Full Press Release Details
AGREEMENT AND PLAN OF MERGER
BIOBLAST PHARMA LTD.
ENLIVEX THERAPEUTICS LTD.
Dated as of November 19, 2018
| Page | ||
| Article I | ||
| The Merger | 1 | |
| Section 1.01 | The Merger | 1 |
| Section 1.02 | Closing | 2 |
| Section 1.03 | Effective Time | 2 |
| Section 1.04 | Effects | 2 |
| Section 1.05 | Articles of Association of the Surviving Company | 2 |
| Section 1.06 | Directors and Officers of the Surviving Company | 2 |
| Section 1.07 | Contingent Value Right | 2 |
| Article II | ||
| Effect on Share Capital; Exchange of Certificates | 3 | |
| Section 2.01 | Effect on Share Capital of Enlivex | 3 |
| Section 2.02 | Exchange of Certificates | 5 |
| Article III | ||
| Representations and Warranties of Bioblast and Merger Sub | 8 | |
| Section 3.01 | Corporate Organization | 8 |
| Section 3.02 | Capitalization | 9 |
| Section 3.03 | Authority; No Violation | 10 |
| Section 3.04 | Consents and Approvals | 11 |
| Section 3.05 | Reports | 11 |
| Section 3.06 | Financial Statements | 11 |
| Section 3.07 | Advisors' Fees | 12 |
| Section 3.08 | Absence of Certain Changes or Events | 12 |
| Section 3.09 | Legal Proceedings | 13 |
| Section 3.10 | Taxes and Tax Returns | 13 |
| Section 3.11 | Employee Benefit Plans | 15 |
| Section 3.12 | Internal Control | 17 |
| Section 3.13 | Compliance with Laws; Licenses | 18 |
| Section 3.14 | Material Contracts | 18 |
| Section 3.15 | Environmental Liability | 20 |
| Section 3.16 | Takeover Laws | 21 |
| Section 3.17 | Affiliate Transactions | 21 |
| Section 3.18 | Intellectual Property | 21 |
| Section 3.19 | Title to Assets | 23 |
| Section 3.20 | Real Property; Leasehold | 23 |
| Section 3.21 | Compliance with Laws; Regulatory Compliance | 24 |
| Section 3.22 | Anti-Corruption Laws | 25 |
| Section 3.23 | Fairness Opinion | 25 |
| Section 3.24 | Insurance | 26 |
| Section 3.25 | Books and Records | 26 |
| Section 3.26 | Grants and Subsidies | 26 |
| Section 3.27 | No Other Representations or Warranties; Reliance | 26 |
| Article IV | ||
| Representations and Warranties of Enlivex | 26 | |
| Section 4.01 | Corporate Organization | 26 |
| Section 4.02 | Capitalization | 27 |
| Section 4.03 | Authority; No Violation | 28 |
| Section 4.04 | Consents and Approvals | 28 |
| Section 4.05 | Reports | 29 |
| Section 4.06 | Financial Statements | 29 |
| Section 4.07 | Advisors' Fees | 30 |
| Section 4.08 | Absence of Certain Changes or Events | 30 |
| Section 4.09 | Legal Proceedings | 30 |
| Section 4.10 | Taxes and Tax Returns | 30 |
| Section 4.11 | Employee Benefit Plans; Employees | 32 |
| Section 4.12 | Internal Control | 33 |
| Section 4.13 | Compliance with Laws; Licenses | 34 |
| Section 4.14 | Material Contracts | 34 |
| Section 4.15 | Environmental Liability | 36 |
| Section 4.16 | Takeover Laws | 36 |
| Section 4.17 | Enlivex Information | 36 |
| Section 4.18 | Affiliate Transactions | 36 |
| Section 4.19 | Intellectual Property | 36 |
| Section 4.20 | Title to Assets | 38 |
| Section 4.21 | Real Property; Leasehold | 38 |
| Section 4.22 | Compliance with Laws; Regulatory Compliance | 39 |
| Section 4.23 | Anti-Corruption Laws | 40 |
| Section 4.24 | Insurance | 40 |
| Section 4.25 | Books and Records | 40 |
| Section 4.26 | Grants and Subsidies | 40 |
| Section 4.27 | No Other Representations or Warranties | 41 |
| Section 4.28 | Inapplicability of Section 328 of the Companies Law; No Controlling Shareholder | 41 |
| Article V | ||
| Covenants Relating to Conduct of Business | 41 | |
| Section 5.01 | Conduct of Businesses Prior to the Effective Time | 41 |
| Section 5.02 | Bioblast Forbearances | 41 |
| Section 5.03 | Enlivex Forbearances | 43 |
| Section 5.04 | Control of Other Party's Business | 44 |
| Section 5.05 | Enlivex No Solicitation | 44 |
| Section 5.06 | Bioblast No Solicitation | 47 |
| Additional Agreements | 49 | |
| Section 6.01 | Preparation of the Proxy Statement; Shareholder Approvals; Listing Application | 49 |
| Section 6.02 | Access to Information; Confidentiality | 51 |
| Section 6.03 | Required Actions | 51 |
| Section 6.04 | Merger Proposal | 52 |
| Section 6.05 | Enlivex Shareholders Meeting | 53 |
| Section 6.06 | Bioblast Shareholders' Meeting | 53 |
| Section 6.07 | Merger Sub Shareholders Meeting | 54 |
| Section 6.08 | Fees and Expenses | 54 |
| Section 6.09 | Certain Tax Matters | 55 |
| Section 6.10 | No Bioblast Change in Control | 55 |
| Section 6.11 | Governance and Employment Matters | 55 |
| Section 6.12 | Directors' and Officers' Indemnification and Insurance | 55 |
| Section 6.13 | Obligations of Merger Sub | 56 |
| Section 6.14 | Payment for Third Party Consents | 56 |
| Section 6.15 | Interim Financials | 56 |
| Section 6.16 | Updated Capitalization Information | 56 |
| Section 6.17 | IIA Notice | 56 |
| Section 6.18 | Listing of Bioblast Ordinary Shares on Nasdaq | 56 |
| Section 6.19 | CVR Agent | 56 |
| Section 6.20 | Enlivex Corporate Actions | 56 |
| Section 6.21 | Concurrent Private Offering | 57 |
| Article VII | ||
| Conditions Precedent | 57 | |
| Section 7.01 | Conditions to Each Party's Obligation to Effect the Merger | 57 |
| Section 7.02 | Conditions to Obligations of Bioblast | 58 |
| Section 7.03 | Conditions to Obligations of Enlivex | 58 |
| Article VIII | ||
| Termination and Amendment | 59 | |
| Section 8.01 | Termination | 59 |
| Section 8.02 | Effect of Termination | 60 |
| Section 8.03 | Amendment | 61 |
| Section 8.04 | Extension; Waiver | 61 |
| Article IX | ||
| General Provisions | 61 | |
| Section 9.01 | Non-survival of Representations and Warranties | 61 |
| Section 9.02 | Notices | 61 |
| Section 9.03 | Definitions | 62 |
| Section 9.04 | Other Defined Terms | 66 |
| Section 9.05 | Interpretation | 69 |
| Section 9.06 | Severability | 69 |
| Section 9.07 | Counterparts; Facsimile Signatures | 69 |
| Section 9.08 | Entire Agreement; No Third Party Beneficiaries | 69 |
| Section 9.09 | Governing Law | 70 |
| Section 9.10 | Assignment | 70 |
| Section 9.11 | Specific Enforcement | 70 |
| Section 9.12 | Jurisdiction | 70 |
| Section 9.13 | Publicity | 70 |
| Section 9.14 | Compliance with Deadlines | 71 |
Exhibits and Schedules:
| Exhibit A | Form of Voting Agreement |
| Exhibit B | Articles of Association of the Surviving Company |
| Exhibit C | Form of Merger Proposal |
| Exhibit D | Form of Lock-Up Agreement |
| Exhibit E | Form of CVR Agreement |
| Schedule I | Bioblast Shareholders Signing Voting Agreements. |
| Schedule II | Lock-Up Persons |
| Schedule III | Knowledge Persons |
| Schedule IV | Required Foreign Regulatory Approvals |
PLAN OF MERGER, dated as of November 19, 2018 (this "Agreement"), is by and among BIOBLAST PHARMA LTD., a company
formed under the laws of the State of Israel ("Bioblast"), TREBLAST LTD., a company formed under the laws of
the State of Israel and wholly owned by Bioblast ("Merger Sub"), and ENLIVEX THERAPEUTICS LTD., a company formed
under the laws of the State of Israel ("Enlivex").
WHEREAS, the respective
boards of directors of Bioblast (the "Bioblast Board") and Enlivex (the "Enlivex Board")
have unanimously adopted this Agreement, and such respective boards of directors have determined that the terms of this Agreement,
including the Merger are fair to, and in the respective best interests, of Bioblast and Enlivex, respectively, and their respective
shareholders and that, considering the financial position of Enlivex and Merger Sub, no reasonable concern exists that the Surviving
Company will be unable to fulfill the obligations of Enlivex to its creditors;
of Directors of Merger Sub has approved this Agreement and declared it advisable that Merger Sub enter into this Agreement and
consummate the Transactions, including the Merger, and has recommended that Bioblast, as its sole shareholder, approve and adopt
this Agreement, the Merger and the other Transactions;
WHEREAS, simultaneously
with the execution and delivery of this Agreement, as a condition to Enlivex's entering into this Agreement and as an inducement
thereto, Enlivex and certain shareholders of Bioblast identified in Schedule I, who together hold approximately 34.8% of
the issued and outstanding Bioblast Ordinary Shares, are entering into voting and support agreements, substantially in the form
attached as Exhibit A (the "Voting Agreement"), pursuant to which such shareholders are agreeing to take
specified actions in furtherance of the Merger, including voting their respective Bioblast Ordinary Shares in favor of the approval
of the Merger and adoption of this Agreement;
WHEREAS, the Bioblast
Board has recommended that its shareholders approve this Agreement;
WHEREAS, the Enlivex
Board has recommended that its shareholders approve this Agreement;
WHEREAS, for U.S. federal
income tax purposes, the parties hereto intend that the Merger qualify as a "reorganization" within the meaning of
Section 368(a) of the Code (as defined below) (the "Intended Tax Treatment"), and by executing this Agreement,
the parties hereto intend that this Agreement be adopted as a plan of reorganization within the meaning of Treasury Regulations
Sections 1.368-2(g) and 1.368-3; and
Merger Sub and Enlivex desire to make certain representations, warranties, covenants and agreements in connection with the Merger
and also to prescribe various conditions to the Merger.
consideration of the foregoing, the parties hereto, intending to be legally bound, hereby agree as follows:
1.01 The Merger. On the terms and subject to the
conditions set forth in this Agreement, and in accordance with Sections 314 through 327 of the Israeli Companies Law - 5759-1999
(the "Companies Law"), at the Effective Time, Merger Sub shall be merged with and into Enlivex (the "Merger").
At the Effective Time, the separate corporate existence of Merger Sub (as the target company, or Chevrat Ha'Ya'ad)
shall cease and Enlivex (as the absorbing company, or HaChevra Ha'Koletet) shall continue as the surviving corporation
in the Merger (the "Surviving Company"). As a result of the Merger, Enlivex shall (a) become a wholly owned
subsidiary of Bioblast, (b) continue to be governed by the Laws of the State of Israel, (c) have a registered office in the State
of Israel, and (d) succeed to and assume all of the rights, properties and obligations of Merger Sub in accordance with the Companies
Law, and the existing shareholders of Enlivex shall be entitled to the Merger Consideration in accordance with the provisions
1.02 Closing. Unless this Agreement shall have been
terminated in accordance with Section 8.01, the closing (the "Closing") of the Merger shall take place
at the offices of Yigal Arnon & Co., 1 Azrieli Center, Tel Aviv, Israel 6702101 (or pursuant to the electronic or other
remote exchange of all executed documents and other deliverables required by this Agreement to be delivered at Closing, including
pursuant to Article VII) at 7:00 a.m., Eastern time, on the third Business Day following the satisfaction or (to the extent
permitted by Law) waiver by the party or parties entitled to the benefits thereof of the conditions set forth in Article VII
(other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or (to
the extent permitted by Law) waiver of those conditions), or at such other place, time and date as shall be agreed in writing
between Bioblast and Enlivex. The date on which the Closing occurs is referred to in this Agreement as the "Closing Date."
1.03 Effective Time. As soon as practicable after
the determination of the date on which the Closing is to take place in accordance with Section 1.02, each of Enlivex and
Merger Sub shall (and Bioblast shall cause Merger Sub to), in coordination with each other, inform the Registrar of Companies
of the State of Israel (the "Israeli Registrar of Companies") that all conditions to the Merger under the Companies
Law and this Agreement have been met (together with any other documentation required to be submitted to the Israeli Registrar
of Companies, whether under this Agreement or the Merger Proposal, by the Israeli Registrar of Companies or otherwise) and setting
forth the proposed date for the date of effectiveness of the Merger on which the Israeli Registrar of Companies is requested to
issue a certificate evidencing the Merger in accordance with Section 323(5) of the Companies Law (the "Certificate of
Merger"). The Merger shall become effective upon the issuance by the Israeli Registrar of Companies of the Certificate
of Merger in accordance with Section 323(5) of the Companies Law (the time at which the Merger becomes effective is referred to
herein as the "Effective Time"). For the avoidance of doubt, the Parties intend that the Merger shall be declared
effective and that the issuance by the Israeli Registrar of Companies of the Certificate of Merger in accordance with Section
323(5) of the Companies Law shall both occur on the Closing Date, as a condition to Closing.
1.04 Effects. The Merger shall have the effects
set forth in this Agreement and as specified in the applicable provisions of the Companies Law. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time, the Surviving Company shall succeed to all the rights and properties
and the business of Merger Sub, and shall assume all of the debts, claims, liabilities and obligations of Merger Sub, Merger Sub
will be merged with and into Enlivex, and the separate corporate existence of Merger Sub will cease, and the Surviving Company
will become wholly owned (including with respect to any warrants, options or other securities) directly by Bioblast, all as provided
under the Companies Law.
1.05 Articles of Association of the Surviving Company.
At or prior to the Effective Time, the articles of association of Enlivex shall be amended by means of a shareholder vote and
restated to read in their entirety in the form of Exhibit B, and as so amended shall remain in effect from and after
the Effective Time as the articles of association of the Surviving Company (the "Surviving Company Articles")
until duly amended as provided therein or by applicable Law.
1.06 Directors and Officers of the Surviving Company.
At the Effective Time, the directors and officers of the Surviving Company, each to hold office in accordance with the Surviving
Company Articles and until their earlier resignation or removal or until their respective successors are duly elected or appointed
and qualified, shall be Enlivex's current directors and officers.
1.07 Contingent Value Right. Prior to the Effective
Time at a date determined by the Bioblast Board, Bioblast shareholders of record at such date shall be entitled to one CVR issued
by Bioblast in respect of each Bioblast Ordinary Share owned by them, subject to and in accordance with the terms and conditions
of the CVR Agreement. At or prior to the Effective Time, Bioblast and Enlivex shall authorize and duly adopt, execute and deliver,
together with the CVR Agent, the CVR Agreement.
Effect on Share Capital; Exchange of Certificates
2.01 Effect on Share Capital of Enlivex.
the Effective Time, by virtue of the Merger and without any action on the part of Bioblast, Merger Sub or Enlivex, or the holders
of any Enlivex Shares, all outstanding shares of Enlivex, other than Enlivex Ordinary Shares and any Dormant Shares, shall, in
accordance with the Enlivex Charter, be converted into Enlivex Ordinary Shares, and then, each Enlivex Ordinary Share (other than
any Dormant Share) shall be deemed transferred to Bioblast for no consideration other than the right to receive that number of
fully paid and nonassessable Bioblast Ordinary Shares equal to the Exchange Ratio. All such Bioblast Ordinary Shares to be issued