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EX-2.1 - QUANTRX BIOMEDICAL CORP | v172698_ex2-1.htm |
EX-99.2 - QUANTRX BIOMEDICAL CORP | v172698_ex99-2.htm |
EX-99.1 - QUANTRX BIOMEDICAL CORP | v172698_ex99-1.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 29, 2010
QUANTRX
BIOMEDICAL CORPORATION
(Exact
name of registrant as specified in its charter)
Nevada
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0-17119
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33-0202574
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(State
or other jurisdiction of
incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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100
S. Main Street, Suite 300
Doylestown,
Pennsylvania 18901
(Address
of principal executive offices) (Zip Code)
Registrant’s telephone number,
including area code: (267) 880-1595
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:
þ
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item 1.01 Entry into a Material
Definitive Agreement.
Merger
Agreement
On
January 29, 2010, QuantRx Biomedical Corporation, a Nevada corporation
(“QuantRx”), entered into an Agreement and Plan of Merger (the “Merger
Agreement”) with NuRx Pharmaceuticals, Inc., a Nevada corporation (“NuRx”), and
NP Acquisition Corporation, a Nevada corporation and a wholly-owned subsidiary
of QuantRx (“Merger Sub”). The Merger Agreement provides that at the effective
time (the “Effective Time”), Merger Sub will be merged with and into NuRx (the
“Merger”), with NuRx continuing as the surviving corporation and a wholly-owned
subsidiary of QuantRx.
On July
30, 2009, QuantRx entered into a Contribution Agreement (the “Contribution
Agreement”) with NuRx. 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
Diagnostics, LLC, a newly formed Delaware limited liability company that was
formed as a joint venture between QuantRx and NuRx (the “Joint
Venture”).
QuantRx
and NuRx 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, NuRx contributed $5,000,000 in cash to the Joint
Venture. QuantRx and NuRx 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, each outstanding share of
NuRx’s common stock (other than shares held by NuRx or any wholly-owned
subsidiary of NuRx or by QuantRx or Merger Sub or any of their respective
subsidiaries, or by stockholders of NuRx 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. All options and warrants of NuRx outstanding at the Effective
Time will be assumed by QuantRx and converted into rights with respect to
QuantRx’s 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 NuRx’s proxy statement will be
included as a prospectus; (c) that NuRx will solicit proxies and cause a special
meeting of the stockholders of NuRx to be held to approve and adopt the Merger
Agreement and the transactions contemplated thereby; (d) subject to certain
exceptions which permit NuRx’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 NuRx approve
and adopt the Merger Agreement; (e) that NuRx 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
NuRx. Additionally, QuantRx has agreed to take, after the Effective
Time, 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 NuRx, (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 NuRx’s stockholders; (b) the absence of
any legal prohibitions on the closing of the Merger; (c) subject to certain
exceptions, the continued accuracy of NuRx’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
(as defined in the Merger Agreement) on either NuRx (in the case of QuantRx’s
obligation to close) or QuantRx (in the case of NuRx’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, NuRx has cash or cash equivalents equal to or
greater than $1 million.
Under the
Merger Agreement, each of NuRx 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 NuRx, if the Board validly accepts a
superior proposal. If the Merger Agreement is terminated (i) by NuRx 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
NuRx’s stockholders regarding approval of the Merger or the Merger Agreement, or
(iii) by NuRx or QuantRx (A) due to failure of NuRx’s stockholders to approve
the Merger or the Merger Agreement, (B) a competing transaction is publicly
announced before NuRx’s stockholders approve the Merger and (C) NuRx enters into
an agreement providing for its acquisition by a third party within 12 months
after the date the Merger Agreement was terminated, NuRx shall pay QuantRx a
cash break-up fee of $260,000, minus certain expenses paid by NuRx 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 NuRx, 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 QuantRx’s public disclosures.
Voting Agreements
On January 29, 2010, in connection with the Merger
Agreement, NuRx and QuantRx entered into voting agreements with certain of
NuRx’s officers and directors, in their capacities as stockholders of NuRx only,
and certain significant stockholders of NuRx who together represented
approximately 31% of NuRx’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
NuRx’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.
Amendment
to Rights Agreement
On
January 27, 2010, in connection with the Merger, NuRx 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 (1) 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, (2) 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 NuRx’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 as Exhibit 4.1 to the Current Report on Form 8-K filed by NuRx with the
SEC on January 29, 2010.
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 NuRx’s proxy statement and other
materials relevant to the proposed Merger and related transactions. The
definitive proxy statement will be sent or given to NuRx’s stockholders. BEFORE
MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE MERGER, INVESTORS
AND STOCKHOLDERS 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 NuRx or QuantRx
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 QuantRx at
100 S. Main Street, Suite 300, Doylestown, Pennsylvania 18901 — Attention: Chief
Financial Officer.
NuRx and its directors and executive officers may be
deemed to be participants in the solicitation of proxies from NuRx’s
stockholders in connection with the Merger. Certain of NuRx’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
NuRx’s directors and executive officers and their interests in the Merger will
be contained in the proxy statement relating to the Merger that NuRx 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
NuRx’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 NuRx and QuantRx 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
NuRx 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 NuRx’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 NuRx 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 NuRx’s or QuantRx’s ability to achieve results described in any
forward-looking statements. For additional information about risks and
uncertainties QuantRx faces and a discussion of its financial statements and
footnotes, see documents filed with the SEC, including QuantRx’s Annual Report
on Form 10-K for the year ended December 31, 2008, filed with the SEC on April
15, 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.
Item 8.01 Other
Events.
On January 29, 2010, NuRx 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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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. QuantRx will furnish copies of the
omitted schedules and exhibits to the SEC upon request by the
SEC.
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.
QUANTRX
BIOMEDICAL CORPORATION
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Dated: January
29, 2010
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By:
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/s/ Walter Witoshkin
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Name:
Walter Witoshkin
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Title:
Chairman and Chief Executive
Officer
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