(State or other jurisdiction of
incorporation or organization)
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)
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))
Title of each class
Name of each exchange on which registered
Common Stock $0.0001 Par Value
The Nasdaq Stock Market LLC
Financial Statements and Exhibits.
Innovate Biopharmaceuticals, Inc.
Date: January 22, 2020
/s/ Edward J. Sitar
Edward J. Sitar
Chief Financial Officer
each of the Company, Innovate, Merger Sub and the Shareholder Representative hereby waive in its entirety the requirement contained in Section 5.11(b) of the Agreement relating to the resignation of Roy Proujansky, M.D., from the Board of Directors of Innovate immediately upon receipt of the Innovate Shareholder Approval;
each of the Company, Innovate, Merger Sub and the Shareholder Representative hereby waive in their entirety the requirements set forth in Sections 5.10(d), 5.10(e) and 5.10(f) of the Agreement with respect to the Options Tax Ruling, the Interim Options Tax Ruling and the Withholding Tax Ruling; provided, that such waiver is conditioned upon the due execution and delivery of an agreement by and between Innovate and the Exchange Agent (the “Exchange Agent Agreement”), containing the following terms: (A) all shares of Innovate capital stock held by the Exchange Agent which a holder of Certificates or Book-Entry Shares as of immediately prior to the Effective Time has a right to receive pursuant to the Agreement shall be released from the Exchange Fund and delivered to such holder only upon such holder delivering to the Exchange Agent a Valid Tax Certificate issued by the ITA regarding the exemption from withholding of Israeli Tax from the Merger Consideration payable to such holder under the Agreement, such Valid Tax Certificate to be acceptable to the Exchange Agent in form and substance; (B) until any shares of Innovate capital stock have been delivered to the applicable former holder of Certificates or Book-Entry Shares in accordance with the
each of the Company, Innovate, Merger Sub and the Shareholder Representative hereby waive in their entirety the restrictions set forth in Section 4.4(b) related to (x) the sale, issuance, reservation for issuance, set aside, grant and authorization of additional shares of capital stock of the Company or other rights for shares of capital stock of the Company, (y) amendments to the Company Charter, and (z) the Company’s entering into a Company Material Contract with existing Company Shareholders or other existing holders of the Company’s equity securities; provided, that OrbiMed Israel Partners, Limited Partnership must retain at least 40% of the fully diluted share capital of the Company; For the avoidance of doubt, such waiver will not result in any change in the RDD Fully Diluted Ownership Ratio or otherwise impact the ability of the Company to consummate the transactions contemplated by the Agreement at Closing; and
each of the Company, Innovate, Merger Sub and the Shareholder Representative hereby waive any inaccuracy in the representations and warranties set forth in Section 2.2 of the Agreement, and any other representations and warranties related to the outstanding capitalization of the Company included in the Agreement; provided, that OrbiMed Israel Partners, Limited Partnership must retain at least 40% of the fully diluted share capital of the Company; Such representations and warranties will be deemed updated, and Innovate will be able to rely upon, the capitalization information reflected in the Allocation Certificate delivered prior to Closing in the same manner as if such information had been included in the Agreement ab initio.