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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): January
30, 2024
Aditxt, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-39336 |
|
82-3204328 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
737 N. Fifth Street, Suite 200 Richmond, VA |
|
23219 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (650) 870-1200
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
☒ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common Stock, par value $0.001 |
|
ADTX |
|
The Nasdaq Stock Market LLC |
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.
As
previously reported in a Current Report on Form 8-K filed by the Aditxt, Inc. (the “Company”), on December 11, 2023 the Company
entered into an Agreement and Plan of Merger (the “Merger Agreement”) with
Adicure, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Merger Sub”) and Evofem Biosciences,
Inc., a Delaware corporation (“Evofem”), pursuant to which, Merger Sub will be merged into and with Evofem (the “Merger”),
with Evofem surviving the Merger as a wholly owned subsidiary of the Company. As
previously reported in a Current Report on Form 8-K filed by the Company, on January 8, 2024, the Company, Adicure and Evofem entered
into the First Amendment to the Merger Agreement (the “First Amendment to Merger Agreement”), pursuant to which the
parties agreed to extend the date by which the joint proxy statement would be filed with the SEC until February 14, 2024. On January 30,
2024, the Company, Adicure and Evofem entered into the Second Amendment to the Merger Agreement (the “Second Amendment to Merger
Agreement”) to amend (i) the date of the Parent Loan (as defined in the Merger Agreement)
to Evofem to be February 29, 2024, (ii) to change the date by which Evofem may terminate the Merger Agreement for failure to receive the
Parent Loan to be February 29, 2024, and (iii) to change the filing date for the Joint Proxy Statement (as defined in the Merger Agreement)
to April 1, 2024.
The foregoing description of the Second Amendment
to Merger Agreement is not complete and are qualified in their entirety by reference to the full text of Second Amendment to Merger Agreement,
a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference herein.
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 Evofem, 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 EVOFEM 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 Evofem 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 Evofem 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 2022 annual meeting
filed with the SEC on July 20, 2023, as amended. 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 Merger 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 Evofem’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 Evofem
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 Evofem.
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 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 Evofem’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, 2022 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 Evofem presently know, or that the
Company or Evofem 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 Evofem’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 Evofem anticipate that subsequent events and
developments will cause the Company’s and Evofem’s assessments to change. However, while the Company and Evofem may elect
to update these forward-looking statements at some point in the future, the Company and Evofem 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 Evofem’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.
SIGNATURES
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.
|
ADITXT, INC. |
|
|
|
Date: February 2, 2024 |
By: |
/s/ Amro Albanna |
|
|
Amro Albanna |
|
|
Chief Executive Officer |
3
Exhibit 10.1
THIS SECOND AMENDMENT, dated as of January
30, 2024 (this “Amendment”), to that certain Agreement and Plan of Merger dated as of December 11, 2023 (as amended
hereby and by that First Amendment dated January 8, 2024, the “Merger Agreement”; and all defined terms used herein
that are not otherwise defined herein shall have the meanings set forth in the Merger Agreement), is entered into by and among Aditxt,
Inc., a Delaware corporation (“Parent”), Adicure, Inc., a Delaware corporation (“Merger Sub”) and
Evofem Biosciences, Inc., a Delaware corporation (the “Company”, and, together with Parent and Merger Sub, the “Parties”
and each, a “Party”).
WHEREAS, the Parties desire to further amend the
Merger Agreement as set forth herein.
NOW, THEREFORE, in consideration for the promises
contained herein and the mutual obligations of the Parties, the receipt and sufficiency of which are hereby expressly acknowledged, the
Parties, intending to be legally bound, hereby agree as follows:
Article 1. Amendments.
Section 1.1 Section 6.10 of the Merger Agreement is hereby amended
by replacing the date “January 31, 2024” with “February 29, 2024.”
Section 1.2 Section 8.1(f) of the Merger Agreement is hereby
amended by replacing the date “January 31, 2024” with “February 29, 2024.”
Section 1.3 The first
sentence of Section 6.5(b) of the Merger Agreement is hereby amended and restated in its entirety as follows:
“The Company and Parent shall cooperate
in preparing and shall cause to be filed with the SEC, on or before April 1, 2024, a mutually acceptable Joint Proxy Statement relating
to the matters to be submitted to the holders of Company Common Stock at the Company Shareholders Meeting and the holders of Parent Common
Stock at the Parent Shareholders Meeting, which will set forth the Merger Consideration and Exchange Ratio as finally determined pursuant
to Section 3.1, and Parent shall prepare and file with the SEC the Registration Statement (of which the Joint Proxy Statement will be
a part).”
Article 2. Miscellaneous.
Section 2.1 Severability. Any provision of this Amendment
held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment
and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.
Section 2.2 Ratifications. The terms and provisions set
forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Merger Agreement and, except
as expressly modified and superseded by this Amendment, the terms and provisions of the Merger Agreement are ratified and confirmed and
shall continue in full force and effect. The Parties agree that the Merger Agreement shall continue to be legal, valid, binding and enforceable
in accordance with its terms.
Section 2.3 Entire Agreement. This Amendment, the Merger
Agreement and such other agreements, documents and instruments referred to in Section 9.6(a) of the Merger Agreement constitute the entire
agreement among the Parties with respect to the subject matter hereof and thereof, and supersede all prior and contemporaneous understandings
and agreements, both written and oral, with respect to such subject matter.
Section 2.4 Miscellaneous. The terms and provisions of
Article IX of the Merger Agreement (other than Section 9.6(a), which Section 2.3 of this Amendment above replaces for purposes of this
Amendment) are incorporated herein by reference as if set forth herein and shall apply mutatis mutandis to this Amendment.
IN WITNESS WHEREOF, the undersigned have executed
this Amendment as of the date first set forth above.
|
Aditxt, Inc. |
|
|
|
By: |
/s/ Amro Albanna |
|
|
Name: |
Amro Albanna |
|
|
Title: |
Chief Executive Officer |
|
|
|
Adicure, Inc. |
|
|
|
By: |
/s/ Amro Albanna |
|
|
Name: |
Amro Albanna |
|
|
Title: |
Chief Executive Officer |
|
|
|
Evofem Biosciences, Inc. |
|
|
|
By: |
/s/ Saundra Pelletier |
|
|
Name: |
Saundra Pelletier |
|
|
Title: |
President and Chief Executive Officer |
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