Attached files
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EX-2.1 - NURX PHARMACEUTICALS, INC. | v172502_ex2-1.htm |
EX-4.1 - NURX PHARMACEUTICALS, INC. | v172502_ex4-1.htm |
EX-99.1 - NURX PHARMACEUTICALS, INC. | v172502_ex99-1.htm |
EX-99.2 - NURX PHARMACEUTICALS, INC. | v172502_ex99-2.htm |
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): January 27, 2010
NURX
PHARMACEUTICALS, INC.
(Exact
name of registrant as specified in its charter)
Nevada
|
0-26694
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87-0681500
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
18
Technology, Suite 130
Irvine,
CA 92618
(Address
of principal executive offices) (Zip Code)
Registrant’s telephone number,
including area code: (949) 336-7111
Not
applicable
(Former
name or former address if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation 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)
|
¨
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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))
|
Item 1.01 Entry into a Material
Definitive Agreement.
Merger
Agreement
On
January 29, 2010, NuRx Pharmaceuticals, Inc. (the “Company”), entered into an
Agreement and Plan of Merger (the “Merger Agreement”) with QuantRx Biomedical
Corporation, a Nevada corporation (“QuantRx”), and NP Acquisition Corporation, a
Nevada corporation and a wholly-owned subsidiary of QuantRx (“Merger Sub”). The
Merger Agreement provides that Merger Sub will be merged with and into the
Company (the “Merger”), with the Company continuing as the surviving corporation
and a wholly-owned subsidiary of QuantRx.
On July
30, 2009, the Company entered into a Contribution Agreement (the “Contribution
Agreement”) with QuantRx. Pursuant to the Contribution Agreement,
QuantRx contributed certain intellectual property and other assets related to
its lateral flow strip technology and related lateral flow strip readers into QN
Diangnostics, a newly formed Delaware limited liability company that was formed
as a joint venture between the Company and QuantRx (the “Joint
Venture”).
The
Company and QuantRx have also entered into a Limited Liability Company Agreement
to govern the Joint Venture, dated July 30, 2009 (the “LLC
Agreement”). Under the terms of the LLC Agreement, the Company
contributed $5,000,000 in cash to the Joint Venture. The Company and
QuantRx each own a 50% interest in the Joint Venture. The purpose of
the Joint Venture is to research, develop and commercialize products
incorporating the lateral flow strip technology and related lateral flow strip
readers.
Under the
terms of the Merger Agreement, at the effective time of the Merger (the
“Effective Time”), each outstanding share of the Company’s common stock (other
than shares held by the Company or any wholly-owned subsidiary of the Company or
by QuantRx or Merger Sub or any of their respective subsidiaries or by
stockholders of the Company who have properly demanded appraisal rights for
their shares in accordance with Nevada law) will be converted into the right to
receive approximately 1.54 shares of QuantRx common stock. Upon
consummation of the Merger, the pre-Merger securityholders of the Company will
own approximately 40% of QuantRx. All options and warrants of the
Company outstanding at the Effective Time will be assumed by QuantRx and
converted into rights with respect to QuantRx common stock.
The
parties have made customary representations, warranties and covenants in the
Merger Agreement, including among other things, covenants (a) to conduct their
respective businesses in the ordinary course between the date of the Merger
Agreement and the Effective Time; (b) that QuantRx will prepare and file with
the Securities and Exchange Commission (the “SEC”) a registration statement on
Form S-4 (the “Registration Statement”) in which the Company’s proxy statement
will be included as a prospectus; (c) that the Company will solicit proxies and
cause a special meeting of the stockholders of the Company to be held to approve
and adopt the Merger Agreement and the transactions contemplated thereby; (d)
subject to certain exceptions which permit the Company’s board of directors (the
“Board”) to withdraw its recommendation if failure to do so would be
inconsistent with its fiduciary obligations, that the Board will recommend that
the stockholders of the Company approve and adopt the Merger Agreement; (e) that
the Company will not (i) solicit proposals relating to alternative transactions
or (ii) subject to certain exceptions which permit the Board to discuss
certain unsolicited proposals for alternative transactions received from third
parties if failure to do so would be inconsistent with its fiduciary
obligations, enter into discussions concerning, or provide information in
connection with, alternative transactions; and (f) that QuantRx will honor the
terms of the existing indemnification obligations of the
Company. Additionally, QuantRx has agreed to take reasonable actions
to (A) change its name to “QuantRx Diagnostics Corp.,” (B) qualify for listing
on the NYSE Amex or the Nasdaq Global Market, (C) increase the number of shares
under its equity incentive plans such that shares reserved for issuance under
such plans represent 15% of the capital stock of QuantRx post-Merger on a fully
diluted basis, (D) maintain a board of directors consisting of five directors,
which shall consist of three directors to be designated by QuantRx and two
directors to be designated by the Company, (E) designate an executive management
team which shall consist of Mr. Walter Witoshkin, Harin Padma-Nathan, M.D. and
Sasha Afanassiev, with the exact officer positions of such individuals to be
determined prior to the Effective Time, and (F) terminate the Joint Venture, and
to wind up and dissolve the affairs of the Joint Venture in a tax efficient
manner.
The
consummation of the Merger is subject to certain customary conditions,
including, without limitation, (a) the approval of the Merger Agreement and the
transactions contemplated thereunder by the Company’s stockholders; (b) the
absence of any legal prohibitions on the closing of the Merger; (c) subject to
certain exceptions, the continued accuracy of the Company’s and QuantRx’s
representations and warranties as of the Effective Time; (d) the absence of any
circumstance or event since the date of the Merger Agreement that has had or
would reasonably be expected to have, individually or in the aggregate, a
material adverse effect on either the Company (in the case of QuantRx’s
obligation to close) or QuantRx (in the case of the Company’s obligation to
close); (e) the effectiveness of the Registration Statement; (f) obtaining
required governmental consents; and (g) evidence reasonably satisfactory to
QuantRx that, immediately prior to the closing, the Company has cash or cash
equivalents equal to or greater than $1 million.
2
Under the
Merger Agreement, each of the Company and QuantRx has certain rights to
terminate the Merger Agreement and the Merger, including (a) by either party, if
the Merger has not been consummated on or prior to June 30, 2010, subject to
certain exceptions; (b) by either party, if the required stockholder approval is
not obtained; (c) by QuantRx, if the Board changes its recommendation regarding
the Merger Agreement and the Merger; and (d) by the Company, if the Board
validly accepts a superior proposal. If the Merger Agreement is terminated (i)
by the Company prior to approval by its stockholders because the Board validly
accepts a superior proposal, (ii) by QuantRx because the Board makes an adverse
recommendation to the Company’s stockholders regarding approval of the Merger or
the Merger Agreement, or (iii) by the Company or QuantRx (A) due to failure of
the Company’s stockholders to approve the Merger or the Merger Agreement, (B) a
competing transaction is publicly announced before the Company’s stockholders
approve the Merger and (C) the Company enters into an agreement providing for
its acquisition by a third party within 12 months after the date the Merger
Agreement was terminated, the Company shall pay QuantRx a cash break-up fee of
$260,000, minus certain expenses paid by the Company to QuantRx pursuant to the
Merger Agreement.
The
foregoing description of the Merger Agreement and the transactions contemplated
thereby does not purport to be complete and is qualified in its entirety by
reference to the Merger Agreement, a copy of which is attached hereto as Exhibit
2.1 and incorporated herein by reference.
The
Merger Agreement has been attached as an exhibit to provide investors and
stockholders with information regarding its terms. It is not intended to provide
any other factual information about the Company, QuantRx or Merger Sub. The
Merger Agreement contains representations and warranties that the parties to the
Merger Agreement made to and solely for the benefit of each other. The
representations and warranties may not be intended as statements of fact but
instead as a way of allocating contractual risk between the parties to the
Merger Agreement, and may be subject to standards of materiality applicable to
the contracting parties that differ from those applicable to
investors. In addition, the assertions embodied in such
representations and warranties are qualified by information contained in the
confidential disclosure schedules that the parties have exchanged in connection
with signing the Merger Agreement. Accordingly, investors and stockholders
should not rely on such representations and warranties as characterizations of
the actual state of facts or circumstances, since they are modified in important
part by the underlying disclosure schedules and were made only as of the date of
the Merger Agreement. Information concerning the subject matter of such
representations and warranties may change after the date of the Merger
Agreement, which subsequent information may or may not be fully reflected in the
Company’s public disclosures.
Voting Agreements
On January 29, 2010, in connection with the Merger
Agreement, the Company and QuantRx entered into voting agreements with the
Company’s officers and directors, in their capacities as stockholders of the
Company only, and certain significant stockholders of the Company who together represented approximately 31% of the
Company’s outstanding shares of common stock as of January 29, 2010. Under the
terms of each voting agreement, the above stockholders agreed to vote, and
irrevocably appointed QuantRx and its executive officers as each such
stockholder’s proxy to, among other matters, vote, all outstanding shares of the
Company’s common stock beneficially held by each such stockholder as of the
record date (a) in favor of the approval of the Merger and adoption of the
Merger Agreement; (b) against any other acquisition proposal or superior
proposal; and (c) against any proposal or transaction which is intended, or
could reasonably be expected, to otherwise impede, interfere with, delay,
postpone, discourage or adversely affect the consummation of the Merger. In
addition, under the terms of the voting agreements, each such stockholder agreed
not to exercise any rights of appraisal or any dissenters’ rights that such
party may have or could potentially have in connection with the Merger Agreement
and the transactions contemplated by the Merger Agreement.
The foregoing description of the voting agreements does
not purport to be complete and is qualified in its entirety by reference to the
form of voting agreement, a copy of which is attached hereto as Exhibit 99.1 and
incorporated herein by reference.
3
Amendment
to Rights Agreement
On
January 27, 2010, in connection with the Merger, the Company and Continental
Stock Transfer & Trust Company (the “Rights Agent”) entered into an
Amendment (the “Amendment”) to that certain Stockholder Rights Agreement, dated
as of June 1, 2009 (the “Rights Agreement”), for the purpose of amending the
Rights Agreement to render it inapplicable to the Merger Agreement, the voting
agreements, the execution thereof and the transactions contemplated thereby,
including, without limitation, the Merger. In particular, the Amendment provides
that (a) QuantRx and Merger Sub shall each be deemed to be an Exempt Person (as
defined in the Rights Agreement) solely in connection with the approval,
execution and delivery of the Merger Agreement and the voting agreements, and
any of the transactions contemplated thereby, including, but not limited to, the
Merger, (b) none of the execution or delivery of the Merger Agreement or the
voting agreements, the consummation of the Merger, or the consummation of any
other transactions contemplated thereby will result in (i) the occurrence of the
“flip-in event” described in Section 11 of the Rights Agreement, (ii) the
occurrence of the “flip-over event” described in Section 13 of the Rights
Agreement, or (iii) the Rights (as defined in the Rights Agreement) becoming
evidenced by, and transferable pursuant to, certificates separate from the
certificates representing issued and outstanding shares of the Company’s common
stock, and (c) the Rights will expire pursuant to the terms of the Rights
Agreement at the Effective Time and the Rights Agreement will terminate
immediately prior to the Effective Time.
The
foregoing is a summary of the Amendment does not
purport to be complete and is qualified in its entirety by reference to
the Amendment, a copy of which is attached hereto as Exhibit 4.1 and
incorporated herein by reference.
Important Additional Information Will Be Filed with the
SEC
QuantRx intends to file with the SEC a registration
statement on Form S-4 which will include the Company’s proxy statement and other
materials relevant to the proposed Merger and related transactions. The
definitive proxy statement will be sent or given to the Company’s stockholders.
BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE MERGER,
INVESTORS AND STOCKHOLDERS OF THE COMPANY ARE URGED TO READ THE PROXY STATEMENT
AND THE OTHER RELEVANT MATERIALS WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE MERGER. The proxy statement and other
relevant materials (when they become available), and any other documents filed
by the Company with the SEC, may be obtained free of charge at the SEC’s website
at www.sec.gov. In addition, investors and stockholders may obtain free copies
of the documents filed with the SEC by directing a written request to the
Company at 18 Technology, Suite 130, Irvine, CA 92618 — Attention: Chief
Financial Officer.
The Company and its directors and executive officers may
be deemed to be participants in the solicitation of proxies from the Company’s
stockholders in connection with the Merger. Certain of the Company’s directors
and executive officers may have direct or indirect interests in the Merger due
to, among other things, securities holdings, pre-existing or future
indemnification arrangements, or vesting of equity awards. Additional
information regarding the Company’s directors and executive officers and their
interests in the Merger will be contained in the proxy statement relating to the
Merger that the Company intends to file with the SEC.
QuantRx and its respective directors and executive
officers may be deemed to be participants in the solicitation of proxies from
the Company’s stockholders in favor of the proposed transaction. Information
concerning QuantRx’s directors and executive officers is set forth in QuantRx’s
proxy statement for its 2009 annual meeting of stockholders, which was filed
with the SEC on November 5, 2009, and Annual Report on Form 10-K for the year
ended December 31, 2008, filed with the SEC on April 15,
2009.
Cautionary Statement Regarding Forward-Looking
Statements
Investors and stockholders of the Company are cautioned
that statements in this report that are not strictly historical statements,
including, without limitation, statements relating to the expected timing and
closing of the proposed Merger constitute forward-looking statements. These
statements are based on current expectations, forecasts and assumptions of the
Company and QuantRx that are subject to risks and uncertainties that could cause
actual outcomes and results to differ materially from those statements. Risks
and uncertainties include, among others, the risk that the conditions to the
Merger set forth in the Merger Agreement will not be satisfied and the
transactions will not be consummated, uncertainties as to the timing of the
Merger, uncertainties as to whether the requisite stockholder vote will be
obtained, changes in the Company’s or QuantRx’s business during the period
between now and the closing that could cause a condition to closing not to be
satisfied, reliance on proprietary technology, management of growth and
organizational change, risks associated with litigation, competitive actions in
the marketplace, whether QuantRx will successfully integrate the Company or
anticipated synergies and benefits from the transaction will be achieved in a
timely manner or at all, and adverse actions of governmental entities or other
third-parties. The foregoing list sets forth some, but not all, of the factors
that could affect the Company’s ability to achieve results described in any
forward-looking statements. For additional information about risks and
uncertainties the Company faces and a discussion of its financial statements and
footnotes, see documents filed with the SEC, including the Company’s Annual
Report on Form 10-K for the year ended September 30, 2009, and any subsequent
periodic reports. Investors should not place undue reliance on forward-looking
statements, which speak only as of the date they are made. The Company
undertakes no obligation to update any forward-looking statements to reflect new
information, events or circumstances after the date of this report, or to
reflect the occurrence of unanticipated events.
4
Item 8.01 Other
Events.
On January 29, 2010, the Company and QuantRx issued a
joint press release announcing the signing of the Merger Agreement, as described
in Item 1.01 of this report. A copy of the joint press release is attached
hereto as Exhibit 99.2 and is incorporated herein by
reference.
Item 9.01 Financial Statements
and Exhibits.
(d) Exhibits.
Exhibit
No.
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Description
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2.1
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Agreement
and Plan of Merger, dated as of January 29, 2010, by and among QuantRx
Biomedical Corporation, NP Acquisition Corporation and NuRx
Pharmaceuticals, Inc.*
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4.1
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Amendment
to the Stockholder Rights Agreement, dated January 27, 2010, by and
between the Company and Continental Stock Transfer & Trust
Company.
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99.1
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Form
of Voting Agreement, by and among QuantRx Biomedical Corporation, NuRx
Pharmaceuticals, Inc. and the stockholders identified
therein.
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99.2
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Joint
Press Release, dated January 29,
2010
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* The
schedules and exhibits to the Agreement and Plan of Merger have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. The Company will furnish copies of
the omitted schedules and exhibits to the SEC upon request by the
SEC.
5
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.
NURX PHARMACEUTICALS, INC. | |||
Dated: January
29, 2010
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By:
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/s/ Steven Gershick | |
Name: Steven Gershick | |||
Title:
Chief Financial Officer
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