BIOPLUS ACQUISITION CORP. Item 1.01 Entry into a Material Definitive Agreement.
This section describes the material provisions of the Business Combination Agreement (as defined below) but does not purport to describe all of the terms thereof. The following summary is qualified in its entirety by reference to the complete text of the Business Combination Agreement, a copy of which is attached hereto as Exhibit 2.1. Unless otherwise defined herein, the capitalized terms used below are defined in the Business Combination Agreement.
Business Combination Agreement
On
The Domestication
Pursuant to the Business Combination Agreement, prior to (but no later than the
day preceding) the closing of the Merger (the "Closing") and following the
exercise of their redemption right by the shareholders of BIOS (the "BIOS
Shareholders"), BIOS will domesticate as a
Upon the effectiveness of the Domestication, (i) each then issued and
outstanding Class A ordinary share, par value
Transaction Consideration
Upon the consummation of the Merger, (i) each share of Avertix common stock, par
value
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Following the Closing, as additional consideration for the Merger and the other Transactions, eligible equityholders of Avertix will be entitled to receive their respective pro rata share of 2,970,000 shares of New Avertix Common Stock (the "Avertix Earnout Shares") in two equal tranches, each contingent upon New Avertix's achievement of the applicable stock price milestones (the "Triggering Events") during the Earnout Period; provided that, with respect to any holder of a unvested Exchanged Option, an award of restricted stock units for a number of Avertix Earnout Shares otherwise issuable to such holder and subject to the same vesting terms as the unvested Exchanged Option will be issued to such holder in lieu of any Avertix Earnout Shares.
At the Effective Time, a portion of the Sponsor's founder shares, consisting of 1,150,000 Class B ordinary shares of BIOS as of the date hereof (the "Sponsor Earnout Shares"), will become unvested and subject to vesting and forfeiture, and will thereafter become vested only upon the occurrence of the applicable Triggering Event in the same proportion as the issuance of Avertix Earnout Shares to eligible equityholders of Avertix upon the occurrence of such Triggering Event. The Sponsor Earnout Shares are subject to reduction in connection with certain additional financing permitted under the Business Combination Agreement, and will be forfeited if the applicable Triggering Events do not occur during the Earnout Period.
Representations, Warranties and Covenants
The parties to the Business Combination Agreement (the "Parties") have made customary representations, warranties and covenants, including, among others, with respect to the conduct of the businesses of Avertix and BIOS during the period between execution of the Business Combination Agreement and the Closing (the "Interim Period"). Certain of the representations are subject to specified exceptions and qualifications contained in the Business Combination Agreement or in information provided pursuant to certain disclosure schedules to the Business Combination Agreement.
The Parties have agreed to take all actions necessary or appropriate such that,
as of immediately following the Closing, New Avertix's board of directors will
be divided into three classes and be composed of a total of seven (7) directors,
which directors shall include
The Parties have agreed that, during the Interim Period, BIOS may sell to any
other person in a private placement additional shares of BIOS' equity that have
the same rights, privileges and preferences as the shares of New Avertix Common
Stock to be issued to the stockholders of Avertix pursuant to the terms of the
Business Combination Agreement and at a price per share not less than
Conditions to Closing
The obligations of Avertix and BIOS to consummate the Transactions are subject
to the satisfaction or waiver (where permissible) at or prior to the Closing of
various conditions, including, among other things: (i) the accuracy of the
representations and warranties of BIOS and Avertix, respectively; (ii) the
performance by BIOS and Avertix, respectively, of its covenants and agreements;
(iii) the absence of any material adverse effect that is continuing with respect
to Avertix during the Interim Period, (iv) the approval of Avertix's
stockholders and BIOS' shareholders; (v) the effectiveness of a registration
statement on Form S-4 to be filed with the
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Termination
The Business Combination Agreement may be terminated under certain customary and limited circumstances at any time prior to the Closing, including: (i) by mutual written consent of BIOS and Avertix; (ii) subject to certain cure periods, by either BIOS or Avertix, as applicable, if there has been a breach of any representation, warranty, covenant or other agreement made by BIOS or Avertix, . . .
Item 7.01. Regulation FD Disclosure.
On
Furnished as Exhibit 99.2 is a copy of an investor presentation to be used by BIOS in connection with the Transactions.
The information in this Item 7.01 and Exhibits 99.1 and 99.2 attached hereto shall not be deemed "filed" for purposes of Section 18 of Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed 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.
Important Information About the Transactions and Where to Find It
In connection with the proposed Business Combination, BIOS intends to file the
Proxy with the
Participants in the Solicitation
BIOS and its directors and executive officers may be deemed participants in the
solicitation of proxies from BIOS' shareholders with respect to the
Transactions. A list of the names of those directors and executive officers and
a description of their interests in BIOS is contained in BIOS' annual report on
Form 10-K for the fiscal year ended
Avertix and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of BIOS in connection with the Transactions. A list of the names of such directors and executive officers and information regarding their interests in the Transactions will be included in the Proxy.
Forward-Looking Statements
This Current Report on Form 8-K contains "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 that are not historical facts, and involve risks and uncertainties that could cause actual results of BIOS and Avertix to differ materially from those expected
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and projected. These forward-looking statements can be identified by the use of forward-looking terminology, including the words "believes," "estimates," "anticipates," "expects," "intends," "plans," "may," "will," "potential," "projects," "predicts," "continue," or "should," or, in each case, their negative or other variations or comparable terminology. These forward-looking statements include, without limitation, statements regarding BIOS' ability to enter into definitive agreements or consummate a transaction with Avertix and the expected timing of completion of the Transactions.
These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside BIOS' and are difficult to predict. Factors that may cause such differences include, but are not limited to: the inability of the Parties to successfully or timely consummate the Transactions; the risk that the Transactions may not be completed by BIOS' business combination deadline and the potential failure to obtain an extension of the Transactions deadline by BIOS; failure to realize the anticipated benefits of the Transactions; risks relating to the uncertainty of the projected financial information with respect to Avertix; the occurrence of any event, change or other circumstance that could give rise to the termination of the definitive transaction agreement; Avertix's history of operating losses; Avertix's need for additional capital to support its present business plan and anticipated growth; Avertix's ability to engage physicians to utilize and prescribe its solution; changes in reimbursement practices; technological changes in Avertix's market; Avertix's ability to protect its intellectual property; Avertix's material weaknesses in financial reporting; and Avertix's ability to navigate complex regulatory requirements; the ability to maintain the listing of BIOS' securities on a national securities exchange; the ability to implement business plans, forecasts, and other expectations after the completion of the Transactions; the effects of competition on Avertix's business; the risks of operating and effectively managing growth in evolving and uncertain macroeconomic conditions, such as high inflation and recessionary environments; continuing risks relating to the COVID 19 pandemic; and risks associated with Avertix's ability to develop its products and achieve regulatory approvals or milestones on the timelines expected or at all. The foregoing list of factors is not exhaustive.
BIOS cautions that the foregoing list of factors is not exclusive. BIOS cautions
readers not to place undue reliance upon any forward-looking statements, which
speak only as of the date made. BIOS does not undertake or accept any obligation
or undertaking to release publicly any updates or revisions to any
forward-looking statements to reflect any change in its expectations or any
change in events, conditions or circumstances on which any such statement is
based. Further information about factors that could materially affect BIOS,
including its results of operations and financial condition, is set forth under
"Risk Factors" in Part I, Item 1A of BIOS' Annual Report on Form 10-K for the
fiscal year ended
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description
2.1* Business Combination Agreement and Plan of Reorganization, dated
May 2, 2023 , by and among BioPlus Acquisition Corp. , Avertix Medical,
Inc. and other parties thereto.
10.1 Form of Amended and Restated Registration Rights Agreement.
10.2 Form of Amendment No. 1 to the Sponsor Letter Agreement.
10.3 Form of Stockholder Support Agreement, dated May 2, 2023 , by and
among BioPlus Acquisition Corp. , Avertix Medical, Inc. and other
parties thereto.
10.4 Sponsor Support Agreement, dated May 2, 2023 , by and among BioPlus
Acquisition Corp. , Avertix Medical, Inc. and BioPlus Sponsor LLC .
99.1 Press Release, dated May 3, 2023 .
99.2 Investor Presentation, dated May 2023 .
104.1 Cover page interactive data file (embedded within the Inline XBRL
document).
* Certain exhibits and schedules to this Exhibit have been omitted in accordance
with Regulation S-K Item 601(a)(5). BIOS agrees to supplementally furnish a
copy of any omitted exhibit or schedule to the
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