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): November 23, 2017
Sevion Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-31326 | 84-1368850 | ||
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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10210 Campus Point Drive, Suite 150 San Diego, CA |
92121 | |||
| (Address of principal executive offices) | (Zip Code) | |||
Registrant’s telephone number, including area code: (858) 909-0749
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
| ¨ | 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)) |
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. |
On November 23, 2017, Sevion Therapeutics, Inc., a Delaware corporation (the “ Company ”), Sevion Sub Ltd., an Israeli company (“ Acquisition Sub ”), which is a wholly-owned subsidiary of the Company, and Eloxx Pharmaceuticals Ltd., an Israeli company ( “ Eloxx ”, and together with the Company and Acquisition Sub, the “ Parties ”), entered into an amendment (the “ Amendment ”) to that certain previously disclosed Agreement, dated as of May 31, 2017, as amended on August 1, 2017 (the “ Agreement ”), pursuant to which, subject to the satisfaction or waiver of the conditions set forth in the Agreement, Acquisition Sub will merge with and into Eloxx, with Eloxx as the surviving corporation and a wholly-owned subsidiary of the Company (the “ Transaction ”). Unless otherwise defined, all terms shall have the meanings specified in the Agreement.
Pursuant to the Amendment, the Parties agreed to, among other things: (1) revise certain schedules included with the original Agreement to reflect updates to Eloxx’s and the Company’s pre-Transaction capitalization tables; (2) expand the definition of “Eloxx Excluded Securities” to include Eloxx’s unallocated Options; (3) clarify the treatment of Eloxx’s option plan post-Transaction; (4) provide that the Exchange Ratio shall not be reduced by (a) Parent Liabilities incurred between November 30, 2017 and the Merger Effective Time, (b) reasonable transaction expenses incurred between November 1, 2017 and the Merger Effective Time, and (c) patent related expenses incurred between November 1, 2017 and the Merger Effective Time, provided that all such Liabilities and patent related expenses are approximately $35,000; (5) provide that, following the closing of the Transaction, any resolution of the Company’s board of directors or a subgroup thereof, with respect to indemnification for any claims brought against the Company and/or its officers and directors that were in office prior to the Merger Effective Time, or existing prior to the Merger Effective Time or in connection with the Transaction, shall require the consent of the Surviving Company’s board of directors, including the affirmative vote of the member who served as a member of the Company’s board of directors prior to the Merger Effective Time; and (6) provide that the assets and equity interests underlying the Fabrus Transaction shall remain with the Company following the Merger Effective Time.
The foregoing description of the terms of the Amendment is qualified in its entirety by the provisions of the Amendment, which is filed as Exhibit 2.1 hereto and incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits. |
Reference is made to the Exhibit Index included with this Current Report on Form 8-K.
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.
| Sevion Therapeutics, Inc. | ||||||
| Dated: November 29, 2017 | ||||||
| By: |
/s/ David Rector |
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| David Rector | ||||||
| Chief Executive Officer | ||||||
EXHIBIT INDEX
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Exhibit No. |
Description |
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| 2.1* | Amendment to Agreement, dated as of November 23, 2017, by and among Sevion Therapeutics, Inc., Sevion Sub, Ltd. and Eloxx Pharmaceuticals Ltd. | |
| * | The schedules and exhibits to the Agreement 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 Securities and Exchange Commission upon request. |
Exhibit 2.1
Second AMENDMENT TO AGREEMENT
THIS SECOND AMENDMENT TO AGREEMENT (this “ Amendment ”) is made and entered into on November 23, 2017, by and Sevion Therapeutics, Inc., a Delaware corporation (the “ Parent ”), Sevion Sub Ltd., an Israeli company which is a wholly owned subsidiary of Parent (the “ Subsidiary ”) and Eloxx Pharmaceuticals Ltd., a limited company registered under the laws of the State of Israel (the “ Company ”). The Parent, Subsidiary and the Company shall each be referred to hereinafter as a “Party” and collectively as the “Parties”.
RECITALS :
WHEREAS, the Parties entered into that certain Merger Agreement dated as of May 31, 2017, as amended on August 1, 2017 (the “ Agreement ”), in accordance with the terms set forth therein; and
WHEREAS, the Parties wish to amend the Agreement, all subject to the terms and conditions set forth in this Amendment;
NOW THEREFORE, in consideration of the mutual promises contained herein, and intending to be legally bound, the Parties hereby agree as follows:
| 1. | Unless otherwise stated, capitalized terms used herein and not otherwise defined shall have the respective meaning ascribed to them in the Agreement. |
| 2. | Schedule 3.3(a) to the Company Disclosure Schedule (the Company pre-Merger capitalization table) shall be amended to replace the capitalization table attached therein with the capitalization table attached hereto as Exhibit A. |
| 3. | Schedule 4.5 to the Parent Disclosure Schedule (the Parent pre-Merger capitalization table) shall be amended to replace the capitalization table attached therein with the capitalization table attached hereto as Exhibit B. |
| 4. | The final allocation of Parent securities immediately following the Merger is as set forth in Exhibit C . |
| 5. | The definition of "Eloxx Excluded Securities" in Section 2.5(b) shall be deemed to include the Company unallocated Options. |
| 6. | Section 2.8(c) shall be amended as follows: |
" At the Merger Effective Time, Parent shall assume the Company Option Plan, the Company unallocated Options, and the Company Options outstanding at that time that are to be assumed in accordance with Section 2.8(a) with the result that all obligations of the Company under the Company Option Plan with respect to such Company Options shall become the obligations of Parent following the Merger Effective Time, entitling the holders of Company Options to the Assumed Options referred to in Section 2.8(a). In effecting such assumption, the shares reserved under Company Option Plan whether such relates to the outstanding Company Options or the unallocated pool shall automatically be converted into shares of Parent Common Stock by multiplying the number of Company Ordinary Shares reserved under the Company Option Plan by the Exchange Ratio and rounding up to the next whole share of Parent Common Stock."
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| 7. | Section 6.3(c)(ii) shall be amended as follows: |
(ii) "A certificate of Parent’s transfer agent and registrar certifying as of immediately prior to the Closing Date there are 55,957,518 shares of Parent Common Stock issued and outstanding, and a certificate of Parent secretary certifying as of the Closing Date that: (1) there are 4,357,534 shares of Parent Common Stock underlying outstanding options, warrants and other convertible securities or that are otherwise issuable, convertible or exchangeable into Parent Common Stock; (2) the issued and outstanding shares of capital stock of the Parent on a Fully Diluted as Converted Basis, including convertible notes and accrued interest, is equal to 60,315,052 (such number to be adjusted to include the number of shares issued in connection with the Investment in Parent, which shall be based on the amount actually invested divided by US$0.15); and (3) Parent’s outstanding shares of preferred stock have been previously converted into shares of Parent Common Stock and reflected in the number specified in sub-section (2) above; and"
| 8. | Parent hereby represents and confirms that the Parent Liabilities including Transaction Expenses as of November 30, 2017 are as set forth in Exhibit D . Notwithstanding the second to last sentence of Section 2.5(b)(ii), the Parties agree that the Exchange Ratio shall not be reduced by (i) Parent Liabilities that were incurred between November 30, 2017 and the Merger Effective Time; (ii) reasonable transaction expenses and (iii) patent related expenses that were incurred between November 1, 2017 and the Merger Effective Time, provided that all such Liabilities and patent related expenses of approximately $35,000. Nothing contained herein shall be deemed to derogate from Section 7 of the Agreement. |
| 9. | In accordance with Section 5.12 and pursuant to the indemnification agreements of Parent in effect as of the Closing (the “ Indemnification Agreements ”), the Parties hereby agree that any resolution of the Company’s Board of Directors, or a subgroup established by the Company’s Board of Directors, with respect to indemnification for any claims brought against Parent and/or its officers and directors that were in office prior to the Merger Effective Time in connection with actions taken, or existing prior to the Merger Effective Time or in connection with the Transaction, shall require the consent of the Surviving Company’s Board of Directors including the affirmative vote of the member who served as a member of the Board of Directors of Parent prior to the Merger Effective Time. |
| 10. | The Parties hereby agree that the assets and the equity interest underlying the Fabrus Transaction shall remain with Parent following the Merger Effective Time and accordingly the agreements numbered as items 2 and 14 in Schedule 6.3(g) will not be cancelled, terminated or assigned prior to Closing. |
| 11. | The cancellation of the Fabrus Transaction shall not affect the condition set forth in Section 6.3(c)(iii). |
| 12. | Further to the Lock Up Agreement, the Parties agree that, notwithstanding anything set forth in the Lock Up Agreement, the persons listed in Schedule 6.1(i) of the Agreement may transfer shares upon the occurrence of the following events which shall be deemed added to the Lock Up Agreement as of the date hereof: |
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| 12.1. | with respect to a general offer made to all holders of shares of Parent made in accordance with applicable law on terms which treat all such holders alike (and the execution and delivery of an irrevocable commitment or undertaking to accept such offer); and |
| 12.2. | with respect to any order made to Parent by a court of competent jurisdiction or required by law or regulation. |
Parent hereby authorizes Company to inform the parties to the Lock-Up Agreement in connection with the foregoing authorization.
| 13. | In addition, Sevion hereby authorizes the investors under the Investment in Parent to transfer the respective subscription to the Company or its wholly owned US subsidiary to hold such funds on account of Sevion prior to and upon the Closing. Any amount transferred by an investor to the Company or its subsidiary shall be deemed invested in Sevion and shall be part of the Investment in Parent. Accordingly, immediately prior to Closing, the Chief Financial Officer of the Company shall certify to Sevion the amount actually invested as aforesaid (excluding the Initial Investment in Parent). |
| 14. | This Amendment shall become effective upon its execution by the Parent, the Subsidiary and the Company, in accordance with Section 11.12 of the Agreement. Other than as specifically amended hereby, the Agreement shall remain in full force and effect as originally constituted and is hereby ratified and affirmed by the Parties hereto. |
| 15. | In the event of contradiction between any provision of the Agreement and this Amendment, this Amendment shall prevail. |
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment to Merger Agreement as of the date first written above.
| Sevion Therapeutics, Inc. | ||
| By: | /s/ David Rector | |
| Title: | Chief Executive Officer | |
| Sevion Sub Ltd. | ||
| By: | /s/ David Rector | |
| Title: | Chief Executive Officer | |
| Eloxx Pharmaceuticals Ltd. | ||
| By: | /s/ Silvia Noiman | |
| Title: | Chief Executive Officer | |