) upon the satisfaction or waiver of certain conditions to closing (the “Initial Closing
Conditions”); and (ii) acquire the remaining 90.5% of the issued and outstanding equity interests in AiPharma in exchange for
the issuance of 39,927,974 shares of common stock of Aditxt (the “Secondary Purchaser Shares”) and a cash payment of
$250,000 at a secondary closing (the “Secondary Closing”) upon the satisfaction or waiver of certain conditions to
closing (the “Secondary Closing Conditions”).
The
Share Exchange Agreement and the transactions contemplated thereby were approved by the board of directors of Aditxt and AiPharma. Unless
expressly stated otherwise herein, capitalized terms used but not defined herein have the meanings ascribed to them in the Share Exchange
Agreement.
Representations and Warranties
The parties to the Share Exchange
Agreement have agreed to customary representations and warranties for transactions of this type. The representations and warranties of
Aditxt and AiPharma will not survive the Secondary Closing.
Covenants
The
Share Exchange Agreement includes covenants of the Company relating to, among other things, (i) operating its business in the ordinary
course, (ii) providing access and information to AiPharma, (iii) restrictions on soliciting, initiating or discussing alternative transaction
proposals with third parties and ceasing discussions regarding alternative transaction proposals, (iv) obtaining tail insurance; and (vi)
prepare a registration statement on Form S-4 with respect to the Secondary Purchaser Shares issuable under the Share Exchange Agreement,
which Form S-4 will contain a proxy statement of the Company (the “Registration Statement / Proxy Statement”) that
includes provisions for approval and/or adoption of (i) the Share Exchange Agreement and the transactions contemplated thereby, (ii) the
issuance of the Secondary Purchaser Shares, (iii) a new Company equity incentive plan, (iv) amendments and restatements of the Company’s
charter and bylaws, (v) the election of directors to the Company’s board in accordance with the Share Exchange Agreement, and (vi)
certain other proposals at a special meeting of the holders of the Company’s common stock (collectively, the “Proposals”).
The
Share Exchange Agreement includes covenants of AiPharma relating to, among other things, (i) conducting its business in the ordinary course,
(ii) providing access and information to the Company, (iii) restrictions on soliciting, initiating or discussing alternative transaction
proposals with third parties, and (iv) delivering audited and unaudited financial statements, as applicable.
Initial Closing Conditions
Mutual
The respective obligations
of each of the Company and AiPharma to consummate the Initial Closing are subject to the satisfaction or waiver, at or prior to the Initial
Closing of certain conditions, including but not limited to, the following:
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(i)
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approval
by the Company’s board of directors of the Share Exchange Agreement and the filing
of the Registration Statement / Proxy;
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(ii)
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the
Parties shall have agreed on the form of all documents and agreements which are required
to be mutually agreed prior to the Initial Closing;
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(iii)
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the
delivery of disclosure letters by each of the Parties; and
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(iv)
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the
amendment of the loan documents;
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The Company
The obligations of the Company
to consummate the Initial Closing are subject to the satisfaction or waiver, at or prior to the Initial Closing of certain conditions:,
including but not limited to, the following:
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(i)
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receipt by the Company
of a fairness opinion from its financial advisor;
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(ii)
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AiPharma shall have kept
the Company reasonably apprised with respect to the status of its negotiations with, and due diligence on, its target (the “Target
Company”) acquisition, and shall have provided the Company with copies of such documents and with such information regarding
the target company as reasonably requested by the Purchaser; and
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(iii)
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receipt by the Company of the AiPharma audited financial statements for the six months ended June 30, 2021 and the year ended December 31, 2020; and for the nine months ended September 30, 2021 and September 30, 2020.
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Initial Closing
The Initial Closing shall
take place on the second (2nd) Business Day following satisfaction or waiver (to the extent permitted by applicable law) of
each of the conditions set forth above (other than those conditions that by their nature are to be satisfied at the Initial Closing, but
subject to the fulfillment or waiver of those conditions), or such other date as agreed by the Parties; provided, that the Parties
agree that in no event shall the Initial Closing occur before January 3, 2022
Secondary Closing Conditions
Mutual
The respective obligations
of each of the Company and AiPharma to consummate the Secondary Closing are subject to the satisfaction or waiver, at or prior to the
Secondary Closing of each of the following conditions:
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(i)
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no authority of competent
jurisdiction having enacted, issued, promulgated, enforced or entered any Law or Order that is in effect and restrains, enjoins,
makes illegal or otherwise prohibits the consummation of the Share Exchange Agreement and other transactions contemplated thereby;
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(ii)
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the Registration Statement
/ Proxy Statement have been declared effective by the SEC; and
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(iii)
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approval by the Company’s
stockholders of the Proposals set forth in the Registration Statement / Proxy Statement;
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(iv)
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AiPharma shall have acquired
approximately 26% of the issued and outstanding share capital of the Target Company (the “Minimum Target Shares”)
in accordance with terms and financial structure to be agreed upon in writing between the Company and AiPharma; and
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(v)
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If AiPharma has acquired
additional shares of the Target Company in excess of the Minimum Target Shares but up to 51% of the issued and outstanding share
capital of the Target Company, such shares shall be acquired by the Company at the Secondary Closing for no additional consideration
by the Company.
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The Company
The obligations of the Company
to consummate the Secondary Closing are subject to the satisfaction or waiver, at or prior to the Secondary Closing of additional conditions,
including, but not limited to, the following:
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(i)
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AiPharma shall have duly
performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Secondary
Closing;
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(ii)
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AiPharma’s representations
and warranties being true and correct as determined in accordance with the Share Exchange Agreement; and
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(iii)
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no Material Adverse Effect
having occurred on AiPharma between the date of the Share Exchange Agreement and the Secondary Closing.
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AiPharma
The obligation of AiPharma
to consummate the Secondary Closing is subject to the satisfaction or waiver, at or prior to the Secondary Closing of additional conditions,
including, but not limited to, the following:
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(i)
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the Company shall have
duly performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Secondary
Closing;
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(ii)
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The Company’s representations
and warranties being true and correct as determined in accordance with the Share Exchange Agreement; and
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(iii)
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no Material Adverse Effect having occurred on the Company between the date of the Share Exchange Agreement and the Closing.
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Closing
The Secondary Closing shall
take place on the second (2nd) Business Day following satisfaction or waiver (to the extent permitted by applicable law) of
each of the conditions set forth in above (other than those conditions that by their nature are to be satisfied at the Secondary Closing,
but subject to the fulfillment or waiver of those conditions), or such other date as agreed by the Parties.
Termination
The Share Exchange Agreement
may be terminated at any time prior to the consummation of the Secondary Closing by mutual written consent of the Company and AiPharma.
Either the Company or AiPharma may also terminate the Share Exchange Agreement if (i) the Initial Closing has not occurred by January
31, 2022; (ii) the required vote of the Company’s common stockholders for the approval of all of the Proposals was not obtained
at the Company’s stockholder meeting; (iii) any Authority shall have issued an Order or taken any other Action, in each case that
has become final and non-appealable and that restrains, enjoins or otherwise prohibits the closing of the Transactions; or (iv) the Secondary
Closing of the Transactions has not occurred by June 30, 2022 (the “Outside Date”).
Effect of Termination
If the Share Exchange Agreement
is terminated, the Share Exchange Agreement will become void, and there will be no liability under the Share Exchange Agreement on the
part of any party thereto.
A copy of the Share Exchange
Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference. The foregoing description
of the Share Exchange Agreement and the transactions contemplated thereby is incomplete and is subject to, and qualified in its entirety
by, reference to the actual agreement. The Share Exchange Agreement and other agreements described below have been included as exhibits
to this Current Report on Form 8-K to provide security holders with information regarding their terms. They are not intended to provide
any other factual information about the Company or AiPharma. In particular, the assertions embodied in representations and warranties
by the Company and AiPharma contained in the Share Exchange Agreement were made as of a specified date, are subject to important qualifications
and limitations agreed to by the parties in connection with negotiating such agreement, including being qualified by confidential information
in the disclosure letters provided by the parties in connection with the execution of the Share Exchange Agreement, and are subject to
standards of materiality applicable to the contractive parties that may differ from those applicable to security holders. The confidential
disclosures contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the
Share Exchange Agreement. Moreover, certain representations and warranties in the Share Exchange Agreement were used for the purpose of
allocating risk between the parties, rather than establishing matters as facts. Accordingly, security holders should not rely on the representations
and warranties in the Share Exchange Agreement as characterizations of the actual state of facts about the Company or AiPharma. Moreover,
information concerning the subject matter of the representations and warranties may change after the date of the Share Exchange Agreement,
which subsequent information may or may not be fully reflected in the Company’s public disclosures.
Amendment to Secured Credit Agreement
In
connection with the Share Exchange Agreement, on December 28, 2021, the Company entered into an amendment to the Credit Agreement (the
“Credit Agreement Amendment”) with AiPharma pursuant to which the maturity date of the loan to AiPharma was extended
to the earlier to occur of January 31, 2022, or the termination of the Share Exchange Agreement.
The
foregoing descriptions of the Credit Agreement Amendment is qualified in its entirety to the complete text of the Credit Agreement Amendment,
a copy of which will be filed as exhibits to the Company’s Annual Report on Form 10-K for the year December 31, 2021, and is intended
to provide investors and security holders with information regarding its respective terms. Such description is not intended to provide
any other factual information about the Company or AiPharma. The Credit Agreement, as amended, contains representations and warranties
that the parties to such agreements made to, and solely for the benefit of, each other. The assertions embodied in those representations
and warranties are subject, in some cases, to specified exceptions, qualifications, limitations and supplemental information, including
knowledge qualifiers and contractual standards of materiality, such as materiality qualifiers and the occurrence of a material adverse
effect, that are different from those generally applicable under federal securities law, as well as detailed information set forth in
disclosure letter provided by us in connection with signing the Credit Agreement. In addition, some representations and warranties
may have been included in the Credit Agreement for the purpose of allocating risk between the Company and AiPharma rather than to establish
matters as facts. The Credit Agreement, as amended is described in this Current Report on Form 8-K only to provide you with
information regarding their respective terms and conditions, and not to provide any other factual information regarding the Company or
its business. Accordingly, you should not rely on the representations and warranties as characterizations of the actual state of
facts, since (i) they were made only as of the date of the Credit Agreement, or a prior, specified date, (ii) in some cases
they are subject to knowledge, materiality and material adverse effect qualifiers, and (iii) they are modified in important part
by detailed information included in the disclosure letter. Finally, information concerning the subject matter of the representations
and warranties may have changed since the respective date of the Credit Agreement, as amended, which subsequent information may or may
not be fully reflected in the Company’s public disclosures.
Item
5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.
On December 24, 2021, Lauren
Chung notified the Company that effective December 31, 2021, she is resigning from the Company’s Board of Directors. Ms. Chung’s
resignation was not the result of any disagreement with the Company relating to its operations, policies or practices.
On December 26, 2021, Laura Anthony
notified the Company that effective December 31, 2021, she is resigning from the Company’s Board of Directors. Ms. Anthony served
as a member of the Company’s Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee. Ms. Anthony’s
resignation was not the result of any disagreement with the Company relating to its operations, policies or practices.
Item
7.01. Regulation FD Disclosure.
On December 28, 2021, the Company
and AiPharma issued a joint press release announcing the execution of the Share Exchange Agreement. A copy of the press release is furnished
hereto as Exhibit 99.1 and incorporated in this Item 7.01 by reference.
The
information in this Item 7.01 and Exhibit 99.1 will not be deemed to be filed for purposes of Section 18 of the Exchange
Act or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under
the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such filing. The
submission of the information set forth in this Item 7.01 shall not be deemed an admission as to the materiality of any information in
this Item 7.01, including the information presented in Exhibit 99.1, that is provided solely in connection with Regulation FD.
Important Information for Stockholders
This
Current Report on Form 8-K and the exhibits hereto is not a proxy statement or solicitation of a proxy, consent or authorization with
respect to any securities or in respect of the potential transactions and shall not constitute an offer to sell or a solicitation of any
vote or approval, or of an offer to buy the securities of the Company or AiPharma, nor shall there be any sale of any such securities
in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under
the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements
of the Securities Act.
In connection with the proposed
transactions, the Company intends to file the Proxy Statement / Registration Statement with the SEC, which will include a proxy statement/prospectus
of the Company. the Company also plans to file other documents with the SEC regarding the proposed transactions. After the Proxy Statement
/ Registration Statement has been cleared by the SEC, a definitive proxy statement/prospectus will be mailed to the stockholders of the
Company. STOCKHOLDERS OF THE COMPANY AND AIPHARMA ARE URGED TO CAREFULLY READ THE PROXY STATEMENT/PROSPECTUS (INCLUDING ALL AMENDMENTS
AND SUPPLEMENTS THERETO) AND OTHER DOCUMENTS RELATING TO THE PROPOSED TRANSACTIONS THAT WILL BE FILED WITH THE SEC IN THEIR ENTIRETY WHEN
THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTIONS. Stockholders will be able to obtain
free copies of the proxy statement/prospectus and other documents containing important information about the Company and AiPharma once
such documents are filed with the SEC, through the website maintained by the SEC at http://www.sec.gov.
Participants in the Solicitation
The
Company and its executive officers, directors, other members of management, employees and AiPharma Global may be deemed, under SEC rules,
to be participants in the solicitation of proxies from the Company’s shareholders with respect to the proposed transaction.
Information regarding the executive officers and directors of the Company is set forth in its definitive proxy statement for its 2021
annual meeting filed with the SEC on April 5, 2021. More detailed information regarding the identity of potential participants,
and their direct or indirect interests, by securities holdings or otherwise, will be set forth in the Proxy Statement / Registration Statement
on Form S-4 and other materials to be filed with the SEC in connection with the Definitive Agreement.
Cautionary Note on Forward-Looking Statements
This
Current Report on Form 8-K contains certain forward-looking statements within the meaning of the “safe harbor “provisions
under the United States Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts contained
in this Current Report on Form 8-K, including statements regarding the Company’s or
AiPharma’s future results of operations and financial position are forward-looking statements. These forward-looking statements
generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,”
“target,” “intend,” “strategy,” “future,” “opportunity,” “plan,”
“may,” “should,” “will,” “would,” “will be,” “will continue,”
“will likely result,” and similar expressions. These statements are based on various assumptions, whether or not identified
in this Current Report on Form 8-K, and on the current expectations of the respective management teams of the Company and AiPharma and
are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended
to serve as, and must not be relied on by an investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or
probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events
and circumstances are beyond the control of the Company and AiPharma.
These
forward-looking statements are subject to a number of risks including, but not limited to, the following risks relating to the proposed
transactions: (1) the risk that the proposed transactions may not be completed in a timely manner or at all, which may adversely affect
the price of the Company’s securities; (2) the failure to satisfy the conditions to the Initial Closing or Secondary Closing, including
the approval by the stockholders of the Company; (3) the ability to realize the anticipated benefits of the proposed transactions;
and (4) other risks and uncertainties indicated from time to time in the Company’s public filings with the SEC. If any of these
risks materialize or the Company’s and AiPharma’s assumptions prove incorrect, actual results could differ materially from
the results implied by these forward-looking statements. You should carefully consider the risks and uncertainties described in the “Risk
Factors” section of our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 and other documents we filed, or
will file, including the proxy statement/prospectus, with the SEC. There may be additional risks that neither the Company nor AiPharma
presently know, or that the Company or AiPharma currently believe are immaterial, that could also cause actual results to differ from
those contained in the forward-looking statements. In addition, forward-looking statements reflect the Company’s and AiPharma’s
expectations, plans or forecasts of future events and views as of the date of this Current Report on Form 8-K. The Company and AiPharma
anticipate that subsequent events and developments will cause the Company’s and AiPharma’s assessments to change. However,
while the Company and AiPharma may elect to update these forward-looking statements at some point in the future, the Company and AiPharma
specifically disclaim any obligation to do so, except as otherwise required by law. These forward-looking statements should not be relied
upon as representing the Company’s and AiPharma’s assessments of any date subsequent to the date of this Current Report on
Form 8-K. Accordingly, undue reliance should not be placed upon the forward-looking statements.
No Offer or Solicitation
This Current
Report on Form 8-K is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities
or in respect of the proposed transaction and shall not constitute an offer to sell or a solicitation of an offer to buy any securities,
nor shall there be any sale of securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior
to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except
by means of a prospectus meeting the requirements of the Securities Act.
Item
9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Certain of the schedules (and/or exhibits) have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule (and/or exhibit) will be furnished to the SEC upon request
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SIGNATURE
Pursuant 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.
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Aditxt, Inc.
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Date: December 28, 2021
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By:
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/s/ Corinne Pankovcin
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Name:
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Corinne Pankovcin
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Title:
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President
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