Item 1.02 Termination of a Material Definitive Agreement.
In connection with the closing of the Merger, on
Item 2.01 Completion of Acquisition or Disposition of Assets.
At the effective time of the Merger (the "Effective Time"), each issued and outstanding Share (other than (i) Shares held in the treasury of the Company or owned by the Company or any direct or indirect wholly owned subsidiary of the Company immediately prior to the Effective Time, (ii) Shares owned by Parent or any direct or indirect wholly owned subsidiary of Parent (other than Purchaser) immediately prior to the Effective Time, (iii) Shares irrevocably accepted for purchase in the Offer and (iv) Shares outstanding immediately prior to the Effective Time and held by stockholders who are entitled to demand, and properly demanded, appraisal for such Shares in accordance with Section 262 of the DGCL) was cancelled and converted into the right to receive an amount in cash equal to the Offer Price, without interest, less applicable withholding of taxes.
In addition, at the Effective Time, each option to purchase Shares granted under the Company's 2017 Equity Incentive Plan (as amended and restated) (the "2017 Plan") and the Company's 2020 Inducement Plan (as amended) (each such option, a "Company Stock Option") that was outstanding and vested immediately prior to the Effective Time, was cancelled, and, in exchange therefor, the holder of such cancelled Company Stock Option became entitled to receive in consideration of the cancellation of such Company Stock Option, an amount in cash (without interest and less applicable tax withholdings) equal to the product of (x) the total number of Shares subject to such Company Stock Option immediately prior to the Effective Time multiplied by (y) the excess, if any, of the Offer Price over the applicable exercise price per Share under such Company Stock Option.
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Further, each Company Stock Option that was outstanding and unvested immediately prior to the Effective Time, whether or not then subject to any performance or other vesting condition, vested in full immediately prior to the Effective Time, with any performance condition deemed achieved in full, and as of the Effective Time, each such Company Stock Option was cancelled, and, in exchange therefor, the holder of such cancelled Company Stock Option became entitled to receive in consideration of the cancellation of such Company Stock Option, an amount in cash (without interest and less applicable tax withholdings) equal to the product of (x) the total number of Shares subject to such Company Stock Option immediately prior to the Effective Time multiplied by (y) the excess, if any, of the Offer Price over the applicable exercise price per Share under such Company Stock Option.
Also at the Effective Time, each (i) warrant to purchase Shares issued by the
Company to MDB and certain of MDB's designees on
The foregoing summary of the Merger Agreement and the transactions contemplated
thereby does not purport to be complete and is subject to, and qualified in its
entirety by, the full text of the Merger Agreement attached as Exhibit 2.1 to
the Current Report on Form 8-K filed with the
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
In connection with the consummation of the Merger, on
Item 3.03 Material Modification to Rights of Security Holders.
The information contained in the Introductory Note and in Items 2.01, 3.01, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
At the Effective Time, holders of Shares immediately prior to such time ceased to have any rights as stockholders of the Company (other than their right to receive the Offer Price for each Share held, pursuant to the Merger Agreement).
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Item 5.01 Changes in Control of Registrant.
At the Effective Time, the Company became a wholly-owned subsidiary of Parent.
The information contained in the Introductory Note and in Items 2.01, 5.02 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. Directors
In accordance with the Merger Agreement, at the Effective Time, each of the
directors of the Company (
As of the Effective Time, in accordance with the Merger Agreement,
Officers
As of the Effective Time, in accordance with the Merger Agreement,
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Pursuant to the terms of the Merger Agreement, as of the Effective Time, the Company's second amended and restated certificate of incorporation was amended and restated in its entirety, and the Company's amended and restated bylaws were amended and restated in their entirety. Copies of the third amended and restated certificate of incorporation and second amended and restated bylaws are filed as Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description of Exhibit 2.1* Agreement and Plan of Merger, dated as ofMarch 12, 2023 , among the Company, Parent and Purchaser (incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K filed onMarch 13, 2023 ). 3.1 Third Amended and Restated Certificate of Incorporation (filed herewith). 3.2 Second Amended and Restated Bylaws (filed herewith). 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
*Certain exhibits and the schedules to the Agreement and Plan of Merger have
been omitted from this filing pursuant to Item 601(b)(2)(ii) of Regulation S-K.
Pursuant to Item 601(a)(5) of Regulation S-K, the Company hereby agrees to
supplementally furnish to the
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