TRAWS PHARMA, INC.
10-Ks and 10-Qs
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934 (Amendment No. 1)
Securities Exchange Act of 1934 (Amendment No. 1)
Filed by the Registrant ☒
Check the appropriate box:
☐
Preliminary Proxy Statement
☐
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
☒
Definitive Proxy Statement
☐
Definitive Additional Materials
☐
Soliciting Material under to §240.14a-12
TRAWS PHARMA, INC.
(Exact name of Registrant as Specified in its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
☒
No fee required.
☐
![[MISSING IMAGE: lg_trawspharma-4clr.jpg]](lg_trawspharma-4clr.jpg)
Fee paid previously with preliminary materials.
☐
Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11
TRAWS PHARMA, INC.
12 Penns Trail
Newtown, PA 18940 USA
August 8, 2024
(267) 759-3680
12 Penns Trail
Newtown, PA 18940 USA
August 8, 2024
(267) 759-3680
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To be held September 16, 2024
Notice is hereby given that a special meeting of stockholders (the “Special Meeting”) of Traws Pharma, Inc. (the “Company”) will be held virtually, via live webcast at www.virtualshareholdermeeting.com/TRAW2024SM on September 16, 2024 at 9:00 a.m. Eastern Time. The purpose of the Special Meeting is the following:
1.
To approve, in accordance with Nasdaq Listing Rule 5635(a), the issuance of shares of the Company’s common stock, par value $0.01 per share (“Common Stock”), upon conversion of the Company’s Series C Non-Voting Convertible Preferred Stock, par value $0.01 per share (“Series C Preferred Stock”) (the “Conversion Proposal” or “Proposal No. 1”);
2.
To approve an amendment to our Tenth Amended and Restated Certificate of Incorporation, as amended (“Certificate of Incorporation”) to increase our authorized shares of Common Stock from 125,000,000 to 250,000,000 (the “Authorized Share Increase Proposal” or “Proposal No. 2”);
3.
To approve an amendment to our Certificate of Incorporation to combine outstanding shares of our Common Stock into a lesser number of outstanding shares, or a “Reverse Stock Split,” by a ratio of not less than one-for-fifteen and not more than one-for-twenty-five, with the exact ratio to be set within this range by our Board of Directors in its sole discretion (the “Reverse Stock Split Proposal” or “Proposal No. 3”); and
4.
To approve the adjournment or postponement of the Special Meeting, if necessary, to continue to solicit votes for Proposals Nos. 1, 2, and/or 3 (the “Adjournment Proposal” or “Proposal No. 4”).
Only Company stockholders of record at the close of business on August 8, 2024 will be entitled to vote at the Special Meeting and any adjournment or postponement thereof.
Your vote is important. Whether or not you are able to attend the Special Meeting, it is important that your shares be represented. Please carefully review the enclosed Proxy Statement and then cast your vote. It is important that you retain a copy of the control number found on the proxy card, voting instruction form or Notice, as such number will be required in order for stockholders to gain access to the virtual meeting. To ensure that your vote is recorded promptly, please vote as soon as possible, even if you plan to virtually attend the Special Meeting, by submitting your proxy via the Internet at the address listed on the proxy card or by signing, dating and returning the proxy card.
For questions regarding your stock ownership, if you hold shares in “street name” through a broker, you should contact your broker or, if you are a registered holder, you should contact our transfer agent, EQ Shareowner Services, by email through its website at www.shareownweronline.com or by phone at 1-800-401-1957. If you have any questions about submitting your proxy or require assistance, please contact our proxy solicitor, Innisfree MA Incorporated (“Innisfree”) toll-free at (877) 456-3507 or collect at (212) 750-5833. Innisfree’s address is 501 Madison Avenue, 20th floor, New York, New York 10022.
Thank you for your ongoing support and continued interest in Traws Pharma, Inc.
By order of the Board of Directors,
/s/ Werner Cautreels
Werner Cautreels
Chief Executive Officer
Chief Executive Officer
Newtown, PA
August 8, 2024
August 8, 2024
YOUR VOTE IS IMPORTANT
WE CURRENTLY PLAN TO HOLD THE SPECIAL MEETING VIA LIVE WEBCAST. WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, WE ENCOURAGE YOU TO VOTE AND SUBMIT YOUR PROXY BY INTERNET, TELEPHONE OR BY MAIL. FOR ADDITIONAL INSTRUCTIONS ON VOTING BY TELEPHONE OR THE INTERNET, PLEASE REFER TO YOUR PROXY CARD.
TO VOTE AND SUBMIT YOUR PROXY BY MAIL, PLEASE COMPLETE, SIGN AND DATE THE ENCLOSED PROXY CARD AND RETURN IT IN THE ENCLOSED ENVELOPE. IF YOU ATTEND THE SPECIAL MEETING, YOU MAY REVOKE YOUR PROXY AND VOTE IN PERSON. IF YOU HOLD YOUR SHARES THROUGH AN ACCOUNT WITH A BROKERAGE FIRM, BANK OR OTHER NOMINEE, PLEASE FOLLOW THE INSTRUCTIONS YOU RECEIVE FROM YOUR ACCOUNT MANAGER TO VOTE YOUR SHARES.
IT IS IMPORTANT THAT YOU RETAIN A COPY OF THE CONTROL NUMBER FOUND ON THE PROXY CARD, VOTING INSTRUCTION FORM OR NOTICE, AS SUCH NUMBER WILL BE REQUIRED IN ORDER FOR STOCKHOLDERS TO GAIN ACCESS TO THE VIRTUAL MEETING.
TABLE OF CONTENTS
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i
Traws Pharma, Inc.
Traws Pharma, INC.
12 Penns Trail
Newtown, PA 18940
(267) 759-3680
12 Penns Trail
Newtown, PA 18940
(267) 759-3680
PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
To Be Held on September 16, 2024
INFORMATION CONCERNING SOLICITATION AND VOTING
This proxy statement contains information about the Special Meeting of Stockholders of Traws Pharma, Inc. (the “Special Meeting”), which will be held virtually, via live webcast at www.virtualshareholdermeeting.com/TRAW2024SM on September 16, 2024 at 9:00 a.m. Eastern Time. The board of directors of Traws Pharma, Inc. (the “Board of Directors”) is using this proxy statement to solicit proxies for use at the Special Meeting. In this proxy statement, the terms “Traws”, “Traws Pharma”, “the Company,” “we,” “us,” and “our” refer to Traws Pharma, Inc.
References to “Onconova” refer specifically to the Company prior to April 1, 2024. The mailing address of our principal executive offices is Traws Pharma, Inc., 12 Penns Trail, Newtown, PA 18940.
All properly submitted proxies will be voted in accordance with the instructions contained in those proxies. If no instructions are specified, the proxies will be voted in accordance with the recommendation of our Board of Directors with respect to each of the matters set forth in the accompanying Notice of Meeting. You may revoke your proxy at any time before it is exercised at the meeting by giving our corporate secretary written notice to that effect.
At the Special Meeting:
1.
Traws will ask its stockholders to approve, in accordance with Nasdaq Listing Rule 5635(a), the issuance of shares of the Company’s Common Stock, upon conversion of the Company’s Series C Preferred Stock issued in April 2024;
2.
Traws will ask its stockholders to approve an amendment to our Certificate of Incorporation to increase our authorized shares of Common Stock from 125,000,000 to 250,000,000;
3.
Traws will ask its stockholders to approve an amendment to our Certificate of Incorporation to combine outstanding shares of our Common Stock into a lesser number of outstanding shares, or a “Reverse Stock Split” by a ratio of not less than one-for-fifteen and not more than one-for-twenty-five, with the exact ratio to be set within this range by our Board of Directors in its sole discretion; and
4.
Traws will ask its stockholders to approve the adjournment or postponement of the Special Meeting, if necessary, to continue to solicit votes for Proposals Nos. 1, 2 and/or 3.
After careful consideration, the Board of Directors has approved the proposals referred to above, and has determined that they are advisable, fair and in the best interests of Traws’ stockholders. Accordingly, the Board of Directors recommends that stockholders vote “FOR” each of the proposals set forth above.
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Your vote is important. Whether or not you expect to virtually attend the Special Meeting, please review this Proxy Statement and vote by Internet or telephone following the instructions on the accompanying proxy card, or sign, date and promptly return the proxy card in the enclosed postage paid envelope to ensure that your shares will be represented and voted at the Special Meeting. If you hold your shares in “street name” through a broker, you should follow the procedures provided by your broker. This proxy statement is dated August 8, 2024 and is first being mailed to stockholders on or about August 8, 2024.
2
OVERVIEW
QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING
The following section provides answers to frequently asked questions about the Special Meeting. This section, however, only provides summary information. These questions and answers may not address all issues that may be important to you as a stockholder. You should carefully read this entire proxy statement, including each of the annexes.
When are this proxy statement and the accompanying materials scheduled to be sent to stockholders?
On or about August 8, 2024, we will begin mailing our proxy materials, including the Notice of the Special Meeting, this proxy statement and the accompanying proxy card or, for shares held in street name (i.e., held for your account by a broker or other nominee), a voting instruction form.
When and where will the Special Meeting take place?
We will be hosting the Special Meeting via live webcast only. The Special Meeting will be held virtually, via live webcast at www.virtualshareholdermeeting.com/TRAW2024SM on September 16, 2024 at 9:00 a.m. Eastern Time. Regardless of whether you are the “record holder” of your shares or your shares are held in street name, if you held your shares as of the close of business on August 8, 2024, you are welcome to attend the meeting. Stockholders may vote and submit questions while attending the Special Meeting online. The webcast will open 15 minutes before the start of the Special Meeting. In order to enter the Special Meeting, you will need the control number, which is included in the Notice or on your proxy card if you are a stockholder of record of shares of Common Stock, or included with your voting instruction card and voting instructions received from your broker, bank, or other agent if you hold shares of Common Stock in a “street name.” Instructions on how to attend and participate online are also available at www.virtualshareholdermeeting.com/TRAW2024SM. Information on how to vote online at the virtual special meeting is discussed below.
Who is soliciting my vote?
Our Board of Directors is soliciting your vote for the Special Meeting.
When is the record date for the Special Meeting?
The record date for determination of stockholders entitled to vote at the Special Meeting is the close of business on August 8, 2024 (the “record date”).
How many votes can be cast by all stockholders?
There were 25,311,493 shares of our Common Stock outstanding on the record date, all of which are entitled to vote with respect to all matters to be acted upon at the Special Meeting. Each outstanding share of our Common Stock is entitled to one vote on each matter considered at the Special Meeting. On the record date, there were 12,472.76870 shares of Series C Preferred Stock issued and outstanding; the Series C Preferred Stock is not entitled to vote on the matters being considered at the Special Meeting.
Of the shares of our Common Stock issued and outstanding and entitled to vote, 3,549,538 shares of Common Stock were issued pursuant to the
Merger Agreement
(as described in “
Proposal No. 1 — General — Traws Merger Agreement
” below) and are not entitled to vote on Proposal No. 1 for purposes of the listing rules of the Nasdaq Stock Market. We anticipate that 3,549,538 shares of Common Stock will be voted in favor of Proposal No. 1 for purposes of adopting the proposal under Delaware law. However, to comply with Nasdaq rules, we will instruct the inspector of elections to conduct a separate tabulation that subtracts 3,549,538 shares from the total number of shares voted in favor of Proposal No. 1 to determine whether that proposal has been adopted in accordance with applicable Nasdaq rules.
How do I vote?
If you are a “stockholder of record,” meaning you have a stock certificate or hold your shares in an account with our transfer agent, we are sending these proxy materials directly to you. As the stockholder of
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record, you have the right to direct the voting of your shares by voting over the Internet, by telephone, by returning your proxy or by voting during the Special Meeting.
Over the Internet
:To vote over the Internet, please follow the instructions on the enclosed proxy card for submitting your proxy electronically. If you vote over the Internet, you do not need to vote your proxy by telephone or by mail. You must specify how you want your shares voted or your Internet vote cannot be completed, and you will receive an error message. You must submit your Internet proxy before the polls close on September 15, 2024, for your proxy to be valid and your vote to count.
By Telephone
:To vote by telephone, please follow the instructions provided on the proxy card. If you vote by telephone, you do not need to vote your proxy over the Internet or by mail. You must specify how you want your shares voted and confirm your vote at the end of the call or your telephone vote cannot be completed. You must submit your telephonic proxy before the polls close on September 15, 2024, the date of the Special Meeting, for your proxy to be valid and your vote to count.
By Mail
:To vote by mail, you must sign and date the proxy card and then mail the proxy card in accordance with the instructions on the proxy card. If you vote by mail, you do not need to vote your proxy over the Internet or by telephone. Your proxy card must be received not later than the time the polls close on September 15, 2024 for your proxy to be valid and your vote to count. If you return your proxy card but do not specify how you want your shares voted on any particular matter, they will be voted in accordance with the recommendations of our board of directors.
At the Special Meeting
:To vote during the Special Meeting, attend the Special Meeting by visiting www.virtualshareholdermeeting.com/TRAW2024SM, where stockholders may vote and submit questions during the Special Meeting. The meeting starts at 9:00 a.m. Eastern Time. Please have your 16-Digit Control Number to join the Special Meeting. Instructions on how to attend and vote online during the Special Meeting, including how to demonstrate your stock ownership, are posted at www.virtualshareholdermeeting.com/TRAW2024SM.
If your shares are held in
“street name,”
meaning your shares are held in an account at a bank or at a brokerage firm or other nominee holder, these proxy materials are being forwarded to you by your bank, broker or other nominee who is considered the stockholder of record for purposes of voting at the Special Meeting. As the beneficial owner, you have the right to direct your bank, broker or other nominee on how to vote your shares and to participate in the Special Meeting. You should receive a proxy card and voting instructions with these proxy materials from that organization rather than from us. You will receive instructions from your bank, broker or other nominee explaining how you can vote your shares, whether they permit Internet or telephone voting, and what the deadlines for voting are. Follow the instructions from your bank, broker or other nominee included with these proxy materials, or contact your bank, broker or other nominee to request a proxy form. We encourage you to provide voting instructions to your bank, broker or other nominee by giving your proxy to them. This ensures that your shares will be voted at the Special Meeting according to your instructions.
How do I change my vote?
If you are a stockholder of record, you may revoke your proxy and change your vote at any time before the vote is taken at the Special Meeting. To do so, you must do one of the following:
1.
Vote over the Internet or by telephone as instructed above. Only your latest Internet or telephone vote is counted.
2.
Sign, date and return a new proxy card. Only your latest dated and timely received proxy card will be counted.
3.
Attend the Special Meeting and vote as instructed above. Attending the Special Meeting will not alone revoke your Internet or telephone vote or proxy card submitted by mail, as the case may be.
If your shares are held in “street name,” you may submit new voting instructions by contacting your broker or other nominee. If you hold your shares in street name and wish to vote at the meeting, you will need to obtain a “legal proxy” from your broker or other nominee in order to vote at the Special Meeting.
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How is a quorum reached?
Our Amended and Restated By-laws (the “Bylaws”) provide that 33 1/3% of the shares entitled to vote, present at the Special Meeting or represented by proxy, will constitute a quorum for the transaction of business at the Special Meeting.
Under the General Corporation Law of the State of Delaware (“DGCL”), shares that are voted “abstain” or “withheld” and “broker non-votes” (if any) are counted as present for purposes of determining whether a quorum is present at the Special Meeting. If a quorum is not present, the meeting may be adjourned until a quorum is obtained.
What proposals will be voted on at the Special Meeting?
There are four proposals scheduled to be voted on at the meeting:
•
Proposal No. 1
— Approval of the issuance of shares of Common Stock upon conversion of the Series C Preferred Stock.
•
Proposal No. 2
— Approval of an amendment to our Certificate of Incorporation to increase our authorized number of shares of Common Stock from 125,000,000 to 250,000,000.
•
Proposal No. 3
— Approval of an amendment to our Certificate of Incorporation to effect a Reverse Stock Split by a ratio of not less than one-for-fifteen and not more than one-for-twenty-five, with the exact ratio to be set within this range by our Board of Directors in its sole discretion.
•
Proposal No. 4 —
Approval, if necessary, of the adjournment or postponement of the Special Meeting, to continue to solicit votes for Proposals No. 1, No. 2 and/or No. 3.
What vote is required to approve each item at the Special Meeting?
You may vote “for,” “against” or “abstain” on each of the proposals being placed before our stockholders. Under our Bylaws, any proposal other than an election of directors is decided by a majority of the votes properly cast for and against such proposal, except as otherwise provided by applicable law, the rules of any stock exchange upon which our securities are listed, or by our Certificate of Incorporation or Bylaws.
•
Proposal No. 1
— The affirmative vote of the holders of shares of Common Stock representing a majority of the votes cast on the matter is required for the approval of the Conversion Proposal, subject to the separate tabulation of votes described in “
How many votes can be cast by all stockholders?
” set forth above. Broker non-votes (if any) and abstentions will not be counted as votes cast on the matter and will have no effect on the outcome of this proposal.
•
Proposal No. 2 —
The affirmative vote of the holders of shares of Common Stock representing a majority of the votes cast on the matter is required for the approval of the Authorized Share Increase Proposal. Broker non-votes (if any) and abstentions will not be counted as votes cast on the matter and will have no effect on the outcome of this proposal.
•
Proposal No. 3 —
The affirmative vote of the holders of shares of Common Stock representing a majority of the votes cast on the matter is required for the approval of the Reverse Stock Split Proposal. Broker non-votes (if any) and abstentions will not be counted as votes cast on the matter and will have no effect on the outcome of this proposal.
•
Proposal No. 4 —
If a quorum is present at the Special Meeting, the affirmative vote of the holders of shares of Common Stock representing a majority of the votes cast on the matter is required for the approval of the Adjournment Proposal. If a quorum is not present at the Special Meeting, the affirmative vote of the holders of a majority of the shares of Common Stock present at the Special Meeting or represented by proxy is required for the approval of the Adjournment Proposal.
Do I Have Appraisal Rights?
Our stockholders are not entitled to dissenters’ or appraisal rights under the DGCL with respect to any of the proposals being voted on.
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How is the vote counted?
If you are a stockholder of record, you have the right to direct the voting of your shares by voting over the Internet, by telephone, by returning your proxy or by voting during the Special Meeting. In contrast, if you are a beneficial owner and your shares are held in an account at a bank or at a brokerage firm or other nominee hold, you must tell your bank, broker or other nominee how you would like your shares to be voted, which you can do by following the instructions provided to you by the bank, broker or other nominee.
“Broker non-votes” occur when a beneficial owner of shares held in “street name” does not give instructions to the bank, broker or other nominee holding the shares as to how to vote. If your shares are held in “street name” and you do not give voting instructions to your broker, your broker or nominee may vote the shares with respect to matters that are considered to be “discretionary” (if any), but may not vote the shares with respect to “non-discretionary” matters. Where a broker does not have discretion to vote on a given proposal, the unvoted shares are considered “broker non-votes.” For each of the proposals, broker non-votes will not be counted as votes cast on the matter and will have no effect on the outcome of the proposal. Similarly, abstentions will not be counted as votes cast on the matter and will have no effect on the outcome of the proposal.
Who will count the vote?
The votes will be counted, tabulated and certified by an Inspector of Elections appointed by the Board of Directors.
How does the Board of Directors recommend that I vote on the proposals?
Our Board of Directors recommends that you vote:
•
Proposal No. 1
—
FOR
the approval of the Conversion Proposal.
•
Proposal No. 2 — FOR
the approval of the Authorized Share Increase Proposal.
•
Proposal No. 3 — FOR
the approval of the Reverse Stock Split Proposal.
•
Proposal No. 4
—
FOR
the approval of the Adjournment Proposal.
Who pays the cost for soliciting proxies?
We will pay the expenses of soliciting proxies. Following the original mailing of the soliciting materials, we and our agents, including directors, officers and other employees, without additional compensation, may solicit proxies by mail, electronic mail, telephone, facsimile, by other similar means, or in person. Following the original mailing of the soliciting materials, we will request brokers, custodians, nominees and other record holders to forward copies of the soliciting materials to persons for whom they hold shares and to request authority for the exercise of proxies. In such cases, we, upon the request of the record holders, will reimburse such holders for their reasonable expenses. If you choose to access the proxy materials and/or vote through the Internet, you are responsible for any Internet access charges you may incur. In addition, we have retained Innisfree at a fee $25,000, plus certain out-of-pocket expenses, to act as our proxy solicitor in connection with the proposals to be acted upon at the Special Meeting. Pursuant to an agreement, Innisfree has agreed to solicit proxies from our stockholders on our behalf in connection with the Special Meeting. If you have any questions about submitting your proxy or require assistance, please contact Innisfree toll-free at (877) 456-3507 or collect at (212) 750-5833. Innisfree’s address is 501 Madison Avenue, 20th floor, New York, New York 10022.
How can I know the voting results?
We plan to announce preliminary voting results at the Special Meeting and will report the final results in a Current Report on Form 8-K to be filed with the Securities Exchange Commission (the “SEC”) within four business days following the Special Meeting.
Who can provide me with additional information and help answer my questions?
If you would like additional copies, without charge, of this proxy statement or if you have questions about the proposals being considered at the Special Meeting, including the procedures for voting your
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shares, you should contact Innisfree toll-free at (877) 456-3507 or collect at (212) 750-5833. Innisfree’s address is 501 Madison Avenue, 20th floor, New York, New York 10022.
Implications of Being a “Smaller Reporting Company”
We are a “smaller reporting company” as defined under Rule 405 of the Securities Act of 1933, as amended (the “Securities Act”), and, as such, have elected to comply with certain reduced public company reporting requirements. These reduced reporting requirements include reduced disclosure about our executive compensation arrangements.
CAUTIONARY INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement, and the documents incorporated by reference into this proxy statement, contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including, but not limited to, statements regarding stockholder approval of the conversion rights of the Series C Preferred Stock (as defined herein), any future payouts under the CVR (as defined herein), our ability to achieve the expected benefits or opportunities and related timing with respect to our merger with Trawsfynydd Therapeutics, Inc. (“Trawsfynydd”) or to monetize any of our legacy assets, our future results of operations and financial position, business strategy, the length of time that we believe our existing cash resources will fund our operations, our market size, our potential growth opportunities, our preclinical and future clinical development activities, the efficacy and safety profile of our product candidates, the potential therapeutic benefits and economic value of our product candidates, the timing and results of preclinical studies and clinical trials, the expected impact of macroeconomic conditions, including inflation, increasing interest rates and volatile market conditions, current or potential bank failures, as well as global events, including the ongoing military conflict in Ukraine and geopolitical tensions in China on our operations, and the receipt and timing of potential regulatory designations, approvals and commercialization of product candidates. The use of words such as, but not limited to, “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “will,” or “would” and similar words expressions are intended to identify forward-looking statements. Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based on our current beliefs, expectations and assumptions regarding the future of our business, future plans and strategies, our clinical results and other future conditions. New risks and uncertainties may emerge from time to time, and it is not possible to predict all risks and uncertainties. No representations or warranties (expressed or implied) are made about the accuracy of any such forward-looking statements. We may not actually achieve the forecasts disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Such forward-looking statements are subject to a number of material risks and uncertainties including but not limited to those set forth under the caption “Risk Factors” in this proxy statement and in our most recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q filed with the SEC, as well as discussions of potential risks, uncertainties, and other important factors in our subsequent filings with the SEC. Any forward-looking statement speaks only as of the date on which it was made. Neither we, nor our affiliates, advisors or representatives, undertake any obligation to publicly update or revise any forward-looking statement, whether as result of new information, future events or otherwise, except as required by law. These forward-looking statements should not be relied upon as representing our views as of any date subsequent to the date hereof.
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RISK FACTOR SUMMARY
The following summarizes the principal factors that make an investment in the Company speculative or risky, all of which are more fully described in the Risk Factors section below. This summary should be read in conjunction with the Risk Factors section and should not be relied upon as an exhaustive summary of the material risks facing our business. The occurrence of any of these risks could harm our business, financial condition, results of operations and/or growth prospects or cause our actual results to differ materially from those contained in forward-looking statements we have made in this report and those we may make from time to time. You should consider all of the risk factors described in our public filings when evaluating our business. You should understand that it is not possible to predict or identify all such risks. Consequently, you should not consider the following to be a complete discussion of all potential risks or uncertainties.
Summary of Principal Risk Factors
•
Our product development efforts may not be successful.
•
Our future success is dependent primarily on the regulatory approval and commercialization of our product candidates.
•
The results of preclinical testing or earlier clinical studies are not necessarily predictive of future results. Any product candidate we advance into clinical trials may not have favorable results in later-stage clinical trials or receive regulatory approval.
•
Clinical drug development involves a lengthy and expensive process with an uncertain outcome.
•
Our product candidates may cause undesirable side effects or have other properties that could delay or prevent their regulatory approval, limit the commercial profile of an approved label, or result in significant negative consequences following any marketing approval.
•
Failure to follow the FDA’s applicable regulatory requirements may result in enforcement action.
•
Changes in product candidate manufacturing or formulation may result in additional costs or delay.
•
Healthcare legislation, including potentially unfavorable pricing regulations or other healthcare reform initiatives, may increase the difficulty and cost for us to obtain marketing approval of and commercialize our product candidates and affect the prices we may obtain.
•
Our employees may engage in misconduct or other improper activities, including noncompliance with regulatory standards and requirements, which could cause significant liability for us and harm our reputation.
•
We face substantial competition, which may result in others discovering, developing or commercializing products before or more successfully than we do.
•
If we breach our license agreements or fail to negotiate new agreements pertaining to our product candidates, we could lose the ability to continue the development and potential commercialization of these product candidates.
•
Product liability lawsuits against us could cause us to incur substantial liabilities and to limit commercialization of any products that we may develop.
•
We may engage in future business combinations or collaborations that could disrupt our business, cause dilution to our stockholders and harm our financial condition and operating results.
•
We depend on information technology and computer systems to operate our business; our business and operations would suffer in the event of any failures or interruptions of our computer system, such as a data breach or cybersecurity incident.
•
Climate change, environmental, social and governance and sustainability initiatives may result in regulatory or structural industry changes that could require significant operational changes and expenditures, reduce demand for the Company’s products and adversely affect our business, financial condition, and results of operations.
•
Business disruptions could seriously harm our future revenues and financial condition and increase our costs and expenses.
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•
Our future success depends on our ability to retain our executive officers and to attract, retain and motivate qualified personnel.
•
The recent COVID-19 pandemic, or the widespread outbreak of any other communicable disease, could adversely impact our business, including our clinical trials, drug manufacturing and nonclinical activities.
•
Our recurring operating losses, negative cash flows from operations, and accumulated deficit raise substantial doubt about our ability to continue as a going concern absent obtaining adequate new financings.
•
The report of our independent registered accounting firm on our audited financial statements for the fiscal year ended December 31, 2023 contains an explanatory paragraph relating to our ability to continue as a going concern.
•
We need to obtain additional funding to continue as a going concern; if we are unable to meet our needs for additional funding in the future, we will be required to limit, scale back or cease operations.
•
We have incurred significant losses since our inception and anticipate that we will continue to incur losses in the future.
•
We currently have no source of product revenue and may never become profitable.
•
We need to obtain substantial additional funding to further develop our products in future clinical trials and through regulatory processes; if we are unable to meet our needs for additional funding in the future, we will be required to limit, scale back or cease operations.
•
Raising additional capital may cause dilution to our existing stockholders, restrict our operations or require us to relinquish rights to our technologies or product candidates.
•
Adverse developments affecting financial institutions, companies in the financial services industry or the financial services industry generally, such as actual events or concerns involving liquidity, defaults, or non-performance could adversely affect our operations and liquidity.
•
Changes in United States and China relations, as well as relations with other countries, and/or regulations may adversely impact our business, our operating results, our ability to raise capital and the market price of our shares.
•
We rely on third parties to conduct our preclinical and clinical trials. If these third parties do not successfully carry out their contractual duties or meet expected deadlines, we may not be able to obtain regulatory approval for or commercialize our product candidates.
•
If we lose our relationships with CROs, our drug development efforts could be delayed.
•
We have limited experience manufacturing our product candidates on a large clinical or commercial scale and have no manufacturing facility. We are dependent on third-party manufacturers for the manufacture of our product candidates for clinical trials as well as on third parties for our supply chain, and if we experience problems with any third parties, the manufacturing of our product candidates or products could be delayed.
•
We could be required to incur significant expenses to perfect our intellectual property rights, and our intellectual property rights may be inadequate to protect our competitive position. If we are unable to protect our intellectual property rights, our competitive position could be harmed.
•
We may become involved in lawsuits to protect or enforce our intellectual property, which could be expensive, time consuming and unsuccessful.
•
Third parties may initiate legal proceedings alleging that we are infringing their intellectual property rights, the outcome of which would be uncertain and could harm our business.
•
We may be subject to claims that our employees have wrongfully used or disclosed alleged trade secrets of their former employers.
9
•
We may not comply with the Nasdaq continued listing requirements. If we are unable to comply with the continued listing requirements of the Nasdaq Capital Market, our Common Stock could be delisted, which could affect our Common Stock’s market price and liquidity and reduce our ability to raise capital.
•
Our share price and the liquidity of our stock may be volatile and result in substantial losses to our stockholders.
•
We may be subject to securities litigation, which is expensive and could divert management attention.
•
Some provisions of our charter documents and Delaware law may have anti-takeover effects that could discourage an acquisition of us by others, even if an acquisition would be beneficial to our stockholders and may prevent attempts by our stockholders to replace or remove our current management.
•
There is no guarantee that the Merger (as defined below) will increase stockholder value.
•
Pursuant to the terms of the Merger Agreement (as defined below), we are required to recommend that our stockholders approve the conversion of all outstanding shares of our Series C Preferred Stock into shares of our Common Stock. We cannot guarantee that our stockholders will approve this matter, and if they fail to do so we may be required to settle such shares in cash and our operations may be materially harmed.
•
Stockholders may not realize a benefit from the Merger commensurate with the ownership dilution they will experience in connection with the Merger, including the issuance of our Common Stock upon conversion of all outstanding shares of Series C Preferred Stock to be issued in the Merger and Financing (as defined below).
•
The failure to successfully integrate the businesses of Onconova and Trawsfynydd in the expected timeframe would adversely affect Traws Pharma’s future results.
•
The termination of employees undertaken to extend our cash runway and focus more of our capital resources on our prioritized research and development programs might not achieve our intended outcome.
•
Our future results will suffer if we do not effectively manage our expanded operations.
•
We expect to incur substantial expenses related to the integration of Trawsfynydd.
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DESCRIPTION OF THE TRANSACTIONS
Overview
On April 1, 2024, we acquired Trawsfynydd Therapeutics, Inc., a Delaware corporation (“Trawsfynydd”), in accordance with the terms of an Agreement and Plan of Merger, dated April 1, 2024 (the “Merger Agreement”), by and among the Company, Traws Merger Sub I, Inc., a Delaware corporation (“First Merger Sub”), Traws Merger Sub II, LLC, a Delaware limited liability company (“Second Merger Sub”), and Trawsfynydd. Pursuant to the Merger Agreement, First Merger Sub merged with and into Trawsfynydd, pursuant to which Trawsfynydd was the surviving corporation (the “First Merger”). Immediately following the First Merger, Trawsfynydd merged with and into Second Merger Sub, pursuant to which Second Merger Sub was the surviving entity and a wholly owned subsidiary of the Company (the “Second Merger” and together with the First Merger, the “Merger”). The Merger is intended to qualify as a tax-free reorganization for U.S. federal income tax purposes.
Acquisition of Trawsfynydd
Under the terms of the Merger Agreement, upon the consummation of the Merger on April 1, 2024 (the “Closing”), in exchange for the outstanding shares of capital stock of Trawsfynydd immediately prior to the effective time of the First Merger, the Company issued to the stockholders of Trawsfynydd an aggregate of (A) 3,549,538 shares of Common Stock of the Company, par value $0.01 per share (the “Common Stock”) and (B) 10,359.0916 shares of Series C Preferred Stock (as defined and described below). Each share of Series C Preferred Stock is convertible into 10,000 shares of Common Stock, subject to certain conditions described below. In addition, the Company assumed all Trawsfynydd stock options immediately outstanding prior to the First Merger, each becoming an option to purchase Common Stock subject to adjustment pursuant to the terms of the Merger Agreement (the “Assumed Options”). No portion of the Assumed Options will be exercisable unless and until the Meeting Proposals (as defined below) are approved by the Company’s stockholders. Once exercisable, the Assumed Options will be exercisable for an aggregate of 454,000 shares of Common Stock. Following the effective time of the Second Merger, the Company changed its name to “Traws Pharma, Inc.,” effective April 2, 2024.
The rights of the Series C Preferred Stock are set forth in a Certificate of Designation of Preferences, Rights and Limitations that we filed with the Secretary of State of the State of Delaware (the “Certificate of Designation”). Please see “Description of the Series C Preferred Stock” under Proposal No. 1 for a complete description of the Certificate of Designation and the rights of the Series C Preferred Stock.
The Board of Directors of the Company (the “Board”) approved the Merger Agreement and the related transactions, and the consummation of the Merger was not subject to approval of Company stockholders.
In connection with the execution of the Merger Agreement, the Company and Trawsfynydd entered into a stockholder support agreement (the “Support Agreement”) with Steven M. Fruchtman. The Support Agreement provides that, among other things, Dr. Fruchtman has agreed to vote or cause to be voted all of the shares of Common Stock owned by him in favor of the Conversion Proposal.
Concurrently and in connection with the execution of the Merger Agreement, certain Trawsfynydd stockholders as of immediately prior to the Merger, and certain of our directors and officers as of immediately prior to the Merger entered into lock-up agreements with us and Trawsfynydd, pursuant to which each such stockholder will be subject to a 180-day lockup on the sale or transfer of shares of Common Stock held by each such stockholder at the closing of the Merger, including those shares received by Trawsfynydd stockholders in the Merger.
In connection with the Merger, a non-transferrable contingent value right (a “CVR”) was distributed to our stockholders of record as of the close of business on April 15, 2024. Holders of the CVR will be entitled to receive certain stock and/or cash payments from proceeds received by us, if any, related to the disposition or monetization of our legacy assets.
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Tungsten Advisors (through its Broker-Dealer, Finalis Securities LLC) (“Tungsten”) acted as financial advisor to the Company in connection with the Merger. As partial compensation for services rendered by Tungsten, the Company issued to Tungsten and its affiliates and designees an aggregate of 168,601 shares of Common Stock and 535.46510 shares of Series C Preferred Stock.
Following the Closing of the Merger and the concurrent Financing (described below), the Company had 25,301,009 shares of Common Stock issued and outstanding.
Concurrent Financing Transaction
On April 1, 2024, the Company entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with TPAV, LLC, an affiliate of Torrey Pines, and OrbiMed Private Investments VIII, LP, an affiliate of OrbiMed Advisors (collectively, the “Investors”). Pursuant to the Securities Purchase Agreement, the Company agreed to issue and sell an aggregate of (i) 496,935 shares of Common Stock and (ii) 1,578.2120 shares of Series C Preferred Stock (collectively, the “PIPE Securities”) for an aggregate purchase price of approximately $14 million (collectively with the $1.0 million of Pre-Merger Financing described below, the “Financing” and, together with the Merger, the “Transactions”). Each share of Series C Preferred Stock is convertible into 10,000 shares of Common Stock, as described below. The rights of the Series C Preferred Stock are set forth in the Certificate of Designation. Please see “Description of the Series C Preferred Stock” under Proposal No. 1 for a complete description of the Certificate of Designation and the rights of the Series C Preferred Stock.
The closing of the Financing occurred concurrently with the closing of the Merger on April 1, 2024 (the “Financing Closing Date”). Concurrent with our entry into the Securities Purchase Agreement on April 1, 2024, we entered into a Registration Rights Agreement (the “New RRA”) with the Investors. Pursuant to the New RRA, we are obligated to prepare and file a resale registration statement with the SEC within 90 calendar days following the Financing Closing Date. The New RRA also contains customary terms, including an obligation to indemnify the Investors and certain affiliates from certain liabilities relating to any misstatements or omissions in the resale registration statement.
In addition, during the month prior to the Merger, affiliates of the Investors who were stockholders of Trawsfynydd, contributed $1.0 million of financing to Trawsfynydd (the “Pre-Merger Financing”) so that, effective as of the Merger, Traws had raised an aggregate of $15 million of Financing.
Following the transaction, the Company will primarily pursue the development of four compounds that are all at the clinical stage. Two compounds represent the assets that were acquired from Trawsfynydd in the Merger: tivoxavir marboxil (TRX100) and ratutrelvir (TRX01); and two compounds are legacy assets from the Company: narazaciclib and rigosertib.
The Company expects to use the proceeds from the Financing, along with the Company’s existing cash before the Transactions, as follows:
•
Approximately $6 million for the completion of the Phase 1 clinical trial in Australia of TRX100;
•
Approximately $6 million for the completion of the Phase 1 clinical trial in Australia of TRX01;
•
Approximately $3 million for two investigator-initiated studies in the United States of narazaciclib; and
•
Approximately $1 million for the ongoing development of rigosertib.
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THE MERGER AGREEMENT
The following summary describes certain material provisions of the Merger Agreement. This summary is not complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as
Exhibit 2.1
to the Current Report on Form 8-K filed by the Company on April 4, 2024, which is incorporated herein by reference. We encourage you to read the Merger Agreement carefully in its entirety because this summary may not contain all the information about the Merger Agreement that is important to you. The rights and obligations of the parties are governed by the express terms of the Merger Agreement and not by this summary or any other information contained in this proxy statement.
Explanatory Note Regarding the Merger Agreement
The Merger Agreement and this summary of its terms are included to provide you with information regarding its terms. Factual disclosures about us contained in this proxy statement or in our public reports filed with the SEC may supplement, update or modify the factual disclosures about us contained in the Merger Agreement. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of the Merger Agreement, were solely for the benefit of the parties to the Merger Agreement and may be subject to qualifications and limitations agreed upon by the parties thereto. In particular, in your review of the representations and warranties contained in the Merger Agreement and described in this summary, it is important to bear in mind that the representations and warranties were negotiated with the principal purpose of providing disclosure to the parties to the Merger Agreement. The representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC and in some cases were qualified by matters contained in the disclosure schedule that we delivered to Trawsfynydd and the disclosure schedule that Trawsfynydd delivered to us, in each case in connection with the Merger Agreement, which disclosures were not expressly reflected in the text of the Merger Agreement. The Company stockholders are not third-party beneficiaries under the Merger Agreement. Moreover, information concerning the subject matter of the representations and warranties, which do not purport to be accurate as of the date of this proxy statement, may have changed since April 1, 2024 and subsequent developments or new information qualifying a representation or warranty may have been included in this proxy statement or in the respective public filings made by the Company with the SEC. Accordingly, Company stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein.
The Merger
On April 1, 2024, the Company and Trawsfynydd consummated the Merger in accordance with the DGCL and subject to the terms and conditions set forth in the Merger Agreement. The Merger Agreement provided for the consummation, simultaneously with execution thereof, of the First Merger, immediately followed by the consummation of the Second Merger. As a result of the Merger, the Surviving Entity continues to exist as a wholly owned subsidiary of the Company and under the name Trawsfynydd Therapeutics, LLC.
Closing and Effectiveness of the Merger
The execution of the Merger Agreement took place on April 1, 2024, New York time. Shortly after the execution of the Merger Agreement and upon the satisfaction of all of the conditions set forth in the Merger Agreement, as described in “
The Merger Agreement-Conditions Precedent to the Merger
,” the Company filed a certificate of merger with respect to the First Merger (the “First Certificate of Merger”) with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”) in accordance with the DGCL. Immediately following the filing of the First Certificate of Merger, the Company filed a second certificate of merger with respect to the Second Merger (the “Second Certificate of Merger”) with the Delaware Secretary of State in accordance with the DGCL. The First Merger became effective at the time of the filing of the First Certificate of Merger with the Delaware Secretary of State (the “First Effective Time”) and the Second Merger became effective at the time of the filing of the Second Certificate of Merger with the Delaware Secretary of State (the “Second Effective Time”).
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Certificate of Designation; Certificate of Incorporation and Bylaws; Directors and Officers
Prior to the First Effective Time, the Company filed the Certificate of Designation with the Delaware Secretary of State, as required pursuant to the Merger Agreement.
In accordance with the Merger Agreement, at the First Effective Time:
•
the certificate of incorporation of Trawsfynydd, as the surviving corporation in the First Merger, was amended and restated in its entirety, until thereafter amended as provided by the DGCL and such certificate of incorporation;
•
the bylaws of Trawsfynydd were amended and restated in their entirety to read identically to the bylaws of Trawsfynydd as in effect immediately prior to the First Effective Time, until thereafter amended as provided by the DGCL and such bylaws; and
•
the directors and officers of Trawsfynydd, in accordance with the certificate of incorporation and bylaws of Trawsfynydd, were the same individuals who held such office immediately prior to the First Effective Time.
In accordance with the Merger Agreement, at the Second Effective Time:
•
the certificate of formation of the surviving entity in the Second Merger was made to be identical to the certificate of formation of the Second Merger Sub in effect immediately prior to the Second Effective Time, except that the certificate of formation was amended to reflect that the name of the Surviving Entity is Trawsfynydd Therapeutics, LLC; and
•
the limited liability company agreement of the surviving entity was amended and restated in its entirety to be identical to the limited liability company agreement of the Second Merger Sub as in effect immediately prior to the Second Effective Time, but reflecting the change of name of the surviving entity to Trawsfynydd Therapeutics, LLC.
Trawsfynydd Therapeutics, LLC , in accordance with its certificate of formation and limited liability company agreement, is a sole member-managed limited liability company, with its sole member being the Company, but with the Company having the discretion to appoint officers to act on the Surviving Entity’s behalf.
Immediately following the Merger, the certificate of incorporation of the Company was amended to change the corporate name of the Company to Traws Pharma, Inc.
Merger Consideration
The aggregate merger consideration (the “Merger Consideration”) that was issued and delivered by the Company to the stockholders of Trawsfynydd in connection with the Merger was based on an agreed exchange ratio (the “Exchange Ratio”) of 20.1291 shares of Common Stock for each share of Trawsfynydd common stock (each as calculated on a fully-diluted basis). The Merger Consideration was paid in shares of Common Stock and Series C Preferred Stock convertible into Common Stock. The Exchange Ratio was determined:
(a)
based on (i) the number of shares of Common Stock outstanding immediately prior to the First Effective Time on a fully diluted basis (excluding shares underlying equity awards in respect of Common Stock) and (ii) the number of shares of common stock of Trawsfynydd outstanding immediately prior to the First Effective Time on a fully diluted basis (assuming conversion of shares of preferred stock of Trawsfynydd into shares of common stock of Trawsfynydd, conversion of outstanding Simple Agreements for Future Equity into shares of common stock of Trawsfynydd, and the issuance of shares underlying options to purchase shares of Trawsfynydd common stock (“Trawsfynydd Options”)); and
(b)
by ascribing a pre-Closing valuation of $100.0 million to Trawsfynydd and a pre-Closing valuation of $17.6 million to the Company.
Such Merger Consideration consisted of (a) 3,549,538 shares of Common Stock and (b) 10,359.09160 shares of Series C Preferred Stock. Such number of shares of Common Stock was determined based on a
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limitation on the issuance of shares of Common Stock in connection with the Merger, such that the aggregate number of shares of Common Stock issued in connection with the Merger and the Financing would be equal to no more than 19.9% of the outstanding shares of Common Stock as of immediately before the First Effective Time.
Each share of Series C Preferred Stock is convertible into 10,000 shares of Common Stock, subject to and contingent upon the affirmative vote of holders of a majority of the shares of Common Stock present or represented and entitled to vote at a meeting of stockholders of the Company to approve, for purposes of the Nasdaq Stock Market Rules, the issuance of shares of Common Stock to the stockholders of the Company upon conversion of any and all shares of Series C Preferred Stock in accordance with the terms of the Certificate of Designation. The Conversion Proposal is being submitted for such purposes. Please see “
Proposal No. 1: Approval of Conversion Proposal.
”
Treatment and Conversion of Trawsfynydd Common Stock
At the First Effective Time, by virtue of the First Merger and without any further action on the part of any party:
•
the shares of Trawsfynydd common stock held as treasury stock or held or owned by Trawsfynydd or any wholly owned subsidiary of Trawsfynydd were cancelled and ceased to exist (the “Cancelled Shares”), with no consideration paid by the Company;
•
each share of Trawsfynydd capital stock outstanding immediately prior to the First Effective Time (excluding the Cancelled Shares) was automatically converted into the right to receive such number of shares of Common Stock and Series C Preferred Stock as allocated in accordance with an allocation certificate delivered to the Company by Trawsfynydd immediately prior to the First Effective Time (the “Allocation Certificate”). No fractional shares of Common Stock were issued in connection with the Merger. Any fractional shares of Common Stock that a holder of Trawsfynydd common stock was otherwise entitled to receive, including without limitation any conversion of Series C Preferred Stock into Common Stock, were aggregated with all fractional shares of Common Stock issuable to such holder) or a fraction of a share of Series C Preferred Stock issuable to such holder and any remaining fractional shares shall be rounded down to the nearest whole share; and
•
each share of common stock of First Merger Sub issued and outstanding immediately prior to the First Effective Time was converted into and exchanged for one share of common stock of Trawsfynydd (the entity that survived the First Merger).
At the Second Effective Time, by virtue of the Second Merger and without any action on the part of any party, each share of common stock of Trawsfynydd (the entity that survived the First Merger) issued and outstanding immediately prior to the Second Effective Time was cancelled and extinguished without any conversion thereof or any right to payment therefor.
Treatment of Trawsfynydd Options
At the First Effective Time, each Trawsfynydd Option that was outstanding and unexercised immediately prior to the First Effective Time under Trawsfynydd’s 2021 Stock Plan (the “Trawsfynydd Plan”), whether or not vested, was converted into and became an option to purchase Common Stock, and the Company assumed the Trawsfynydd Plan and each such Trawsfynydd Option in accordance with the terms (as in effect as of the date of the Merger Agreement) of the Trawsfynydd Plan and the terms of the stock option agreement by which such Trawsfynydd Option was evidenced (but with changes to such documents as the Company in good faith determined necessary to reflect the substitution of the Trawsfynydd Options by the Company to purchase shares of Common Stock, including such changes as described herein). All rights with respect to Trawsfynydd common stock under Trawsfynydd Options assumed by the Company were converted into rights with respect to Common Stock; provided that the Trawsfynydd Options assumed by the Company shall not be exercisable unless and until the Conversion Proposal is approved.
Accordingly, from and after the First Effective Time: (i) each Trawsfynydd Option assumed by the Company may be exercised solely for shares of Common Stock; (ii) the number of shares of Common Stock subject to each Trawsfynydd Option assumed by the Company shall be determined by multiplying
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(A) the number of shares of Trawsfynydd common stock that were subject to such Trawsfynydd Option, as in effect immediately prior to the First Effective Time, by (B) the Exchange Ratio, and rounding the resulting number down to the nearest whole number of shares of Common Stock; (iii) the per share exercise price for the Common Stock issuable upon exercise of each Trawsfynydd Option assumed by the Company shall be determined by dividing (A) the per share exercise price of Trawsfynydd common stock subject to such Trawsfynydd Option, as in effect immediately prior to the First Effective Time, by (B) the Exchange Ratio and rounding the resulting exercise price up to the nearest whole cent; and (iv) any restriction on the exercise of any Trawsfynydd Option assumed by the Company shall continue in full force and effect and the term, exercisability, vesting schedule and other provisions of such Trawsfynydd Option shall otherwise remain unchanged;
provided
, that, (I) the exercise price, the number of shares of Common Stock subject to, and the terms and conditions of exercise of each option to purchase Common Stock shall also be determined in a manner consistent with the requirements of Section 409A of the Code; and (II) the Trawsfynydd Options assumed by the Company shall not be exercisable unless and until the Conversion Proposal is approved;
provided, further
, that: (x) the Company may amend the terms of the Trawsfynydd Options and the Trawsfynydd Plan as may be necessary to reflect the Company’s substitution of the Trawsfynydd Options with options to purchase Common Stock (such as by making any change in control or similar definition relate to the Company and having any provision that provides for the adjustment of Trawsfynydd Options upon the occurrence of certain corporate events relate to corporate events that relate to the Company and/or Common Stock); and (y) the Board of Directors of the Company or a committee thereof shall succeed to the authority and responsibility of the Board of Directors of Trawsfynydd or any committee thereof with respect to each Trawsfynydd Option assumed by the Company.
Contingent Value Rights
Pursuant to the Merger Agreement, on April 23, 2024, the Company effected a distribution of one CVR with respect to each share of Common Stock that was issued and outstanding as of 5:00 p.m. ET on April 15, 2024 (the “CVR Record Time”).
Pursuant to the terms of the Merger Agreement, the Company selected Equiniti Trust Company, LLC (“Equiniti”) to serve as the trustee under the Contingent Value Rights Agreement (the “CVR Agreement”). On April 1, 2024, the Company and Equiniti, as trustee, executed and delivered the CVR Agreement substantially in the form as attached as Exhibit D to the Merger Agreement. The Company issued to each holder of Common Stock as of the CVR Record Time one CVR, subject to and in accordance with the terms and conditions of the CVR Agreement, which in the aggregate granted to such Company stockholders 43.70% of net proceeds from future MA licensing deals with third parties and, as applicable, 6.24% of the net sales of rigosertib and narazaciclib, the Company’s two lead product candidates prior to the Merger.
The terms and conditions of the CVRs are provided in the CVR Agreement.
Representations and Warranties
Trawsfynydd and the Company made various representations and warranties that are subject, in some cases, to specified exceptions and qualifications contained in the Merger Agreement, the disclosure schedules each party delivered to the other in connection with the Merger Agreement, and, in the case of the Company, its public SEC filings. These representations and warranties made by Trawsfynydd and the Company relate to, among other things:
•
their and their subsidiaries’ due organization, existence and good standing and authority to carry on their respective businesses;
•
organizational documents;
•
corporate power and authority to enter into the Merger Agreement, to perform their respective obligations thereunder and to complete the transactions contemplated thereby;
•
the required stockholder votes to adopt the Merger Agreement (in the case of Trawsfynydd) and the transactions contemplated thereunder that require stockholder approval in each respective case;
•
the absence of certain violations, defaults or consent requirements under certain contracts, organizational documents and applicable law, in each case arising out of the execution, delivery or performance of, or consummation of the transactions contemplated by, the Merger Agreement;
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•
capitalization;
•
financial statements;
•
the conduct of their respective businesses in the ordinary course and the absence of certain changes, effects, developments, circumstances, conditions, state of facts, events, occurrences that would have or would be reasonably expected to have a Material Adverse Effect (as defined below);
•
the absence of certain undisclosed liabilities;
•
good title to, and absence of liens on, real property and other tangible assets;
•
real property and leases;
•
intellectual property and privacy matters;
•
certain material contracts;
•
compliance with applicable laws and regulations;
•
the receipt of governmental authorizations material to their respective operations;
•
the absence of certain litigation or other proceedings, and the absence of certain government or court orders;
•
tax matters;
•
employees, employee benefit plans, and labor matters;
•
environmental matters;
•
insurance policies;
•
financial advisors or other brokers with respect to the transactions contemplated in the Merger Agreement;
•
certain material transactions between such party and certain of such party’s affiliates; and
•
compliance with anti-bribery laws.
In addition, the Company made representations and warranties regarding the following matters:
•
the accuracy of the Company’s SEC filings and other matters relating to compliance with securities laws and reporting obligations and the Company’s financial statements; and
•
the valid issuance of Common Stock and Series C Preferred Stock to be issued as Merger Consideration.
Many of the parties’ representations and warranties are qualified by, among other things, exceptions relating to the absence of a “Company Material Adverse Effect” (in the case of Trawsfynydd) or a “Parent Material Adverse Effect” (in the case of the Company), as the case may be, and which in each case means any effect that, considered together with all other effects that have occurred prior to the date of determination of the occurrence of such “Material Adverse Effect,” has or would reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), assets, liabilities or results of operations of the applicable party (“Material Adverse Effect”). Effects arising or resulting from the following are not taken into account in determining whether there has been such a Material Adverse Effect:
(a)
general business or economic conditions affecting the industry in which the applicable party operates;
(b)
acts of war, armed hostilities or terrorism, acts of God or comparable events, epidemic, pandemic or disease outbreak (including the COVID-19 virus) or any worsening of the foregoing, or any declaration of martial law, quarantine or similar directive, policy or guidance or law or other action by any governmental body in response thereto;
(c)
changes in financial, banking or securities markets;
(d)
in the case of the Company only, any change in the stock price or trading volume of its Common Stock (subject to certain exceptions);
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(e)
any change in, or any compliance with or action taken for the purpose of complying with, any law or generally accepted accounting principles in the United States (“GAAP”) (or interpretations of any law or GAAP);
(f)
subject to certain exceptions, the announcement of the Merger Agreement or the pendency of transactions contemplated by the Merger Agreement; or
(g)
the taking of any action or the omission to take any action by the applicable party where such action is required to be taken by the Merger Agreement.
With respect to clauses (a) through (c) above, to the extent such effect described therein disproportionately affects the applicable party to whom the clause refers (relative to other similarly situated companies in the industries in which such party operates), then such effect can be taken into account in determining whether there has been a Material Adverse Effect.
Additional Agreements of the Parties
Company Stockholders’ Meeting
The Merger Agreement requires that as promptly as practicable following its execution, the Company take all action necessary under applicable law to call, give notice of and hold the Special Meeting for the purpose of seeking approval of the following matters:
•
the Conversion Proposal; and
•
either (i) the amendment of the certificate of incorporation of the Company to increase the number of authorized shares of Common Stock or (ii) a proposal for a reverse stock split of all outstanding shares of Common Stock (such as the Reverse Stock Split Proposal), in either case ((i) or (ii)) by a number of authorized shares or at a stock split ratio sufficient to allow the conversion of all shares of Series C Preferred Stock and have reserved and authorized a number of shares of Common Stock sufficient to cover all shares of Common Stock to be issued upon approval of the Conversion Proposal.
The Company is convening the Special Meeting, as discussed in this proxy statement, in order to comply with the requirements above.
If the approval of the matters above is not obtained at the Special Meeting or if we reasonably believe that (i) we will not receive proxies sufficient to obtain approval of the above matters, whether or not a quorum would be present or (ii) we will not have sufficient shares of Common Stock represented (whether in person or by proxy) to constitute a quorum necessary to conduct the business of the Special Meeting, then, in each case, we must use reasonable best efforts to adjourn the Special Meeting one or more times to a date or dates no more than 30 days after the original scheduled date, and to obtain such approvals at such time. If the Special Meeting is not so adjourned, or if the approvals above are not then obtained, we must use reasonable best efforts to obtain such approvals as soon as practicable, and in any event at our next occurring annual meeting of stockholders or, if such annual meeting is not scheduled to be held within six months after the Special Meeting, then at another special meeting of our stockholders to be held within six months after the Special Meeting. We are required to hold an annual meeting or special meeting of our stockholders, at which a vote of our stockholders to approve the matters above will be solicited and taken, at least once every six months until we obtain such approvals.
Under the Merger Agreement, we also agreed that the Board of Directors will recommend that the holders of Common Stock vote to approve the matters described above and that we will use reasonable best efforts to solicit and obtain such approvals within the time frames discussed above.
Proxy Statement
The Merger Agreement requires that as promptly as practicable after the Closing, the Company prepare and file a proxy statement with the SEC relating to the Special Meeting to be held in connection with the matters discussed above. This proxy statement was filed in connection with such obligation. The Merger Agreement requires such proxy statement to comply with all requirements of applicable U.S. federal
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securities laws and the DGCL, and we are required to respond promptly to any comments or requests of the SEC or its staff related to such proxy statement.
The Company is required by the Merger Agreement to use reasonable best efforts to deliver the definitive version of such proxy statement to the Company’s stockholders as promptly as practicable after (i) the SEC has indicated that it does not intend to review it or that such review has been completed or (ii) at least ten days after the filing of such proxy statement with the SEC without receipt of any correspondence from the SEC commenting upon, or indicating that it intends to review, such proxy statement.
The parties are also required to cooperate in making the Company amend or supplement such proxy statement and, if appropriate, mailing such amendment or supplement, in each case in certain circumstances where such actions may be necessary.
Reservation of Common Stock
Pursuant to the Merger Agreement, upon approval of the Conversion Proposal and the Reverse Stock Split Proposal, the Company must at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock or shares of Common Stock held in treasury by the Company, for the purpose of effecting the conversion of Series C Preferred Stock, the full number of shares of Common Stock necessary to convert all Series C Preferred Stock then outstanding into shares of Common Stock.
Directors and Officers
The Merger Agreement contemplated that, immediately after the Second Effective Time, the Board of Directors would be comprised of seven members, of which four members were designated by the Company and three members were designated by Trawsfynydd. James Marino, Dr. Trafford Clarke, M. Teresa Shoemaker, and Jack E. Stover remained on the Board of Directors, with Dr. Steven M. Fruchtman, Dr. Peter Atadja, Dr. Jerome Groopman, and Dr. Viren Mehta resigning from the Board of Directors, and Iain Dukes and Nikolay Savchuk were designated by Trawsfynydd as members of the Board of Directors. In connection with the retention of Werner Cautreels as Chief Executive Officer (“CEO”) of the Company at the time of the Merger, Werner Cautreels was appointed as a director by the Board of Directors of the Company.
Pursuant to the Merger Agreement, the parties also agreed that, as of immediately after the Second Effective Time, the officers of the Company would be as follows: Werner Cautreels as CEO, Iain Dukes as Executive Chairman, Nikolay Savchuk as COO, Dr. Steven M. Fruchtman as President and Chief Scientific Officer, Oncology, Mark Guerin as CFO, C. David Pauza as Chief Scientific Officer, Virology and Robert Redfield as Chief Medical Officer. Such officers will serve in such positions until successors are duly appointed and qualified in accordance with applicable law.
On June 17, 2024, Dr. Fruchtman informed the Board of Directors of his intent to resign from his positions of President and Chief Scientific Officer, Oncology. On June 17, 2024, Dr. Fruchtman’s attorney provided a letter to the Company’s counsel, which indicates that Dr. Fruchtman believes his resignation to be for “good reason” under the terms of his employment agreement and his expectation of severance compensation commensurate therewith and in connection with a change in control. The Board of Directors accepted Dr. Fruchtman’s resignation effective June 17, 2024 but disagreed with the characterization of the events set forth in the letter and accordingly believes that no severance payments are due to Dr. Fruchtman under the terms of his employment agreement.
Indemnification of Directors and Officers
Commencing at the First Effective Time and continuing until the sixth anniversary of the First Effective Time, each of the Company and the Surviving Entity will indemnify and hold harmless each person who was at the Closing or has been at any time prior to the Closing, or who becomes prior to the First Effective Time, a director or officer of the Company or Surviving Entity or any of their respective subsidiaries, respectively (the “DO Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative
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or investigative, arising out of or pertaining to the fact that the DO Indemnified Party is or was a director or officer of the Company or of Trawsfynydd, or any subsidiary thereof, asserted or claimed prior to the First Effective Time, in each case, to the fullest extent permitted under applicable law.
Other than in the case of fraud, each DO Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Company and the Surviving Entity, jointly and severally, upon receipt by Company or the Surviving Entity from the DO Indemnified Party of a request therefor, subject to an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
The Merger Agreement also requires the Company and the Surviving Entity to maintain in their applicable organizational documents, for at least six years from the First Effective Time, such provisions with respect to indemnification, advancement of expenses and exculpation of directors and officers as those that existed in the Company’s organizational documents as of the date of the Merger Agreement. The Company and the Surviving Entity must also honor and fulfill their existing obligations to provide indemnification to the DO Indemnified Parties as they existed as of the date of the Merger Agreement, and the Company must maintain directors’ and officers’ liability insurance policies, with an effective date as of the date of the Closing, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to the Company.
Employee Benefits
The Merger Agreement requires the Company to provide certain employee benefits to each employee of Trawsfynydd who remained employed by the Company or the Surviving Entity, or any of their respective subsidiaries following the Closing (the “Continuing Employees”). Specifically, the Company must:
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use commercially reasonable efforts to cause each Continuing Employee to be credited with his or her years of service with Trawsfynydd or any its predecessors, for purposes of vesting, eligibility to participate, and level of benefits under the benefit plans, programs, or arrangements of the Company or any of its subsidiaries;
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for purposes of each Post-Closing plan providing medical, dental, pharmaceutical and/or vision benefits to a Continuing Employee, use commercially reasonable efforts to cause all pre-existing condition exclusions and actively-at-work requirements of such Post-Closing plan to be waived for such Continuing Employee and his or her covered dependents to the extent and unless such conditions would have been waived or satisfied under the employee benefit plan whose coverage is being replaced under the Post-Closing plan; and
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use commercially reasonable efforts to cause any eligible expenses incurred by a Continuing Employee and his or her covered dependents during the portion of such plan year in which coverage is replaced with coverage under a Post-Closing plan to be taken into account under such Post-Closing plan with respect to the plan year in which participation in such Post-Closing plan begins for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for such plan year as if such amounts had been paid in accordance with such Post-Closing plan.
Other Agreements of the Parties
The Merger Agreement also contains additional agreements of the parties relating to, among other things:
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the use of the parties’ reasonable best efforts to make all filings, submissions, notices and obtain all consents required to be made in connection with the Merger;
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the use by the Company of reasonable best efforts to maintain the Company’s Nasdaq listing and file all necessary notifications and applications with Nasdaq for the listing of shares of Common Stock to be issued in connection with the conversion of Series C Preferred Stock;
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for U.S. federal income tax purposes, (i) the treatment of the First Merger and the Second Merger to constitute an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies
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as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations promulgated thereunder (“Treasury Regulations”), and (ii) the treatment of the Merger Agreement as a “plan of reorganization” for purposes of Sections 354 and 361 of the Code and Treasury Regulations Sections 1.368-2(g) and 1.368-3(a); including that the parties treat and not take any tax reporting position inconsistent with, and not take any action that would reasonably be expected to prevent qualification for, such treatment (in each case as discussed in more detail under “
Certain Material U.S. Federal Income Tax Considerations of the Merger and the Issuance of the CVRs
”);
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the termination of certain stockholders’ agreements in respect of Trawsfynydd as of immediately prior to the First Effective Time, without any liability for the Surviving Entity;
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reporting requirements under Section 16 of the Securities Exchange Act of 1934, as amended (“Exchange Act”);
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cooperation of the parties in order to facilitate the performance by each party of its respective obligations under the Merger Agreement;
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delivery of certificates with respect to the issued and outstanding shares of capital stock of Trawsfynydd and the Company prior to the First Effective Time, including, in the case of Trawsfynydd, the Allocation Certificate;
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anti-takeover statutes that may become applicable to the transactions contemplated in the Merger Agreement;
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actions necessary to cause the First Merger Sub and Second Merger Sub to perform their respective obligations under the Merger Agreement; and
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exemption from registration under the Securities Act of the issuance of Common Stock and Series C Preferred Stock comprising the Merger Consideration, including placing of legends on the book-entries with respect to such Common Stock and Series C Preferred Stock.