NKGEN BIOTECH, INC. Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
NKGen is a clinical-stage biotechnology company focused on the development and
commercialization of innovative autologous, allogeneic and CAR-NK Natural Killer
cell therapeutics. NKGen is based in
The board of directors of Graf (the "Graf Board") has unanimously approved and declared advisable the Merger Agreement and the Business Combination and resolved to recommend approval of the Merger Agreement and related matters by Graf's stockholders.
Merger Consideration
In accordance with the terms and subject to the conditions of the Merger
Agreement, Graf has agreed to issue to the equityholders of NKGen (other than
holders of unvested NKGen options to purchase shares of common stock of NKGen
("NKGen options") as of immediately prior to the Effective Time) aggregate
consideration (the "Merger Consideration") of a number of shares of newly issued
common stock, par value
At the Effective Time, each outstanding and unexercised NKGen option will be cancelled and converted into an option to acquire Common Stock ("New NKGen Options"), provided that: (i) each such New NKGen Option shall be exercisable for that number of shares of Common Stock equal to the product (rounded down to the nearest whole number) of (A) the number of shares of NKGen common stock subject to such NKGen Option immediately prior the Effective Time multiplied by (B) the Exchange Ratio, and (ii) the per share exercise price for each share of Common Stock issuable upon exercise of the New NKGen Option shall be equal to the quotient (rounded up to the nearest whole cent) obtained by dividing (A) the exercise price per share of each NKGen Option immediately prior to the Effective Time by (B) the Exchange Ratio.
2
Conditions to Closing
The obligation of Graf and NKGen to consummate the Business Combination pursuant
to the Merger Agreement is subject to the satisfaction or waiver of certain
closing conditions, including, among others: (i) the absence of any
governmental order, statute, rule or regulation enjoining or prohibiting the
consummation of the Merger, (ii) approval by Graf's stockholders and NKGen's
stockholders of the Merger Agreement, the Business Combination and certain other
actions related thereto, (iii) that Graf has not received valid redemption
requests (that have not subsequently been withdrawn) from holders of the Common
Stock initially issued as part of the units sold by Graf in its initial public
offering (the "public shares") in an amount that would cause Graf not to have at
least
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On
Item 7.01 Regulation FD Disclosure.
On
7
The information in this Item 7.01, including Exhibit 99.1, is furnished and shall not be deemed "filed" for purposes of Section 18 of the Exchange Act, or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of Graf under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report on Form 8-K (this "Current Report") will not be deemed an admission as to the materiality of any information of the information contained in this Item 7.01, including Exhibit 99.1.
Additional Information and Where to Find It
Graf has filed a preliminary proxy statement with the
In addition, if the First Extension is approved at the Special Meeting, Graf
intends to file the Registration Statement with the
Graf's stockholders may obtain copies of the aforementioned documents and other
documents filed by Graf with the
Participants in Solicitation
Graf and its directors and executive officers may be deemed to be participants
in the solicitation of proxies from Graf's stockholders with respect to the
First Extension. Information regarding the names of Graf's directors and
officers and their interests in Graf is contained in the Annual Report on Form
10-K for the year ended
In addition, Graf, NKGen and their respective directors, executive officers and
other members of management and employees may be deemed participants in the
solicitation of proxies from Graf's stockholders with respect to the Business
Combination. Information regarding the interests of those participants and other
persons who may be deemed participants in the solicitation of proxies from
Graf's stockholders in connection with the Business Combination and a
description of their direct and indirect interests, by security holdings or
otherwise, will be contained in the proxy statement/prospectus included in the
Registration Statement and other relevant documents to be filed with the
Investors and security holders of Graf and NKGen are urged to carefully read the
aforementioned documents and other relevant documents that Graf will file with
the
No Offer or Solicitation
This Current Report shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed Business Combination. This Current Report shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
8
Forward-Looking Statements
Certain statements included in this Current Report that are not historical facts are forward looking statementsfor purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as "believe," "may," "will," "estimate," "continue," "anticipate," "intend," "expect," "should," "would," "plan," "predict," "potential," "seem," "seek," "future," "outlook," "project," and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Forward-looking statements include statements relating to proposed the Business Combination between Graf and NKGen, the Extensions, NKGen's or Graf's ability to consummate the proposed Business Combination, the benefits of the proposed Business Combination, estimated proceeds from the Business Combination, expectations regarding NKGen's business development, as well as the NKGen's future operations, including corporate governance and management plans. These statements are based on various assumptions, whether or not identified in this Current Report or the exhibits hereto, and on the current expectations of the respective management of NKGen and Graf 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 NKGen and Graf. These forward-looking statements are subject to a number of risks and uncertainties, including the inability of the parties to successfully or timely consummate the Business Combination; the failure to obtain the Extensions; the failure to satisfy the conditions to the consummation of the Business Combination, including the approval of the Merger Agreement by Graf's stockholders, the satisfaction of the minimum cash condition and the receipt of certain governmental and regulatory approvals; the inability to obtain any PIPE investments; the effect of the announcement or pendency of the Business Combination on NKGen's business relationships, operating results, and business generally; the risk that the proposed Business Combination disrupts the current plans and operations of NKGen; the risk that regulatory approvals for NKGen's product development are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect New NKGen or the expected benefits of the Business Combination; NKGen's ability to manage future growth; NKGen's ability to manage clinical trials or studies, including any compassionate use programs and develop product pipeline; the dependence on the success of NKGen's SNK natural killer cell technology platform; New NKGen's ability to meet the listing standards of the NYSE, NYSE American or, Nasdaq; the amount of redemption requests made by Graf's public stockholders; the ability of New NKGen to obtain additional financing required for operations and growth in the future; the outcome of any potential litigation, government and regulatory proceedings, investigations and inquiries; the complexity of numerous regulatory and legal requirements that NKGen needs to comply with to operate its business; the failure to obtain, adequately protect, maintain or enforce NKGen's intellectual property rights; the ability of Graf or New NKGen to issue equity or equity-linked securities in connection with the proposed Business Combination or in the future; the costs associated with New NKGen operating as a public company; the lack of active trading market for New NKGen's common stock; the concentrated ownership of New NKGen common stock among NKGen's existing executive officers, directors and principal stockholders; and those factors discussed in the 2022 Form 10-K under the heading "Risk Factors," . . .
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1† Agreement and Plan of Merger, dated as ofApril 14, 2023 , by and amongGraf Acquisition Corp. IV ,Austria Merger Sub, Inc. , andNKGen Biotech, Inc. 10.1 Sponsor Support and Lockup Agreement, dated as ofApril 14, 2023 , by and amongGraf Acquisition Corp. IV ,NKGen Biotech, Inc. ,Graf Acquisition Partners IV, LLC , and certain officers and directors ofGraf Acquisition Corp. IV named as parties thereto. 10.2 NKGen Support Agreement, dated as ofApril 14, 2023 , by and amongGraf Acquisition Corp. IV , and the stockholders ofNKGen Biotech, Inc. named as parties thereto. 10.3 Backstop Agreement, dated as ofApril 14, 2023 , by and amongGraf Acquisition Corp. IV and NKMAX Co., Ltd. 10.4 Form of Lockup Agreement. 10.5 Form of Amended and Restated Registration Rights Agreement. 99.1 Joint Press Release, dated as ofApril 14, 2023 . 104 Cover Page Interactive Data File - Embedded within the inline XBRL document
† Certain of the exhibits and schedules to this Exhibit have been omitted in
accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to
furnish a copy of all omitted exhibits and schedules to the SEC upon its
request.
9© Edgar Online, source
