UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No.
1
FORM
8-K/A
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 17, 2017
NEOTHETICS, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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001-36754
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20-8527075
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification Number)
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9171 Towne Centre Drive, Suite 250, San Diego, CA 92122
(Address of principal executive offices, with zip code)
(858)
750-1008
(Registrants telephone number, including area code)
n/a
(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 (
see
General Instruction A.2. below):
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☒
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule
14a-12
under the Exchange Act (17 CFR
240.14a-12)
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☐
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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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☐
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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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Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule
12b-2
of the Securities Exchange Act of 1934
(§ 240.12b-2
of
this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒
Explanatory Note
This Amendment No. 1 amends and supplements the Current Report on Form
8-K
of Neothetics, Inc. (the
Company) filed with the Securities and Exchange Commission on October 17, 2017 (the Original Current Report). The sole purpose for filing this Amendment No. 1 to the Original Current Report is to correct the
description of the Company Post-Merger Warrants exercise price under Item 1.01. No other changes are being made to the Original Current Report.
Item 1.01
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Entry into a Material Definitive Agreement.
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On October 17, 2017, Neothetics, Inc.
(
Neothetics
or the
Company
), Nobelli Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Neothetics (
Merger Sub
), and Evofem Biosciences, Inc., a privately-held Delaware
corporation (
Evofem
), entered into an Agreement and Plan of Merger and Reorganization (the
Merger Agreement
), pursuant to which, among other things, subject to the satisfaction or waiver of the conditions set
forth in the Merger Agreement, Merger Sub will merge with and into Evofem, with Evofem becoming a wholly-owned subsidiary of the Company and the surviving corporation of the merger (the
Merger
). The Merger is intended to qualify
for federal income tax purposes as
a tax-free reorganization
under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended.
Immediately prior to the effective time of the Merger (the
Effective Time
), each outstanding share of Evofems preferred stock (other
than shares of Evofems Series D preferred stock) will be converted into one share of Evofem common stock. Subject to the terms and conditions of the Merger Agreement, at the Effective Time: (a) each share of Evofem common stock (on
an as-converted basis)
will be converted solely into the right to receive shares of the Companys common stock (the
Company
Common Stock
) equal to the common stock
exchange ratio described in the Merger Agreement; (b) each outstanding shares of Evofem Series D preferred stock will be converted solely into the right to receive shares of the Company Common Stock equal to the Series D preferred stock
exchange ratio described in the Merger Agreement; and (c) each outstanding Evofem stock option that has not previously been exercised prior to the Effective Time will be assumed by the Company. Warrants to purchase shares of Evofem capital
stock will be assumed by the Company at the Effective Time and then immediately amended and restated to become warrants to purchase up to an aggregate of 12 million shares of the Company Common Stock (the
Company Post-Merger
Warrants
). The exercise price for the Company Post-Merger Warrants will be equal to the average of the closing sale prices of the Company Common Stock as quoted on The NASDAQ Capital Market for the 30 consecutive trading day period
commencing with the first trading day immediately following the Effective Time.
Under the exchange ratio formulas in the Merger Agreement, as of
immediately after the Merger, and including the effect of the Financing (as defined below), the former Evofem securityholders are expected to own approximately 87% of the aggregate number of shares of the issued and outstanding Company Common Stock
(the
Post-Closing Shares
), and the stockholders of the Company as of immediately prior to the Merger are expected to own approximately 13% of the aggregate number of Post-Closing Shares. The common stock exchange ratio and
Series D preferred stock exchange ratio are subject to adjustment as set forth in Section 1.12(b) of the Merger Agreement.
Immediately following the
Merger, the name of the Company will be changed from Neothetics, Inc. to Evofem Biosciences, Inc. The Merger Agreement contemplates that the Board of Directors of the Company will consist of seven members at the Effective
Time, six of which will be designated by Evofem and one of which will be designated by the Company. The member to be designated by the Company is expected to be one of the current directors of the Company. The executive officers of the Company
immediately after the Effective Time will be designated by Evofem with Evofems Chief Executive Officer, Saundra Pelletier, being the Companys Chief Executive Officer.
The Merger Agreement contains customary representations, warranties and covenants made by the Company and Evofem, including covenants relating to obtaining
the requisite approvals of the stockholders of the Company and Evofem, indemnification of directors and officers, the Companys and Evofems conduct of their respective businesses between the date of signing the Merger Agreement and the
closing of the Merger. Consummation of the Merger is subject to certain closing conditions, including, among other things, approval by the stockholders of the Company and Evofem. The Merger Agreement contains certain termination rights for both the
Company and Evofem, and further provides that, upon termination of the Merger Agreement under specified circumstances, the Company may be required to pay Evofem a termination fee of up to $1.5 million or Evofem may be required to pay the
Company a termination fee of $1.5 million.
The Merger Agreement contemplates that the Company will also seek approval from its stockholders to
effect a reverse stock split intended to increase its trading price above the minimum requirements of The NASDAQ Capital Market. Subject to stockholder approval, the Company expects to implement the reverse stock split at a ratio to be mutually
agreed to by the Company and Evofem within the range approved by the Companys stockholders immediately prior to the Effective Time.
In accordance
with the terms of the Merger Agreement, certain affiliated stockholders of Evofem have each entered into a support agreement with Evofem (the
Support Agreements
). The Support Agreements place certain restrictions on the transfer
of the shares of Evofem held by the respective signatories thereto and include covenants as to the voting of such shares in favor of approving the transactions contemplated by the Merger Agreement and against any actions that could adversely affect
the consummation of the Merger.
Concurrently with the execution of the Merger Agreement, certain officers and directors of Evofem, each entered
into
lock-up
agreements (the
Lock-Up
Agreements
) pursuant to which they have agreed, among other things, not to sell or dispose of
any shares of Company Common Stock which are or will be beneficially owned by them at the closing of the Merger until 180 days following the Effective Time.
Concurrently with the execution of the Merger Agreement, the Company entered into a Securities Purchase Agreement with Evofem and certain investors of Evofem
(the
Securities Purchase Agreement
) pursuant to which, conditioned upon and immediately following the Merger, the Company will issue and sell in a private placement transaction (the
Financing
) $20 million
of Company Common Stock and Evofem will issue warrants to purchase shares of Evofem common stock immediately prior to the Effective Time (the
Investor Warrants
). The Investor Warrants will be automatically exercised on a cashless
basis at the Effective Time, and the shares of Evofem common stock issued upon exercise of the Investor Warrant will be eligible to receive shares of the Company Common Stock in an amount equal to the common stock exchange ratio upon completion of
the Merger. Upon consummation of the Financing, the Company will terminate its existing Fourth Amended and Restated Investors Rights Agreement, dated September 22, 2014, by and between the Registrant and the investors listed therein (the
Existing Investors
), and enter into a registration rights agreement with certain of the Existing Investors and certain investors of Evofem.
The Merger Agreement, form of Support Agreement, form
of Lock-Up Agreement
and the Securities Purchase
Agreement have each been included as an exhibit to this Current Report to provide the Companys stockholders with information regarding their terms. The assertions embodied in the representations and warranties contained in the Merger Agreement
are qualified by information in confidential disclosure schedules delivered by the parties in connection with the signing of the Merger Agreement. Moreover, certain representations and warranties contained in these agreements were made as of a
specified date; may have been made for the purposes of allocating contractual risk between the parties to such agreements; and may be subject to contractual standards of materiality different from what might be viewed as material to the
Companys stockholders. Accordingly, the representations and warranties in these agreements should not be relied on by any persons as characterizations of the actual state of facts and circumstances of the Company or any other parties thereto
at the time they were made and should consider the information in these agreements in conjunction with the entirety of the factual disclosure about the Company in the Companys public reports filed with the Securities and Exchange Commission,
or the SEC. Information concerning the subject matter of the representations and warranties may change after the date of these agreements, which subsequent information may or may not be fully reflected in the Companys public disclosures. These
agreements should not be read alone, but should instead be read in conjunction with each other and other information regarding the Company.
The preceding
summary does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, the form of Support Agreement, the form
of Lock-up Agreements
and the Securities
Purchase Agreement, which are filed as Exhibits 2.1, 2.2, 10.1 and 10.2, respectively, and which are incorporated herein by reference.
Item 3.02
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Unregistered Sales of Equity Securities.
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The Financing is described in Item 1.01 of this Current Report
on Form
8-K,
which is incorporated by reference into this Item 3.02.
Item 5.01
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Changes in Control of Registrant.
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The completion of the Merger will constitute a change in control of
the Company. The Merger is described in Item 1.01 of this Current Report on Form
8-K,
which is incorporated by reference into this Item 5.01.
On October 17, 2017, the Company issued a joint press release with Evofem relating
to the Merger Agreement. A copy of the joint press release is attached hereto as Exhibit 99.1 and is incorporated by reference herein.
Additional
Information about the Merger and Where to Find It
In connection with the Merger, the Company intends to file relevant materials with the SEC,
including a registration statement on Form
S-4
that will contain a prospectus, joint proxy and information statement. Investors and security holders of the Company and Evofem are urged to read these materials
when they become available because they will contain important information about the Company, Evofem and the Merger. The joint proxy statement, information statement, prospectus, 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 web site at www.sec.gov. In addition, investors and security holders may obtain free copies of the documents filed with the SEC by the Company by directing
a written request to: Neothetics, Inc., 9171 Towne Centre Drive, Suite 250, San Diego, CA 92122, Attention: Investor Relations. Investors and security holders are urged to read the joint proxy statement, prospectus and the other relevant materials
when they become available before making any voting or investment decision with respect to the Merger.
This communication shall not constitute an offer to sell or the solicitation of an offer to sell or the
solicitation of an offer to buy any securities, 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 of 1933, as amended.
Participants in the Solicitation
The Company and
its directors and executive officers and Evofem and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the proposed transaction. Information
regarding the special interests of these directors and executive officers in the merger will be included in the joint proxy statement/prospectus referred to above. Additional information regarding the directors and executive officers of the Company
is also included in the Companys Annual Report on Form
10-K
for the year ended December 31, 2016 and the proxy statement for the Companys 2017 Annual Meeting of Stockholders. These documents
are available free of charge at the SEC web site (www.sec.gov) and from Investor Relations at the Company at the address described above.
Item 9.01
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Financial Statements and Exhibits.
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Exhibit
Number
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Description
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2.1*+
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Agreement and Plan of Merger and Reorganization, dated October
17, 2017, by and among Neothetics, Inc., Evofem Biosciences, Inc. and Nobelli Merger Sub, Inc.
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2.2+
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Form of Support Agreement, by and between Evofem Biosciences, Inc. and certain of its stockholders.
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10.1+
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Form of
Lock-Up
Agreement
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10.2+
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Securities Purchase Agreement, dated October
16, 2017, by and among the Company, Evofem Biosciences, Inc. and the investors listed therein.
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99.1+
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Press Release, dated October
17, 2017.
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*
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The schedules and exhibits to the Merger Agreement have been omitted pursuant to Item
601(b)(2) of Regulation
S-K.
A copy of any omitted schedule and/or
exhibit will be furnished to the Securities and Exchange Commission upon request.
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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.
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NEOTHETICS, INC.
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Date: October 31, 2017
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By:
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/s/ Susan A. Knudson
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Susan A. Knudson
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Chief Financial Officer
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(Principal Executive Officer and Principal Financial Officer)
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