UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Securities Exchange Act of 1934
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Preliminary Proxy Statement
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
Atreca, Inc.
(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)
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☐ 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.
PRELIMINARY PROXY STATEMENT-SUBJECT TO COMPLETION
ATRECA, INC.
900 East Hamilton Avenue, Suite 100
Campbell, California 95008
Campbell, California 95008
Notice of Special Meeting of Stockholders
To Be Held on , 2024
Dear Stockholder:
You are cordially invited to attend the Atreca, Inc., or the Company or Atreca, Special Meeting of Stockholders, or the Special Meeting. The Special Meeting will be held virtually, via live webcast at www.virtualshareholdermeeting.com/BCEL2024SM originating from the offices of Cooley LLP in Palo Alto, California on , 2024 at 10:00 a.m. Pacific Time. We believe hosting a virtual meeting enables participation by more of our stockholders, while lowering the cost of conducting the Special Meeting. Stockholders attending the virtual Special Meeting will be afforded the same rights and opportunities to participate as they would at an in-person meeting. We encourage you to attend online and participate. We recommend that you log in a few minutes before 10:00 a.m. Pacific Time, on , 2024 to ensure you are logged in when the Special Meeting starts. You will not be able to attend the Special Meeting in person.
The Special Meeting will be held for the following purposes:
1.
To consider and vote upon a proposal to approve the sale of substantially all of the assets of the Company, or the Asset Sale, pursuant to the Asset Purchase Agreement dated December 22, 2023, or the Asset Purchase Agreement, by and between the Company and Immunome, Inc. or Immunome. This proposal is referred to as the Asset Sale Proposal.
2.
To approve the liquidation and dissolution of the Company, or the Dissolution, pursuant to the Plan of Complete Liquidation and Dissolution, or the Plan of Dissolution, which, if approved, will authorize the Company to liquidate and dissolve the Company in accordance with the Plan of Dissolution. This proposal is referred to as the Dissolution Proposal.
3.
To grant discretionary authority to our Board of Directors, or the Board of Directors, to adjourn the Special Meeting, even if a quorum is present, to solicit additional proxies in the event that there are insufficient shares present virtually or represented by proxy voting in favor of either the Asset Sale Proposal or the Dissolution Proposal. This proposal is referred to as the Adjournment Proposal.
These items of business are more fully described in the proxy statement accompanying this notice. The record date for the Special Meeting is , 2024. Only stockholders of record at the close of business on that date are entitled to notice of and may vote at the Special Meeting or any adjournment thereof.
The Board of Directors of the Company, after considering the factors more fully described in the proxy statement, unanimously recommends, on behalf of the Company, that you vote: (1) “FOR” the approval of the Asset Sale Proposal; (2) “FOR” the adoption of the Plan of Dissolution; and (3) “FOR” the Adjournment Proposal.
The proxy statement provides detailed information about the Special Meeting, the Asset Sale, the Dissolution and the proposals as well as the actions and determinations of our Board of Directors in connection with its evaluation of the Asset Sale, the Asset Purchase Agreement, the Plan of Dissolution and the Dissolution. A copy of the Asset Purchase Agreement is attached as Annex A to the proxy statement. A copy of the Plan of Dissolution is attached as Annex B to the proxy statement. We urge you to read the proxy statement, the Asset Purchase Agreement, and the Plan of Dissolution carefully in their entirety as they contain important information about, among other things, the Asset Sale and the Dissolution and how both affect you.
You should carefully read and consider the entire proxy statement and the annexes to this proxy statement.
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Whether or not you plan to attend the Special Meeting, please sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card). If you attend, and vote at, the Special Meeting, then your vote at the Special Meeting will revoke any proxy that you have previously submitted.
If you hold your shares of Class A common stock in “street name,” you should instruct your bank, broker or other nominee how to vote your shares of Class A common stock in accordance with the voting instruction form that you will receive from your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the Proposals, including the Asset Sale Proposal and Dissolution Proposal, without your instructions.
If you have any questions concerning the Asset Sale, the Asset Purchase Agreement, the Plan of Dissolution, the Dissolution, the Special Meeting or the proxy statement, or would like additional copies of the proxy statement or need help voting your shares of Class A common stock, please contact our proxy solicitor:
MacKenzie Partners, Inc.
1407 Broadway, 27th Floor
New York, New York 10018
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
1407 Broadway, 27th Floor
New York, New York 10018
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
Email: proxy@mackenziepartners.com
On behalf of our Board of Directors, I thank you for your support and appreciate your consideration of these matters.
By Order of the Board of Directors
John A. Orwin
President, Chief Executive Officer and Member of the Board of Directors
President, Chief Executive Officer and Member of the Board of Directors
Campbell, California
, 2024
, 2024
Neither the United States Securities and Exchange Commission nor any state securities commission has approved or disapproved of the Asset Sale or the Dissolution, passed upon the merits of the Asset Sale or the Dissolution or passed upon the adequacy or accuracy of the information contained in this proxy statement and any documents incorporated by reference. Any representation to the contrary is a criminal offense.
The accompanying proxy statement is dated , 2024 and, together with the enclosed form of proxy card, is first being mailed to our stockholders on or about , 2024.
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PRELIMINARY PROXY STATEMENT-SUBJECT TO COMPLETION
PROXY STATEMENT
FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON , 2024
FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON , 2024
IMPORTANT NOTICE REGARDING THE PROXY MATERIALS
FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON , 2024
FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON , 2024
We intend to mail these proxy materials on or about , 2024 to all stockholders of record entitled to vote at the Special Meeting. These proxy materials are available on the investor relations page of our website at https://ir.atreca.com/financials-and-filings/sec-filings. The information contained on, or accessible through, the websites referenced in this proxy statement are not incorporated by reference into this proxy statement.
A complete list of the stockholders entitled to vote at the Special Meeting will be available for examination during regular business hours for the ten (10) days prior to the Special Meeting by request. You may email us at info@atreca.com to coordinate arrangements to view the stockholder list.
YOUR VOTE IS IMPORTANT
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, WE ENCOURAGE YOU TO SUBMIT YOUR PROXY AS PROMPTLY AS POSSIBLE: (1) BY TELEPHONE; (2) THROUGH THE INTERNET; OR (3) BY SIGNING AND DATING THE ENCLOSED PROXY CARD AND RETURNING IT IN THE POSTAGE-PAID ENVELOPE PROVIDED. You may revoke your proxy or change your vote at any time before it is voted at the Special Meeting.
If you hold your shares of Class A common stock in “street name,” you should instruct your bank, broker or other nominee how to vote your shares of Class A common stock in accordance with the voting instruction form that you will receive from your bank, broker or other nominee. Your broker or other agent cannot vote on any of the proposals, including the Asset Sale Proposal and the Dissolution Proposal, without your instructions.
If you are a stockholder of record, voting virtually at the Special Meeting will revoke any proxy that you previously submitted. If you hold your shares of Class A common stock through a bank, broker or other nominee, you must obtain a “legal proxy” in order to vote virtually at the Special Meeting.
If you fail to (1) return your proxy card, (2) grant your proxy electronically over the Internet or by telephone or (3) vote virtually at the Special Meeting, your shares of Class A common stock will not be counted for purposes of determining whether a quorum is present at the Special Meeting and, if a quorum is present, will have the same effect as a vote “AGAINST” the Asset Sale Proposal, the Dissolution Proposal and the Adjournment Proposal (as defined below).
You should carefully read and consider this entire proxy statement and the annexes to this proxy statement, along with all of the documents incorporated by reference into this proxy statement, as they contain important information about, among other things, the Asset Sale and the Dissolution and how both affect you. If you have any questions concerning the Asset Purchase Agreement, the Asset Sale, the Plan of Dissolution, the Dissolution, the Special Meeting or this proxy statement, or would like additional copies of this proxy statement or need help voting your shares of Class A common stock, please contact our proxy solicitor:
MacKenzie Partners, Inc.
1407 Broadway, 27th Floor
New York, New York 10018
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
1407 Broadway, 27th Floor
New York, New York 10018
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
Email: proxy@mackenziepartners.com
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Table of Contents
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ATRECA, INC.
900 East Hamilton Avenue, Suite 100
Campbell, California 95008
900 East Hamilton Avenue, Suite 100
Campbell, California 95008
PROXY STATEMENT
FOR THE SPECIAL MEETING OF STOCKHOLDERS
FOR THE SPECIAL MEETING OF STOCKHOLDERS
To Be Held On , 2024
SUMMARY
The following is a summary of selected information contained in this proxy statement relating to the Asset Purchase Agreement, the Asset Sale, the Plan of Dissolution, and the Dissolution and does not contain all the information that is important to you. For a more complete description of the terms of the Asset Purchase Agreement and the Plan of Dissolution (each as defined below), please refer to the sections titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Summary of the Asset Purchase Agreement” and “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Summary of the Plan of Dissolution and Dissolution Process,” respectively, beginning on pages 24 and 41 of this proxy statement, respectively, and the Asset Purchase Agreement itself, a copy of which is included as Annex A to this proxy statement, and the Plan of Dissolution itself, a copy of which is included as Annex B to this proxy statement. Each item in this summary includes a page reference directing you to a more complete description of that topic. We urge you to carefully read this proxy statement, the annexes to this proxy statement and the documents referred to or incorporated by reference in this proxy statement in their entirety before you decide whether to vote to approve the Asset Sale and the Plan of Dissolution. As used in this proxy statement, unless the context otherwise requires, the terms “we,” “us,” “our,” “the Company,” and “Atreca” refer to Atreca, Inc., a Delaware corporation.
The Special Meeting
A special meeting of our stockholders, or the Special Meeting, will be held virtually, via live webcast at www.virtualshareholdermeeting.com/BCEL2024SM originating from the offices of our counsel Cooley LLP in Palo Alto, California on , 2024 at 10:00 a.m. Pacific Time. At the Special Meeting, you will be asked to consider and vote upon proposals to (1) approve the sale of substantially all of the assets of Atreca, or the Asset Sale, pursuant to the Asset Purchase Agreement dated December 22, 2023, or the Asset Purchase Agreement, by and between Atreca and Immunome Inc., or Immunome; (2) approve the liquidation and dissolution of Atreca, or the Dissolution, pursuant to the Plan of Complete Liquidation and Dissolution, or the Plan of Dissolution, which, if approved, will authorize Atreca to liquidate and dissolve in accordance with the Plan of Dissolution; and (3) grant discretionary authority to our Board of Directors, or the Board of Directors, to adjourn the Special Meeting, even if a quorum is present, to solicit additional proxies in the event that there are insufficient shares present virtually or represented by proxy voting in favor of either the Asset Sale or the Plan of Dissolution. The proposal to approve the Asset Sale is referred herein as the Asset Sale Proposal, the proposal to approve the Plan of Dissolution is referred herein as the Dissolution Proposal, and the proposal to approve grant discretionary authority to our Board of Directors to adjourn the Special meeting is referred herein as the Adjournment Proposal.
The Parties to the Asset Sale (see page 24)
Atreca, Inc.
Until recently, we were a biopharmaceutical company utilizing our differentiated platform to discover and develop novel antibody-based immunotherapeutics to treat a range of solid tumor types. On December 26, 2023, we announced, after extensive consideration of potential strategic alternatives, that our Board of Directors had unanimously approved, on December 19, 2023, the Asset Sale pursuant to the Asset Purchase Agreement and the Dissolution pursuant to the Plan of Dissolution, each of which, the Asset Sale and the Plan of Dissolution, are subject to stockholder approval. In connection with the Plan of Dissolution, we have discontinued all preclinical and clinical programs and we have continued reductions in our workforce, which included the termination of most employees by December 31, 2023.
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We were incorporated in the State of Delaware on June 11, 2010. Our principal executive offices are located at 900 East Hamilton Avenue, Suite 100, Campbell, California 95008, and our telephone number is (650) 595-2595. Our website address is www.atreca.com. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to reports filed pursuant to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, are filed with the U.S. Securities and Exchange Commission, or SEC. Such reports and other information filed by us with the Securities and Exchange Commission, or the SEC, are available free of charge on our website at https://ir.atreca.com/financials-and-filings/sec-filings when such reports are available on the SEC’s website. The SEC maintains an Internet site that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC at www.sec.gov.
Immunome, Inc.
Immunome is a biotechnology company dedicated to developing first-in-class and best-in-class targeted cancer therapies. Its portfolio pursues each target with a modality appropriate to its biology, including immunotherapies, targeted effectors, radioligand therapies and antibody drug conjugates. Immunome believes that pursuing underexplored targets with appropriate drug modalities leads to transformative therapies. Its proprietary memory B cell hybridoma technology allows for rapid screening and function characterization of novel antibodies and targets.
Immunome was incorporated as a Pennsylvania corporation on March 2, 2006 and was converted to a Delaware corporation on December 2, 2015. Its principal executive offices are located at 665 Stockton Drive, Suite 300, Exton Pennsylvania, 19341, with additional offices in Bothell, Washington. Its telephone number is (610) 321-3700 and its website address is www.immunome.com.
The Asset Purchase Agreement (see page 24)
On December 22, 2023, we entered into the Asset Purchase Agreement. Upon the terms and subject to the satisfaction or waiver of the conditions of the Asset Purchase Agreement, Immunome will acquire the Transferred Assets (as defined in the section titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Principal Terms and Conditions of the Asset Purchase Agreement”), as contemplated by and more fully described in the Asset Purchase Agreement, a copy of which is attached as Annex A to this proxy statement, which may be deemed under Delaware law to be a sale of substantially all of our assets.
Consideration for the Asset Sale (see page 31)
As consideration for our sale, transfer, conveyance, assignment and delivery of the Transferred Assets to Immunome and our other covenants and obligations thereunder, Immunome agreed to pay an initial purchase price in an aggregate amount equal to $5.5 million at the closing of the Asset Sale, issue CVRs (as defined below) representing the right to receive up to an aggregate of $7.0 million in cash upon the achievement of certain Milestones (as defined in the section titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Form of Contingent Value Rights Agreement”) and assume certain liabilities of Atreca.
Form of Contingent Value Rights Agreement (see page 35)
The Asset Purchase Agreement requires that, at or immediately prior to the effectiveness of the consummation of the Asset Sale, Immunome and a rights agent reasonably acceptable to Atreca will enter into the CVR Agreement, substantially in the form attached as Exhibit D to the Asset Purchase Agreement that is attached to this proxy statement as Annex A. The CVR Agreement will govern the terms of the contingent value rights, or CVRs, and is further described in the section captioned “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Form of Contingent Value Rights Agreement.”
While no guarantee can be given that any proceeds will be received, each CVR represents a non tradeable contractual contingent right to receive cash consideration upon the achievement of one or more Milestones prior to the Milestone Achievement Outside Date, each as defined in the section captioned “— Form of Contingent Value Rights Agreement.”
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The CVRs are contractual rights only and are not transferable except under limited circumstances, specified in the CVR Agreement. The CVRs will not be evidenced by a certificate or other instrument and will not be registered with the SEC or listed for trading. The CVRs will not have any voting or dividend rights and will not represent any equity or ownership interest in Immunome, any constituent corporation party to the Asset Purchase Agreement or any of their respective affiliates or subsidiaries.
Reasons for the Asset Sale (see page 37)
Our Board of Directors believes that effecting the Asset Sale pursuant to the Asset Purchase Agreement is advisable and in the best interests of Atreca and our stockholders. In reaching its decision to unanimously approve the Asset Purchase Agreement and to recommend that our stockholders vote to approve the Asset Sale, our Board of Directors, in consultation with our management and financial, accounting, legal and tax advisors, considered a number of factors, including the risks described in the section titled “Risk Factors” beginning on page 18 of this proxy statement. For additional information on the factors considered by our Board of Directors, please refer to the section titled “Proposal 1: Approval of the Asset Sale Pursuant to the AssetPurchase Agreement — Reasons for the Asset Sale Proposal.”
Vote Required and Our Board of Directors’ Recommendation for the Asset Sale Proposal (see page 39)
The affirmative vote of the holders of a majority of all outstanding shares of Class A common stock on the record date is required to approve the Asset Sale Proposal. The Special Meeting will be held virtually; therefore, no shares will be present in person at the Special Meeting, and only shares present virtually or represented by proxy at the Special Meeting will be able to be voted.
Our Board of Directors unanimously (i) determined that the Asset Purchase Agreement, the CVR Agreement, the other agreements contemplated in the Asset Purchase Agreement, the Asset Sale and the other transactions contemplated thereby, are fair to and in the best interests of Atreca and its stockholders and has declared it advisable to enter into the Asset Purchase Agreement with Immunome and (ii) adopted resolutions approving the Asset Purchase Agreement, the Asset Sale and the consummation of the other transactions contemplated by the Asset Purchase Agreement, and recommending to the stockholders of Atreca to vote for the adoption of a resolution approving the sale of substantially all of Atreca’s assets pursuant to, and on the terms and conditions set forth in, the Asset Purchase Agreement at the Special Meeting.
The Plan of Dissolution (see page 41)
On December 19, 2023, our Board of Directors unanimously approved, subject to stockholder approval, the liquidation and dissolution of Atreca pursuant to the Plan of Dissolution. If the Dissolution Proposal is approved by our stockholders, our Board of Directors will have sole discretion to determine if and when (at such time as they deem appropriate following stockholder approval of the Dissolution) to proceed with the Dissolution. If our Board of Directors decides to proceed with the Dissolution, we will liquidate any remaining assets, satisfy or make reasonable provision for our remaining obligations, and make distributions to our stockholders of available proceeds, if any. Our Board of Directors intends to seek to distribute funds to our stockholders as quickly as possible, as permitted by the General Corporation Law of the State of Delaware, or the DGCL, and the Plan of Dissolution, and our Board of Directors will take all reasonable actions to optimize the distributable value to our stockholders.
If either the Asset Sale Proposal or the Dissolution Proposal is not approved by our stockholders, our Board of Directors and management will continue to explore other strategic alternatives. However, because our Board of Directors and management believe that they have exhausted all reasonable and viable strategic alternatives, it is possible that we would seek voluntary dissolution at a later time and likely with diminished assets. In addition, we could cease all operations, make an assignment for the benefit of any creditors, turn Atreca over to a third-party management company or liquidator or file for bankruptcy protection. Even if our stockholders approve the Dissolution Proposal, our Board of Directors has reserved the right, in its discretion, to the extent permitted by Delaware law, to abandon or delay implementation of the Dissolution, in order, for example, to permit Atreca to pursue any new business opportunities or strategic transactions that may arise. For additional information, please refer to the section titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Background for the Asset Sale and the Dissolution.”
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The proportionate interests of all our stockholders will be fixed on the basis of their respective stock holdings at the close of business on the date we file a certificate of dissolution, or the Certificate of Dissolution, with the Delaware Secretary of State, which is referred to herein as the Final Record Date. We will close our stock transfer books and discontinue recording transfers of shares of our Class A common stock on the Final Record Date, and thereafter certificates representing shares of our Class A common stock and Class B common stock will not be assignable or transferable on our books except by will, intestate succession or operation of law. After the Final Record Date, any distributions made by us will be made solely to the stockholders of record as of the close of business on the Final Record Date, except as may be necessary to reflect subsequent transfers recorded on our books as a result of any assignments by will, intestate succession or operation of law.
Assuming the Dissolution pursuant to the Plan of Dissolution is approved by our stockholders, we are currently targeting to file a Certificate of Dissolution with the Delaware Secretary of State prior to March 31, 2024, although such filing may be delayed by our Board of Directors in its sole discretion and our Board of Directors has not set a deadline to make its decision to proceed with the filing of a Certificate of Dissolution. Pursuant to the DGCL, our corporate existence will continue for a period of at least three years following the effective time for the purpose of prosecuting and defending suits, winding up Atreca and making distributions to our stockholders, but not for the purpose of continuing to engage in any business for which Atreca was organized. The three-year statutory winding-up period can be extended by the Delaware Court of Chancery. In addition, we may remain a body corporate beyond the three-year period for the sole purpose of proceedings begun before or during the three-year period. As a result, the winding-up process could extend beyond three years after the Dissolution, and it is difficult to estimate when it will be completed.
If stockholders do not approve the Plan of Dissolution, we will continue our corporate existence and our Board of Directors will continue to explore strategic alternatives for returning capital to our stockholders in a manner intended to maximize value. In addition, our Board of Directors may determine that it is in the best interests of Atreca and our stockholders to resubmit the Plan of Dissolution to stockholders for reconsideration in the future.
You should carefully review the section titled “Risk Factors” beginning on page 18 of this proxy statement for a description of risks related to the Dissolution.
Reasons for the Dissolution (see page 42)
Our Board of Directors believes that the liquidation and dissolution pursuant to the Plan of Dissolution is advisable and in the best interests of Atreca and our stockholders. In reaching its decision to unanimously approve the Plan of Dissolution and to recommend that our stockholders vote to approve the Dissolution, our Board of Directors, in consultation with our management and financial, accounting, legal and tax advisors, considered a number of factors, including the risk described in the section titled “Risk Factors” beginning on page 18 of this proxy statement. For additional information on the factors considered by our Board of Directors, please refer to the section titled “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Reasons for the Dissolution.”
Description of our Plan of Dissolution and Dissolution Process (see page 45)
A dissolved corporation continues its existence for three years after dissolution, or such longer period as the Delaware Court of Chancery may direct, for the purpose of prosecuting and defending suits and enabling the corporation to settle and close its business, to dispose of and convey its property, to discharge its liabilities and to distribute to its stockholders any remaining assets. A dissolved corporation may not, however, continue the business for which it was organized. Any action, suit or proceeding begun by or against the corporation before or during this survival period does not abate by reason of the dissolution, and for the purpose of any such action, suit or proceeding, the corporation will continue beyond the three-year period until any related judgments, orders or decrees are fully executed, without the necessity for any special direction by the Delaware Court of Chancery.
If the Plan of Dissolution is approved by the requisite vote of our stockholders, the steps set forth below will be completed at such times as our Board of Directors, in its discretion and in accordance with the DGCL, deems necessary, appropriate or advisable in our best interests and the best interests of our stockholders:
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the filing of a Certificate of Dissolution with the Delaware Secretary of State;
•
the cessation of all our business activities except those relating to winding up and liquidating our business and affairs, including, but not limited to, prosecuting and defending suits by or against us, if any;
•
the collection, sale, exchange or other disposition of remaining non-cash property and assets;
•
the payment of or the making of reasonable provision to pay all claims and obligations, including all contingent, conditional or un-matured contractual claims known to us;
•
the making of such provision as will be reasonably likely to be sufficient to provide compensation for any claim against us which is the subject of a pending action, suit or proceeding to which we are a party;
•
the making of such provision as will be reasonably likely to be sufficient to provide compensation for claims that have not been made known to us or that have not arisen but that, based on facts known to us, are likely to arise or become known to us within ten years after the date of dissolution;
•
the setting aside of a contingency reserve consisting of cash and/or property to satisfy such claims and contingent obligations of Atreca;
•
if the Asset Sale is consummated, the making of an initial liquidating distribution and the deemed distribution of CVRs to our stockholders of record determined as of the Final Record Date (if the Asset Sale Proposal is not approved, we do not foresee any funds being available for distribution to our stockholders);
•
the pro rata distribution to our stockholders, or the transfer to one or more liquidating trustees for the benefit of our stockholders under a liquidating trust, of the remaining assets of Atreca after payment or provision for payment of claims against and obligations of Atreca; and
•
the taking of any and all other actions permitted or required by the DGCL and any other applicable laws and regulations.
If our Board of Directors determines that the Dissolution is not in the best interests of Atreca or our stockholders, our Board of Directors may direct that the Dissolution be abandoned or may amend or modify the Plan of Dissolution to the extent permitted by Delaware law, in either case without the necessity of further stockholder approval. After the Certificate of Dissolution has been filed with the Delaware Secretary of State, however, revocation of the Dissolution would require stockholder approval under Delaware law.
Estimated Distribution to Stockholders (see page 46)
As of December 15, 2023, we had approximately $10.4 million in cash and cash equivalents. We currently estimate that we will expend between $13.1 million and $13.7 million after December 15, 2023, which will be used to pay all expenses (including operating expenses up until the filing of the Certificate of Dissolution) and other known, non-contingent liabilities, and which also includes reasonable provision for expenses of liquidation and potential, contingent or unknown liabilities as required by Delaware law. Based on this estimated reserve, if the Asset Sale is consummated, for which Atreca will receive upfront consideration of $5.5 million, we currently estimate that the aggregate amount of an initial liquidating distribution to stockholders will be between $2.2 million and $2.9 million, or between $0.05 and $0.07 per share of Class A common stock and Class B common stock (based on 32,908,634 shares outstanding of Class A common stock and 6,715,441 shares outstanding of Class B common stock as of December 15, 2023 plus an estimate of 37,500 shares of Class A common stock issuable upon the accelerated vesting and settlement of restricted stock units in connection with the closing of the Asset Sale), plus we will be deemed to have distributed to our stockholders CVRs that afford the opportunity to realize additional value of up to $0.17 per share if both Milestones are achieved within the time period described in the CVR Agreement, as more fully described in the section captioned “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Form of Contingent Value Rights Agreement.” We intend to make this initial distribution as soon as practicable following the filing of the Certificate of Dissolution as creditor claims and contingent liabilities are paid or settled; however, we are unable to predict the precise amount or timing of the initial distribution or of any additional liquidating distributions following the initial liquidating distribution. The timing and amount
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of the initial distribution and any such additional liquidating distributions will depend upon the actual expenses incurred, the timing of the resolution of matters for which we have established the contingency reserve, the amount to be paid in satisfaction of such contingencies, the achievement of both Milestones within the time period described in the CVR Agreement, the obligations satisfied and provisions made during the liquidation and winding-up process, as well as our ability to convert our remaining assets to cash. Any liquidating distributions from us will be made to stockholders according to their holdings of Class A common stock and Class B common stock as of the Final Record Date, which shall be the date on which we close our stock transfer books and discontinue recording transfers of our Class A common stock and Class B common stock except for transfers by will, intestate succession or operation of law.
These amounts may be paid in one or more distributions. The distributions will not occur until after the Certificate of Dissolution is filed, and we cannot predict the ultimate timing or amount of any such distributions, as uncertainties exist as to the value we may receive upon the sale of remaining assets, the ultimate amount of our liabilities, the amounts to be set aside for potential, known, unknown or contingent claims, the operating costs, obligations and provisions during the liquidation and winding-up process, and the related timing to complete such transactions. These and other factors make it impossible to predict with certainty the actual net cash amount that will ultimately be available for distribution to stockholders or the timing of any such distributions. Although we cannot predict the timing or amount of any such distributions, our Board of Directors intends to seek to distribute funds to our Class A common stockholders and Class B common stockholders as quickly as possible, as permitted by the DGCL and the Plan of Dissolution, and our Board of Directors will take all reasonable actions to optimize the distributable value to our Class A common stockholders and Class B common stockholders. Please refer to the section titled “Risk Factors” beginning on page 18 of this proxy statement.
Contingent Liabilities; Contingency Reserve (see page 49)
Under the DGCL, we are required, in connection with our liquidation and dissolution, to pay or make reasonable provision for payment of all of our liabilities and obligations. Following the approval of the Plan of Dissolution by our stockholders, we will pay all known liabilities. We currently estimate that we will establish a reserve for unanticipated claims of approximately $1.0 million, which will be used to satisfy contingent and unknown liabilities as they become due.
The estimated amount of the contingency reserve is based upon estimates and opinions of management and our Board of Directors and derived from consultations with outside experts and a review of our estimated operating expenses and future estimated liabilities. There can be no assurance that the contingency reserve will be sufficient. If any of our estimates, including estimates relating to the costs of the liquidation process and of satisfying outstanding obligations, liabilities and claims during the liquidation process, are inaccurate, we may be required to increase the amount of the contingency reserve. After the liabilities, expenses and obligations for which the contingency reserve is established have been satisfied or resolved in full, we will distribute to our stockholders any remaining portion of the contingency reserve. Please refer to the section titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Estimated Distribution to Stockholders” beginning on page 46 of this proxy statement for more information regarding the assumptions underlying our contingency reserve.
Under the DGCL, in the event we fail to create an adequate contingency reserve for payment of our expenses and liabilities, or should such contingency reserve and the assets held by any liquidating trust or trusts be exceeded by the amount ultimately found payable in respect of expenses and liabilities, each stockholder could be held liable for the repayment to creditors, out of the amounts theretofore received by such stockholder from us or from any liquidating trust or trusts, of such stockholder’s pro rata share of such excess.
Stock of the Company; Final Record Date (see page 50)
The Final Record Date will be the date upon which we file the Certificate of Dissolution with the Delaware Secretary of State. We intend to close our stock transfer books and discontinue recording transfers of shares of our Class A common stock and Class B common stock on the Final Record Date, and thereafter certificates representing shares of our Class A common stock and Class B common stock will not be assignable or transferable on our books except by will, intestate succession or operation of law. After the Final Record
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Date, we will not issue any new stock certificates, other than replacement certificates. It is anticipated that no further trading of our shares of Class A common stock and Class B common stock will occur after the Final Record Date.
Listing and Trading of Class A Common Stock (see page 51)
Stockholders may still sell their shares of Class A common stock and Class B common stock but only until the filing of our Certificate of Dissolution with the Delaware Secretary of State. If the Dissolution is approved by our stockholders and if and when our Board of Directors determines to proceed with the Dissolution, we will close our transfer books as of the Final Record Date. After such time, we will not record any further transfers of our Class A common stock and Class B common stock, except pursuant to the provisions of a deceased stockholder’s will, intestate succession, or by operation of law and we will not issue any new stock certificates, other than replacement certificates. As a result of the closing of our transfer books, it is anticipated that distributions, if any, made in connection with the Dissolution will be made pro rata to the same stockholders of record as the stockholders of record as of the Final Record Date, and it is anticipated that no further trading of our Class A common stock and Class B common stock will occur after the Final Record Date.
Our Class A common stock is currently listed on Nasdaq. Our Class A common stock will be delisted on or prior to the date we file the Certificate of Dissolution, and trading will be suspended on that date or as soon thereafter as is reasonably practicable. We expect that the trading of Class A common stock on the Nasdaq Global Select Market, or Nasdaq, will terminate before then. We previously announced in September 2023 that if we do not regain compliance with Nasdaq’s minimum bid price requirement by March 6, 2024, our Class A common stock will be subject to immediate delisting. If our Class A common stock is delisted prior to the date we file the Certificate of Dissolution, your ability to trade or otherwise transfer your Class A common stock shares may be significantly impacted. Please refer to the section titled “Risk Factors” beginning on page 18 of this proxy statement for more information.
Treatment of Equity Awards (see page 52)
We intend to terminate all our equity incentive plans and our inducement plan effective upon the Dissolution. Therefore, all outstanding options and restricted stock units, whether currently vested or unvested, will terminate immediately prior to the Dissolution in accordance with the terms of our equity incentive plans and our inducement plan.
Material U.S. Federal Income Tax Consequences of the Dissolution (see page 52)
Distributions made pursuant to the Plan of Dissolution (which, if the Asset Sale is consummated, are intended to include the CVRs) are intended to be treated as received by a Holder in exchange for the Holder’s shares of our Class A common stock and Class B common stock and could result in a U.S. federal income tax liability to the Holder. The timing and character of such gain or loss, depend in part on the U.S. federal income tax treatment of the CVRs, with respect to which there is some uncertainty. For a more detailed discussion, please refer to the section titled “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Material U.S. Federal Income Tax Consequences of the Dissolution” beginning on page 52 of this proxy statement. Holders are urged to carefully review the discussion of tax matters within this proxy statement and to consult their own tax advisors as to the specific tax consequences to them of the Dissolution.
Vote Required and Our Board of Directors’ Recommendation for the Dissolution Proposal (see page 58)
The affirmative vote of the holders of a majority of all outstanding shares of Class A common stock on the record date is required to approve the Dissolution Proposal. The Special Meeting will be held virtually; therefore, no shares will be present in person at the Special Meeting, and only shares present virtually or represented by proxy at the Special Meeting will be able to be voted.
On December 19, 2023, our Board of Directors unanimously: (1) determined that the liquidation and dissolution of Atreca, and the other transactions contemplated thereby, are advisable and in the best interests of Atreca and our stockholders; (2) approved in all respects the Plan of Dissolution and the other transactions
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contemplated thereby; and (3) recommended that our stockholders vote “FOR” the approval of the liquidation and dissolution of Atreca pursuant to the Plan of Dissolution.
Interests of Directors and Executive Officers in Approval of the Asset Sale and Plan of Dissolution (see page 60)
In considering the recommendation of our Board of Directors, you should be aware that our directors and executive officers may have interests in the Asset Sale Proposal and Dissolution Proposal that are different from or in addition to your interests as a stockholder and that may present actual or potential conflicts of interest. Our Board of Directors was aware of these interests and considered them, among other matters, in approving the Asset Purchase Agreement, and the transactions contemplated thereby, and the Plan of Dissolution in determining to recommend that our stockholders vote “FOR” the approval of the Asset Sale pursuant to the Asset Purchase Agreement and the Plan of Dissolution. You should consider these and other interests of our directors and executive officers that are described in this proxy statement.
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GENERAL QUESTIONS AND ANSWERS ABOUT THESE PROXY MATERIALS AND VOTING
Why am I receiving these materials?
We have sent you this proxy statement and the enclosed form of proxy card because our Board of Directors is soliciting your proxy to vote at the Special Meeting. You are invited to attend the Special Meeting to vote on the proposals described in this proxy statement. However, you do not need to attend the Special Meeting to vote your shares of Class A common stock. Instead, you may simply complete, sign and return the enclosed proxy card, follow the instructions below to submit your proxy over the telephone or on the Internet, or follow the instructions received from your bank, broker or other nominee if you hold your shares of Class A common stock in “street” name. Refer to “How do I vote?” below.
Under rules adopted by the SEC, we have mailed the full set of our proxy materials, including this proxy statement and the proxy card, to our stockholders of record as of the close of business on , 2024, or the Record Date, on or around , 2024. The proxy materials are also available to view and download at https://ir.atreca.com/financials-and-filings/sec-filings.
How do I attend and participate in the Special Meeting online?
The Special Meeting will be a completely virtual meeting of stockholders and will be webcast live over the Internet. Any stockholder can attend the virtual Special Meeting live online at www.virtualshareholdermeeting.com/BCEL2024SM. The webcast will start at 10:00 a.m. Pacific Time. Stockholders as of the Record Date may vote and submit questions while attending the Special Meeting online. We encourage you to access the Special Meeting prior to the start time. If you encounter any difficulties accessing the virtual Special Meeting during the check-in or meeting time, please refer to the technical support information located at www.virtualshareholdermeeting.com/BCEL2024SM or www.proxyvote.com. You will not be able to attend the Special Meeting in person. Stockholders attending the Special Meeting will be afforded the same rights and opportunities to participate as they would at an in-person meeting.
In order to enter the Special Meeting, you will need the control number, which is included in your proxy materials if you are a stockholder of record of shares of Class A common stock, or included with your voting instructions and materials received from your bank, broker or other nominee if you hold your shares of Class A Common Stock in a “street name.” Instructions on how to attend and participate are available at www.virtualshareholdermeeting.com/BCEL2024SM. We recommend that you log in a few minutes before 10:00 a.m. Pacific Time to ensure you are logged in when the Special Meeting starts. The webcast will open 15 minutes before the start of the Special Meeting.
If you would like to submit a question during the Special Meeting, you may log in to www.virtualshareholdermeeting.com/BCEL2024SM using your control number, type your question into the “Ask a Question” field, and click “Submit.”
What happens if there are technical difficulties during the Special Meeting?
We will have technicians ready to assist you with any technical difficulties you may have accessing the virtual Special Meeting, voting at the Special Meeting or submitting questions at the Special Meeting. If you encounter any difficulties accessing the virtual Special Meeting during the check-in or meeting time, please refer to the technical support information located at www.virtualshareholdermeeting.com/BCEL2024SM or www.proxyvote.com.
If we experience technical difficulties at the Special Meeting and are not able to resolve them within a reasonable amount of time, we will adjourn the Special Meeting to a later date and we will provide notice of the date and time of such adjourned meeting at https://ir.atreca.com/financials-and-filings/sec-filings and on a press release that we will issue.
Will a list of record stockholders as of the Record Date be available?
For the ten days prior to the Special Meeting, the list will be available for examination by any stockholder of record for a legally valid purpose by request. You may email us at info@atreca.com to coordinate arrangements to view the stockholder list.
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Who can vote at the Special Meeting?
Only stockholders of record at the close of business on , 2024, will be entitled to vote at the Special Meeting. On this Record Date, there were shares of Class A common stock outstanding and entitled to vote.
Stockholder of Record: Shares of Class A Common Stock Registered in Your Name
If, on the Record Date, your shares of Class A common stock were registered directly in your name with our transfer agent, Computershare Trust Company, N.A., then you are a stockholder of record. As a stockholder of record, you may vote online during the Special Meeting or vote by proxy. Whether or not you plan to attend the Special Meeting, we urge you to vote by proxy to ensure your vote is counted. Refer to “How do I vote?” below.
Beneficial Owner: Shares of Class A Common Stock Registered in the Name of a Broker, Bank or Other Agent
If, on the Record Date, your shares of Class A Common Stock were held in an account at a bank, broker or other nominee, then you are the beneficial owner of shares held in “street name” and these proxy materials are being forwarded to you by that organization. The organization holding your account is considered to be the stockholder of record for purposes of voting at the Special Meeting. As a beneficial owner, you have the right to direct your bank, broker or other nominee regarding how to vote the shares in your account. You are also invited to attend the Special Meeting. However, since you are not the stockholder of record, you may not vote your shares online during the Special Meeting unless you request and obtain a valid proxy from your bank, broker or other nominee.
What am I voting on?
There are three matters scheduled for a vote:
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To approve the Asset Sale Proposal.
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To approve the Dissolution Proposal.
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To approve the Adjournment Proposal.
When do you expect the Asset Sale to be consummated?
The Asset Sale is expected to close in the first half of 2024, but the exact timing cannot be predicted. For more information, please refer to the section titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Closing Conditions.”
How do I vote?
For each proposal, you may vote “For” or “Against” or abstain from voting.
The procedures for voting are described below.
Stockholder of Record: Shares of Class A Common Stock Registered in Your Name
If you are a stockholder of record, you may vote online during the Special Meeting, or you may vote by proxy using the enclosed proxy card. Whether or not you plan to attend the Special Meeting, we urge you to vote by proxy to ensure your vote is counted. You may still attend the Special Meeting and vote online, even if you have already voted by proxy.
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To vote online during the Special Meeting follow the provided instructions to join the Special Meeting at www.virtualshareholdermeeting.com/BCEL2024SM, starting at 10:00 a.m. Pacific Time on , 2024. The webcast will open 15 minutes before the start of the Special Meeting.
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To vote in advance of the Special Meeting through the Internet, go to www.proxyvote.com to complete an electronic proxy card. You will be asked to provide the company number and control number from
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the enclosed proxy card. Your Internet vote must be received by 11:59 p.m. Eastern Time on , 2024 to be counted.
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To vote in advance of the Special Meeting by telephone, dial 1-800-690-6903 using a touch-tone phone and follow the recorded instructions. You will be asked to provide the company number and control number from the enclosed proxy card. Your telephone vote must be received by 11:59 p.m. Eastern Time on , 2024 to be counted.
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To vote using the enclosed proxy card, complete, sign and date the enclosed proxy card and return it promptly in the accompanying postage-paid envelope. If you return your signed proxy card to us before the Special Meeting, we will vote your shares as you direct.
Beneficial Owner: Shares of Class A Common Stock Registered in the Name of Broker, Bank or Other Agent
If you are a beneficial owner of shares of Class A common stock registered in the name of your bank, broker or other nominee, you should have received a voting instruction form with these proxy materials from that organization rather than from Atreca. Complete and mail the voting instruction form to ensure that your vote is counted. Alternatively, you may vote by telephone or over the Internet if so instructed by your bank, broker or other nominee. To vote online at the Special Meeting, you must obtain a valid proxy from your bank, broker or other nominee. 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.
Internet proxy voting may be provided to allow you to vote your shares online, with procedures designed to ensure the authenticity and correctness of your proxy vote instructions. However, please be aware that you must bear any costs associated with your Internet access, such as usage charges from Internet access providers and telephone companies.
What is the difference between holding shares of Class A common stock as a stockholder of record and as a beneficial owner?
If your shares of Class A common stock are registered directly in your name with our transfer agent, Computershare Trust Company, N.A., you are considered, with respect to those shares, to be the “stockholder of record.” In this case, this proxy statement and your proxy card have been sent directly to you by Atreca.
If your shares of Class A common stock are held through a bank, broker or other nominee, you are considered the “beneficial owner” of shares held in “street name.” In that case, this proxy statement has been forwarded to you by your bank, broker or other nominee who is considered, with respect to those shares, to be the stockholder of record. As the beneficial owner, you have the right to direct your bank, broker or other nominee how to vote your shares by following their instructions for voting. Because of the non-routine nature of the proposals, your bank, broker or other nominee is not authorized to vote your shares on any proposal without instructions from you. You are also invited to attend the Special Meeting. However, because you are not the stockholder of record, you may not vote your shares virtually at the Special Meeting unless you have obtained a legal proxy from your bank, broker or other nominee, as the stockholder of record, authorizing you to vote your shares. Refer to “If my broker holds my shares of Class A common stock in “street name,” will my broker vote my shares of Class A common stock for me?” below.
How many votes do I have?
On each matter to be voted upon, you have one vote for each share of Class A common stock you owned as of the close of business on the Record Date.
What happens if I abstain from voting or if I do not vote on the proposals?
An abstention represents a stockholder’s affirmative choice to decline to vote on a proposal. If you abstain from voting, that abstention will have the same effect as if you voted “AGAINST” the proposal to adopt the Asset Sale and the Plan of Dissolution and adjourn the Special Meeting. However, abstentions are counted as shares present or represented by proxy at the Special Meeting for purposes of determining whether a quorum is present at the Special Meeting. As a result, an abstention of any of the aforementioned proposals will be
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counted for purposes of determining the presence or absence of a quorum, but it will count as a vote “AGAINST” each of the proposals to adopt the Asset Sale and the Plan of Dissolution Proposal and adjourn the Special meeting.
Failure to vote your shares of Class A common stock (including a failure of your bank, broker or other nominee to vote shares held on your behalf) will also count as a vote “AGAINST” the proposal to adopt the Asset Sale and the Plan of Dissolution. If your shares are not deemed present or represented by proxy at the Special Meeting, then a failure to vote will not have any effect on the Adjournment Proposal. If your shares are deemed present or represented by proxy, then a failure to vote your shares will have the same effect as a vote “AGAINST” the Adjournment Proposal only if a quorum is not present.
Because banks, brokers or other nominees do not have discretionary voting authority with respect to the proposal to adopt the Asset Sale and the Plan of Dissolution Proposal and adjourn the Special Meeting, if a beneficial owner of shares of Class A common stock held in “street name” does not give voting instructions to the bank, broker or other nominee with respect to any of the proposals, then those shares may not be voted on your behalf for any proposal, will not be present or represented by proxy at the Special Meeting and will not be counted for purposes of determining whether a quorum is present at the Special Meeting. However, if a beneficial owner of shares of Class A common stock held in “street name” gives voting instructions to the bank, broker or other nominee with respect to at least one of the proposals, but gives no instruction as to one or more of the other proposals, then those shares will be deemed present at the Special Meeting for purposes of establishing a quorum at the Special Meeting, will be voted as instructed with respect to any proposal as to which instructions were given, and will not be voted with respect to any other proposal. Therefore, it is important that you instruct your bank, broker or other nominee on how you wish to vote your shares.
What if I return a proxy card or otherwise vote but do not make specific choices?
If you return a signed and dated proxy card or otherwise vote without marking voting selections, your shares of Class A common stock will be voted, as applicable:
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“FOR” the Asset Sale Proposal;
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“FOR” the Dissolution Proposal; and
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“FOR” the Adjournment Proposal.
If any other matter is properly presented at the Special Meeting, your proxyholder (the individual named on your proxy card) will vote your shares of Class A common stock using her best judgment.
How does the Board of Directors recommend that I vote?
The Board of Directors unanimously recommends that the stockholders vote:
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“FOR” the Asset Sale Proposal;
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“FOR” the Dissolution Proposal; and
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“FOR” the Adjournment Proposal.
For a discussion of the factors that our Board of Directors considered in determining to recommend that you vote to approve Asset Sale, please refer to the section titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Reasons for the Asset Sale Proposal” beginning on page 37 of this proxy statement. For a discussion of the factors that our Board of Directors considered in determining to recommend that you vote to approve the Dissolution Proposal, please refer to the section titled “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Reasons for the Dissolution” beginning on page 42 of this proxy statement. In addition, when considering the recommendation of our Board of Directors, you should be aware that some of our directors and executive officers may have interests in the Asset Sale and the Dissolution that are different from, or in addition to, the interests of our stockholders more generally. For a discussion of these interests, please refer to the sections titled “Interests of Directors and Executive Officers in Approval of the Asset Sale and Plan of Dissolution” beginning on page 60 of this proxy statement.
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What do I need to do now?
You should carefully read and consider this entire proxy statement and the annexes to this proxy statement, along with all of the documents that we refer to in this proxy statement, as they contain important information about, among other things, the Asset Sale and the Dissolution and how both affect you. Then sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying reply envelope, or grant your proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card), so that your shares of Class A common stock can be voted at the Special Meeting. If you hold your shares in “street name,” please refer to the voting instruction forms provided by your bank, broker or other nominee to vote your shares.
Who is paying for this proxy solicitation?
We will pay for the entire cost of soliciting proxies. In addition to these proxy materials, our directors and employees may also solicit proxies in person, by telephone or by other means of communication. Directors and employees will not be paid any additional compensation for soliciting proxies. We may also reimburse banks, brokers or other nominees for the cost of forwarding proxy materials to beneficial owners. In addition, we have engaged MacKenzie Partners, Inc. to assist in the solicitation of proxies and provide related advice and informational support, for a services fee, which in total is not expected to exceed $12,500, plus reimbursement of customary disbursements.
What does it mean if I receive more than one set of proxy materials?
If you receive more than one set of proxy materials, your shares of Class A common stock may be registered in more than one name or in different accounts. Please follow the voting instructions on the proxy card in each set of proxy materials to ensure that all of your shares are voted.
Can I change my vote after submitting my proxy?
Stockholder of Record: Shares of Class A Common Stock Registered in Your Name
Yes, unless you have agreed otherwise in a Support Agreement (as defined below), you can change your vote or revoke your proxy at any time before the final vote at the Special Meeting. If you are the record holder of your shares of Class A common stock, you may change your vote or revoke your proxy in any one of the following ways:
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You may submit another properly completed proxy card with a later date.
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You may grant a subsequent proxy by telephone or through the Internet.
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You may send a timely written notice that you are revoking your proxy to Atreca, Inc., Attn: General Counsel and Corporate Secretary at 900 East Hamilton Avenue, Suite 100, Campbell, California 95008.
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You may attend the Special Meeting and vote online. Attending the Special Meeting will not, by itself, revoke your proxy. You must specifically vote at the Special Meeting in order for your previous proxy to be revoked.
Your most current proxy card is the one that is counted.
Beneficial Owner: Shares of Class A Common Stock Registered in the Name of Broker, Bank or Other Agent
If your shares of Class A common stock are held by your bank, broker or other nominee, you should follow the instructions provided by your broker, bank or other agent regarding how to change your vote.
How are votes counted?
John A. Orwin, our President, Chief Executive Officer and member of our Board of Directors, will serve as Chairperson of the Special Meeting and he will determine the method by which votes will be counted. Votes “FOR” and “AGAINST” and abstentions will be separately counted.
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If my broker holds my shares of Class A common stock in “street name,” will my broker vote my shares of Class A common stock for me?
No. Your bank, broker or other nominee is permitted to vote your shares of Class A common stock on any proposal currently scheduled to be considered at the Special Meeting only if you instruct your bank, broker or other nominee how to vote. You should follow the procedures provided by your bank, broker or other nominee to vote your shares. Without instructions, your shares will not be voted on any proposals, which will have the same effect as if you voted “AGAINST” the Asset Sale Proposal and the Dissolution Proposal and, only if a quorum is not present, the Adjournment Proposal.
How many votes are needed to approve each proposal?
Asset Sale Proposal — The affirmative vote of the holders of a majority of all outstanding shares of Class A common stock on the record date is required to approve the Asset Sale Proposal. Because the required vote for this proposal is based on the number of votes our Class A common stockholders are entitled to cast rather than on the number of votes actually cast, if you fail to authorize a proxy or vote online at the Special Meeting, abstain from voting at the Special Meeting, or fail to instruct your bank, broker or other nominee on how to vote, such failure will have the same effect as votes cast “AGAINST” this proposal. As of , 2024, the record date for the Special Meeting, shares constitute a majority of the issued and outstanding shares of Class A common stock.
Dissolution Proposal — The affirmative vote of the holders of a majority of all outstanding shares of Class A common stock on the record date is required to approve the Dissolution Proposal. Because the required vote for this proposal is based on the number of votes our Class A common stockholders are entitled to cast rather than on the number of votes actually cast, if you fail to authorize a proxy or vote online at the Special Meeting, abstain from voting at the Special Meeting, or fail to instruct your bank, broker or other nominee on how to vote, such failure will have the same effect as votes cast “AGAINST” this proposal. As of , 2024, the record date for the Special Meeting, shares constitute a majority of the issued and outstanding shares of Class A common stock.
Adjournment Proposal — Approval of the Adjournment Proposal requires either (i) if a quorum is present, the affirmative vote of the majority of the shares of Class A common stock present by remote communication or represented by proxy duly authorized at the Special Meeting and entitled to vote generally on the subject matter or (ii) if a quorum is not present, the vote of the holders of a majority of the shares of Class A common stock represented at the Special Meeting.
What is the quorum requirement?
The presence, in person or by proxy duly authorized, of the holders of record of a majority of the outstanding shares of Class A common stock entitled to vote shall constitute a quorum for the transaction of business at the Special Meeting. The Special Meeting will be held virtually; therefore only shares present virtually or represented by proxy at the Special Meeting will be counted in determining whether a quorum is present. Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee), if you vote at the Special Meeting or if you attend the Special Meeting but abstain from voting. The Special Meeting may be adjourned whether or not a quorum is present. If you hold your shares in “street name” and do not give any instruction to your broker, bank or other nominee as to how your shares should be voted at the Special Meeting, those shares will not be entitled to vote on any proposal at the Special Meeting and will not be counted for purposes of establishing a quorum.
How can I find out the results of the voting at the Special Meeting?
In addition, final voting results will be published in a Current Report on Form 8-K that we expect to file within four business days after the Special Meeting. If final voting results are not available to us in time to file a Current Report on Form 8-K within four business days after the Special Meeting, we intend to file a Current Report on Form 8-K to publish preliminary results and, within four business days after the final results are known to us, file an amended Current Report on Form 8-K to publish the final results. We will announce the final voting results following the Special Meeting.
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What proxy materials are available on the Internet?
These proxy materials, and the documents incorporated by reference herein, are available at https://ir.atreca.com/financials-and-filings/sec-filings and www.sec.gov.
Who can help answer my questions?
If you have any questions concerning the Asset Sale, the Asset Purchase Agreement, the Dissolution, the Plan of Dissolution, the Special Meeting or this proxy statement, or would like additional copies of this proxy statement or need help voting your shares of Class A common stock, please contact our proxy solicitor:
MacKenzie Partners, Inc.
1407 Broadway, 27th Floor
New York, New York 10018
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
1407 Broadway, 27th Floor
New York, New York 10018
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
Email: proxy@mackenziepartners.com
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement contains forward-looking statements which involve substantial risks and uncertainties and are based on Atreca’s beliefs and assumptions and on information currently available to Atreca. All statements other than statements of historical facts contained in this proxy statement, including statements regarding the Dissolution and related matters, are forward-looking statements. These forward-looking statements are subject to the safe harbor provisions under the Private Securities Litigation Reform Act of 1995. In some cases, you can identify forward-looking statements because they contain words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “forecast,” “foresee,” “potential,” “predict,” “project,” “likely,” “goal,” “target,” “could,” “should,” “will,” or “would,” or the negative of these words or other similar terms or expressions.
Forward-looking statements are predictions based on expectations and projections about future events, are not statements of historical fact, are subject to risks, uncertainties and assumptions that are difficult to predict and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. Forward-looking statements represent our current beliefs, estimates and assumptions only as of the date of this proxy statement and information contained in this proxy statement should not be relied upon as representing Atreca’s estimates as of any subsequent date. These statements, and related risks, uncertainties, factors and assumptions, include, but are not limited to:
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the ability of the parties to consummate the Asset Sale;
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satisfaction of closing conditions precedent to the consummation of the Asset Sale;
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potential delays in consummating the Asset Sale, our ability to timely execute the Dissolution;
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our execution costs in connection with the Asset Sale and the Dissolution;
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the availability, timing and amount of liquidating distributions;
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the amounts that will need to be set aside by us;
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the adequacy of such reserves to satisfy our obligations;
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our ability to favorably resolve potential tax claims, litigation matters and other unresolved contingent liabilities;
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the amount of proceeds that might be realized from the sale or other disposition of any remaining assets;
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the application of, and any changes in, applicable tax laws, regulations, administrative practices, principles and interpretations;
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the incurrence by Atreca of expenses relating to the Dissolution;
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our ability to retain employees, consultants and other resources to carry out the Dissolution;
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the timing of delisting of our Class A common stock from Nasdaq and related limitations on future trading of our Class A common stock prior to the Dissolution; and
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the ability of our Board of Directors to abandon, modify or delay implementation of the Plan of Dissolution, even after stockholder approval.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based on information available to us as of the date of this proxy statement. While we believe that information provides a reasonable basis for these statements, that information may be limited or incomplete. Our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all relevant information. These statements are inherently uncertain, and investors are cautioned not to unduly rely on these statements as predictions of future events.
These risks are not exhaustive. Except as required by law, we assume no obligation to update these forward-looking statements, or to update the reasons actual results could differ materially from those
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anticipated in the forward-looking statements, even if new information becomes available in the future. Further information on factors that could cause actual results to differ materially from the results anticipated by our forward-looking statements is included in the reports we have filed or will file with the SEC, including our Annual Report on Form 10-K for the year ended December 31, 2022, our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2023 and subsequent filings we may make with the SEC. These filings, when available, are available on the investor relations section of our website at https://ir.atreca.com/financials-and-filings/sec-filings and on the SEC’s website at www.sec.gov.
The forward-looking statements included in this proxy statement are made only as of the date hereof. We assume no obligation and we do not intend to update these forward-looking statements, except as required by law.
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RISK FACTORS
You should carefully consider the following risk factors, in addition to the other information contained in this proxy statement and the annexes attached to the proxy statement, including risks described in our filings with the SEC referred to herein, when deciding whether to vote to approve the Asset Sale Proposal and the Dissolution Proposal. The risks and uncertainties described below are not the only ones we face. Additional risks and uncertainties of which we are unaware, or that we currently believe are not material, may also become important factors. This proxy statement also contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in the forward-looking statements as a result of factors that are described below and elsewhere in this proxy statement. See the section titled “Special Note Regarding Forward-Looking Statements” beginning on page 16 of this proxy statement.
The announcement and pendency of the Asset Sale and the Dissolution, whether or not consummated, may adversely affect our business.
The announcement and pendency of the Asset Sale and the Dissolution, whether or not consummated, may adversely affect the trading price of our Class A common stock, our business or our relationships with our consultants and other third parties. In addition, pending the completion of the Asset Sale and the Dissolution, any of our employees, consultants or advisors may terminate their employment or engagement with us on short notice and the loss of the services of any of our employees, consultants or advisors could substantially harm our ability to complete the Asset Sale and the Dissolution.
Our stockholders may not approve the Asset Sale, and even if they do, we may not be successful in completing the Asset Sale or otherwise selling our remaining assets, which would decrease the amount of cash available to distribute to our stockholders.
The consummation of the Asset Sale is subject to the satisfaction or waiver of various conditions, including the approval of the Asset Sale Proposal by our stockholders. We cannot guarantee that the closing conditions set forth in the Asset Purchase Agreement will be satisfied. If we are unable to satisfy the closing conditions or if other mutual closing conditions are not satisfied, Immunome will not be obligated to complete the Asset Sale. In the event that the Asset Sale is not completed, the announcement of the termination of the Asset Purchase Agreement may adversely affect the trading price of our Class A common stock, our business or our relationships with our consultants and other third parties.
In addition, if the Asset Sale is not completed, our Board of Directors, in discharging its fiduciary obligations to our stockholders, may evaluate other strategic alternatives in respect of our remaining assets that may be available, which alternatives may not be as favorable to our stockholders as the Asset Sale and may not result in any definitive transaction or enhance stockholder value. Any future sale of all or substantially all of the assets of Atreca or certain other transactions may be subject to further stockholder approval. However, because our Board of Directors and management believe that they have exhausted all reasonable and viable strategic alternatives, it is possible that Atreca would seek voluntary dissolution at a later time and likely with diminished assets. In addition, Atreca could cease all operations, make an assignment for the benefit of any creditors, turn Atreca over to a third-party management company or liquidator or file for bankruptcy protection.
The amount we distribute to our stockholders in the initial liquidating distribution may be substantially less than the amount we currently estimate if the amounts of our liabilities, other obligations and expenses or claims against us are higher than we currently anticipate or larger contingency reserves are established.
As of December 15, 2023, we had approximately $10.4 million in cash and cash equivalents. We currently estimate that we will expend between $13.1 million and $13.7 million after December 15, 2023, which will be used to pay all expenses (including operating expenses up until the filing of the Certificate of Dissolution) and other known, non-contingent liabilities, and which also includes reasonable provision for expenses of liquidation and potential, contingent or unknown liabilities as required by Delaware law. Based on this estimated reserve, if the Asset Sale is consummated, for which Atreca will receive upfront consideration of $5.5 million, we currently estimate that the aggregate amount of an initial liquidating distribution to stockholders will be between $2.2 million and $2.9 million, or between $0.05 and $0.07 per share of Class A common stock and Class B common stock (based on 32,908,634 shares outstanding of Class A common
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stock and 6,715,441 shares outstanding of Class B common stock as of December 15, 2023 plus an estimate of 37,500 shares of Class A common stock issuable upon the accelerated vesting and settlement of restricted stock units in connection with the closing of the Asset Sale), plus we will be deemed to have distributed to our stockholders CVRs that afford the opportunity to realize additional value of up to $0.17 per share if both Milestones are achieved within the time period described in the CVR Agreement, as more fully described in the section captioned “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Form of Contingent Value Rights Agreement.” We intend to make this initial distribution as soon as practicable following the filing of the Certificate of Dissolution as creditor claims and contingent liabilities are paid or settled; however, we are unable to predict the precise amount or timing of the initial distribution or of any additional liquidating distributions following the initial liquidating distribution. The timing and amount of the initial distribution and any such additional liquidating distributions will depend upon the actual expenses incurred, the timing of the resolution of matters for which we have established the contingency reserve, the amount to be paid in satisfaction of such contingencies, the achievement of both Milestones within the time period described in the CVR Agreement, the obligations satisfied and provisions made during the liquidation and winding-up process, as well as our ability to convert our remaining assets to cash. We have attempted to estimate reasonable reserves for such liabilities, obligations, expenses and claims against us. However, those estimates may be inaccurate. Factors that could impact our estimates include the following:
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if any of the estimates regarding the Plan of Dissolution, including the expenses to satisfy outstanding obligations, liabilities and claims during the liquidation process, are inaccurate;
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if unforeseen claims are asserted against us, we will have to defend or resolve such claims or establish a reasonable reserve before making distributions to our stockholders; and
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if the estimates regarding the expenses to be incurred in connection with the Asset Sale and the liquidation process, including expenses of personnel required and other operating expenses (including legal, accounting, tax and other professional fees) necessary to dissolve and liquidate Atreca, are inaccurate.
If any of the foregoing occurs, the amount we initially distribute to our stockholders may be substantially less than the amount we currently estimate. If the Asset Sale Proposal is not approved, we do not foresee any funds being available for distribution to our stockholders.
We will incur significant expenses in connection with the Asset Sale, regardless of whether the Asset Sale is completed.
We expect to incur significant expenses related to the Asset Sale. These expenses include, but are not limited to, legal fees, accounting fees and expenses, certain consultant expenses, filing fees, printing expenses and other related fees and expenses. Many of these expenses will be payable by us regardless of whether the Asset Sale is completed.
The Asset Purchase Agreement limits our ability to pursue alternatives to the Asset Sale.
The Asset Purchase Agreement contains provisions that make it substantially more difficult for us to sell the Company’s assets or engage in another type of acquisition transaction with a party other than Immunome. Specifically, the Company agreed not to solicit any acquisition proposals until the date of closing of the Asset Sale or the valid termination of the Asset Purchase Agreement except that, at any time prior to obtaining stockholders’ approval of the Asset Sale Proposal, in response to a Superior Proposal (as defined in the Asset Purchase Agreement), the Board of Directors may, among other actions, make a Change in Recommendation (as defined in the Asset Purchase Agreement) if the Board of Directors determines in good faith, after consultation with its outside legal counsel, and taking into account any revised terms proposed in writing by Immunome, such proposal continues to constitute a Superior Proposal and that the failure to make such a Change in Recommendation would be inconsistent with the Board of Directors’ fiduciary obligations to our stockholders under Delaware law, subject to the satisfaction of certain other conditions. These provisions, among others contained in the Asset Purchase Agreement, could discourage a third party that might have an interest in acquiring all of or substantially all of our assets or our common stock from considering or proposing such an acquisition, even if that party were prepared to pay consideration with a higher value than the consideration to be paid by Immunome.
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The Company did not receive a fairness opinion in connection with the Asset Sale.
Our Board of Directors did not seek or obtain a fairness opinion from an investment bank or other firm that the consideration to be paid in connection with the Asset Sale is fair from a financial point of view to our stockholders.
If our stockholders vote against the Plan of Dissolution, it would be very difficult for us to continue our business operations.
If our stockholders do not approve the Dissolution Proposal, we would have to continue our business operations from a difficult position, in light of our announced intent to dissolve and liquidate, and our Board of Directors and management will continue to explore other strategic alternatives. However, because our Board of Directors and management believe that they have exhausted all reasonable and viable strategic alternatives, it is possible that we would seek voluntary dissolution at a later time and likely with diminished assets. In addition, we could cease all operations, make an assignment for the benefit of any creditors, turn Atreca over to a third-party management company or liquidator or file for bankruptcy protection. We are not actively conducting any preclinical or clinical development programs and have generally ceased normal business operations and terminated all but 6 of our employees. Prospective employees, vendors and other third parties may refuse to form relationships or conduct business with us if they do not believe we will continue to operate as a going concern. We also expect our Class A common stock to be delisted from Nasdaq in March 2024, following which time there may not be a liquid trading market for our Class A common stock.
The payment of liquidating distributions, if any, to our stockholders could be delayed.
Although our Board of Directors has not established a firm timetable for liquidating distributions to our stockholders, our Board of Directors intends, subject to contingencies inherent in winding down our business, to make such liquidating distributions, if any, as promptly as practicable as creditor claims and contingent liabilities are paid or settled. However, we are currently unable to predict the precise timing of any such liquidating distributions or whether any liquidating distributions will occur at all. The timing of any such liquidating distributions will depend on and could be delayed by, among other things, the timing of sales of our non-cash assets and claim settlements with creditors. Additionally, a creditor could seek an injunction against the making of such distributions to our stockholders on the ground that the amounts to be distributed were needed to provide for the payment of our liabilities and expenses. Any action of this type could delay or substantially diminish the amount available for such distribution to our stockholders.
We will continue to incur claims, liabilities and expenses and a delay in the consummation of the Asset Sale and/or Dissolution will reduce the amount available for distribution to stockholders.
Claims, liabilities and expenses from operations, such as operating costs, salaries, insurance, payroll and local taxes, legal, accounting and consulting fees and miscellaneous expenses, will continue to be incurred as we wind down. These expenses will reduce the amount of assets available for ultimate distribution to stockholders.
If we fail to create an adequate contingency reserve for payment of our expenses and liabilities, each stockholder receiving liquidating distributions could be held liable for payment to our creditors of his, her or its pro rata share of amounts owed to creditors in excess of the contingency reserve, up to the amount actually distributed to such stockholder in dissolution.
If the Plan of Dissolution is approved by our stockholders, we will file a Certificate of Dissolution with the Delaware Secretary of State dissolving Atreca. Pursuant to the DGCL, we will continue to exist for three years after our dissolution or for such longer period as the Delaware Court of Chancery shall direct, for the purpose of prosecuting and defending suits against Atreca and enabling us gradually to close our business, to dispose of our property, to discharge our liabilities and to distribute to our stockholders any remaining cash. Under the DGCL, in the event we fail to create an adequate contingency reserve for payment of our expenses and liabilities, each stockholder of record as of the Final Record Date could be held liable for payment to our creditors of such stockholder’s pro rata share of amounts owed to creditors in excess of the contingency reserve, up to the amount actually distributed to such stockholder in dissolution.
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Although the liability of any stockholder is limited to the amounts previously received by such stockholder from us (and from any liquidating trust or trusts) pursuant to the Plan of Dissolution, this means that a stockholder could be required to return all liquidating distributions previously made to such stockholder and receive nothing from us under the Plan of Dissolution. Moreover, in the event a stockholder has paid taxes on amounts previously received, a repayment of all or a portion of such amount could result in a stockholder incurring a net tax cost if the stockholder’s repayment of an amount previously distributed does not cause a commensurate reduction in taxes payable. While we will endeavor to make adequate reserves for all known, contingent, and unknown liabilities, there is no guarantee that the reserves established by us will be adequate to cover all such expenses and liabilities.
The Milestone Payments under the CVR Agreement may never become payable.
The Milestones, as defined in and as further described in the section captioned “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Form of Contingent Value Rights Agreement,” necessary to trigger payment under the CVR Agreement may not be achieved within the required time period or at all and, if it is not achieved within such time period, no payment will be made pursuant to the CVRs. The CVRs issued pursuant to the CVR Agreement are not freely transferable and, accordingly, will not be registered with the SEC or listed on any securities exchange.
We may be subject to securities litigation, which is expensive and could divert our attention.
We may be subject to securities class action litigation in connection with the Asset Sale. Securities litigation against us could result in substantial costs and divert our management’s attention from closing the Asset Sale, which could harm our business and increase our expenses, which could decrease the amount available for distribution to our stockholders.
No further stockholder approval will be required for the dissolution of the Company.
Approval of the Plan of Dissolution and the actions contemplated thereby requires the affirmative vote of a majority of our outstanding shares of Class A common stock. If our stockholders approve the Plan of Dissolution, we will be authorized to cease operations, sell, license or otherwise dispose of all of our remaining non-cash assets and dissolve Atreca without further approval of our stockholders, unless required to do so by Delaware law.
We intend to have our Class A common stock delisted from Nasdaq and our stock transfer books closed at the close of business on the date we file the Certificate of Dissolution with the Delaware Secretary of State, after which it will not be possible for stockholders to publicly trade our stock.
We previously announced in September 2023 that if we do not regain compliance with Nasdaq’s minimum bid price requirement by March 6, 2024, our Class A common stock will be subject to immediate delisting. As such, we expect that our Class A common stock will be delisted from Nasdaq on or around March 6, 2024, which is expected to be prior to the Final Record Date. Once our Class A common stock is delisted from Nasdaq, the ability of our stockholders to trade or otherwise transfer our Class A common stock will be significantly impacted.
In addition, on the date we file the Certificate of Dissolution with the Delaware Secretary of State, we intend to close our stock transfer books and discontinue recording transfers of our Class A common stock and Class B common stock. Thereafter, certificates or book entries representing our Class A common stock and Class B common stock will not be assignable or transferable on our books except by will, intestate succession or operation of law. The proportionate interests of all of our stockholders will be fixed on the basis of their respective stock holdings at the close of business on the Final Record Date, and, after the Final Record Date, any distributions made by us will be made solely to the stockholders of record at the close of business on the Final Record Date, except as may be necessary to reflect subsequent transfers recorded on our books as a result of any assignments by will, intestate succession or operation of law.
We may no longer be required to file reports with the SEC during the pendency of or following the consummation of the Asset Sale and/or Dissolution.
We may file a notice suspending and terminating our reporting obligations under the Exchange Act during the pendency of or following the consummation of the Asset Sale and/or Dissolution. Once effective,
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we will no longer be required to file any annual, quarterly or current reports with the SEC. If we are no longer required to file such reports with the SEC, our stockholders will have very little public information available about us and our operations which may further affect the trading and liquidity of our Class A common stock.
If we continue to be required to file reports with the SEC, we will incur costs and expenses relating to such reporting obligations.
If we continue to have obligations to file annual, quarterly and current reports with the SEC during the pendency of or following the consummation of the Asset Sale and/or Dissolution, we will have to incur costs and expenses to make such filings and to comply with the Exchange Act and the rules and regulations promulgated thereunder.
The tax treatment of any distributions or other payments may vary from stockholder to stockholder, and the discussions in this proxy statement regarding the tax treatment of the Dissolution are general in nature.
We have not requested a ruling from the U.S. Internal Revenue Service, or the IRS, with respect to the anticipated tax consequences of the Asset Sale and Dissolution or any matters relating thereto, and we will not seek an opinion of counsel with respect to the anticipated tax consequences of the Asset Sale or any distributions (including, without limitation, liquidating distributions (if any), dividend distributions or other payments). If any of the anticipated tax consequences described in this proxy statement proves to be incorrect, the result could be increased taxation at the corporate and/or stockholder level, thus reducing the benefit to our stockholders and us from such transactions. Tax considerations applicable to particular stockholders may vary with and be contingent upon the stockholder’s individual circumstances. You should consult your tax advisor as to the tax consequences of the Dissolution in your particular circumstances, including the applicability of any U.S. federal, state, and local and non-U.S. tax laws.
Our stockholders may not be able to recognize a loss for U.S. federal income tax purposes until they receive a final distribution from us.
Distributions made pursuant to the Plan of Dissolution (which, if the Asset Sale is consummated, are intended to include the CVRs) are intended to be treated as received by a Holder in exchange for the Holder’s shares of our Class A common stock and Class B common stock. Assuming such treatment is respected for U.S. federal income tax purposes, the amount of any such distribution will reduce the Holder’s adjusted tax basis in such shares, but not below zero. Any excess will be taxable as capital gain, while any tax basis remaining in such shares following the final distribution pursuant to the Plan of Dissolution will be treated as a capital loss. Any such gain or loss generally will be long-term capital gain or loss, respectively, if such shares have been held for more than one year. The deductibility of capital losses is subject to limitations. For a more detailed discussion, refer to “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Material U.S. Federal Income Tax Consequences of the Dissolution” beginning on page 52 of this proxy statement. You should consult your tax advisor as to the particular tax consequences of the Dissolution to you, including the applicability of any U.S. federal, state, and local and non-U.S. tax laws.
Our Board of Directors may at any time turn management of the liquidation over to a third party, and some or all our directors may resign from our Board of Directors at any time.
Our Board of Directors, which may consist of only one member following the Final Record Date, may at any time turn our management over to a third party to complete the liquidation of our remaining assets and distribute the available proceeds to our stockholders, and a number of our directors may resign from our Board of Directors prior to or in connection with the filing of the Certificate of Dissolution. If management is turned over to a third party and all of our directors resign from our Board of Directors, the third party would have sole control over the liquidation process, including the sale or distribution of any remaining assets.
If we decide to use a liquidating trust, interests of our stockholders in such a trust may not be transferable.
Under the Plan of Dissolution, our Board of Directors has the authority to use a liquidating trust. If a liquidating trust is established, the interests of our stockholders in a liquidating trust set up by us may not be transferable, which could adversely affect your ability to realize the value of such interests. Even if transferable, the interests are not expected to be listed on a national securities exchange, and the extent of any trading
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market therein cannot be predicted. Moreover, the interests may not be accepted by commercial lenders as security for loans as readily as more conventional securities with established trading markets. In addition, as stockholders will be deemed to have received a liquidating distribution equal to their pro rata share of the value of the net assets distributed to an entity which is treated as a liquidating trust for tax purposes, the distribution of non-transferable interests would result in tax liability to the interest holders without their being readily able to realize the value of such interest to pay such taxes or otherwise.
We can abandon or revoke the Dissolution and this may cause prior distributions made in liquidation to be treated as dividends.
By approving the Dissolution Proposal, stockholders will also be granting our Board of Directors the authority, notwithstanding stockholder approval of the Dissolution Proposal, to abandon the Dissolution prior to the filing of the Certificate of Dissolution without further stockholder action, if our Board of Directors determines that the Dissolution is not in the best interests of Atreca and our stockholders.
After the filing of the Certificate of Dissolution, our Board of Directors may revoke the Dissolution if holders of a majority of the voting power of our Class A common stock entitled to vote on the Dissolution Proposal approve a resolution adopted by our Board of Directors recommending such revocation. If the Dissolution is abandoned or revoked, then, for U.S. federal and applicable state income tax purposes, all prior distributions made in liquidation to stockholders may be treated as dividends to the extent of our current and accumulated earnings and profits. Please refer to the section titled “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Material U.S. Federal Income Tax Consequences of the Dissolution” beginning on page 52 of this proxy statement.
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PROPOSAL 1: APPROVAL OF THE ASSET SALE PURSUANT TO THE ASSET PURCHASE AGREEMENT
General
As part of our strategic review process, and in an effort to maximize stockholder value, our Board of Directors seeks to effect the sale of substantially all of the assets of Atreca. In furtherance of these efforts, our Board of Directors is presenting the Asset Purchase Agreement for approval by our stockholders at the Special Meeting. The Asset Purchase Agreement was unanimously approved by our Board of Directors, subject to stockholder approval, on December 19, 2023. A copy of the Asset Purchase Agreement is attached as Annex A to this proxy statement. All material features of the Asset Purchase Agreement are summarized below. All capitalized, undefined terms used herein shall have the meanings ascribed to such terms in the Asset Purchase Agreement. We encourage you to read the Asset Purchase Agreement in its entirety.
The Parties to the Asset Sale
Until recently, Atreca was a biopharmaceutical company utilizing our differentiated platform to discover and develop novel antibody-based immunotherapeutics to treat a range of solid tumor types. In connection with the Plan of Dissolution, Atreca has discontinued all preclinical and clinical programs and Atreca has continued reductions in its workforce, which included the termination of most employees by December 31, 2023.
Atreca was incorporated in the State of Delaware on June 11, 2010. Its principal executive offices are located at 900 East Hamilton Avenue, Suite 100, Campbell, California 95008, and its telephone number is (650) 595-2595. Our website address is www.atreca.com.
Immunome is a biotechnology company dedicated to developing first-in-class and best-in-class targeted cancer therapies. Its portfolio pursues each target with a modality appropriate to its biology, including immunotherapies, targeted effectors, radioligand therapies and antibody drug conjugates. Immunome believes that pursuing underexplored targets with appropriate drug modalities leads to transformative therapies. Its proprietary memory B cell hybridoma technology allows for rapid screening and function characterization of novel antibodies and targets.
Immunome was incorporated as a Pennsylvania corporation on March 2, 2006 and was converted to a Delaware corporation on December 2, 2015. Its principal executive offices are located at 665 Stockton Drive, Suite 300, Exton Pennsylvania, 19341, with additional offices in Bothell, Washington. Its telephone number is (610) 321-3700 and its website address is www.immunome.com.
Summary of the Asset Purchase Agreement
The following is a summary of the key terms of the Asset Purchase Agreement:
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Pursuant to the Asset Purchase Agreement, Atreca will sell and assign substantially all of its operating assets to Immunome, and Immunome shall assume certain liabilities relating to or arising out of the ownership, use, operation or maintenance of such assigned operating assets from and after the closing of the Asset Sale, or the Closing.
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The total consideration for the purchase and sale of Atreca’s assets is $5.5 million plus the issuance of CVRs to Atreca’s stockholders and the assumption by Immunome of certain liabilities as described in the first bullet above.
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Until the Closing, Atreca is prohibited from, directly or indirectly, engaging in any solicitation or similar activities, as set forth in the Asset Purchase Agreement, or the No-Shop. During the No-Shop, Atreca may, under certain limited circumstances, consider unsolicited, alternative transaction proposals from third parties that are Superior Proposals. Atreca must give Immunome an opportunity to revise its proposal so that any other alternative transaction proposals are no longer Superior Proposals.
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Atreca shall, in certain specified circumstances, including if Immunome terminates the Asset Purchase Agreement due to a Change in Recommendation (as defined below) or the failure of Atreca to obtain approval of its stockholders for the Asset Sale and the other transactions contemplated by the Asset
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Purchase Agreement, reimburse Immunome for its reasonable and documented out-of-pocket fees and expenses, up to a maximum aggregate amount of $500,000, incurred in connection with the authorization, preparation, investigation, negotiation, execution and performance of the Asset Purchase Agreement, the CVR Agreement and transactions contemplated thereby.
The summary of selected information from this proxy statement regarding the Asset Sale Proposal may not contain all the information that is important to you. To understand the Asset Sale Proposal and the Asset Purchase Agreement fully, we encourage you to carefully read this entire proxy statement, including, but not limited to, the Asset Purchase Agreement which is included in this proxy statement as Annex A.
Background for the Asset Sale and the Dissolution
Prior to Atreca’s announcement on August 10, 2023 regarding its reorganization and intention to explore strategic options for enhancing and preserving stockholder value, Atreca was a clinical-stage biopharmaceutical company utilizing a differentiated platform primarily to discover and develop novel antibody-based therapeutics to treat a range of solid tumor types. Until August 2023, Atreca’s lead product candidate was ATRC-101, a monoclonal antibody with a novel mechanism of action and target discovered using Atreca’s discovery platform. Since the commencement of its operations in 2010, Atreca has utilized its drug discovery approach to identify over 2,000 distinct human antibodies that bind preferentially to tumor tissue from patients.
As part of the ongoing consideration and evaluation of Atreca’s long-term prospects and strategies, the Board of Directors frequently reviews, with Atreca’s management and outside advisors, strategic and financial alternatives for Atreca, considering developments in Atreca’s business, the sectors in which it competes, the economy generally and financial markets, with the goal of enhancing value for its stockholders. As part of this process, including throughout the calendar year 2023, members of Atreca’s management and Financial Advisor A have engaged in financing discussions with investors as well as business development and strategic transaction discussions with various biotech and pharmaceutical companies. Additionally, in 2023, at the direction of the Board of Directors, members of management discussed other strategic alternatives with Financial Advisor B on a preliminary basis, but ultimately determined that such strategic alternatives were not available.
In March 2023, Atreca reported additional data from the ongoing Phase 1b clinical trial of ATRC-101 in monotherapy and in combination with pembrolizumab in patients with select solid tumor cancers. Based on such data, between April and August 2023, Atreca’s management team and Financial Advisor A, in consultation with the Board of Directors, actively explored potential alternatives to raise capital to fund the company’s operations, including clinical development of ATRC-101 as well as preclinical development of earlier-stage assets. These alternatives included financing by current and potential investors as well as business development and strategic transactions with potential partners such as out-licensing and collaboration arrangements. Atreca was unable to obtain funding through any of these alternatives due to a variety of reasons, including lack of investor demand and volatility in global capital markets.
On May 3, 2023, Atreca executed a mutual confidential non-disclosure agreement with Company A. On May 3, 2023, members of Atreca’s management team held an in-person meeting with representatives from Company A to discuss a potential merger transaction.
On May 24, 2023, the Board of Directors held a videoconference meeting, during which the directors and members of Atreca’s management team discussed potential strategic combinations with several candidates in the biopharmaceutical space. Members of management also provided a summary of the prior meetings held between management and representatives of Company A and discussed with the Board of Directors potential next steps in negotiating a term sheet with Company A.
On May 31, 2023, members of Atreca’s management team held another meeting with representatives from Company A to continue discussing a potential merger transaction. On June 16, 2023, representatives of Company A informed management of Atreca that Company A would not be pursuing a merger with Atreca because Company A’s board of directors decided to prioritize transactions with companies with nearer term clinical data than Atreca’s early-stage research assets.
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In June 2023, Atreca implemented and announced a corporate reorganization to reduce its expenses and extend its cash runway, including a workforce reduction of over 25% of its then-current employees.
On June 23, 2023, John Orwin, Atreca’s Chief Executive Officer, had an introductory call with Company B’s Chief Executive Officer to discuss a potential merger transaction.
On July 10, 2023, Atreca executed a mutual confidential non-disclosure agreement with Company B, which did not contain a standstill provision. Also on July 10, 2023, members of management at each of Atreca and Company B held a videoconference meeting to further discuss a potential merger transaction.
On July 12, 2023, Mr. Orwin had an in-person meeting with Company B’s Chief Executive Officer to further discuss matters from their July 10 meeting.
On August 1, 2023, the Board of Directors held a videoconference meeting, with representatives of management and Financial Advisor A attending. Management discussed cost-saving measures to preserve and extend Atreca’s cash runway, including a corporate reorganization, workforce reduction and proposed winddown of the ATRC-101 Phase 1b clinical trial due to development and financial constraints. The Board of Directors considered several strategic options, including remaining as a standalone company while pursuing potential financing opportunities, dissolving Atreca and distributing remaining cash to stockholders, and sale of Atreca, including through a reverse merger, sale to another public company or sale to a private investor. The Board of Directors considered the benefits and risks of the various strategic alternatives, including the likelihood of finding a counterparty for a transaction, and the timeline and costs associated with such strategic options.
On August 8, 2023, members of Atreca’s management team held an in-person meeting with representatives from Company B to continue discussing a potential merger transaction.
On August 10, 2023, Atreca announced and implemented a second reorganization of its operations, including a suspension of its clinical development plan for ATRC-101, a workforce reduction of approximately 40% of its then-current employees and wind down of clinical trial activities.
On August 18, 2023, Company B was granted access to Atreca’s virtual data room.
On August 28, 2023, the Board of Directors held a videoconference meeting, with representatives of management and representatives of Financial Advisor A attending. Representatives of Financial Advisor A reviewed the ongoing strategic transaction process and timeline, and members of management provided an update on Atreca’s cash runway under various scenarios. Atreca’s management team updated the Board of Directors on the advancement of strategic discussions with various potential counterparties. The Board of Directors then discussed the potential engagement of Financial Advisor A with respect to a formal strategic transaction process.
Between August and November 2023, and at the direction of the Board of Directors, members of Atreca’s management team and representatives of Financial Advisor A contacted over 20 potential counterparties ranging from small biotech companies to large pharmaceutical companies in connection with the formal strategic transaction process. Certain of these potential counterparties were engaged in existing discussions with Atreca and others were contacted for the first time as part of the above-described outreach process. Atreca executed, or had existing, mutual confidential non-disclosure agreements with nine strategic counterparties, including Company C on August 30, 2023 and Immunome on October 13, 2023 which in each case, except for the mutual confidential non-disclosure agreement with Company A, did not contain a standstill provision. Atreca populated a virtual data room for the purpose of facilitating the diligence review process by potential counterparties. Atreca and Financial Advisor A discussed a potential merger transaction, whole company sale and sale of certain assets with these potential counterparties, including Immunome and Company C. As part of the strategic process, such potential counterparties were asked to provide an indication of interest by the end of September, which deadline was later extended to late October to provide the potential counterparties additional time to conduct diligence.
On each of August 31 and September 27, 2023, representatives of Atreca and Company C held meetings to discuss scientific and intellectual property diligence. In addition to these diligence meetings, representatives of Atreca, Company C and Financial Advisor A had multiple follow up calls to discuss diligence matters as
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well as the potential transaction and related process, including a call on September 13 between representatives of Financial Advisor A and Company C to discuss Company C’s ongoing diligence process and ability to submit an initial expression of interest by late October.
On September 13, 2023, the Board of Directors held a videoconference meeting, with representatives of management and Cooley LLP, or Cooley, counsel to Atreca, also attending. At the meeting, representatives of Cooley reviewed with the Board of Directors its applicable fiduciary duties for solvent and insolvent corporations and related process considerations.
On September 29, 2023, Company B informed Atreca’s management team that Company B would not be pursuing a merger transaction with Atreca because Company B’s board of directors decided to prioritize transactions with companies with nearer term clinical developments than Atreca’s early-stage research assets.
On October 6, 2023, representatives from Immunome communicated to Financial Advisor A that they would prefer to pursue an asset acquisition rather than a whole company acquisition. From late October through November 2023, Immunome conducted scientific and intellectual property diligence on Atreca.
On October 10, 2023, representatives from Company C communicated to Financial Advisor A an interest in pursuing an asset acquisition in lieu of a whole company acquisition and an expectation to continue to conduct diligence with the intent to finalize a proposal and submit a term sheet.
On October 18, 2023, the Board of Directors held a videoconference meeting, with representatives of management and representatives of Financial Advisor A attending. Members of management discussed an additional workforce reduction and provided an update on Atreca’s cash runway, implementation of cost-saving measures and the winddown of the ATRC-101 Phase 1b clinical trial. The Board of Directors also discussed the ongoing strategic transaction process, including strategic alternatives potentially available to Atreca and the outreach process for further engagement with potential counterparties.
Between October 19 and November 8, 2023, Atreca received multiple indications of interest from Immunome and Company C with respect to a sale of certain of Atreca’s assets. During such period, representatives from each of Immunome and Company C continued to conduct diligence on Atreca, including holding various financial, intellectual property and scientific diligence calls with Atreca’s management and scientific teams. During such period, Atreca did not receive any indication of interest for a strategic transaction from any company other than Immunome and Company C. All other potential counterparties declined or failed to make a proposal to Atreca with respect to a merger transaction, whole company sale, asset sale, or other strategic alternative.
On October 19, 2023, Atreca received a non-binding term sheet from Company C proposing a $3.0 million cash purchase price for certain of Atreca’s assets, including the APN-497444 and APN-987481 pre-clinical drug development programs.
On October 25, 2023, Atreca received a verbal non-binding offer from Immunome for the purchase of Atreca’s non-ATRC-101 monoclonal antibody assets in oncology for a $3.0 million upfront cash purchase price with up to $3.0 million payable on the achievement of certain regulatory and clinical-based milestones.
On October 31, 2023, the Board of Directors held a videoconference meeting, with representatives of management and representatives of Cooley and Financial Advisor A attending, to consider and evaluate the proposals received from Immunome and Company C, as well as other strategic alternatives potentially available to Atreca, including an update from Financial Advisor A on their outreach to other potential counterparties. The Board of Directors also discussed with members of management matters and timing with respect to the potential winddown and dissolution of Atreca.
On November 1, 2023, Atreca received an updated written non-binding offer from Immunome for the purchase of all of Atreca’s non-ATRC-101 monoclonal antibody assets in oncology and cancer patient samples for a $4.5 million upfront cash purchase price with up to $7.0 million payable on the achievement of certain clinical-based milestones.
On November 2, 2023, Atreca received an updated non-binding offer from Company C increasing their cash purchase price offer to $5.0 million for certain of Atreca’s assets, including the APN-497444 and APN-987481 pre-clinical drug development programs.
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On November 3, 2023, representatives from Financial Advisor A had a call with Clay Siegall, Chief Executive Officer of Immunome, and communicated that Atreca believed that the upfront purchase price should reflect an increased value for Atreca’s assets.
On November 6, 2023, Immunome was granted access to Atreca’s virtual data room.
On November 7, 2023, the Board of Directors held a videoconference meeting, with representatives of management and representatives of Cooley and Financial Advisor A attending, to consider and evaluate the revised proposals received from Immunome and Company C, as well as to continue discussing other strategic alternatives potentially available to Atreca with other potential counterparties. The Board of Directors also discussed with members of management additional matters and timing with respect to the potential winddown and dissolution of Atreca and an additional workforce reduction proposed by management.
On November 8, 2023, Atreca received an updated written non-binding offer from Immunome for the purchase of all of Atreca’s non-ATRC-101 monoclonal antibody assets in oncology, all non-platform based assets, all related data and sequence information, and certain patient samples from Atreca for $5.5 million upfront purchase price with up to $7 million payable on the achievement of certain clinical-based milestones.
On November 10, 2023, Financial Advisor A sent an initial draft of the asset purchase agreement to each of Immunome and Company C.
On November 14, 2023, the Board of Directors held a videoconference meeting, with representatives of management and representatives of Financial Advisor A attending, to conduct a review of the ongoing strategic process, as well as to receive an update from management on Atreca’s cash runway and planned workforce reductions.
Later on November 14, 2023, Atreca implemented and announced a further reduction in its workforce of approximately 40% of its then-current employees while maintaining sufficient personnel to support continued exploration of potential strategic transactions and business alternatives.
On November 15, 2023, representatives of Immunome management provided to representatives of Atreca and Cooley an issues list with respect to the draft asset purchase agreement and other deal-related matters.
On November 15, 2023, Company C was granted access to Atreca’s virtual data room.
On November 16, 2023, representatives of management from Atreca and Immunome, as well as Cooley and Goodwin Procter LLP, or Goodwin, counsel for Immunome, had two calls, the first of which was a diligence call to discuss Atreca’s intellectual property and the second of which was a legal call to discuss the issues list provided by Immunome the day prior.
On November 18, 2023, Goodwin sent a revised draft of the asset purchase agreement to Atreca and Cooley.
On November 21, 2023, representatives of management from Atreca and Company C, as well as Cooley and counsel for Company C, had a call to discuss the draft asset purchase agreement and key business and issues with respect thereto. Through the rest of November, Atreca continued to respond to various diligence requests from Company C.
On November 28, 2023, Company C informed Atreca that it did not intend to proceed with an asset purchase or any other strategic transaction at this time due, in part, to Atreca’s need to obtain stockholder approval in connection with the sale of assets and plan of dissolution.
On November 29, 2023, the Board of Directors held a videoconference meeting, with representatives of management and Cooley also attending. Members of management and the Board of Directors discussed the withdrawal of Financial Advisor A as Atreca’s financial advisor, by mutual agreement of the parties, in connection with the formal strategic transaction process and the Asset Sale. Members of management also provided updates on the strategic transaction process, proxy process and timeline, cash runway, and implementation of additional workforce reductions.
On December 1, 2023, representatives of Atreca sent a revised draft of the asset purchase agreement to Immunome and Goodwin.
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On December 7, 2023, Goodwin sent a revised draft of the asset purchase agreement to Atreca and Cooley.
On December 10, 2023, Ms. Phillips sent initial drafts of each of the form of contingent value rights agreement and form of support agreement to Immunome and Goodwin.
On December 11, 2023, Goodwin sent a revised draft of the form of support agreement to Atreca and Cooley.
On December 13, 2023, Goodwin sent a revised draft of the asset purchase agreement and form of contingent rights agreement to Atreca and Cooley.
On December 14, 2023, Cooley sent a revised draft of the asset purchase agreement and form of contingent rights agreement to Immunome and Goodwin.
On December 15, 2023, the Board of Directors held a videoconference meeting, with representatives of management and Cooley also attending, to review the terms of the proposed asset purchase agreement and related ancillary agreements. At the meeting, members of management provided an update with respect to the potential transaction with Immunome. Representatives of Cooley then reviewed with the Board of Directors its fiduciary duties applicable in connection with the strategic transaction process, the terms of the proposed Asset Sale and plans for the subsequent Dissolution, and the material terms of the draft asset purchase agreement and related ancillary agreements. Member of the Board of Directors then discussed and asked questions with respect to the potential transaction with members of management and Cooley.
On December 15, 2023, Goodwin sent a revised draft of the asset purchase agreement and form of contingent rights agreement to Atreca and Cooley. Later that morning, representatives of Atreca’s management, Immunome’s management, Cooley and Goodwin participated on a conference call during which the parties continued to negotiate the key terms of the Asset Sale.
On December 16, 2023, the Board of Directors held a videoconference meeting, with representatives of management and representatives of Cooley also attending. At this meeting, management discussed with the Board of Directors matters related to the planned proxy process and timeline, proposed amendments to certain executive officers’ employment arrangements in connection with the Asset Sale and strategy for the sale of Atreca’s remaining assets following the consummation of the Asset Sale and Dissolution.
On December 18, 2023, representatives of Atreca’s management, Immunome’s management, Cooley and Goodwin participated in conference calls during which the parties continued to discuss the final terms of the asset purchase agreement.
On December 19, 2023, the Board of Directors, acting through a written consent, unanimously (i) determined that the Asset Purchase Agreement, the CVR Agreement the other agreements contemplated in the Asset Purchase Agreement, the Asset Sale and the other transactions contemplated thereby are fair to and in the best interests of Atreca and its stockholders and has declared it advisable to enter into the Asset Purchase Agreement with Immunome and (ii) adopted resolutions approving the Asset Purchase Agreement, the Asset Sale and the consummation of the other transactions contemplated by the Asset Purchase Agreement and recommending to the stockholders of Atreca to vote for the adoption of a resolution approving the sale of substantially all of Atreca’s assets pursuant to, and on the terms and conditions set forth in, the Asset Purchase Agreement at the Special Meeting.
On December 20, 2023, Baker Brothers Life Sciences, L.P. and 667, L.P. (together, we refer to these entities as Baker) executed and delivered a waiver of their rights under the nominating agreement with Atreca dated as of September 5, 2018.
On December 22, 2023, Baker elected to increase the beneficial ownership limitation applicable to the conversion of its shares of Class B common stock into shares Class A common stock from 4.99% to 19.99% of Atreca’s total voting power (such increased limitation, the Adjusted Beneficial Ownership Limitation), with such election to become effective on February 21, 2024, or the Conversion Date. In addition, Baker elected to convert its shares of Class B common stock into shares of Class A common stock on and as of the Conversion Date, subject to the Adjusted Beneficial Ownership Limitation. Later that day, representatives of Atreca and
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Immunome executed the definitive Asset Purchase Agreement and each of Boxer Capital, LLC and the directors and executive officers of Atreca executed and delivered a Support Agreement.
On December 26, 2023, each of Immunome and Atreca issued a press release publicly announcing the proposed transaction.
Principal Terms and Conditions of the Asset Purchase Agreement
The following is a summary of the principal terms and conditions of the Asset Purchase Agreement, which are further described under and qualified in their entirety by the full text of the Asset Purchase Agreement. Pursuant to the Asset Purchase Agreement, the parties agreed to, among other things, the following terms and conditions:
Transferred Assets
Under the terms of the Asset Purchase Agreement, Atreca has agreed to sell to Immunome all of Atreca’s right, title and interest in, to, and under all of the assets, properties and rights which relate to, or are used or held for use in connection with, APN-346958, APN-497444, APN-987481, APN-685612, APN-216371, APN-051280, APN-446726, APN-122597, APN-294782, APN-917227, APN-943410, APN-323078, APN-549983, APN-831408, APN-250134, APN-541885, APN-585401, APN-267252, APN-959038, APN-459683, APN-739852, APN-362519, APN-722709, APN-407050, APN-222330, APN-095633, APN-237563, and APN-217241, collectively referred to as the Specified Program Antibodies, and the exploitation thereof (the development programs on or prior to the date of the Closing are collectively referred to as the Specified Programs, except that, with respect to APN-346958, a Specified Program to the extent relating to APN-346958 is deemed to only refer to the amino acid sequence of and the target for APN-346958 and not any other assets, properties or rights of any kind or nature in connection therewith), including the following assets, collectively referred to as the Transferred Assets:
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the contracts set forth on a schedule to the Asset Purchase Agreement, including all rights thereunder, together referred to as the Assumed Contracts;
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all of Atreca’s patents and other intellectual property rights (excluding trademarks and copyrights) (a) that are owned by Atreca or (b) as to which Atreca has been granted a license for and that (i) are related to any Specified Program or related to the Transferred Assets or the exploitation thereof or (ii) were acquired, conceived, reduced to practice or otherwise made or used in connection with any Specified Program or otherwise incorporated in any Specified Program;
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the human peripheral blood mononuclear cells, or PBMC, or other available human biological samples derived from blood specimens as set forth on a schedule to the Asset Purchase Agreement;
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the antibody sequences derived from oncology patient PBMC samples that Atreca generated as an initial step to discover and develop prophylactic or therapeutic antibodies, or the Sequence Repository;
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the data available in Atreca’s laboratory information management system database with respect to any subset of antibodies in the Sequence Repository;
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all books, records, files and documents related to the Specified Programs or other Transferred Assets, in each case that are owned or controlled by or otherwise in the possession of Atreca;
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all permits, licenses, certificates or other authorizations issued by any governmental body or pursuant to any law, or right under any contract with any governmental body, in each case, necessary for or primarily related to the Specified Programs;
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all licenses, permits, certificates and other authorizations, including those prepared for submission to or issued by any regulatory authority, that that are required for or primarily relate to the Transferred Assets or the exploitation of the Transferred Assets; and
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all claims and rights of indemnification or setoff against third parties and other claims arising out of or relating to the Specified Programs, the Transferred Assets or the Assumed Liabilities (as defined below) and all other intangible property rights that relate to the Specified Programs, the Transferred Assets or the Assumed Liabilities.
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Excluded Assets
Under the terms of the Asset Purchase Agreement, the following assets, or the Excluded Assets, will not be transferred to Immunome and will be retained by Atreca following the Closing:
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any excluded taxes of Atreca;
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all cash and cash equivalents of Atreca;
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all contracts other than the Assumed Contracts, or the Excluded Contracts;
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all statements of work, proposals or similar documents executed pursuant to any contract (including the Assumed Contracts) that are not related to, or used or held for use in connection with, any Specified Program or otherwise exclusively related to the Transferred Assets;
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all rights, claims and credits of Atreca to the extent relating to any Excluded Asset or any Excluded Liability (as defined below);
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all minute books and corporate seals, tax returns (except for non-income tax returns directly related to the Transferred Assets) and similar records of Atreca and any attorney work product, attorney-client communications and other items protected by attorney-client or similar privilege;
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all rights of Atreca relating to tax prepayments, tax deposits, tax refunds, other tax assets or any other rights relating to the recovery or recoupment of taxes (including any refunds or rights or claims to refunds of taxes, tax deposits, or other tax assets for any tax period (or portion thereof) ending on the date of the Closing to the extent relating to the Transferred Assets); and
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except to the extent included in the Transferred Assets, all other properties, assets, goodwill and rights of Atreca of whatever kind and nature, real, personal or mixed, tangible or intangible.
Assumed Liabilities
Under the terms of the Asset Purchase Agreement, Immunome will assume all liabilities arising after the Closing under or relating to the Assumed Contracts (other than those liabilities that relate to any performance or failure to perform prior to the Closing), or the Assumed Liabilities.
Excluded Liabilities
Under the terms of the Asset Purchase Agreement, other than the Assumed Liabilities, Immunome will not be the successor to Atreca and will not assume or be liable to pay, perform or discharge any liability whatsoever of Atreca, such liabilities referred to as the Excluded Liabilities. Atreca will pay, perform and discharge when due all Excluded Liabilities, including:
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any liabilities to the extent relating to or arising out of the Excluded Assets, including the Excluded Contracts;
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any liabilities to the extent relating to or arising out of accounts payable (other than the Assumed Liabilities);
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any liabilities of Atreca to any person and claims from any person to the extent relating to or arising out of circumstances existing on or prior to the Closing, including those to the extent relating to or arising out of any product liability, patent infringement, breach of warranty or similar claim for injury to person or property that resulted from the use, operation, ownership or misuse of the Transferred Assets or the operation of the business of Atreca to the extent such conduct occurred prior to the Closing; and
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any other liabilities arising out of the Transferred Assets or the operation of the business of Atreca prior to the Closing, whether or not any such liabilities are claimed prior to or after the Closing.
Consideration for the Asset Sale
As consideration for Atreca’s sale and delivery of the Transferred Assets to Immunome, and Atreca’s other covenants and obligations under the Asset Purchase Agreement, Immunome will (i) pay a purchase
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price in an aggregate amount equal to $5.5 million to Atreca, (ii) issue CVRs to Atreca’s stockholders, which will represent the right to receive the applicable Milestone Payment upon timely achievement of the applicable Milestone, in each case without interest and subject to the terms and conditions of the CVR Agreement (as defined in and as further described below in the section captioned “— Form of Contingent Value Rights Agreement”), and (iii) assume the Assumed Liabilities.
Representations and Warranties of Atreca and Immunome
The Asset Purchase Agreement contains representations and warranties that Atreca, on the one hand, and Immunome, on the other hand, have made to each other as of specific dates. Stockholders should not rely on the representations and warranties as characterizations of the actual state of facts or circumstances, and should bear in mind that the representations and warranties were made solely for the benefit of the parties to the Asset Purchase Agreement, were negotiated for purposes of allocating contractual risk among the parties to the Asset Purchase Agreement rather than to establish matters as facts, may be subject to contractual standards of materiality different from those generally applicable to stockholders, and are qualified by matters contained in the confidential disclosure schedule that Atreca delivered to Immunome in connection with the Asset Purchase Agreement, which are not reflected in the Asset Purchase Agreement. Moreover, information concerning the subject matter of such representations and warranties may change after the date of the Asset Purchase Agreement, which subsequent information may or may not be reflected in Atreca’s public disclosures.
The Asset Purchase Agreement contains a number of representations and warranties of Atreca to Immunome relating to, among other things: due organization; authority; good title; sufficiency of assets; non-contravention; consents; intellectual property; assumed contracts; compliance with laws; healthcare compliance; legal proceedings; orders; financial advisor; accuracy of proxy statement; no liquidation, winding-up; creditors; and taxes.
The Asset Purchase Agreement contains a number of representations and warranties of Immunome to Atreca relating to, among other things: corporate status; authority; non-contravention; consents; legal proceedings; financial capacity; compliance; and vote requirement.
Many of the representations and warranties contained in the Asset Purchase Agreement are qualified by a knowledge standard, a general material standard, or a “material adverse effect” standard (that is, they will not be deemed to be untrue or incorrect unless their failure to be true or correct would have a material adverse effect on Atreca).
Atreca Covenants
The Asset Purchase Agreement contains a number of pre-Closing covenants of Atreca to Immunome relating to, among other things:
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until the earlier to occur of the Closing and the termination of the Asset Purchase Agreement in accordance with its terms, Atreca will:
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subject to certain exceptions, cause its business and operations related to the Specified Programs and the other Transferred Assets to operate in substantially the same manner as conducted at the signing of the Asset Purchase Agreement;
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take or not take certain actions subject to certain exceptions;
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subject to certain exceptions, afford Immunome and its representatives reasonable access to all books, records, files and documents related to any Specified Programs or any Transferred Assets as Immunome may reasonably request;
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not, and will cause its representatives not to, directly or indirectly: (i)(A) solicit, initiate, knowingly induce, knowingly encourage or knowingly facilitate (including by way of furnishing information) any communication, inquiries or the making of any submission, announcement, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (B) participate in any discussions or negotiations or cooperate in any way not permitted by the Asset Purchase Agreement with any person regarding any submission, announcement, proposal or offer the consummation of which would constitute an Acquisition Proposal; (C) provide any
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information or data concerning Atreca or the Transferred Assets to any person in connection with, or in response to, any submission, announcement, proposal or offer the consummation of which would constitute an Acquisition Proposal; (D) approve, endorse or recommend, make any public statement approving or recommending, or enter into any agreement relating to, any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (E) execute or enter into any letter of intent or any contract contemplating or other relating to any Acquisition Proposal; or (F) take any action that could reasonably be expected to lead to an Acquisition Proposal; (ii) waive or release any person from or amend any existing standstill agreement or any standstill provisions of any other contract; or (iii) publicly propose to do any of the foregoing, subject to certain exceptions to allow Atreca and the Board of Directors to act consistently with their respective fiduciary duties under Delaware law; and
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except in the case of a Superior Proposal, Atreca will not permit the Board of Directors or any committee thereof to (i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Immunome, the Board Recommendation (as defined below), fail to publicly reaffirm the Board Recommendation within three business days after Immunome requests to do so in writing, or adopt, approve, recommend or otherwise declare advisable (or publicly propose or resolve to adopt, approve, recommend or otherwise declare advisable) any Acquisition Proposal or make or authorize the making of any public statement (oral or written) that has the substantive effect of such a withdrawal, qualification or modification, each, a Change in Recommendation, or (ii) adopt, approve, recommend or declare advisable, cause or permit Atreca to execute or enter into any contract, including any letter of intent or other agreement (other than a confidentiality agreement entered into in compliance with the terms of the Asset Purchase Agreement) with respect to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal or requiring, or reasonably expected to cause, Atreca (or would require Atreca) to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the transactions contemplated by the Asset Purchase Agreement.
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Atreca additionally agreed to take a number of additional actions, including to:
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duly call and hold a meeting of its stockholders for the purpose of seeking the approval and adoption of the Asset Purchase Agreement, any ancillary agreement to which Atreca will be a party, the Asset Sale, any other transactions contemplated thereby and the Dissolution following the Closing by the requisite number of stockholders of Atreca required to approve the Asset Sale pursuant to the DGCL, or the Stockholder Approval;
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prepare this proxy statement with consultation from Immunome and its counsel; and
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cooperate with Immunome in supplying information or assistance in Immunome’s fulfillment of its obligations related to regulatory matters under the Asset Purchase Agreement.
Mutual Covenants
The Asset Purchase Agreement contains a number of pre-Closing covenants of Atreca and Immunome to the other party, relating to, among other things: government and third party approvals; notice of certain events; further assurances; public disclosures; certain tax matters; transfer taxes; confidentiality; technology transactions; and Atreca’s former personnel.
Board Recommendation
The Board of Directors unanimously (i) determined that the Asset Purchase Agreement, the CVR Agreement the other agreements contemplated in the Asset Purchase Agreement, the Asset Sale and the other transactions contemplated thereby are fair to and in the best interests of Atreca and its stockholders and has declared it advisable to enter into the Asset Purchase Agreement with Immunome, and (ii) adopted resolutions approving the Asset Purchase Agreement, the Asset Sale and the consummation of the other transactions contemplated by the Asset Purchase Agreement and recommending to the stockholders of Atreca to vote for the adoption of a resolution approving the sale of substantially all of Atreca’s assets pursuant to, and on the terms and conditions set forth in, the Asset Purchase Agreement at the Special Meeting, or the Board
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Recommendation. Subject to certain exceptions set forth in the Asset Purchase Agreement, Atreca agreed that the Board of Directors may not withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Board Recommendation.
Closing Conditions
The obligations of Atreca and Immunome to consummate the Asset Sale pursuant to the Asset Purchase Agreement and other transactions contemplated thereby, are subject to the satisfaction of the following conditions:
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the absence of any law or governmental order prohibiting, restraining, enjoining or otherwise preventing the consummation of the transactions contemplated by the Asset Purchase Agreement;
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all required consents of, notifications to and filings with, any governmental body will have been made and any waiting periods applicable to the transactions contemplated by the Asset Purchase Agreement pursuant to any applicable law will have expired or been terminated; and
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the Stockholder Approval will have been obtained.
The obligation of Immunome to complete the transactions contemplated by the Asset Purchase Agreement is subject to the satisfaction or waiver by Immunome at or prior to the Closing of the following additional conditions:
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certain of the representations and warranties of Atreca contained in the Asset Purchase Agreement will be true and correct in all respects at and as of the date of the Closing as if made at and as of such date (except those representations and warranties that address matters only as of a particular date need only be true and correct in all respects as of that date), except for breaches of such representations and warranties that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Transferred Assets or Assumed Liabilities or the ability of Atreca to consummate the transactions contemplated by the Asset Purchase Agreement;
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Atreca will have performed and complied in all material respects with all covenants, agreements and obligations required to be performed or complied with on or prior to the date of the Closing;
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from the date of the Asset Purchase Agreement, no material adverse effect of Atreca will have occurred that is continuing; and
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Atreca will have delivered to Immunome certain closing deliverables.
The obligation of Atreca to complete the transactions contemplated by the Asset Purchase Agreement is subject to the satisfaction or waiver by Atreca at or prior to the Closing of the following additional conditions:
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certain of the representations and warranties of Immunome contained in the Asset Purchase Agreement are true and correct in all respects at and as of the date of the Closing as if made at and as of such date (except that those representations and warranties that address matters only as of a particular date need only be true and correct as of such date), except for breaches of such representations and warranties that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of Immunome to consummate the transactions contemplated by the Asset Purchase Agreement;
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Immunome will have performed and complied in all material respects with all covenants, agreements and obligations required to be performed or complied with on or prior to the date of the Closing; and
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Immunome will have delivered to Atreca (i) the purchase price and (ii) certain closing deliverables
Termination Events and Reimbursement Obligations
The Asset Purchase Agreement may be terminated at any time prior to the Closing of the Asset Sale by:
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by written mutual consent of Atreca and Immunome;
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by either Atreca or Immunome if:
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•
the Closing hasn’t occurred on or prior to the six-month anniversary of the date of the Asset Purchase Agreement, or the End Date, subject to an automatic 60-day extension in the event this proxy statement is still being reviewed or commented on by the SEC or its staff as of such date; or
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any law or governmental order restraining, enjoining or otherwise preventing the consummation of the transactions contemplated by the Asset Purchase Agreement has become final and non-appealable;
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by Atreca if:
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there has been a breach of any representation, warranty, covenant or agreement made by Immunome in the Asset Purchase Agreement, or any such representation and warranty has become untrue after the date of the Asset Purchase Agreement, such that certain closing conditions in favor of Atreca would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured prior to the earlier of (a) 30 days following notice to Immunome of such breach or failure and (b) the date that is three business days prior to the End Date;
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by Immunome if:
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at any time prior to the Stockholder Approval being obtained, (a) the Board of Directors has made a Change in Recommendation, (b) Atreca has failed to include the Board Recommendation in this proxy statement, or (c) Atreca has materially breached or has failed to perform in any material respect its obligations under certain applicable provisions of the Asset Purchase Agreement;
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there has been a breach of any representation, warranty, covenant or agreement made by Atreca in the Asset Purchase Agreement, or any such representation and warranty has become untrue after the date of the Asset Purchase Agreement, such that certain closing conditions in favor of Immunome would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured prior to the earlier of (i) 30 days following notice to Atreca of such breach or failure and (ii) the date that is three business days prior to the End Date; or
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the Stockholder Approval has not been obtained at this Special Meeting or any adjournment or postponement thereof.
Atreca shall, in certain specified circumstances, including if Immunome terminates the Asset Purchase Agreement due to a Change in Recommendation or the failure of Atreca to obtain approval from its stockholders for the Asset Sale and the other transactions contemplated by the Asset Purchase Agreement, reimburse Immunome for its reasonable and documented out-of-pocket fees and expenses, up to a maximum aggregate amount of $500,000, incurred in connection with the authorization, preparation, investigation, negotiation, execution and performance of the Asset Purchase Agreement and transactions contemplated thereby.
Survival; Indemnification Obligations
The representations and warranties of each party in the Asset Purchase Agreement, and in any schedule, certificate, instrument or other document delivered by Atreca or Immunome pursuant to the Asset Purchase Agreement, will survive the closing date and continue in full force and effect for the full period of all applicable statutes of limitations (giving effect to any waiver or extension thereof) plus 60 days. The covenants of each party in the Asset Purchase Agreement will survive the date of the Closing and continue in full force and effect in accordance with their terms. Any recovery from Atreca for losses under the Asset Purchase Agreement will be limited to Immunome’s right to set-off against any unpaid Milestone Payments in accordance with the terms of the Asset Purchase Agreement and the CVR Agreement.
Form of Contingent Value Rights Agreement
The following is a summary of the material provisions of the form of CVR Agreement, a copy of which is attached as Exhibit D to the Asset Purchase Agreement that is attached to this proxy statement as Annex A, which provisions are further described in and qualified in their entirety by the full text of the CVR Agreement.
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The Asset Purchase Agreement requires that, at or immediately prior to the Closing, Immunome and a rights agent will enter into the CVR Agreement, subject to such changes thereto as permitted under the Asset Purchase Agreement. The CVR Agreement will govern the terms of the CVRs.
Each CVR represents a non-tradeable contractual contingent right to receive up to an aggregate of $0.17 per share, without interest and subject to applicable tax withholdings, upon (i) the first dosing of the first patient in the first clinical trial for a pharmaceutical product derived from the first Specified Program Antibody, or Milestone #1, in an aggregate amount of $4.0 million, and (ii) the first dosing of the first patient in the first clinical trial for a pharmaceutical product derived from a second Specified Program Antibody that is different from the first Specified Program Antibody in Milestone #1, or Milestone #2, in an aggregate amount of $3.0 million. We refer to Milestone #1 and Milestone #2 as the Milestones, and the payments to CVR holders upon the achievement of the Milestones as the Milestone Payments. The Milestone Payments will only be payable upon the achievement of the applicable Milestone prior to the fifth anniversary of the date of the Closing, which we refer to as the Milestone Achievement Outside Date. No guarantee can be given that any Milestone will be achieved or any proceeds will be received with respect to the CVRs.
The CVRs will not be evidenced by a certificate or other instrument and the CVRs will not have any voting or dividend rights and will not represent any equity or ownership interest in Immunome, any constituent corporation party to the Asset Purchase Agreement or any of their respective affiliates or subsidiaries. No interest will accrue on any amounts payable on the CVRs.
Except for the rights of the rights agent as set forth in the CVR Agreement, the holders of at least a majority of outstanding CVRs at the time of determination will have the sole right, on behalf of all holders of CVRs, to institute any action or proceeding with respect to the CVR Agreement, and no individual holder of CVRs or other group of holders will be entitled to exercise such rights, except to seek the Milestone Payments upon the achievement of the Milestones to the extent such payment amount has been finally determined in accordance with the terms of the CVR Agreement and has not been paid within the period contemplated thereby. The CVR Agreement will terminate upon the occurrence of the Milestone Achievement Outside Date.
Other Agreements and Instruments
Support Agreement
Concurrent with the execution and delivery of the Asset Purchase Agreement, Atreca entered into a support agreement, or Support Agreement, with each of Atreca’s officers, directors and Boxer Capital, LLC, collectively, the Support Stockholders, pursuant to which the Support Stockholders have agreed, among other things and subject to the conditions set forth in the Support Agreements, to vote or cause to be voted at the Special Meeting all of the shares of Atreca’s capital stock owned by such persons in favor of adopting and approving the Asset Purchase Agreement and approving the Asset Sale, the Dissolution and other transactions contemplated by the Asset Purchase Agreement and any and all other agreements entered into in connection with the Asset Sale and against any proposal made in opposition to, or in competition with, or would otherwise be reasonably be expected to impede, interfere with, delay, postpone, discourage or adversely affect the Asset Sale, the Dissolution and other transactions contemplated by the Asset Purchase Agreement and any and all other agreements entered into in connection with the Asset Sale. Shares of our Class A common stock held by our Support Stockholders represent approximately 9.6% of our Class A common stock.
Assignment and Bill of Sale
At the Closing, Atreca and Immunome will enter into an Assignment and Bill of Sale, pursuant to which Atreca will, sell, transfer, convey, assign and deliver the Transferred Assets to Immunome.
Patent Assignment
At the Closing, Atreca and Immunome will enter into an Assignment of Patents, pursuant to which Atreca will assign to Immunome all of its rights, title and interest in and to specified patents of Atreca.
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Reasons for the Asset Sale
Our Board of Directors believe that effecting the Asset Sale pursuant to the Asset Purchase Agreement is advisable and in the best interests of Atreca and our stockholders. The decision of our Board of Directors to seek our stockholders’ approval for the Asset Sale pursuant to the Asset Purchase Agreement followed a lengthy process during which our Board of Directors consulted with management and financial, accounting, legal and tax advisors and carefully considered the terms of the Asset Purchase Agreement and the risks, timing, viability and potential impact to our stockholders of the strategic alternatives potentially available to us, including, strategic alternatives such as a merger, reverse merger, strategic partnership or other business combination. Based on such consideration and analysis, our Board of Directors determined that the only strategic proposal available to us was the Asset Sale and that, upon consummation of the Asset Sale, or even if such Asset Sale is not consummated, we intend to seek stockholder approval of the Dissolution pursuant to the Plan of Dissolution because our Board of Directors believe that is advisable and in the best interests of Atreca and our stockholders.
In reaching its decision to unanimously approve the Asset Purchase Agreement and to recommend that our stockholders vote to approve the Asset Sale, our Board of Directors, in consultation with our management and accounting, legal and tax advisors, considered a number of factors, including, but not limited to, the risk described in the section titled “Risk Factors” beginning on page 18 of this proxy statement, as well as the following factors:
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our limited capital resources and our recent difficulty in raising capital without substantial dilution or other terms which would not be in the interest of our stockholders given the current capital markets for microcap biopharmaceutical companies, thus limiting our ability to attempt to further innovate and develop our business on our own;
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our Board of Directors’ understanding of and familiarity with, and discussions with our management regarding, the business, operations, management, financial condition, operating losses and future business prospects for Atreca;
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the value of the consideration to be received by Atreca pursuant to the Asset Purchase Agreement;
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the opportunity to realize additional value of up to $0.17 per share if both Milestones are achieved within the time period described in the CVR Agreement, as more fully described above in the section captioned “— Form of Contingent Value Rights Agreement;”
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the ability to return value to our stockholders and our Board of Directors concern that if we cannot consummate the Asset Sale, we do not foresee any funds being available for distribution to our stockholders;
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the Asset Sale is the result of an active, lengthy and thorough evaluation of strategic alternatives reasonably available to Atreca that did not result in any actionable alternative proposals;
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our extensive, but unsuccessful, efforts prior to our negotiations with Immunome with respect to the Asset Sale to identify prospective acquisition or merger candidates to negotiate substantive terms and conditions of a transaction;
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Immunome’s obligation to consummate the Asset Sale is not conditioned on Immunome obtaining financing;
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Immunome’s agreement to limit Atreca’s future indemnification liability to set-off against the then-unpaid Milestone Payments, if any;
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the ability of our Board of Directors, pursuant to the terms of the Asset Purchase Agreement, to evaluate any unsolicited or unencouraged alternative acquisition proposals that we may receive at any time prior to our receipt of stockholder approval, and ability to change its recommendation (and our obligation to reimburse the transaction fees and expenses incurred by Immunome under certain circumstances) if our Board of Directors determines that such action is consistent with its fiduciary obligations;
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the likelihood that the Asset Sale will be completed, including the reasonableness of the conditions to the Asset Purchase Agreement and the likelihood that stockholder approval necessary to complete the Asset Sale will be obtained;
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the fact that there is no other strategic proposal available to Atreca at this time; and
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that the Asset Sale is subject to approval of holders of at least a majority of the outstanding shares of Class A common stock entitled to vote, which ensures that our Board of Directors will not be taking action without the support of a significant portion of our stockholders.
Our Board of Directors also considered potential drawbacks or risks relating to the Asset Sale, including the following risks and potentially negative factors, but determined that these potential risks and factors were outweighed by the expected benefits of the Asset Sale:
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the incurrence of significant costs and expenses in connection with attempting to complete the Asset Sale, including legal, accounting and other costs;
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the fact that the assets being sold to Immunome include substantially all of our non-cash assets;
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the fact that the Asset Sale must be completed by the End Date;
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that the Asset Purchase Agreement obligates us to reimburse Immunome for its reasonable and documented fees and expenses, up to a maximum aggregate amount of $500,000, under certain specified circumstances, including if the Asset Purchase Agreement is terminated by Immunome under certain specified circumstances;
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the terms of the Asset Purchase Agreement that place restrictions on our ability to consider an alternative strategic transaction and to terminate the Asset Purchase Agreement and accept a Superior Proposal;
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one or more third parties could assert claims against us, either before or after the Closing, and seek damages or other remedies, and we might be required to spend substantial time and resources defending any such claims, and any amounts paid to any such third parties would reduce the net amount received from the Asset Sale;
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the fact that following the filing of a Certificate of Dissolution, our stockholders’ ability to sell their Class A common stock and Class B common stock will be limited;
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that, under Delaware law, appraisal and dissenter rights are not provided to stockholders in connection with the Asset Sale;
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that certain of our officers and directors may have interests with respect to the Asset Sale in addition to their interests as stockholders generally; and
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following the Asset Sale, our non-cash assets are expected to consist only of our platform technology and ATRC-501, a clinical stage program.
ATRC-501 is currently being developed by the Gates Medical Research Institute, or the Gates MRI, under a license from us to prevent malaria in pediatric populations living in malaria-endemic regions of the world. Under the terms of the license, we retain commercial rights for ATRC-501 in the United States, Europe, and parts of Asia. Importantly, the license also grants us rights to data generated by Gates MRI during its development of ATRC-501, such that we can use these data to pursue our retained commercial rights. Our commercial opportunities include malaria prophylaxis in short- and long-term travelers visiting malaria-endemic regions of the world, as the efficacy of other currently marketed malaria prophylactics are limited by their side effects, poor adherence, and cost. We also have intellectual property covering certain second-generation versions of ATRC-501, providing a robust program beyond the clinical asset itself. We plan to realize value for our stockholders in the ATRC-501 program by pursuing a sale of the program or a spin-out of the program into a new company once sufficient data have been generated by Gates MRI to demonstrate that the antibody is both safe to administer to humans and efficacious in preventing malaria. We are currently unable to predict the timing or outcome of any such transaction.
The preceding discussion is not intended to be an exhaustive description of the information and factors considered by our Board of Directors, but it addresses the material information and factors considered. In view of the variety of factors considered in connection with its evaluation of the Asset Purchase Agreement, our Board of Directors did not find it practical and did not quantify or otherwise attempt to assign relative weight to the specific factors considered in reaching its conclusions. In addition, our Board of Directors did
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not undertake to make any specific determination as to whether any particular factor, or any aspect of any particular factor, was favorable or unfavorable to its ultimate determination, but rather conducted an overall analysis of the factors described above. In considering the factors described above, individual members of our Board of Directors may have given different weight to different factors.
At this time, our Board of Directors has considered all the strategic alternatives available to Atreca and our Board of Directors has determined that the only strategic proposal available to Atreca at this time is the Asset Sale and that, upon consummation of the Asset Sale, or even if such Asset Sale is not consummated, the Dissolution pursuant to the Plan of Dissolution is advisable and in the best interests of Atreca and our stockholders. Our Board of Directors, however, retains the right to consider additional alternatives that may develop and abandon or delay implementation of the Plan of Dissolution should a superior alternative arise before the filing of the Certificate of Dissolution with the Delaware Secretary of State.
Our Conduct Following Approval of the Asset Sale Proposal
If the Asset Sale Proposal is approved by the requisite vote of our stockholders, among other things as may be completed at such times as our Board of Directors or, if applicable, our officers, in accordance with Delaware law, deems necessary, appropriate or advisable in our best interests and the best interests of our stockholders, we will consummate the Asset Sale pursuant to the Asset Purchase Agreement, and assuming the Dissolution Proposal is approved by the requisite vote of our stockholders, we will effect the Dissolution pursuant to the Plan of Dissolution, and file the Certificate of Dissolution with the Secretary of State of the State of Delaware dissolving the Atreca, as further described below.
Accounting Treatment of the Asset Sale
The Asset Sale will be accounted for as a “sale” by Atreca, as that term is used under U.S. generally accepted accounting principles, for accounting and financial reporting purposes.
No Appraisal or Dissenters’ Rights
You may vote against the authorization of the Asset Sale Proposal, but under Delaware law, appraisal or dissenters’ rights are not provided to our stockholders in connection with the Asset Sale.
Vote Required and Our Board of Directors’ Recommendation for the Asset Sale Proposal
The affirmative vote of the holders of a majority of all outstanding shares of Class A common stock on the Record Date is required to approve the Asset Sale Proposal. The Special Meeting will be held virtually; therefore, no shares of Class A common stock will be present in person at the Special Meeting, and only shares present virtually or represented by proxy at the Special Meeting will be able to be voted.
For the purpose of the Asset Sale Proposal, (i) a failure to vote your shares of Class A common stock (including a failure of your bank, broker or other nominee to vote shares held on your behalf) will also count as a vote “AGAINST” the proposal to adopt the Asset Purchase Agreement (but such shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting, which may make it harder to establish a quorum for the transaction of business at the Special Meeting), and (ii) abstentions will have the same effect as a vote “AGAINST” the Asset Sale Proposal, whether or not a quorum is present. Shares of Class A common stock represented by properly executed, timely received and unrevoked proxies will be voted in accordance with the instructions indicated thereon. If a stockholder returns a properly signed and dated proxy card without indicating voting preferences on such proxy card, the shares of Class A common stock represented by that proxy will be counted as present for purposes of determining the presence of a quorum for the Special Meeting and all of such shares will be voted as recommended by our Board of Directors.
Under the rules of Nasdaq, banks, brokers and other nominees who hold shares in “street name” for customers have the authority to vote on “discretionary” proposals when they have not received instructions from beneficial owners. However, banks, brokers, and other nominees are precluded from exercising their voting discretion with respect to approving non-discretionary matters, such as the proposal to adopt the Asset Sale Proposal, the Plan of Dissolution and the Adjournment Proposal. Because banks, brokers and other
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nominees do not have discretionary voting authority with respect to the proposal to adopt the Asset Sale Proposal, the Plan of Dissolution or the Adjournment Proposal, if a beneficial owner of shares of Class A common stock held in “street name” does not give voting instructions to the bank, broker or other nominee with respect to any of the proposals, then those shares will not be present or represented by proxy at the Special Meeting and will not be counted for purposes of determining whether a quorum is present at the Special Meeting. However, if a beneficial owner of shares of Class A common stock held in “street name” gives voting instructions to the bank, broker or other nominee with respect to at least one of the proposals, but gives no instruction as to one or more of the other proposals, then those shares will be deemed present at the Special Meeting for purposes of establishing a quorum at the Special Meeting, will be voted as instructed with respect to any proposal as to which instructions were given, and will not be voted with respect to any other proposal. If your shares of Class A common stock are deemed present virtually or represented by proxy at the Special Meeting, then failure to vote your shares (including a failure of your bank, broker or other nominee to vote shares held on your behalf) will have the same effect as a vote “AGAINST” the Adjournment Proposal if a quorum is not present, but will have no effect on the Adjournment Proposal if a quorum is present. Therefore, if you hold your shares of Class A common stock in “street name,” it is important that you instruct your bank, broker or other nominee on how you wish to vote your shares.
The Board of Directors Recommends
A Vote In Favor of Proposal 1.
A Vote In Favor of Proposal 1.
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PROPOSAL 2: APPROVAL OF THE DISSOLUTION PURSUANT TO THE PLAN OF DISSOLUTION
General
Our Board of Directors is presenting the Plan of Dissolution for approval by our stockholders at the Special Meeting. The Plan of Dissolution was unanimously approved by the Board of Directors, subject to stockholder approval, on December 19, 2023. A copy of the Plan of Dissolution is attached as Annex B to this proxy statement. All material features of the Plan of Dissolution are summarized below. We encourage you to read the Plan of Dissolution in its entirety.
Summary of the Plan of Dissolution and Dissolution Process
After the filing the Certificate of Dissolution with the Delaware Secretary of State, our activities will be limited to:
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paying all of our known obligations and liabilities;
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establishing a contingency reserve, consisting of cash or other assets, that we believe will be adequate for the satisfaction of all potential, contingent or conditional claims and liabilities;
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if the Asset Sale is consummated, the making an initial liquidating distribution and the deemed distribution of CVRs to our stockholders of record determined as of the Final Record Date (if the Asset Sale Proposal is not approved, we do not foresee any funds being available for distribution to our stockholders);
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attempting to convert, sell or otherwise dispose of all of our remaining non-cash assets for cash or cash equivalents in an orderly fashion;
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terminating any of our remaining commercial agreements, relationships or outstanding obligations;
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paying operating and liquidation expenses and satisfying any contingent liabilities as they become due out of funds available in the contingency reserve;
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distributing pro rata in one or more additional liquidating distributions all of our remaining assets, if any, to our stockholders of record as of the Final Record Date;
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complying with SEC reporting requirements, as necessary; and
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completing tax filings.
Delaware law provides that, following the approval of the Plan of Dissolution by our stockholders, our Board of Directors may take such actions as it deems necessary in furtherance of the dissolution of Atreca and the winding up of our operations and affairs.
As of December 15, 2023, we had approximately $10.4 million in cash and cash equivalents. We currently estimate that we will expend between $13.1 million and $13.7 million after December 15, 2023, which will be used to pay all expenses (including operating expenses up until the filing of the Certificate of Dissolution) and other known, non-contingent liabilities, and which also includes reasonable provision for expenses of liquidation and potential, contingent or unknown liabilities as required by Delaware law. Based on this estimated reserve, if the Asset Sale is consummated, for which Atreca will receive upfront consideration of $5.5 million, we currently estimate that the aggregate amount of an initial liquidating distribution to stockholders will be between $2.2 million and $2.9 million, or between $0.05 and $0.07 per share of Class A common stock and Class B common stock (based on 32,908,634 shares outstanding of Class A common stock and 6,715,441 shares outstanding of Class B common stock as of December 15, 2023 plus an estimate of 37,500 shares of Class A common stock issuable upon the accelerated vesting and settlement of restricted stock units in connection with the closing of the Asset Sale), plus we will be deemed to have distributed to our stockholders CVRs that afford the opportunity to realize additional value of up to $0.17 per share if both Milestones are achieved within the time period described in the CVR Agreement, as more fully described in the section captioned “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Form of Contingent Value Rights Agreement.” We intend to make this initial distribution as soon as practicable following the filing of the Certificate of Dissolution as creditor claims and contingent liabilities are paid or settled; however, we are unable to predict the precise amount or timing of the initial distribution or
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of any additional liquidating distributions following the initial liquidating distribution. The timing and amount of the initial distribution and any such additional liquidating distributions will depend upon the actual expenses incurred, the timing of the resolution of matters for which we have established the contingency reserve, the amount to be paid in satisfaction of such contingencies, the achievement of both Milestones within the time period described in the CVR Agreement, obligations and provisions during the liquidation and winding-up process, as well as our ability to convert our remaining assets to cash. Any liquidating distributions from us will be made to stockholders according to their holdings of Class A common stock and Class B common stock as of the Final Record Date, which shall be the date on which we close our stock transfer books and discontinue recording transfers of our Class A common stock and Class B common stock except for transfers by will, intestate succession or operation of law.
In addition to the satisfaction of liabilities, we have used and anticipate continuing to use cash in the next several months for a number of items, including, but not limited to, the following:
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ongoing operating expenses up until the filing of the Certificate of Dissolution;
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expenses incurred in connection with our insurance coverage, including our directors’ and officer’s insurance;
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expenses incurred in connection with the Dissolution;
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severance and related costs; and
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professional, legal, consulting and accounting fees.
We may, at any time, turn our management over to a third party to complete the liquidation of our remaining assets and distribute the proceeds from the sale of assets to our stockholders pursuant to the Plan of Dissolution, including an assignment for the benefit of creditors. This third-party management may also be in the form of a liquidating trust, which, if adopted, would succeed to all our assets, liabilities and obligations. Our Board of Directors may appoint one or more of its members, our officer, or a third party to act as trustee or trustees of such liquidating trust. If all our assets are not distributed within three years after the date our dissolution, we expect to transfer our remaining assets to a liquidating trust at such time.
During the liquidation of our assets, we may pay our officer, directors, employees and agents, or any of them, compensation for services rendered in connection with the implementation of the Plan of Dissolution. Such compensation is not expected to be materially different from the compensation that would be paid to an outside party for similar services.
Background of the Proposed Dissolution and Plan of Dissolution
Please refer to the section titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Background for the Asset Sale and the Dissolution.”
Reasons for the Dissolution
Our Board of Directors believes that the liquidation and dissolution pursuant to the Plan of Dissolution is advisable and in the best interests of Atreca and our stockholders. In reaching its decision to unanimously approve the Plan of Dissolution and to recommend that our stockholders vote to approve the Dissolution, our Board of Directors, in consultation with our management and financial, accounting, legal and tax advisors, considered a number of factors, including the risk described in the section titled “Risk Factors” beginning on page 18 of this proxy statement.
In making its determination, our Board of Directors considered, in addition to other pertinent factors:
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the fact that we had been working with a financial advisor to assist in reviewing and evaluating a full range of strategic alternatives to enhance stockholder value during calendar year 2023 through November 2023, and despite these efforts, we have been unsuccessful in identifying and completing a strategic transaction, including a merger, reverse merger, strategic partnership or other business combination, other than the Asset Sale, that would have a reasonable likelihood of providing value to our stockholders in excess of the amount our stockholders would receive in a liquidation;
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the low probability that we would be presented with, or otherwise identify, within a reasonable period of time under current circumstances, any viable opportunities to engage in another attractive alternative strategic transaction that would provide value to our stockholders in excess of the amount our stockholders would receive in a liquidation;
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the determination by our Board of Directors, after conducting a review of our financial condition, evaluation of potential strategic alternatives, including prospects for a business combination, the results of operations and our future business prospects, that continuing to operate as a going concern is not reasonably likely to create greater value for our stockholders than the value that may be obtained for the stockholders pursuant to the Dissolution;
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the material costs associated with our business operations, including accounting, legal and other expenses in connection with operating as a publicly traded company, which we expect should be materially reduced following the Dissolution;
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the Dissolution Proposal is subject to approval by our stockholders and allows our stockholders to have a direct vote on whether they concur with such proposal as a favorable outcome for Atreca and our stockholders;
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the fact that approval of the Plan of Dissolution by our stockholders authorizes our Board of Directors and officers to implement the Plan of Dissolution without further stockholder approval;
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the terms and conditions of the Plan of Dissolution permit the Board of Directors to abandon or delay implementation of the dissolution prior to the filing of the Certificate of Dissolution if it determines that, in light of new proposals presented or changes in circumstances, a dissolution is no longer advisable and in the best interests of Atreca and our stockholders;
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that under the DGCL, if the circumstances justifying the Dissolution change, the Certificate of Dissolution may be revoked after the Final Record Date, if our Board of Directors adopts a resolution recommending revocation and if our stockholders originally entitled to vote on the Dissolution approve such revocation at a meeting of our stockholders; and
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there are potential U.S. federal income tax benefits of the Plan of Dissolution to our stockholders, including that distributions received by a Holder (as defined in the section titled “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Material U.S. Federal Income Tax Consequences of the Dissolution” beginning on page 52 of this proxy statement) pursuant to the Plan of Dissolution are intended to be treated as a reduction in the Holder’s adjusted tax basis in such Holder’s shares of our Class A common stock and Class B common stock, but not below zero, with any excess treated as capital gain; for a more detailed discussion, please refer to the section titled “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Material U.S. Federal Income Tax Consequences of the Dissolution” beginning on page 52 of this proxy statement.
Our Board of Directors also considered certain material risks or potentially unfavorable or negative factors in arriving at its conclusion that the Dissolution is advisable and in the best interests of Atreca and our stockholders, including, among others:
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there are uncertainties as to the timing, nature and amount of any liquidating distributions to stockholders, and the amounts we would ultimately distribute to our stockholders pursuant to the Plan of Dissolution may be substantially less than the amounts we currently estimate if the amounts of our liabilities, other obligations and expenses are higher than we currently anticipate;
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it is possible that the aggregate liquidating distributions that would be paid to a stockholder under the Plan of Dissolution would not exceed the amount that the stockholder could have received upon sales of its shares of Class A common stock or Class B common stock;
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the uncertainty of value, if any, of remaining assets of Atreca;
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the sale, distribution or other disposition of our remaining assets generally will be a taxable transaction for Atreca and may result in corporate-level U.S. federal, state and local tax;
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our Board of Directors and our officer may have interests in the Plan of Dissolution that are different from, or in addition to, the interests of stockholders generally;
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in the event we fail to create adequate reserves for payment of the amounts ultimately payable in respect of expenses and liabilities, creditors may seek recovery from our stockholders and our stockholders may be required to return to certain creditors some or all of the liquidating distributions;
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the fact that, under the DGCL, our stockholders are not entitled to appraisal rights for their shares of Class A common stock and Class B common stock in connection with the Dissolution;
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potential changes in applicable laws (including tax laws) and regulations; and
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if the Dissolution pursuant to the Plan of Dissolution is approved by our stockholders, holders of shares of our Class A common stock and Class B common stock would generally not be permitted to transfer the shares of Class A common stock and Class B common stock after the Final Record Date, and such lack of liquidity and the delisting of our Class A common stock from Nasdaq may adversely affect the trading prices of our Class A common stock prior to the Final Record Date.
Our Board of Directors also considered the other factors described in the section titled “Risk Factors” beginning on page 18 of this proxy statement and under the caption “Risk Factors” in our Form 10-Q for the quarterly period ended September 30, 2023 filed with the SEC and other documents we file with or furnish to the SEC, in deciding to approve, and recommend that our stockholders approve, the Plan of Dissolution.
The preceding discussion is not intended to be an exhaustive description of the information and factors considered by our Board of Directors, but it addresses the material information and factors considered by our Board of Directors. In view of the variety of factors considered in connection with its evaluation of the Plan of Dissolution, our Board of Directors did not find it practical and did not quantify or otherwise attempt to assign relative weight to the specific factors considered in reaching its conclusions. In addition, our Board of Directors did not undertake to make any specific determination as to whether any particular factor, or any aspect of any particular factor, was favorable or unfavorable to its ultimate determination, but rather conducted an overall analysis of the factors described above. In considering the factors described above, individual members of our Board of Directors may have given different weight to different factors.
At this time, our Board of Directors has considered all the strategic alternatives available to Atreca and our Board of Directors has determined that the only strategic proposal available to Atreca at this time is the Asset Sale and that, upon consummation of the Asset Sale, or even if such Asset Sale is not consummated, the Dissolution pursuant to the Plan of Dissolution is advisable and in the best interests of Atreca and our stockholders. Our Board of Directors, however, retains the right to consider additional alternatives that may develop and abandon or delay implementation of the Plan of Dissolution should a superior alternative arise before the filing of the Certificate of Dissolution with the Delaware Secretary of State.
Delaware Law Applicable to our Dissolution
We are a corporation organized under the laws of the State of Delaware and the Dissolution will be governed by the DGCL. The following is a summary of some of the DGCL provisions applicable to the Dissolution. The following summary is qualified in its entirely by Sections 275 through 283 of the DGCL, which are attached to this proxy statement as Annex C.
Delaware Law Generally
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Authorization of Board of Directors and Stockholders. If a corporation’s board of directors deems it advisable that the corporation should dissolve, it may adopt a resolution to that effect by a majority vote of the whole board and notify the corporation’s stockholders entitled to vote on the dissolution of the adoption of the resolution and the calling of a meeting of stockholders to act on the resolution. Our Board of Directors has unanimously adopted a resolution deeming the Dissolution advisable and in the best interests of Atreca and our stockholders. This proxy statement and its accompanying materials constitute a notice to this effect to our stockholders and a notice of the Special Meeting at which our stockholders of record on the Record Date may vote to approve the Dissolution, among other matters. The Dissolution must be authorized and approved by the holders of a majority of our outstanding Class A common Stock on the Record Date entitled to vote on the Dissolution Proposal.
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Certificate of Dissolution. If a corporation’s stockholders authorize its dissolution, to consummate the dissolution the corporation must file a certificate of dissolution with the Secretary of State of the State
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of Delaware. If our stockholders authorize the Dissolution at the Special Meeting, we plan to file the Certificate of Dissolution with the Secretary of State of the State of Delaware before March 31, 2024, but recognize this may be delayed. Ultimately, the timing of such filing is subject to the discretion of our Board of Directors.
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Possible Permitted Abandonment of Dissolution. The resolution authorizing a dissolution adopted by a corporation’s board of directors may provide that, notwithstanding authorization of the dissolution by the corporation’s stockholders, the board of directors may abandon the dissolution without further action by the stockholders. While we do not currently foresee any reason that our Board of Directors would abandon our proposed Dissolution once it is authorized by our stockholders, to provide our Board of Directors with the maximum flexibility to act in the best interests of our stockholders, the resolutions adopted by our Board of Directors included this kind of provision.
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Time of Dissolution. When a corporation’s certificate of dissolution is filed with the Secretary of State of the State of Delaware and has become effective, along with the corporation’s tender of all taxes (including Delaware franchise taxes) and fees authorized to be collected by the Secretary of State of the State of Delaware, the corporation will be dissolved.
Continuation of the Corporation After Dissolution
A dissolved corporation continues its existence for three years after dissolution, or such longer period as the Delaware Court of Chancery may direct, for the purpose of prosecuting and defending suits and enabling the corporation to settle and close its business, to dispose of and convey its property, to discharge its liabilities and to distribute to its stockholders any remaining assets. A dissolved corporation may not, however, continue the business for which it was organized. Any action, suit or proceeding begun by or against the corporation before or during this survival period does not abate by reason of the dissolution, and for the purpose of any such action, suit or proceeding, the corporation will continue beyond the three-year period until any related judgments, orders or decrees are fully executed, without the necessity for any special direction by the Delaware Court of Chancery. The Plan of Dissolution will govern our winding up process after dissolution and is described in further detail under the section titled “— Description of our Plan of Dissolution and Dissolution Process” below.
Description of our Plan of Dissolution and Dissolution Process
The Dissolution will be conducted in accordance with the Plan of Dissolution, which is attached to this proxy statement as Annex B and incorporated by reference into this proxy statement. The following is a summary of our Plan of Dissolution and does not purport to be complete or contain all the information that is important to you. To understand our Plan of Dissolution more fully, you are urged to read this proxy statement as well as the Plan of Dissolution. Our Plan of Dissolution may be modified, clarified or amended by action by our Board of Directors at any time and from time to time, as further described below.
Authorization and Effectiveness
Our Plan of Dissolution may be filed with the Secretary of State of Delaware after the holders of a majority of the outstanding Class A common stock entitled to vote on the Dissolution Proposal have authorized the Dissolution and will constitute our authorized plan and will evidence our authority to take all actions described in the Plan of Dissolution. If the Dissolution is approved by our stockholders, the timing of the filing of a Certificate of Dissolution will be subject to the discretion of the Board of Directors. The Final Record Date will be when the Certificate of Dissolution is filed with the office of the Secretary of State of the State of Delaware or such later date and time that is stated in the Certificate of Dissolution.
Survival Period
For three years after the Final Record Date (or such longer period as the Delaware Court of Chancery may direct), or the Survival Period, we will continue as a body corporate for the purpose of prosecuting and defending lawsuits (civil, criminal or administrative) by or against us; settling and closing our business; disposing of and conveying our property; discharging our liabilities in accordance with the DGCL; and distributing our remaining assets to our stockholders. We will no longer engage in our existing business
45
operations, except to the extent necessary to preserve the value of our assets and wind up our business affairs in accordance with our Plan of Dissolution. We anticipate that any distributions to our stockholders will be made in cash, and may be made at any time, from time to time, in accordance with the DGCL.
General Liquidation, Winding Up and Distribution Process
If the Plan of Dissolution is approved by the requisite vote of our stockholders, the steps set forth below will be completed at such times as our Board of Directors, in its discretion and in accordance with the DGCL, deems necessary, appropriate or advisable in our best interests and the best interests of our stockholders:
•
the filing of a Certificate of Dissolution with the Delaware Secretary of State;
•
the cessation of all Atreca’s business activities except those relating to winding up and liquidating Atreca’s business and affairs, including, but not limited to, prosecuting and defending suits by or against us, if any;
•
the collection, sale, exchange or other disposition of remaining non-cash property and assets;
•
the payment of or the making of reasonable provision to pay all claims and obligations, including all contingent, conditional or un-matured contractual claims known to us;
•
the making of such provision as will be reasonably likely to be sufficient to provide compensation for any claim against us which is the subject of a pending action, suit or proceeding to which we are a party;
•
the making of such provision as will be reasonably likely to be sufficient to provide compensation for claims that have not been made known to us or that have not arisen but that, based on facts known to us, are likely to arise or become known to us within ten years after the date of dissolution;
•
the setting aside of a contingency reserve consisting of cash and/or property to satisfy such claims and contingent obligations of Atreca;
•
if the Asset Sale is consummated, the making of an initial liquidating distribution and the deemed distribution of CVRs to our stockholders of record determined as of the Final Record Date;
•
the pro rata distribution to our stockholders, or the transfer to one or more liquidating trustees for the benefit of our stockholders under a liquidating trust, of the remaining assets of Atreca after payment or provision for payment of claims against and obligations of Atreca; and
•
the taking of any and all other actions permitted or required by the DGCL and any other applicable laws and regulations.
Estimated Distribution to Stockholders
It is our current intention to make an initial liquidating distribution to our stockholders of record as of the Final Record Date as soon as practicable following the filing of the Certificate of Dissolution with the Delaware Secretary of State as creditor claims and contingent liabilities or paid and settled. Prior to the initial liquidating distribution, under the DGCL, we are required to pay or provide for payment of all our liabilities and obligations, including contingent liabilities. In determining whether adequate provision is being made for any outstanding liabilities or wind up costs, our Board of Directors may consider a variety of factors. For example, in the case of outstanding disputed or contingent liabilities or potential liabilities, including from governmental authorities, considerations may include the estimated maximum amount of a potential claim, the likelihood that such claim will be resolved in the claimant’s favor or that the contingency will occur, and any mitigating factors including availability of insurance. Further, our ability to make a liquidating distribution could be adversely affected if any unanticipated liabilities or claims arise prior to the anticipated distribution.
Uncertainties as to the amount of liabilities make it impossible to predict precisely the aggregate amount that will ultimately be available for distribution. We will continue to incur claims, liabilities and expenses (including operating costs, salaries, taxes, legal and accounting fees and miscellaneous expenses) following the approval of the Dissolution pursuant to the Plan of Dissolution. These claims, liabilities and expenses, as well as any disputed or contingent liabilities or potential liabilities, will reduce the amount of cash and assets available for ultimate distribution to our stockholders.
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Under the DGCL, in the event we fail to create an adequate contingency reserve for payment of our expenses and liabilities, or should such contingency reserve and the assets held by any liquidating trust or trusts be exceeded by the amount ultimately found payable in respect of expenses and liabilities, each stockholder could be held liable for the repayment to creditors, out of the amounts theretofore received by such stockholder from us or from any liquidating trust or trusts, of such stockholder’s pro rata share of such excess.
Based on the assumptions set forth below, among others, we currently estimate that the amount available for the initial liquidating distribution to our stockholders of record as of the Final Record Date will be between $2.2 million and $2.9 million, or between $0.05 and $0.07 per share of Class A common stock and Class B common stock (based on 32,908,634 shares outstanding of Class A common stock and 6,715,441 shares outstanding of Class B common stock as of December 15, 2023, plus an estimate of 37,500 shares of Class A common stock issuable upon the accelerated vesting and settlement of restricted stock units in connection with the closing of the Asset Sale), plus we will be deemed to have distributed to our stockholders CVRs that afford the opportunity to realize additional value of up to $0.17 per share if both Milestones are achieved within the time period described in the CVR Agreement, as more fully described in the section captioned “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Form of Contingent Value Rights Agreement.” This estimate of the amount that may be available for the initial liquidating distribution assumes, among other things:
•
stockholder approval of the Asset Sale Proposal and the consummation of the Asset Sale;
•
that there will be no lawsuits filed or claims asserted against us or our officers or directors prior to or following the approval of the Dissolution pursuant to the Plan of Dissolution;
•
that the dissolution and wind up of Atreca will be completed within three years of the filing of the Certificate of Dissolution;
•
a reserve of approximately $1.0 million for all unknown or potential claims and contingencies that could arise after the filing of the Certificate of Dissolution; and
•
that the amount of our anticipated liabilities as of the approval of the Plan of Dissolution will not exceed the estimates contained in the table below.
Any one or more of these assumptions may prove to be wrong, which could reduce the amount available to distribute to our stockholders.
The following table sets forth our basis for calculating our estimate of the initial liquidating distribution to our stockholders of record as of the Final Record Date. The following table is based upon several assumptions, including those set forth above, and estimates of certain liabilities. If our assumptions or estimates prove to be incorrect, our stockholders may ultimately receive substantially more or less. We do not plan to resolicit stockholder approval for the Dissolution pursuant to the Plan of Dissolution even if the amount ultimately distributed to our stockholders changes significantly from the estimates set forth in this proxy statement.
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ESTIMATED INITIAL LIQUIDATING DISTRIBUTION TO STOCKHOLDERS
|
(in millions, except for share and per share amounts)
|
| |
Low
|
| |
High
|
| ||||||
|
Cash and cash equivalents as of December 15, 2023
|
| | | $ | 10.44 | | | | | $ | 10.44 | | |
|
Purchase price from Immunome
|
| | | $ | 5.50 | | | | | $ | 5.50 | | |
| Estimated Proceeds, Expenses and Cash Reserves | | | | | | | | | | | | | |
|
Operating expenses after December 15, 2023(1)
|
| | | $ | (1.98) | | | | | $ | (1.88) | | |
|
Assumed severance for executive officers(2)
|
| | | $ | (1.86) | | | | | $ | (1.86) | | |
|
Assumed severance for other employees(3)
|
| | | $ | (1.22) | | | | | $ | (1.22) | | |
|
Accounts payable and accrued liabilities(4)
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| | | $ | (5.08) | | | | | $ | (4.63) | | |
| Insurance(5) | | | | $ | (1.20) | | | | | $ | (1.10) | | |
|
Professional fees (attorneys, accountants, consultants)(6)
|
| | | $ | (0.75) | | | | | $ | (0.75) | | |
|
Reserve for potential or unanticipated claims and contingencies
|
| | | $ | (1.00) | | | | | $ | (1.00) | | |
|
Reserve for MAM01/ATRC-501 post asset sale close
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| | | $ | (0.40) | | | | | $ | (0.40) | | |
|
Reserve for remaining asset intellectual property prosecution and maintenance
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| | | $ | (0.22) | | | | | $ | (0.22) | | |
|
Total
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| | | $ | (13.71) | | | | | $ | (13.06) | | |
|
Estimated cash to distribute to stockholders
|
| | | $ | 2.23 | | | | | $ | 2.88 | | |
|
Assumed shares outstanding(7)
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| | | | 39,661,575 | | | | | | 39,661,575 | | |
|
Estimated initial liquidating distribution per share
|
| | | $ | 0.05 | | | | | $ | 0.07 | | |
(1)
Estimated operating expenses following December 15, 2023, for personnel and other expenses to conduct our wind up operations but exclusive of all other line items specifically allocated in the table above.
(2)
Estimated severance costs for executive officers involved in wind up operations.
(3)
Estimated severance costs for other employees involved in wind up operations.
(4)
Estimated accounts payable and accrued liabilities as of December 15, 2023.
(5)
Estimated range of cash use for the purchase of insurance, including directors’ and officers’ liability insurance covering a six-year extended reported period.
(6)
Estimated use of cash for professional fees related to our dissolution and liquidation, as well as remaining SEC reporting requirements.
(7)
Based on the sum of (i) 32,908,634 shares of Class A common stock outstanding as of December 15, 2023, (ii) 6,715,441 shares of Class B common stock outstanding as of December 15, 2023 and (iii) an estimated 37,500 shares of Class A common stock issuable upon the vesting and settlement of restricted stock units in connection with the closing of the Asset Sale.
The amount of cash ultimately distributed to our stockholders in the initial liquidating distribution depends on the accuracy of the assumptions and estimates set forth above. We have attempted to make reasonable estimates and assumptions, however, if any of such estimates or assumptions are inaccurate, the amount we initially distribute to our stockholders may be substantially less than the amount we currently estimate. For additional information, please refer to the section titled “Risk Factors” beginning on page 18 of this proxy statement.
We are unable to predict the precise amount or timing of any additional liquidating distributions following the initial liquidating distribution. The timing and amount of any such additional liquidating distributions will depend upon the actual expenses incurred, the timing of the resolution of matters for which we have established the contingency reserve, the amount to be paid in satisfaction of such contingencies as well as our ability to convert our remaining assets to cash. Although our Board of Directors has not established a firm timetable for the liquidating distributions, subject to contingencies inherent in winding up our business, our Board of Directors intends to make such distributions as promptly as practicable. Subject to the requirements of Delaware law, we expect to make a final distribution prior to the third anniversary of the Dissolution.
Continuing Employees and Consultants
During the Survival Period, we may select, retain, hire, employ or contract with employees, consultants, agents, trustees, independent professional advisors (including legal counsel, accountants and financial
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advisors) and others, as our Board of Directors may determine, from time to time, to be necessary or advisable to effect the Dissolution as described in our Plan of Dissolution. Our Board of Directors expects that during the Dissolution, the number of employees of the Company will be reduced substantially following the Final Record Date and as our various assets are disposed of in accordance with our Plan of Dissolution. Our Board of Directors also expects that outside legal and financial advisors will be retained to assist with the Dissolution.
After filing the Certificate of Dissolution, we expect that a majority of the members of our Board of Directors will resign, and accordingly our Board of Directors will reduce its size in order to save costs.
We may, in the absolute discretion of our Board of Directors, pay our officer, directors, employees, consultants, agents and other representatives, compensation or additional compensation above their regular compensation, including pursuant to severance and retention agreements, in money or other property, in recognition of the extraordinary efforts they will be required to undertake in connection with the implementation of the Plan of Dissolution. Please refer to “Interests of Directors and Executive Officers in Approval of the Asset Sale and Plan of Dissolution” beginning on page 60 of this proxy statement for more information.
Costs and Expenses
We will pay all costs and expenses that our Board of Directors may determine from time to time to be necessary or advisable to effect the Dissolution in accordance with the Plan of Dissolution and as may be necessary or advisable to continue our existence and operations. These costs and expenses may include, without limitation, brokerage, agency, professional, consulting and other fees and expenses of persons rendering services to Atreca in connection with the matters described in the Plan of Dissolution and costs incurred to comply with contracts to which Atreca is a party.
Indemnification
We will continue to indemnify our officer, directors, employees and agents in accordance with, and to the extent required or permitted by, the DGCL, our certificate of incorporation, our bylaws and any contractual arrangements, whether these arrangements existed before the Dissolution or were entered into after the Dissolution. During the Survival Period, acts and omissions of any indemnified or insured person in connection with the implementation of the Plan of Dissolution will be covered to the same extent that they were covered before the Final Record Date. Our Board of Directors is authorized to obtain and maintain insurance as may be necessary to cover our indemnification obligations.
Stockholder Approval
Authorization of the Dissolution by the holders of a majority of the outstanding Class A common stock entitled to vote thereon shall constitute approval of all matters described in this proxy statement relating to the Dissolution, including our Plan of Dissolution. Authorization of the Dissolution by the holders of a majority of the outstanding Class A common stock of Atreca shall constitute the authorization of the sale, exchange or other disposition in liquidation of all of the remaining property and assets of the Company after the Final Record Date, whether the sale, exchange or other disposition occurs in one transaction or a series of transactions, and shall constitute ratification of any and all contracts for sale, exchange or other disposition that are conditioned on stockholder approval. It is not anticipated that any further stockholder votes will be solicited with respect to the approval of the specific terms of any particular sales of assets approved by our Board of Directors. We note that we have not solicited, and do not intend to solicit, affiliates to purchase our assets as part of the Plan of Dissolution. The Plan of Dissolution is not intended as a “going private transaction” within the meaning of Rule 13e-3 under the Exchange Act. In the event that our plans change, and we engage in a transaction identified in Rule 13e-3 with an affiliate, we would comply with the requirements of Rule 13e-3, including filing a Schedule 13E-3.
Contingent Liabilities; Contingency Reserve
Under the DGCL, we are required, in connection with our liquidation and dissolution, to pay or make reasonable provision for payment of all of our liabilities and obligations. Following the approval of the Plan of Dissolution by our stockholders, we will pay all known liabilities. We currently estimate that we will establish
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a reserve for unanticipated claims of approximately $1.0 million, which will be used to satisfy contingent and unknown liabilities as they become due.
The estimated amount of the contingency reserve is based upon estimates and opinions of management and our Board of Directors and derived from consultations with outside experts and a review of our estimated operating expenses and future estimated liabilities. There can be no assurance that the contingency reserve will be sufficient. If any of our estimates, including estimates relating to the costs of the liquidation process and of satisfying outstanding obligations, liabilities and claims during the liquidation process, are inaccurate, we may be required to increase the amount of the contingency reserve. After the liabilities, expenses and obligations for which the contingency reserve is established have been satisfied or resolved in full, we will distribute to our stockholders any remaining portion of the contingency reserve.
Under the DGCL, in the event we fail to create an adequate contingency reserve for payment of our expenses and liabilities, or should such contingency reserve and the assets held by any liquidating trust or trusts be exceeded by the amount ultimately found payable in respect of expenses and liabilities, each stockholder could be held liable for the repayment to creditors, out of the amounts theretofore received by such stockholder from us or from any liquidating trust or trusts, of such stockholder’s pro rata share of such excess.
If we were held by a court to have failed to make adequate provision for our expenses and liabilities or if the amount required to be paid in respect of such liabilities exceeded the amount available from the contingency reserve and the assets of the liquidating trust or trusts, a creditor of ours could seek an injunction against the making of liquidating distributions under the Plan of Dissolution on the grounds that the amounts to be distributed were needed to provide for the payment of our expenses and liabilities. Any such action could delay or substantially diminish the cash distributions to be made to stockholders under the Plan of Dissolution.
Legal Claims
We will defend any claims against Atreca, or our officer or directors, whether a claim exists before the Final Record Date or is brought during the Survival Period, based on advice and counsel of our legal and other advisors and in such manner, at such time and with such costs and expenses as our Board of Directors may approve from time to time. During the Survival Period, we may continue to prosecute any claims that we had against others before the Final Record Date and may institute any new claims against any person as our Board of Directors may determine necessary or advisable to protect Atreca and its assets and rights or to implement the Plan of Dissolution. At our Board of Directors’ discretion, we may defend, prosecute or settle any lawsuits, as applicable.
From time to time, we may become involved in legal proceedings relating to claims arising from the ordinary course of business. We are not currently a party to any material legal proceedings, and we are not aware of any pending or threatened legal proceeding against us that we believe could have a material adverse effect on our business, operating results or financial condition.
Stock of the Company; Final Record Date
The Final Record Date will be the date upon which we file the Certificate of Dissolution with the Delaware Secretary of State. We intend to close our stock transfer books and discontinue recording transfers of shares of our Class A common stock and Class B common stock on the Final Record Date, and thereafter certificates representing shares of our Class A common stock and Class B common stock will not be assignable or transferable on our books except by will, intestate succession or operation of law. After the Final Record Date, we will not issue any new stock certificates, other than replacement certificates. It is anticipated that no further trading of our shares will occur after the Final Record Date. Please refer to the section titled “— Description of the Plan of Dissolution and Dissolution Process — Listing and Trading of the Class A Common Stock” beginning on page 51 of this proxy statement.
All liquidating distributions from us or a liquidating trust on or after the Final Record Date, if any, will be made to stockholders of record as of the Final Record Date according to their holdings of Class A common stock and Class B common stock as of the Final Record Date.
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Listing and Trading of the Class A Common Stock
If our stockholders approve the Plan of Dissolution, we intend to close our stock transfer books on the Final Record Date and we will cease recording stock transfers and issuing stock certificates (other than replacement certificates) at such time. Accordingly, it is expected that trading in shares will cease after the Final Record Date. We expect that the trading of Class A common stock on Nasdaq will terminate before then. We previously announced in September 2023 that if we do not regain compliance with Nasdaq’s minimum bid price requirement by March 6, 2024, our Class A common stock will be subject to immediate delisting. If our Class A common stock is delisted from Nasdaq prior to the Final Record Date, your ability to trade or otherwise transfer your Class A common stock shares may be significantly impacted. For additional information, please refer to the section titled “Risk Factors — We intend to have our Class A common stock delisted from Nasdaq and our stock transfer books closed at the close of business on the date we file the Certificate of Dissolution with the Delaware Secretary of State, after which it will not be possible for stockholders to publicly trade our stock” beginning on page 21 of this proxy statement.
Unclaimed Distributions
If any distribution to a stockholder cannot be made, whether because the stockholder cannot be located, has not surrendered a certificate evidencing ownership of the Class A common stock or Class B common stock or provided other evidence of ownership as required in the Plan of Dissolution or by our Board of Directors or for any other reason, the distribution to which the stockholder is otherwise entitled will be transferred, at such time as the final liquidating distribution is made by us, or as soon as practicable after that distribution, to the official of such state or other jurisdiction authorized by applicable law to receive the proceeds of the distribution. The proceeds of such distribution will thereafter be held solely for the benefit of and for ultimate distribution to the stockholder as the sole equitable owner of the distribution and will be treated as abandoned property and escheat to the applicable state or other jurisdiction in accordance with applicable law. The proceeds of any such distribution will not revert to or become the property of Atreca or any other stockholder.
Liquidating Trust
While we do not currently propose transferring our assets to a liquidating trust, we may do so if deemed appropriate by our Board of Directors, based on advice of our legal, tax and accounting advisors. We may, for example, transfer assets to a liquidating trust if we are unable to complete the Dissolution within the initial three-years of the Survival Period.
It is anticipated that the interests in any liquidating trust or trusts will not be transferable, although no determination has yet been made. Such determination will be made by our Board of Directors and management prior to the transfer of unsold assets to any liquidating trust and will be based on, among other things, our Board of Directors’ and management’s estimate of the value of the assets being transferred to the liquidating trust or trusts, tax matters and the impact of compliance with applicable securities laws.
The costs of compliance with such requirements would reduce the amount which otherwise could be distributed to interest holders. Even if transferable, the interests are not expected to be listed on a national securities exchange, and the extent of any trading market therein cannot be predicted. Moreover, the interests may not be accepted by commercial lenders as security for loans as readily as more conventional securities with established trading markets. As stockholders will be deemed to have received a liquidating distribution equal to their pro rata share of the value of the net assets distributed to an entity which is treated as a liquidating trust for tax purposes (please refer to the section titled “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Material U.S. Federal Income Tax Consequences of the Dissolution” beginning on page 52 of this proxy statement), the distribution of non-transferable interests could result in tax liability to the interest holders without their being readily able to realize the value of such interests to pay such taxes or otherwise.
Abandonment, Exceptions, Modifications, Clarifications and Amendments
Notwithstanding the authorization of the Dissolution by our stockholders as described in this proxy statement, our Board of Directors will have the right, as permitted by the DGCL, to abandon the Dissolution
51
at any time before it becomes effective and terminate our Plan of Dissolution, without any action by our stockholders, if our Board of Directors determines that to do so is in the best interest of Atreca and our stockholders. Without further action by our stockholders, our Board of Directors may, to the extent permitted by Delaware law, waive, modify or amend any part of our Plan of Dissolution, and may provide for exceptions to or clarifications of the terms of our Plan of Dissolution. After the Certificate of Dissolution has been filed, revocation of the Dissolution would require stockholder approval under Delaware law.
Our Certificate of Incorporation and Amended and Restated Bylaws and the DGCL
During the Survival Period, we will continue to be governed by our certificate of incorporation and amended and restated bylaws, insofar as their terms apply and insofar as necessary or appropriate to implement our Plan of Dissolution. Our Board of Directors will continue to have the authority to amend our bylaws as it may deem necessary or advisable. To any extent that the provisions of our Plan of Dissolution conflict with any provision of the DGCL, the provisions of the DGCL shall prevail.
Treatment of Equity Awards
We intend to terminate all our equity incentive plans and our inducement plan effective upon the Dissolution. Therefore, all outstanding options and restricted stock units, whether currently vested or unvested, will terminate immediately prior to the Dissolution in accordance with the terms of our equity incentive plans and our inducement plan.
Professional Fees and Expenses
It is specifically contemplated that we will obtain legal and accounting advice and guidance from one or more law and accounting firms in implementing the Plan of Dissolution, and we will pay all fees and expenses reasonably incurred by us in connection with or arising out of the implementation of the Plan of Dissolution, the prosecution, defense, settlement or other resolution of any claims or suits by or against us, the discharge, filing and disclosure of outstanding obligations, liabilities and claims, filing and resolution of claims with local, county, state and federal tax authorities, and the advancement and reimbursement of any fees and expenses payable by us pursuant to the indemnification we provide in our certificate of incorporation and bylaws, the DGCL or otherwise. In addition, in connection with and for the purpose of implementing and assuring completion of the Plan of Dissolution, we may, in the absolute discretion of our Board of Directors, pay any brokerage, agency, professional and other fees and expenses of persons rendering services to us in connection with the collection, sale, exchange or other disposition of our property and assets and the implementation of the Plan of Dissolution.
Authority of the Board of Directors
Our Board of Directors, without further action by our stockholders, is authorized to take, or cause management to take, all actions as they deem necessary or advisable to implement our Plan of Dissolution. All determinations and decisions to be made by our Board of Directors will be at the absolute and sole discretion of our Board of Directors.
Material U.S. Federal Income Tax Consequences of the Dissolution
The following discussion is a summary of certain material U.S. federal income tax consequences of the Dissolution to U.S. Holders and Non-U.S. Holders (each as defined below and, collectively, Holders), but does not purport to be a complete analysis of all potential tax effects. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local, or non-U.S. tax laws are not discussed. This discussion is based on the Code, U.S. Treasury regulations promulgated thereunder, or the Treasury Regulations, judicial decisions, and published rulings and administrative pronouncements of the IRS, in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a Holder. We have not sought and will not seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a contrary position to that discussed below.
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This discussion is limited to Holders that hold our Class A common stock and/or Class B common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a Holder’s particular circumstances, including the impact of the Medicare contribution tax on net investment income, the special tax accounting rules under Section 451(b) of the Code, or the alternative minimum tax. In addition, this discussion does not address tax consequences relevant to Holders subject to special rules, including, without limitation:
•
U.S. expatriates and former citizens or long-term residents of the United States;
•
U.S. Holders whose functional currency is not the U.S. dollar;
•
persons that hold our Class A common stock and/or Class B common stock as part of a hedge, straddle, or other risk reduction strategy or as part of a conversion transaction or other integrated investment;
•
banks, insurance companies, and other financial institutions;
•
real estate investment trusts or regulated investment companies;
•
brokers, dealers, or traders in securities, commodities, or currencies;
•
“controlled foreign corporations,” “passive foreign investment companies,” or corporations that accumulate earnings to avoid U.S. federal income tax;
•
S corporations, partnerships, or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);
•
tax-exempt organizations (including private foundations) or international or governmental organizations;
•
persons deemed to sell our Class A common stock and/or Class B common stock under the constructive sale provisions of the Code;
•
persons that hold or receive our Class A common stock pursuant to the exercise of any employee stock option or otherwise as compensation;
•
tax-qualified retirement plans;
•
“qualified foreign pension funds” as defined in Section 897(l)(2) of the Code and entities all of the interests of which are held by qualified foreign pension funds; and
•
persons that own, or are deemed to own, 5% or more of our voting stock or 5% or more of the total value of all classes of our capital stock.
If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds our Class A common stock and/or Class B common stock, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership, and certain determinations made at the partner level. Accordingly, partnerships holding our Class A common stock and/or Class B common stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.
THIS DISCUSSION IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TAX ADVICE. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE DISSOLUTION ARISING UNDER U.S. FEDERAL ESTATE OR GIFT TAX LAWS, THE LAWS OF ANY STATE, LOCAL, OR NON-U.S. TAXING JURISDICTION, OR ANY APPLICABLE INCOME TAX TREATY.
U.S. Holder and Non-U.S. Holder
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of our Class A common stock and/or Class B common stock that is not an entity treated as a partnership for U.S. federal income tax purposes and that, for U.S. federal income tax purposes, is:
•
an individual who is a citizen or resident of the United States;
53
•
a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia;
•
an estate, the income of which is subject to U.S. federal income tax regardless of its source; or
•
a trust if (1) a U.S. court is able to exercise primary supervision over the administration of the trust and one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) have authority to control all substantial decisions of the trust, or (2) the trust has a valid election in effect to be treated as a United States person under applicable Treasury Regulations.
For purposes of this discussion, a “Non-U.S. Holder” is any beneficial owner of our Class A common stock and/or Class B common stock that is neither a U.S. Holder nor an entity treated as a partnership for U.S. federal income tax purposes.
U.S. Federal Income Tax Consequences of the Dissolution
We intend to treat the CVRs as part of the consideration received by Atreca in the Asset Sale, and as property distributed by Atreca to the Holders in the Dissolution (as discussed below under “U.S. Federal Income Tax Consequences of the Dissolution to Holders — CVRs”). Further, we intend for distributions made pursuant to the Plan of Dissolution to be treated as a series of distributions in complete liquidation of Atreca governed under Section 331 of the Code. This discussion assumes that such treatment will be respected for U.S. federal income tax purposes.
U.S. Federal Income Tax Consequences of the Dissolution to the Company
We generally will recognize gain or loss equal to the difference, if any, between the fair market value of any non-cash asset we distribute pursuant to the Plan of Dissolution, and our adjusted tax basis in such asset. If a stockholder assumes a liability in connection with the Dissolution, the discharge of such liability in the Dissolution may increase our recognized gain.
In addition, until all of our assets have been distributed pursuant to the Plan of Dissolution and the Dissolution is complete, we will continue to be subject to U.S. federal income tax on our income, if any, such as interest income. We generally will also recognize gain or loss, if any, upon the sale of any of our assets in connection with the Dissolution equal to the difference, if any, between (x) the fair market value of the consideration received for such assets and (y) our adjusted tax basis in such assets. Any of the foregoing tax liabilities may reduce the cash available for distribution pursuant to the Plan of Dissolution.
The Inflation Reduction Act enacted a 1% excise tax, or the Excise Tax, that generally applies to certain repurchases of stock of publicly traded U.S. corporations like us. However, interim guidance excepts from the Excise Tax certain distributions in complete liquidation of a publicly traded U.S. corporation, as well as distributions made by such corporation during the taxable year in which such corporation completely liquidates and dissolves, from the Excise Tax. Such exceptions are referred to as the Liquidation Exceptions in this discussion. Taxpayers are permitted to rely on the interim guidance until proposed Treasury Regulations are issued. This discussion assumes that the proposed Treasury Regulations will retain the Liquidation Exceptions in substantially the same form as set forth in the interim guidance.
Holders should consult their tax advisors regarding the tax consequences of the Dissolution to Atreca and any resulting impact to Holders in their particular circumstances.
U.S. Federal Income Tax Consequences of the Dissolution to Holders
Each Holder generally will be treated as receiving its portion of distributions made pursuant to the Plan of Dissolution in exchange for its shares of our Class A common stock and/or Class B common stock. If a Holder holds different blocks of shares of our Class A common stock and/or Class B common stock (generally, shares of our Class A common stock or Class B common stock purchased or acquired on different dates or at different prices), the Holder’s portion of such distributions must be allocated among the several blocks of shares in the proportion that the number of shares in a particular block bears to the total number of shares owned by the Holder.
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CVRs. There is substantial uncertainty as to the U.S. federal income tax treatment of contingent payment rights with characteristics similar to the CVRs, and we are aware of no legal authority that addresses circumstances where a corporation that is entitled to such rights from another taxpayer distributes those rights to its shareholders. The amount, timing, and character of income or loss recognized by a Holder on receipt of the CVRs and any future Milestone Payments is uncertain in several respects. We intend to treat the Holders’ receipt of the CVRs as a distribution of property in respect of our stock pursuant to the Plan of Dissolution in the taxable year that includes the Closing of the Asset Sale. Accordingly, we expect to include our best estimate of the fair market value of the CVRs in statements provided to Holders and the IRS reporting the distributions pursuant to the Plan of Dissolution, at such time and in such manner as required by the Code and applicable Treasury Regulations. If such “closed transaction” treatment applies, Milestone Payments paid pursuant to the CVRs would likely be treated as non-taxable return of the Holder’s adjusted tax basis in the CVR to the extent thereof. The treatment of any payment in excess of such amount is unclear. Such amounts might be characterized as a payment with respect to the sale of a capital asset or income taxed at ordinary income rates; provided that even if otherwise characterized as gain, a portion of Milestone Payments paid more than six months after the Closing of the Asset Sale is expected to be treated as imputed interest. Due to the legal and factual uncertainty regarding the valuation and tax treatment of the CVRs, there can be no assurance that the IRS would not assert, or that a court would not sustain, different tax treatment for the Holders’ receipt of CVRs and Milestone Payments. Holders are urged to consult their tax advisors regarding the proper characterization, method of tax accounting and tax reporting with respect to receipt of a CVR under the closed transaction method or open transaction method, as applicable, and the receipt of any future Milestone Payments, in their particular circumstances.
U.S. Holders. Distributions made pursuant to the Plan of Dissolution to a U.S. Holder will be treated as received by the U.S. Holder in exchange for the U.S. Holder’s shares of our Class A common stock and/or Class B common stock. The amount of any such distributions will reduce the U.S. Holder’s adjusted tax basis in such shares, but not below zero. Any excess will be treated as capital gain, while any adjusted tax basis remaining in such shares following the final distribution made pursuant to the Plan of Dissolution will be treated as a capital loss. Any such gain or loss generally will be long-term capital gain or loss, respectively, if such shares have been held for more than one year. Certain stockholders, including individuals, may qualify for preferential tax rates on long-term capital gains. The deductibility of capital losses is subject to limitations. Any such gain or loss generally will be computed on a “per share” basis.
The IRS or a court could challenge our valuation of the CVRs or any other non-cash asset distributed to a U.S. Holder pursuant to the Plan of Dissolution, which could change the amount of gain or loss recognized by the U.S. Holder. A U.S. Holder’s adjusted tax basis in any non-cash asset distributed to the U.S. Holder pursuant to the Plan of Dissolution immediately after such distribution will be the fair market value of such asset at the time of distribution. Distributions of non-cash assets pursuant to the Plan of Dissolution could result in a U.S. Holder having a tax liability in excess of the amount of cash distributed to the U.S. Holder pursuant to the Plan of Dissolution, which would require the U.S. Holder to satisfy such tax liability from other sources or by selling all or a portion of such non-cash assets. The installment method of reporting gain attributable to the receipt of or payments on the CVRs is not expected to be available.
U.S. Holders should consult their tax advisors regarding the tax consequences of the Dissolution in their particular circumstances, including the tax consequences of their receipt of, and payments with respect to, the CVRs.
Non-U.S. Holders. Distributions made pursuant to the Plan of Dissolution to a Non-U.S. Holder will be treated as received by the Non-U.S. Holder in exchange for the Non-U.S. Holder’s shares of our Class A common stock and/or Class B common stock. The amount of any such distributions will reduce the Non-U.S. Holder’s adjusted tax basis in such shares, but not below zero. Any excess will be treated as capital gain. A Non-U.S. Holder generally will not be subject to U.S. federal income tax on any such gain unless:
•
the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such gain is attributable);
•
the Non-U.S. Holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the applicable distribution and certain other requirements are met; or
55
•
we are or have been a “United States real property holding corporation,” or USRPHC, for U.S. federal income tax purposes during the shorter of the five-year period ending on the date of the applicable distribution or the Non-U.S. Holder’s holding period in the Non-U.S. Holder’s shares of our Class A common stock and/or Class B common stock.
Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular graduated rates applicable to United States persons. If the Non-U.S. Holder is a corporation, the Non-U.S. Holder also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on the Non-U.S. Holder’s effectively connected earnings and profits.
Gain described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S. source capital losses of the Non-U.S. Holder (even though the Non-U.S. Holder is not considered a resident of the United States), provided that the Non-U.S. Holder has timely filed U.S. federal income tax returns with respect to such losses.
With respect to gain described in the third bullet point above, the determination of whether we are a USRPHC depends on the fair market value of our “United States real property interests” for U.S. federal income tax purposes relative to the fair market value of our worldwide real property interests and our assets used or held for use in a trade or business. Although we believe we are not currently, and do not anticipate becoming, a USRPHC, there can be no assurance in this regard.
Non-U.S. Holders should consult their tax advisors regarding the tax consequences of the Dissolution in their particular circumstances, including the tax consequences of their receipt of, and payments with respect to, the CVRs, the applicability of withholding and income tax treaties and our status as a USRPHC.
Alternative U.S. Federal Income Tax Treatment of the Dissolution
Notwithstanding our position that distributions made pursuant to the Plan of Dissolution are intended to be treated as a series of distributions in complete liquidation of Atreca governed under Section 331 of the Code, it is possible that the IRS or a court could determine that any of such distributions is a current distribution. In addition, if the Dissolution is abandoned or revoked, such distributions would be treated as current distributions. A current distribution would be treated as a dividend for U.S. federal income tax purposes to the extent of our current and accumulated earnings and profits. Amounts not treated as dividends would constitute a return of capital and first be applied against and reduce a Holder’s adjusted tax basis in its shares of our Class A common stock, but not below zero. Any excess would be treated as capital gain. Depending on the particular circumstances, Atreca may be subject to the Excise Tax to the extent no exceptions (including the Liquidation Exceptions) apply to such distributions. Holders should consult their tax advisors regarding the proper tax treatment of the Dissolution and the resulting tax consequences in their particular circumstances, including the applicability of preferential tax rates, deductions, withholding, and income tax treaties.
Foreign Account Tax Compliance Act
Sections 1471 through 1474 of the Code, commonly referred to as the Foreign Account Tax Compliance Act, or FATCA, imposes a U.S. federal withholding tax of 30% on certain payments made to a “foreign financial institution” (as specially defined under these rules) unless such institution enters into an agreement with the U.S. government to withhold on certain payments and to collect and provide to U.S. tax authorities substantial information regarding certain U.S. account holders of such institution (which includes certain equity and debt holders of such institution, as well as certain account holders that are foreign entities with U.S. owners) or an exemption applies. FATCA also imposes a U.S. federal withholding tax of 30% on certain payments made to a non-financial foreign entity unless such entity provides the withholding agent a certification identifying certain direct and indirect U.S. owners of the entity, or an exemption applies. An intergovernmental agreement between the United States and an applicable foreign country may modify these requirements. Under certain circumstances, a non-U.S. Holder might be eligible for refunds or credits of such taxes. FATCA applies to dividends paid on our Class A common stock and Class B common stock, the portion of any Milestone Payments treated as imputed interest, and, subject to the proposed Treasury
56
Regulations described below, the gross proceeds from sales or other dispositions of our Class A common stock and Class B common stock. Proposed Treasury Regulations, if finalized in their present form, would eliminate the U.S. federal withholding tax of 30% applicable to gross proceeds from sales or other dispositions of our Class A common stock and Class B common stock. Taxpayers (including applicable withholding agents) generally may rely on such proposed Treasury Regulations until final Treasury Regulations are issued. Holders should consult their tax advisors regarding the application of FATCA in their particular circumstances.
Information Reporting and Backup Withholding
Information Reporting may apply to payments to Holders with respect to distributions made pursuant to the Plan of Dissolution and to Milestone Payments under the CVRs. In addition, any such payments to a U.S. Holder may be subject to backup withholding. Certain U.S. Holders are exempt from backup withholding, including corporations and certain tax-exempt organizations. A U.S. Holder will be subject to backup withholding if such holder is not otherwise exempt and:
•
the holder fails to furnish the applicable withholding agent with the holder’s taxpayer identification number, which for an individual is ordinarily the individual’s social security number;
•
the holder furnishes the applicable withholding agent with an incorrect taxpayer identification number;
•
the applicable withholding agent is notified by the IRS that the holder previously failed to properly report payments of interest or dividends; or
•
the holder fails to certify under penalties of perjury that the holder has furnished a correct taxpayer identification number and that the IRS has not notified the holder that the holder is subject to backup withholding.
For Non-U.S. Holders, backup withholding generally will not apply if such holder either certifies its non-U.S. status, such as by furnishing a valid IRS Form W-8BEN, W-8BEN-E, or W-8ECI (or applicable successor forms), or otherwise establishes an exemption. Proceeds from a distribution made pursuant to the Plan of Dissolution and received through a non-U.S. office of a non-U.S. broker generally will not be subject to backup withholding or information reporting.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a Holder’s U.S. federal income tax liability, provided that the required information is timely furnished to the IRS. Holders should consult their tax advisors regarding their qualification for an exemption from backup withholding, the procedures for obtaining such an exemption, and any other information reporting requirements in connection with the Dissolution (e.g., certain Holders may be required to include certain information with their U.S. federal income tax returns).
Each Holder of our Class A common stock and Class B common stock should consult with their own tax advisor to determine whether the shareholder needs to include a statement described in Treasury Regulations Section 1.331-1(d)(2) with its U.S. federal income tax return for years ending prior to the completion of Atreca’s complete liquidation.
THIS DISCUSSION IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TAX ADVICE. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS REGARDING THE U.S. FEDERAL, STATE, AND LOCAL AND NON-U.S. INCOME AND NON-INCOME TAX CONSEQUENCES OF THE DISSOLUTION IN THEIR PARTICULAR CIRCUMSTANCES, INCLUDING ANY INFORMATION REPORTING REQUIREMENTS, THE APPLICABILITY OF ANY TAX TREATIES, AND THE IMPACT OF ANY CHANGE IN LAW.
U.S. Federal Income Tax Consequences of a Liquidating Trust
We may transfer our remaining assets and obligations to a liquidating trust if our Board of Directors determines that such a transfer is advisable. Under applicable Treasury Regulations, a trust will be treated as a “liquidating trust” if it is organized for the primary purpose of liquidating and distributing the assets transferred to it, and if its activities are all reasonably necessary to and consistent with the accomplishment of that purpose. However, if the liquidation is unreasonably prolonged or if the liquidation purpose becomes so
57
obscured by business activities that the declared purpose of the liquidation can be said to be lost or abandoned, the trust will no longer be considered a liquidating trust and adverse tax consequences may apply to the trust or to Holders. Although neither the Code nor the Treasury Regulations thereunder provide any specific guidance as to the length of time a liquidating trust may last, the IRS’s guidelines for issuing rulings with respect to liquidating trust status call for a term not to exceed three years, which period may be extended to cover the collection of installment obligations.
If we transfer assets to a liquidating trust and distribute interests in the liquidating trust to Holders, we intend that such transfer and distribution would be treated for U.S. federal income tax purposes as if we distributed an interest in each of the assets so transferred directly to such Holders. Each Holder would be treated as receiving a liquidating distribution from us, which would be treated generally as described above.
Assuming that the liquidating trust is treated as a “liquidating trust” for U.S. federal income tax purposes, we intend that the liquidating trust would be treated as a “grantor trust” for U.S. federal income tax purposes. In that case, each unit or interest in the liquidating trust would represent ownership of an undivided proportionate interest in all of the assets and liabilities of the liquidating trust and a Holder would be treated for U.S. federal income tax purposes as receiving or paying, as applicable, directly a pro rata portion of all income, gain, loss, deduction, and credit of the liquidating trust. A Holder would be taxed each year on its share of income from the liquidating trust, net of such Holder’s share of expenses or other amounts that are deductible by such Holder for U.S. federal income tax purposes, whether or not such Holder receives a distribution of cash from the liquidating trust that year. When the liquidating trust makes distributions to Holders, the Holders generally would recognize no additional gain or loss.
Assuming the liquidating trust is treated as a grantor trust for U.S. federal income tax purposes, a Holder’s adjusted tax basis in a unit of the liquidating trust (and indirectly in the pro rata portion of the net assets in the liquidating trust that are attributable to that unit) would be equal to the fair market value of a unit (and those net assets) on the date that it is treated as distributed to the Holder, which value would be determined by us and reported to the Holder. The long-term or short-term character of any capital gain or loss recognized in connection with the sale of the liquidating trust’s assets would be determined based upon a holding period commencing at the time of the acquisition by a Holder of such Holder’s beneficial interest in the liquidating trust.
The trustee or trustees of the liquidating trust would provide to each Holder of units in the liquidating trust after each year end a detailed itemized statement that reports on a per unit basis the Holder’s allocable share of all the various categories of income and expense of the liquidating trust for the year. Each Holder must report such items on its U.S. federal income tax return regardless of whether the liquidating trust makes current cash distributions.
If the liquidating trust fails to qualify as a liquidating trust that is a grantor trust for U.S. federal income tax purposes, the consequences to Holders would depend on the reason for the failure to qualify, and, under certain circumstances, the liquidating trust could be treated as an association taxable as a corporation for U.S. federal income tax purposes. If the liquidating trust is taxable as a corporation, the trust itself would be subject to U.S. federal income tax at the applicable corporate income tax rate. In that case, distributions made by the liquidating trust would be reduced by any such additional taxes imposed on the trust, and a Holder would be subject to tax upon the receipt of distributions that constitute dividends from the trust rather than taking into account its share of the trust’s taxable items on an annual basis.
Holders should consult their tax advisors regarding the tax consequences that would apply to them if we were to transfer assets to a liquidating trust.
Vote Required and Our Board of Directors’ Recommendation for the Dissolution Proposal
The affirmative vote of the holders of a majority of all outstanding shares of Class A common stock on the Record Date is required to approve the Dissolution Proposal. The Special Meeting will be held virtually; therefore, no shares of Class A common stock will be present in person at the Special Meeting, and only shares present virtually or represented by proxy at the Special Meeting will be able to be voted.
For the purpose of the Dissolution Proposal, (i) a failure to vote your shares of Class A common stock (including a failure of your bank, broker or other nominee to vote shares held on your behalf) will also count
58
as a vote “AGAINST” the proposal to adopt the Plan of Dissolution (but such shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting, which may make it harder to establish a quorum for the transaction of business at the Special Meeting), and (ii) abstentions will have the same effect as a vote “AGAINST” the Dissolution Proposal, whether or not a quorum is present. Shares of Class A common stock represented by properly executed, timely received and unrevoked proxies will be voted in accordance with the instructions indicated thereon. If a stockholder returns a properly signed and dated proxy card without indicating voting preferences on such proxy card, the shares of Class A common stock represented by that proxy will be counted as present for purposes of determining the presence of a quorum for the Special Meeting and all of such shares will be voted as recommended by our Board of Directors.
Under the rules of Nasdaq, banks, brokers and other nominees who hold shares in “street name” for customers have the authority to vote on “discretionary” proposals when they have not received instructions from beneficial owners. However, banks, brokers, and other nominees are precluded from exercising their voting discretion with respect to approving non-discretionary matters, such as the proposal to adopt the Asset Sale Proposal, the Plan of Dissolution and the Adjournment Proposal. Because banks, brokers and other nominees do not have discretionary voting authority with respect to the proposal to adopt the Asset Sale Proposal, the Plan of Dissolution or the Adjournment Proposal, if a beneficial owner of shares of Class A common stock held in “street name” does not give voting instructions to the bank, broker or other nominee with respect to any of the proposals, then those shares will not be present or represented by proxy at the Special Meeting and will not be counted for purposes of determining whether a quorum is present at the Special Meeting. However, if a beneficial owner of shares of Class A common stock held in “street name” gives voting instructions to the bank, broker or other nominee with respect to at least one of the proposals, but gives no instruction as to one or more of the other proposals, then those shares will be deemed present at the Special Meeting for purposes of establishing a quorum at the Special Meeting, will be voted as instructed with respect to any proposal as to which instructions were given, and will not be voted with respect to any other proposal. If your shares of Class A common stock are deemed present virtually or represented by proxy at the Special Meeting, then failure to vote your shares (including a failure of your bank, broker or other nominee to vote shares held on your behalf) will have the same effect as a vote “AGAINST” the Adjournment Proposal if a quorum is not present, but will have no effect on the Adjournment Proposal if a quorum is present. Therefore, if you hold your shares of Class A common stock in “street name,” it is important that you instruct your bank, broker or other nominee on how you wish to vote your shares.
The Board of Directors Recommends
A Vote In Favor of Proposal 2.
A Vote In Favor of Proposal 2.
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INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS IN APPROVAL OF THE ASSET SALE AND PLAN OF DISSOLUTION
Members of our Board of Directors and our executive officers may have interests in the approval of the Asset Sale and Plan of Dissolution that are different from, or are in addition to, the interests of our stockholders generally. Our Board of Directors was aware of these interests and considered them, among other matters, in approving the Asset Sale and Plan of Dissolution.
Severance Benefits
If an executive officer is terminated by Atreca without “Cause” or terminates their employment for “Good Reason” (each as defined in their employment agreements) then, provided that the executive officer signs, and does not subsequently revoke, a separation agreement and release of claims in favor of Atreca, our executive officers will each receive the following:
•
a payment equal to 9 months (except Mr. Orwin will receive 12 months) of their base salary;
•
a payment equal to 9 months (except Mr. Orwin will receive 12 months) of premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or COBRA, for such executive officer (including eligible dependents, if applicable);
each to be paid in a lump sum within 60 days following their termination of employment, provided the separation agreement has become effective. In addition, Tito A. Serafini, Ph.D. will receive accelerated vesting of all time-based vesting equity awards and such number of shares subject to such equity awards shall be deemed immediately vested, and exercisable, as of Dr. Serafini’s last day of employment.
The table below sets forth the severance benefits our executive officers will receive upon the termination of their employment.
|
Name
|
| |
Cash
Severance Payment |
| |
COBRA
Benefits |
| |
Accelerated
Vesting of Equity Awards(1) |
| |
Aggregate
Severance Benefits |
| ||||||||||||
|
John A. Orwin
|
| | | $ | 625,039 | | | | | $ | 42,912 | | | | | | — | | | | | $ | 667,951 | | |
|
Tito A. Serafini, Ph.D.(2)
|
| | | $ | 377,961 | | | | | $ | 32,184 | | | | | $ | 1,458 | | | | | $ | 410,145 | | |
|
Courtney J. Phillips
|
| | | $ | 337,500 | | | | | | — | | | | | | — | | | | | $ | 337,500 | | |
|
Philippe M. Bishop, M.D.(3)
|
| | | $ | 356,250 | | | | | $ | 10,323 | | | | | | — | | | | | $ | 366,573 | | |
|
Stephen E. Gould, Ph.D.(3)
|
| | | $ | 356,250 | | | | | $ | 32,184 | | | | | | — | | | | | $ | 388,434 | | |
(1)
Consists of restricted stock units. The value is calculated by multiplying the number of shares of Class A common stock issuable upon the vesting of restricted stock units held by the executive officer as of the date of this proxy statement by the low range of the estimated initial liquidating distribution to stockholders of $0.05 per share. For information regarding the number of restricted stock units held by our executive officers, refer to the subsection titled “— Equity Ownership.”
(2)
We have notified Dr. Serafini that his employment is expected to terminate on January 31, 2023.
(3)
Drs. Bishop’s and Gould’s employment with the Company terminated on December 31, 2023.
Deferred and Contingent Change in Control Severance Benefits
Our executive officers are entitled to additional severance benefits in connection with the Asset Sale, as the Asset Sale meets the definition of a “change of control” as such term is defined in their respective employment agreements. In December 2023, our executive officers amended their respective employment agreements to provide that such additional severance benefits will only be payable after our stockholders have received a minimum liquidating distribution pursuant to the Plan of Dissolution of at least $0.05 per share, and all obligations of Atreca have been paid, reserved or otherwise resolved under applicable law. As amended, if within 30 days prior to the closing of the Asset Sale (other than Dr. Serafini who has a term of 60 days), an executive officer (i) is terminated without Cause (other than as a result of death or disability) or (ii) resigns for Good Reason, then, provided that such executive officer signs, and does not subsequently revoke, a separation agreement and release of claims in favor of Atreca, then our executive officers will each receive the following:
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•
an additional severance payment equal to 3 months of their base salary (other than Mr. Orwin who will receive 6 months);
•
their target annual cash bonus (other than Mr. Orwin who will receive his target annual cash bonus multiplied by 1.5); and
•
an additional payment equal to 3 months of COBRA premiums (including eligible dependents, if applicable) (other than Mr. Orwin who will receive 6 months);
each to be paid in a lump sum within 60 days following the termination of employment, provided the conditions described above have been satisfied. In addition, our executive officers will each receive accelerated vesting of all time-based vesting equity awards and such number of shares subject to such equity awards shall be deemed immediately vested, and exercisable, as of the executive officer’s last day of employment.
The table below sets forth the deferred and contingent additional severance benefits that are payable to our executive officers if their employment is terminated under the circumstances described above.
|
Name
|
| |
Cash
Severance Payment |
| |
Bonus
Payment |
| |
COBRA
Benefits |
| |
Accelerated
Vesting of Equity Awards(1) |
| |
Aggregate
Deferred and Contingent Severance Benefits |
| |||||||||||||||
|
John A. Orwin
|
| | | $ | 312,520 | | | | | $ | 515,657(2) | | | | | $ | 21,456 | | | | | | — | | | | | $ | 849,633 | | |
|
Tito A. Serafini, Ph.D.
|
| | | $ | 125,987 | | | | | $ | 201,579(3) | | | | | $ | 10,728 | | | | | | — | | | | | $ | 338,294 | | |
|
Courtney J. Phillips
|
| | | $ | 112,500 | | | | | $ | 180,000(4) | | | | | | — | | | | | $ | 1,083 | | | | | $ | 293,583 | | |
(1)
Consists of restricted stock units. The value is calculated by multiplying the number of shares of Class A common stock issuable upon the vesting of restricted stock units held by the executive officer as of the date of this proxy statement by the low range of the estimated initial liquidating distribution to stockholders of $0.05 per share. For information regarding the number of restricted stock units held by our executive officers, refer to the subsection titled “— Equity Ownership.”
(2)
As described herein, pursuant to his employment agreement, Mr. Orwin is entitled to receive a bonus payment of up to 55% of his base salary multiplied 1.5x pursuant to a termination in connection with a Change in Control.
(3)
As described herein, pursuant to his employment agreement, Dr. Serafini is entitled to receive a bonus payment of up to 40% of his base salary pursuant to a termination in connection with a Change in Control.
(4)
As described herein, pursuant to her employment agreement, Ms. Phillips is entitled to receive a bonus payment of up to 40% of her base salary pursuant to a termination in connection with a Change in Control.
As a result of these benefits, our executive officers may be more likely to vote to approve the Asset Sale than our other stockholders.
Equity Ownership
In connection with our liquidating distributions, the members of our Board of Directors and our executive officers will be entitled to the same cash distributions as our stockholders based on their ownership of shares of our Class A common stock.
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Members of our Board of Directors and our executive officers own, as of the date of this filing, an aggregate of 936,847 shares of Class A common stock as follows:
|
Name
|
| |
Number of Shares of
Class A Common Stock Owned(1) |
| |||
|
John A. Orwin
|
| | | | 77,541 | | |
|
Courtney J. Phillips
|
| | | | 28,764 | | |
|
Brian Atwood
|
| | | | 49,654 | | |
|
Kristine M. Ball
|
| | | | — | | |
|
Franklin Berger
|
| | | | 97,808 | | |
|
David Lacey, M.D.
|
| | | | — | | |
|
William H. Robinson, M.D., Ph. D.
|
| | | | 368,948 | | |
|
Stacey Ma, Ph.D.
|
| | | | — | | |
|
Stephen Brady
|
| | | | — | | |
|
Lindsey Rolfe, M.D.
|
| | | | — | | |
|
Tito A. Serafini, Ph.D.
|
| | | | 314,132 | | |
(1)
Each share of Class A common stock is entitled to one CVR. A CVR payment is conditioned on the achievement of one or more Milestones, which may or may not be achieved. For additional information regarding the CVR, please refer to the sections titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Form of Contingent Value Rights Agreement” and “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Estimated Distribution to Stockholders” beginning on pages 35 and 46 of this proxy statement, respectively.
Please refer to the section titled “Security Ownership of Certain Beneficial Owners and Management” on page 66 of this proxy statement for additional information regarding the number of shares of Class A common stock beneficially owned by our directors and executive officers.
The exercise prices of all outstanding stock options held by our directors and our executive officers range from $1.18 to $22.06, which exceeds the high range of our estimated initial liquidating distribution to stockholders of $0.07 per share. Unless and until any such options are exercised and payment of the applicable exercise price is made, our directors and executive officers are not entitled to any cash distributions with respect to their options under the Plan of Dissolution. All outstanding options, whether currently vested or unvested, will terminate immediately prior to the Dissolution in accordance with the terms of our equity incentive plans and our inducement plan.
All outstanding restricted stock units, whether currently vested or unvested, will terminate immediately prior to the Dissolution in accordance with the terms of our equity incentive plans and our inducement plan. Our executive officers own, as of the date of this proxy statement, an aggregate of 50,834 restricted stock units as follows (none of which are scheduled to vest within 60 days as of the date of this proxy statement):
|
Name
|
| |
Number of Restricted
Stock Units(1) |
| |||
|
John A. Orwin
|
| | | | — | | |
|
Tito A. Serafini, Ph.D.
|
| | | | 29,167 | | |
|
Courtney J. Phillips
|
| | | | 21,667 | | |
(1)
The holder of a restricted stock unit that settles in Class A common stock on or before the date immediately preceding the closing of the Asset Sale is entitled to one CVR for each such restricted stock unit. A CVR payment is conditioned on the achievement of one or more Milestones, which may or may not be achieved. For additional information regarding the CVR, please refer to the sections titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Form of Contingent Value Rights Agreement” and “Proposal 2: Approval of the Dissolution Pursuant to the Plan of Dissolution — Estimated Distribution to Stockholders” beginning on pages 35 and 46 of this proxy statement, respectively.
Director Compensation
Pursuant to our Non-Employee Director Compensation Policy, our non-employee directors currently receive annual cash retainers and stock option grants for their service on our Board of Directors and
62
committee service. Our Board of Directors does not expect to grant stock options otherwise due and payable for board and committee service during 2024. Further, our Board of Directors has determined that the Non-Employee Director Compensation Policy shall cease and be terminated as of the Dissolution.
Indemnification and Insurance
In connection with the Dissolution, we will continue to indemnify our directors and officers to the maximum extent permitted in accordance with applicable law, our certificate of incorporation and bylaws, and any contractual arrangements, for actions taken in connection with the Plan of Dissolution and the winding up of our business and affairs. Our Board of Directors is authorized to obtain and maintain insurance as may be necessary, appropriate or advisable to cover such indemnification obligations, including seeking an extension in time and coverage of our insurance policies currently in effect.
As a result of these benefits, our directors and executive officers generally could be more likely to vote to approve the Plan of Dissolution, including the Dissolution contemplated thereby, than our other stockholders.
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PROPOSAL 3: APPROVAL OF ADJOURNMENT OF SPECIAL MEETING TO SOLICIT ADDITIONAL PROXIES
We are asking you to approve a proposal to adjourn the Special Meeting to a later date or dates if our Board of Directors determines that it is necessary or appropriate, including to solicit additional proxies if there are insufficient votes to approve the Asset Sale Proposal and the Dissolution Proposal at the time of the Special Meeting. If our Board of Directors determines that it is necessary or appropriate, we will ask our stockholders to vote only on this Adjournment Proposal and not to vote on the Asset Sale Proposal or the Dissolution Proposal.
If stockholders approve the Adjournment Proposal, we could adjourn the Special Meeting and any adjourned session of the Special Meeting and use the additional time to solicit additional proxies, including soliciting proxies from stockholders who have previously returned properly executed proxies voting against the Asset Sale Proposal and/or the Dissolution Proposal. Among other things, approval of the Adjournment Proposal could mean that, even if we had received proxies representing a sufficient number of votes against the Asset Sale Proposal and/or the Dissolution Proposal, and that the Asset Sale Proposal and/or the Dissolution Proposal would be defeated, we could adjourn the Special Meeting without a vote on the Asset Sale Proposal and/or the Dissolution Proposal and seek to convince the holders of those shares to change their votes to votes in favor of approving the Asset Sale Proposal and/or the Dissolution Proposal. Additionally, we may seek to adjourn the Special Meeting if a quorum is not present or otherwise at the discretion of the Chairperson of the Special Meeting.
Approval of the Adjournment Proposal requires either (i) if a quorum is present, the affirmative vote of the majority of the shares of Class A common stock present virtually or represented by proxy duly authorized at the Special Meeting and entitled to vote generally on the subject matter or (ii) if a quorum is not present, the vote of the holders of a majority of the shares of Class A common stock represented at the Special Meeting.
For the purpose of the Adjournment Proposal, (i) a failure to vote virtually or by proxy at the Special Meeting (including failure to give instruction to banks, brokers or other nominees on any of the proposals to be voted on at the Special Meeting for shares of Class A common stock held in “street name”) will have no effect on the outcome of the Adjournment Proposal (but such shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting, which may make it harder to establish a quorum for the transaction of business at the Special Meeting), and (ii) abstentions will have the same effect as a vote “AGAINST” the Adjournment Proposal, whether or not a quorum is present. If your shares are deemed present or represented by proxy at the Special Meeting, then a failure to vote your shares will have no effect on the outcome of the Adjournment Proposal if a quorum is present but will have the same effect as a vote “AGAINST” the Adjournment Proposal if a quorum is not present. Shares of the our Class A common stock represented by properly executed, timely received and unrevoked proxies will be voted in accordance with the instructions indicated thereon. If a stockholder returns a properly signed and dated proxy card without indicating voting preferences on such proxy card, the shares of Class A common stock represented by that proxy will be counted as present for purposes of determining the presence of a quorum for the Special Meeting and all of such shares will be voted as recommended by our Board of Directors.
Under the rules of Nasdaq, banks, brokers or other nominees who hold shares in “street name” for customers have the authority to vote on “discretionary” proposals when they have not received instructions from beneficial owners. However, banks, brokers or other nominees are precluded from exercising their voting discretion with respect to approving non-discretionary matters, such as the Asset Sale Proposal, the Dissolution Proposal and the Adjournment Proposal. Because banks, brokers or other nominees do not have discretionary voting authority with respect to the Asset Sale Proposal, the Dissolution Proposal and the Adjournment Proposal, if a beneficial owner of shares of Class A common stock held in “street name” does not give voting instructions to the banks, brokers or other nominees with respect to any of the proposals, then those shares will not be present or represented by proxy at the Special Meeting and will not be counted for purposes of determining whether a quorum is present at the Special Meeting. However, if a beneficial owner of shares of Class A common stock held in “street name” gives voting instructions to the banks, brokers or other nominees with respect to at least one of the proposals, but gives no instruction as to one or more of the other proposals, then those shares will be deemed present at the Special Meeting for purposes of establishing a quorum at the Special Meeting, will be voted as instructed with respect to any proposal as to which instructions were given, and will not be voted with respect to any other proposal. If your shares are deemed
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present virtually or represented by proxy at the Special Meeting, then failure to vote your shares of Class A common stock (including a failure of your banks, brokers or other nominees to vote shares held on your behalf) will have the same effect as a vote “AGAINST” the Adjournment Proposal if a quorum is not present, but will have no effect on the Adjournment Proposal if a quorum is present. Therefore, if you hold your shares of Class A common stock in “street name,” it is important that you instruct your banks, brokers or other nominees on how you wish to vote your shares.
The Board of Directors Recommends
A Vote In Favor of Proposal 3.
A Vote In Favor of Proposal 3.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the ownership of our shares of Class A common stock and our non-voting Class B common stock as of January 1, 2024, by:
•
all those known by us to be beneficial owners of more than five percent of our shares of Class A common stock and Class B common stock;
•
each of our directors;
•
each of our named executive officers; and
•
all of our directors and executive officers as a group.
This table is based upon information supplied by officers, directors and principal stockholders and filings with the SEC. Unless otherwise indicated in the footnotes to this table and subject to community property laws where applicable, we believe that each of the stockholders named in this table has sole voting and dispositive power with respect to the shares indicated as beneficially owned. We have deemed shares of Class A common stock subject to options and restricted stock units that are currently exercisable or exercisable within 60 days of January 1, 2024, to be outstanding and to be beneficially owned by the person holding the option for the purpose of computing the percentage ownership of that person but have not treated them as outstanding for the purpose of computing the percentage ownership of any other person.
Applicable percentages are based on 32,908,634 shares of Class A common stock, adjusted as required by rules promulgated by the SEC. Except as set forth below, the principal business address of each such person or entity is c/o Atreca, Inc., 900 East Hamilton Avenue, Suite 100, Campbell, California 95008.
| | | |
Shares Beneficially Owned
|
| |||||||||
|
Beneficial Owner
|
| |
Number of
shares of Class A common stock |
| |
Percentage of
shares of Class A common stock |
| ||||||
| Greater than 5% Stockholders | | | | | | | | | | | | | |
|
Entities Affiliated with Boxer Capital, LLC(1)
|
| | | | 2,202,333 | | | | | | 6.7% | | |
|
Entities Affiliated with Baker Brothers Life Sciences, L.P.(2)
|
| | | | 2,177,499(3) | | | | | | 6.6% | | |
| Directors and Named Executive Officers | | | | | | | | | | | | | |
|
John A. Orwin(4)
|
| | | | 1,701,080 | | | | | | 4.9% | | |
|
Tito A. Serafini, Ph.D.(5)
|
| | | | 865,381 | | | | | | 2.6% | | |
|
Brian Atwood(6)
|
| | | | 73,654 | | | | | | * | | |
|
Kristine M. Ball(7)
|
| | | | 60,000 | | | | | | * | | |
|
Franklin Berger(8)
|
| | | | 167,974 | | | | | | * | | |
|
Stephen R. Brady(9)
|
| | | | 28,000 | | | | | | * | | |
|
David Lacey, M.D.(10)
|
| | | | 90,532 | | | | | | * | | |
|
Stacey Y. Ma, Ph.D.(11)
|
| | | | 28,000 | | | | | | * | | |
|
William Robinson, M.D., Ph.D.(12)
|
| | | | 466,614 | | | | | | 1.4% | | |
|
Lindsey Rolfe, MBChB(13)
|
| | | | 60,000 | | | | | | * | | |
|
Stephen E. Gould(14)
|
| | | | 128,007 | | | | | | * | | |
|
All executive officers and directors as a group (12 persons)(15)
|
| | | | 4,045,921 | | | | | | 11.2% | | |
*
Represents beneficial ownership of less than one percent
(1)
This information is based solely on a Schedule 13G/A filed with the SEC on February 14, 2022. Boxer Capital, LLC, Boxer Asset Management Inc., and Joe Lewis each reported shared voting power and shared dispositive power of 2,202,333 shares of Class A common stock. The business address of Boxer Capital, LLC is 11782 El Camino Real, Suite 320, San Diego, California 92130. The principal business address of Boxer Asset Management Inc. and Joe Lewis is: Cay House, EP Taylor Drive N7776, Lyford Cay, New Providence, Bahamas.
(2)
Baker Brothers Life Sciences, L.P. and 667, L.P., an affiliate of Baker Brothers Life Sciences, L.P., together hold 6,715,441 shares of our Class B common stock, which constitutes 100% of the outstanding Class B common stock shares. As described above in the
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section titled “Proposal 1: Approval of the Asset Sale Pursuant to the Asset Purchase Agreement — Background for the Asset Sale and the Dissolution,” in connection with the Asset Purchase Agreement, Baker Brothers Life Sciences, L.P. and 667, L.P. have agreed to convert their shares of Class B common stock into shares of Class A common stock on and as of the Conversion Date, subject to the Adjusted Beneficial Ownership Limitation.
(3)
Baker Bros. Advisors LP, Baker Bros. Advisors (GP) LLC, Felix J. Baker, and Julian C. Baker each reported sole voting power and sole dispositive power with respect to all shares of Class A common stock beneficially owned, consisting of 1,980,420 shares of Class A common stock held of record by Baker Brothers Life Sciences, L.P. and 197,079 shares of Class A common stock held of record by 667, L.P. The principal business address of Baker Bros. Advisors LP, Baker Bros. Advisors (GP) LLC, Felix J. Baker, and Julian C. Baker is: c/o Baker Bros. Advisors L.P., 860 Washington Street, 3rd Floor, New York, NY 10014.
(4)
Consists of (a) 77,541 shares Class A common stock and (b) 1,623,539 shares of Class A common stock issuable pursuant to a stock option exercisable within 60 days after January 1, 2024.
(5)
Consists of (a) 228,875 shares of Class A common stock held of record by Tito A. Serafini and Marya A. Postner Trustees or Successor Trustee, of the Serafini/Postner Revocable Trust U/A/D 2/8/98, (b) 50,000 shares of Class A common stock held of record by Tito A. Serafini and Marya Postner, Trustees of the Serafini/Postner Irrevocable Remainder Trust, (c) 35,257 shares of Class A common stock held of record by Dr. Serafini, and (d) 551,249 shares of Class A common stock issuable pursuant to stock options exercisable within 60 days after January 1, 2024.
(6)
Consists of (a) 49,654 Class A common stock held of record by Atwood-Edminster Trust dtd 4/2/00 and (b) 24,000 shares of Class A common stock issuable pursuant to a stock option exercisable within 60 days after January 1, 2024.
(7)
Consists of shares of Class A common stock issuable pursuant to a stock option exercisable within 60 days after January 1, 2024.
(8)
Consists of (a) 97,808 shares of Class A common stock and (b) 70,166 shares of Class A common stock issuable pursuant to a stock option exercisable within 60 days after January 1, 2024.
(9)
Consists of shares of Class A common stock issuable pursuant to a stock option exercisable within 60 days after January 1, 2024.
(10)
Consists of shares of Class A common stock issuable pursuant to a stock option exercisable within 60 days after January 1, 2024.
(11)
Consists of shares of Class A common stock issuable pursuant to a stock option exercisable within 60 days after January 1, 2024.
(12)
Consists of (a) 368,948 shares of Class A common stock and (b) 97,666 shares of Class A common stock issuable pursuant to a stock option exercisable within 60 days after January 1, 2024.
(13)
Consists of shares of Class A common stock issuable pursuant to a stock option exercisable within 60 days after January 1, 2024.
(14)
Consists of (a) 6,757 shares of Class A common stock and (b) 121,250 shares of Class A common stock issuable pursuant to stock options exercisable within 60 days after January 1, 2024. Dr. Gould’s employment with the Company terminated on December 31, 2023.
(15)
Consists of (a) 943,604 shares of Class A common stock and (b) 3,102,317 shares of Class A common stock issuable pursuant to stock options exercisable within 60 days after January 1, 2024.
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ADDITIONAL INFORMATION
Description of Business
Until recently, we were a biopharmaceutical company utilizing our differentiated platform to discover and develop novel antibody-based immunotherapeutics to treat a range of solid tumor types. On December 22, 2023, we announced, after extensive consideration of potential strategic alternatives, that our Board of Directors had unanimously approved, on December 19, 2023, the Asset Sale pursuant to the Asset Purchase Agreement and the Dissolution pursuant to the Plan of Dissolution, each of which, the Asset Sale and the Plan of Dissolution, are subject to stockholder approval. In connection with the Plan of Dissolution, we have discontinued all preclinical and clinical programs and we have continued reductions in our workforce, which included the termination of most employees by December 31, 2023.
Preclinical Development Programs
Since the suspension of the development of ATRC-101, our former lead product candidate, in August 2023, and prior to announcing our intention to dissolve Atreca, subject to approval by our stockholders, we were focusing our preclinical development efforts for our lead-stage oncology programs, including APN-497444 and APN-346958, an Atreca-discovered antibody consisting of a CD3 bispecific T-cell engager against an RNA-binding protein target. In addition, we and Xencor, Inc. recently elected to terminate the joint program based on APN-346958 that commenced in early 2023.
MAM01/ATRC-501
In October 2021, we entered into a licensing agreement with the Gates MRI to allow Gates MRI to develop and commercialize MAM01/ATRC-501 for the prevention of malaria in GAVI-, the Vaccine Alliance, eligible countries located in malaria-endemic regions of the world, to advance its charitable purposes, or the Grant Agreement. MAM01/ATRC-501 is an engineered version of an antibody that we discovered using our platform that targets the circumsporozoite protein of Plasmodium falciparum, the protozoan that causes the deadliest form of malaria. In the first half of 2023, Gates MRI filed an initial new drug application for MAM01/ATRC-501 with the U.S. Food and Drug Administration. In the second half of 2023, Gates MRI initiated a Phase 1 trial in the United States with a follow-up study in Sub-Saharan Africa. We retain commercial rights in the United States, Europe and parts of Asia, and potential product development opportunities in those regions include prevention of malaria for those traveling to malaria endemic regions.
Reorganization Activities and Strategic Review Process
In August 2023, we implemented a reorganization of our operations. As part of the reorganization, we undertook cost-savings initiatives, including a workforce reduction of approximately 40% of our then-current employees, and we suspended the development of ATRC-101, our lead product candidate. In November 2023, we implemented a further reduction in our workforce of approximately 40% of our then-current employees while maintaining the necessary support to continue exploring potential strategic transactions and business alternatives focused on maximizing stockholder value from our existing cash and cash equivalents, including, but not limited to, a merger, sale of part or all our clinical, preclinical and discovery platform assets, business combination, and/or similar transaction.
Householding of Proxy Materials
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for stockholder meeting materials with respect to two or more stockholders sharing the same address by delivering a single set of stockholder meeting materials addressed to those stockholders. This process, which is commonly referred to as “householding,” potentially means extra convenience for stockholders and cost savings for companies.
A number of brokers with account holders who are Atreca stockholders will be “householding” the proxy materials for this Special Meeting. A single set of proxy materials will be delivered to multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once you have received notice from your broker that they will be “householding” communications to your
68
address, “householding” will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer wish to participate in “householding” and would prefer to receive a separate set of proxy materials materials, please notify your bank, broker or other nominee or Atreca. Direct your written request to Atreca, Inc., Attn: General Counsel and Corporate Secretary at 900 East Hamilton Avenue, Suite 100, Campbell, California 95008. Stockholders who currently receive multiple copies of the proxy materials at their addresses and would like to request “householding” of their communications should contact their brokers.
Market Price and Dividend Data
Our Class A common stock is listed on Nasdaq under the symbol “BCEL.” As of January 1, 2024, there were 32,908,634 shares of Class A common stock outstanding held by approximately 44 stockholders of record. The actual number of stockholders is greater than this number of record holders and includes stockholders who are beneficial owners, but whose shares are held in “street name” by banks, brokers or other nominees. As of January 1, 2024, there were 6,715,441 shares of Class B common stock outstanding held by two stockholders of record.
On January 4, 2024, the latest practicable trading day before the printing of this proxy statement, the closing price for our Class A common stock on Nasdaq was $0.11 per share. You are encouraged to obtain current market quotations for our Class A common stock.
Following the Dissolution, there will be no further market for our Class A common stock, and it will be delisted from Nasdaq prior to the Dissolution and deregistered under the Exchange Act. As a result, following the Dissolution, we will no longer file annual, periodic and current reports under the Exchange Act with the SEC.
We have never declared or paid any cash dividends on our capital stock. In the event that the Dissolution is not consummated, our payment of any future dividends would be at the discretion of our Board of Directors and will depend on then-existing conditions, including our financial condition, operating results, contractual restrictions, capital requirements, business prospects, and other factors our Board of Directors may deem relevant.
Stockholder Proposals and Nominations
In the event that we hold the 2024 annual meeting of stockholders, a stockholder may present proper proposals for inclusion in our proxy statement and for consideration at next year’s annual meeting of stockholders by submitting their proposals in writing to our General Counsel and Corporate Secretary in a timely manner. In addition, stockholder proposals must comply with the requirements of Rule 14a-8 of the Exchange Act regarding the inclusion of stockholder proposals in next year’s proxy materials. To be considered for inclusion in next year’s proxy materials, your proposal must be submitted in writing by December 29, 2023 to our General Counsel and Corporate Secretary at 900 East Hamilton Avenue, Suite 100, Campbell, California 95008; provided, however, that if our 2024 annual meeting of stockholders is held before May 14, 2024 or after July 13, 2024, then the deadline is a reasonable amount of time prior to the date we begin to print and mail our proxy statement for the 2024 annual meeting of stockholders.
Our amended and restated bylaws also provide for separate notice procedures to recommend a person for nomination as a director or to propose business to be considered by stockholders at a meeting, provided that such proposal or nominee would not be included in next year’s proxy materials. Such proposals must comply with the requirements, including without limitation, the separate notice procedures, of our amended and restated bylaws. If you wish to submit such a proposal or nominate a director, written notice must be received by our General Counsel and Corporate Secretary no later than the close of business on March 15, 2024 nor earlier than close of business on February 14, 2024; provided, however, that if our 2024 Annual Meeting of Stockholders is held before May 14, 2024 or after July 13, 2024, then the proposal must be received no earlier than the close of business on the 120th day prior to such annual meeting and no later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such annual meeting is first made.
Furthermore, in addition to satisfying the foregoing requirements under our amended and restated bylaws, a stockholder who intends to solicit proxies in support of director nominees other than our nominees must comply with the additional requirements required by Rule 14a-19(b) under the Exchange Act.
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WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public at the SEC website at www.sec.gov. You also may obtain free copies of the documents we file with the SEC, including this proxy statement, by going to the investor relations page of our website at https://ir.atreca.com/financials-and-filings/sec-filings.
The SEC allows us to “incorporate by reference” information into this proxy statement, which means that we can disclose important information to you by referring you to other documents filed separately with the SEC. The information incorporated by reference is deemed to be part of this proxy statement, except for any information superseded by information in this proxy statement or incorporated by reference subsequent to the date of this proxy statement. This proxy statement incorporates by reference the documents (other than the information furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that are related to such items unless the Form 8-K expressly provides to the contrary) set forth below that we have previously filed with the SEC:
•
•
the information specifically incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 27, 2023;
•
our Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2023, June 30, 2023 and September 30, 2023, respectively, filed with the SEC on May 10, 2023, August 10, 2023 and November 14, 2023, respectively; and
•
our Current Reports on Form 8-K, filed with the SEC on December 26, 2023, June 15, 2023, August 10, 2023, September 14, 2023 and September 21, 2023.
We also incorporate by reference into this proxy statement additional documents that we may file with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) between the date of this proxy statement and the earlier of the date of the Special Meeting or the termination of the Plan of Dissolution. These documents include periodic reports, such as Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as well as Current Reports on Form 8-K and proxy soliciting materials.
Notwithstanding the foregoing, we will not incorporate by reference in this proxy statement any documents or portions thereof that are not deemed “filed” with the SEC, including information furnished under Item 2.02 or Item 7.01 or otherwise of any Current Report on Form 8-K, including related exhibits, after the date of this proxy statement unless, and except to the extent, specified in such Current Report.
Any person, including any beneficial owner of shares of Class A common stock, to whom this proxy statement is delivered, may request copies of proxy statements and any of the documents incorporated by reference in this document or other information concerning us by written or telephonic request directed to Atreca’s address below. If you would like to request documents from us, please do so as soon as possible, to receive them before the Special Meeting. If you request any documents from us, we will mail them to you by first class mail, or another equally prompt method, within one business day after we receive your request. Documents incorporated by reference are available without charge, excluding any exhibits to those documents unless the exhibit is specifically incorporated by reference into those documents.
Atreca, Inc.
Attn: Investor Relations
900 East Hamilton Avenue, Suite 100
Campbell, California 95008
(650)-595-2595
Attn: Investor Relations
900 East Hamilton Avenue, Suite 100
Campbell, California 95008
(650)-595-2595
If you have any questions concerning the Asset Purchase Agreement, the Asset Sale, the Plan of Dissolution, the Dissolution, the Special Meeting or this proxy statement, or would like additional copies of this proxy statement or need help voting your shares of Class A common stock, please contact our proxy solicitor:
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MacKenzie Partners, Inc.
1407 Broadway, 27th Floor
New York, New York 10018
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
1407 Broadway, 27th Floor
New York, New York 10018
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
Email: proxy@mackenziepartners.com
MISCELLANEOUS
We have not authorized anyone to provide you with information that is different from what is contained in this proxy statement, the annexes to this proxy statement, any amendments or supplements to this proxy statements, and the documents that we incorporate by reference into this proxy statement. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This proxy statement is dated , 2024. You should not assume that the information contained in this proxy statement is accurate as of any date other than that date (or as of an earlier date if so indicated in this proxy statement), and the mailing of this proxy statement to stockholders does not create any implication to the contrary. This proxy statement does not constitute a solicitation of a proxy in any jurisdiction where, or to or from any person to whom, it is unlawful to make a proxy solicitation.
OTHER MATTERS
Our Board of Directors knows of no other matters to be presented for consideration at the Special Meeting.
By Order of the Board of Directors
John A. Orwin
President, Chief Executive Officer and Member of the Board of Directors
Campbell, California
, 2024
, 2024
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ANNEX A
ASSET PURCHASE AGREEMENT
by and between
Atreca, Inc.
and
Immunome, Inc.
Dated as of December 22, 2023
Table of Contents
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| | | | | A-1 | | | |
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| | | | | A-9 | | | |
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| | | | | A-11 | | | |
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| | | | | A-12 | | | |
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| | | | | A-18 | | | |
| | | | | A-19 | | | |
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| | | | | A-20 | | | |
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| | | | | A-21 | | | |
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| | | | | A-22 | | | |
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| | | | | A-27 | | | |
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| | | | | A-28 | | | |
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| | | | | A-29 | | | |
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| | | | | A-30 | | | |
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A-i
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| | | | | A-30 | | | |
| | | | | A-31 | | | |
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| | | | | A-32 | | | |
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| | | | | A-34 | | | |
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| | | | | A-34 | | | |
| | | | | A-34 | | | |
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| | SCHEDULES | | | | |
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Schedule 2.1.2(a)
Assumed Contracts
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Schedule 2.1.2(b)
Seller IP
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Schedule 2.1.2(e)
Regulatory Approvals
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Schedule 2.1.2(f)
Specified Samples
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Schedule 2.1.4
Assumed Liabilities
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Schedule 6.8
Stockholders Meeting
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| | EXHIBITS | | | | |
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Exhibit A
Form of Assignment and Bill of Sale
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Exhibit B
Form of Patent Assignment
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this “Agreement”) is made and executed as of December 22, 2023 (the “Execution Date”), by and between Atreca, Inc., a Delaware corporation (“Seller”) and Immunome, Inc., a Delaware corporation (“Purchaser”). Seller and Purchaser are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
A. Purchaser desires to acquire from Seller, and Seller desires to sell to Purchaser, the Transferred Assets (as defined below), in each case, upon the terms and subject to the conditions of this Agreement (the “Asset Sale”).
B. In consideration of such sale, Purchaser will assume the Assumed Liabilities (as defined below) and deliver to Seller the Closing Payment (as defined below), in each case, upon the terms and subject to the conditions of this Agreement.
C. The Board has unanimously (i) determined that this Agreement, the Ancillary Agreements, the Asset Sale and the other transactions contemplated hereby and thereby are fair to and in the best interests of Seller and its stockholders and declared it advisable to enter into this Agreement with Purchaser; and (ii) adopted resolutions approving this Agreement, the Asset Sale and the consummation of the other transactions contemplated hereby and recommending to the stockholders of Seller to vote for the adoption of a resolution approving the sale of substantially all of Seller’s assets pursuant to, and on the terms and conditions set forth in, this Agreement at a meeting duly called and held (or by unanimous written consent) (such recommendation by the Board, the “Board Recommendation”) pursuant to the DGCL (as defined below).
D. Concurrently with the execution and delivery of this Agreement and as a condition and inducement to Purchaser’s willingness to enter into this Agreement, the officers, directors and stockholders of Seller listed on Section A of the Seller Disclosure Schedule have entered into Support Agreements, dated as of the date of this Agreement, in substantially the form attached hereto as Exhibit C (the “Support Agreement”), pursuant to which such officers, directors and stockholders have, subject to the terms and conditions set forth therein, agreed to vote all their shares of Seller’s capital stock in favor of the Asset Sale and the other transactions contemplated by this Agreement.
E. On the terms and subject to the conditions set forth in this Agreement, at or prior to the Closing, Purchaser and a duly qualified rights agent reasonably agreeable to Seller will enter into the CVR Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be derived from this Agreement and of the representations, warranties, conditions, agreements and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
ARTICLE 1 DEFINITIONS
1.1 Certain Defined Terms. As used herein, the following terms shall have the following meanings:
“Acceptable Confidentiality Agreement” has the meaning set forth in Section 6.6.2.
“Acquisition” has the meaning set forth in Section 2.1.1.
“Acquisition Proposal” has the meaning set forth in Section 6.6.4(a).
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. For this purpose, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by Contract or otherwise.
“Agreement” has the meaning set forth in the preamble hereto.
“Alternative Acquisition Agreement” has the meaning set forth in Section 6.6.5(a).
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“Ancillary Agreements” means the Assignment and Bill of Sale, the Patent Assignment, the Support Agreements and the CVR Agreement.
“Apportioned Obligations” has the meaning set forth in Section 6.3.1(b).
“Asset Sale” has the meaning set forth in the recitals hereto.
“Assignment and Bill of Sale” means the assignment and bill of sale in substantially the form attached hereto as Exhibit A.
“Assumed Contracts” has the meaning set forth in Section 2.1.2(a).
“Assumed Liabilities” has the meaning set forth in Section 2.1.4(a).
“Bankruptcy Code” has the meaning set forth in Section 3.1.12.
“Board” means the Board of Directors of Seller.
“Board Recommendation” has the meaning set forth in the recitals hereto.
“Books and Records” means originals or, if originals do not exist, true and complete copies, of all books, records, files (including data files), work papers and other documents relating to the Specified Programs and other Transferred Assets, including (a) the amino acid sequences encoding the naturally occurring antibodies and any engineered antibody variant primarily related to any Specified Programs or any other Transferred Assets(including research and development, data, supplier lists, consultant reports, correspondence with, to or from research ethics committee, informed consent forms and HIPAA authorizations related to the Specified Samples and Original PBMC Samples), (b) all files relating to the inventorship, ownership, filing, prosecution, issuance, maintenance, enforcement or defense of any Seller IP, including written Third Party correspondence, and (c) records and documents related to research and nonclinical, pre-clinical studies for any Specified Program conducted by or on behalf of Seller, including laboratory and engineering notebooks, procedures, tests and dosage information or related to any Specified Samples and Original PBMC Samples; in each case ((a) through (c)), in all forms, including electronic, in which they are stored or maintained, and all data and information included or referenced therein, and in each case to the extent owned or controlled by or otherwise in the possession of Seller.
“Business Day” means any day other than Saturday, Sunday, public holiday, or a day on which banking institutions in New York, New York are authorized or required by Law to be closed.
“Business Information” has the meaning set forth in Section 6.10.5.
“Change in Recommendation” has the meaning set forth in Section 6.6.5(a).
“Closing” has the meaning set forth in Section 2.3.1.
“Closing Consideration” has the meaning set forth in Section 2.2.
“Closing Date” means the date on which the Closing occurs.
“Closing Payment” has the meaning set forth in Section 2.2.
“Code” means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.
“Confidentiality Agreement” means that certain Mutual Confidentiality Agreement, dated October 3, 2023, by and between Seller and Purchaser.
“Contract” means any written or oral agreement, understanding, contract, note, bond, deed, mortgage, lease, sublease, license, sublicense, grant, subsidy or other legally binding arrangement.
“Control” means, with respect to any Intellectual Property Rights, the possession of the right, whether directly or indirectly, and whether by ownership, license, covenant not to sue or otherwise, to assign, transfer, or grant access to, or to grant a license, sublicense or other right (including a covenant not to sue) to or under such Intellectual Property Rights as provided for herein without violating (a) the
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terms of any agreement or other arrangement with any Third Party existing as of the time a Person or its Affiliates would be required hereunder to grant such access, ownership, license or sublicense and (b) any applicable Law.
“Copyright” means copyrights and rights in copyrightable works, copyright registrations, or any application therefor and all extensions, restorations, reversions and renewals of any of the foregoing.
“CVR” has the meaning set forth in Section 2.2.
“CVR Agreement” means the contingent value rights agreement in substantially the form attached hereto as Exhibit D, with such revisions thereto requested by the Rights Agent that are not, individually or in the aggregate, materially detrimental to the holders of CVRs and reasonably acceptable to Purchaser and Seller.
“CVR Record Date” has the meaning set forth in the CVR Agreement.
“CVR Term” has the meaning set forth in the CVR Agreement.
“Determination Notice” has the meaning set forth in Section 6.6.6(a).
“Development” means, and “Develop” means conduct, services and activities relating to, nonclinical, pre-clinical and clinical drug development activities, including nonclinical and pre-clinical studies, laboratory testing and clinical trials, relating to the development of pharmaceutical compounds and submission of information to a Regulatory Authority for the purpose of obtaining Regulatory Approval of a product candidate, and activities to develop manufacturing capabilities for a product candidate. “Development” includes optimization, nonclinical and pre-clinical activities, pharmacology studies, toxicology studies, laboratory testing, formulation, patient treatment in drug development activities, manufacturing process development and scale-up (including bulk compound production), quality assurance and quality control, technical support, pharmacokinetic studies, clinical trials and regulatory affairs activities.
“DGCL” means the Delaware General Corporation Law, as amended.
“Encumbrance” means any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest or other similar restriction (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).
“End Date” has the meaning set forth in Section 8.2.1.
“Entity” means any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), firm, society or other enterprise, association, organization or entity.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Assets” has the meaning set forth in Section 2.1.3.
“Excluded Contracts” has the meaning set forth in Section 2.1.3(c).
“Excluded Liabilities” has the meaning set forth in Section 2.1.4(b).
“Excluded Taxes” means (i) all Taxes of Seller or any of its Affiliates, or for which Seller or any of its Affiliates is otherwise liable (including by Contract or pursuant to any Law, as a transferee or successor), for any taxable period including all Taxes of any member of an affiliated, consolidated, combined or unitary group of which Seller (or any predecessor thereof) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulations Section 1.1502-6 or any analogous or similar state,
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local or non-U.S. Law; (ii) all Taxes relating to the Excluded Assets or Excluded Liabilities for any taxable period; (iii) all Taxes relating to the Transferred Assets or the Assumed Liabilities for any taxable period ending on or prior to the Closing Date and, with respect to any taxable period beginning before and ending after the Closing Date, for the Pre-Closing Tax Period as determined pursuant to Section 6.3.1; and (iv) all Transfer Taxes for which Seller is responsible as provided in Section 6.3.1(a).
“Execution Date” has the meaning set forth in the preamble hereto.
“Exploit” or “Exploiting” means to make, have made, import, use, sell, offer for sale, and otherwise dispose of, including to research, Develop, register, modify, enhance, improve, manufacture, have manufactured, store, formulate, optimize, export, transport, distribute, commercialize, promote, market, have sold and otherwise dispose of.
“Exploitation” means the act of Exploiting a compound, product or process.
“FDA” means the United States Food and Drug Administration and any successor agency thereto.
“FDCA” means the U.S. Federal Food, Drug, and Cosmetic Act, as amended, and any successor statute, and all related rules, regulations and guidance promulgated thereunder (including, without limitation, the regulations promulgated in title 21 of the Code of Federal Regulations).
“Filed SEC Documents” has the meaning set forth in Section 3.1.
“Governmental Authorization” means any: (a) permit, license, consent, certificate, filing, notification, concessions, franchise, ratification, permission, variance, clearance, registration, qualification, listing, exemption, endorsement, waiver, designation, approval or authorization (including any supplement or amendment thereto) issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Law; or (b) right under any Contract with any Governmental Body.
“Governmental Body” means any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) international, multinational, federal, state, local, municipal, foreign or other government, agency or authority; or (c) governmental or quasi-governmental authority of any nature (including any governmental division, department, agency, commission, securities exchange or instrumentality and any court or other tribunal).
“Governmental Order” means any order, decision, ruling, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Body.
“Holder” has the meaning set forth in the CVR Agreement.
“Human Antibody Database Repository” means, with respect to any subset of antibodies in the Sequence Repository, the data available in Seller’s laboratory information management system (“LIMS”) database, which data may include immunohistochemistry staining data, flow cytometry data, or other analyses that were catalogued in LIMS.
“Health Care Laws” means any applicable Laws relating to pharmaceutical products, good manufacturing practices, good laboratory practices, good clinical practices, interactions with health care professionals, fraud and abuse matters, and includes: (a) FDCA; (b) 21 C.F.R. Parts 11, 50, 54, 56, 58, 312, and 812; (c) Medicare (Title XVIII of the Social Security Act) and Medicaid (Title XIX of the Social Security Act); (d) the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)); (e) the Stark Anti-Self-Referral Law (42 U.S.C. § 1395nn); (f) the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)); (g) the civil False Claims Act (31 U.S.C. §§ 3729 et seq.); (h) the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)); (i) the exclusion Laws (42 U.S.C. § 1320a-7); (j) HIPAA; and (l) any other applicable Laws related to the design, development, testing, processing, handling, storing or licensing of the Transferred Assets, as applicable, or that is related to remuneration (including ownership) to or by physicians or other health care providers (including kickbacks) or the disclosure or reporting of the same, patient or program charges, record-keeping, claims processing, documentation requirements, medical necessity, referrals, the hiring of employees or acquisition of services or supplies from those who have
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been excluded from government health care programs, quality, safety, licensure, accreditation or any other material aspect of providing health care products or services.
“HIPAA” means, collectively: (a) the Health Insurance Portability and Accountability Act of 1996; (b) the Health Information Technology for Economic and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009); and (c) the Omnibus Rule effective March 26, 2013 (78 Fed. Reg. 5566), and other implementing regulations at 45 C.F.R. Parts 160 and 164 and related binding guidance from the United States Department of Health and Human Services, in each case, as the same may be amended, modified or supplemented from time to time.
“Intellectual Property Rights” means, collectively, all past, present and future rights of any intellectual property, including the following types, under the Laws of any jurisdiction in the world, whether registered, unregistered, applied for and pending: (a) rights associated with works of authorship, including exclusive Exploitation rights, Copyrights, moral rights, software, applications, databases, and mask works, together with common law rights therein; (b) Trademarks and similar rights and any goodwill associated therewith; (c) trade secrets, know-how, proprietary information, inventions (whether or not patentable), invention disclosures, discoveries, prototypes, research results, instructions, procedures, methods, processes, protocols, specifications, techniques,tests, formulae, compositions, materials,and other forms of technology (whether or not patentable or copyrightable); (d) Patents and industrial property rights; (e) rights of privacy and publicity, and (f) rights in or relating to administrative prosecution, registration, recordation or other administrative proceeding; including renewals, extensions, combinations divisions, reissues, restorations, reversions, derivatives, translations, localizations, adaptations and combinations of, and applications for, any of the rights referred to in subsection (a) through (e).
“Intervening Event” has the meaning set forth in Section 6.6.4(b).
“IRS” means the United States Internal Revenue Service.
“Key Personnel” has the meaning set forth in Section 6.10.5.
“Key Personnel Agreements” has the meaning set forth in Section 6.10.5.
“Later Discovered Contract” has the meaning set forth in Section 6.5.
“Law” means any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law,resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body.
“Legal Proceeding” means any action, suit, charge, complaint, litigation, arbitration, proceeding, mediation (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Body or any arbitrator or arbitration panel.
“Liabilities” means any debts, liabilities, obligations, Taxes, commitments, expenses or claims, whether accrued or fixed, known or unknown, fixed or contingent, determined or determinable and whether or not the same would be required to be reflected in financial statements or disclosed in the notes thereto.
“Material Adverse Effect” means an event, fact, condition, occurrence, change or effect that is, or would reasonably be expected to (a) individually or in the aggregate, be materially adverse to the Transferred Assets or the Assumed Liabilities, or (b) prevent or materially impede or delay the consummation by Seller of the transactions contemplated hereby; provided, however, that, none of the following, and no events, facts, conditions, occurrences, changes or effects resulting from the following, shall be deemed (individually or in combination) to constitute, or shall be taken into account in determining whether there has been, a “Material Adverse Effect” for purposes of clause (a) above: (i) political or economic conditions or conditions affecting the capital or financial markets generally; (ii) conditions generally affecting any industry or industry sector in which Seller operates or competes, including increases in operating costs; (iii) any changes or proposed changes in applicable Law or the generally accepted accounting principles of the United States, as in effect on the Execution Date (or any
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corresponding applicable accounting standards in any jurisdiction outside the United States); (iv) any hostility, act of war, sabotage, terrorism or military actions, or any escalation of any of the foregoing; (v) any hurricane, flood, tornado, earthquake, pandemic or other natural disaster or force majeure event; (vi) the public announcement, execution or delivery of this Agreement or the pendency or consummation of the transactions contemplated hereby, including any disruption in (or loss of) supplier, distributor, partner or similar relationships resulting therefrom; and (vii) the taking of any action by Seller or its Affiliates that is explicitly contemplated by this Agreement or that Purchaser has requested be taken; provided, that, with respect to clauses (i), (ii), (iii), (iv) and (v), the impact of such event, change, circumstance, occurrence, effect or state of facts shall be excluded only to the extent it is not disproportionately adverse to Seller as compared to other participants in the industries in which Seller operates.
“Milestone” has the meaning set forth in the CVR Agreement.
“Milestone Payment” has the meaning set forth in the CVR Agreement.
“Non-Assignable Right” has the meaning set forth in Section 2.4.
“Ordinary Course of Business” means the ordinary course of business, including with regard to nature, frequency and magnitude, and otherwise consistent with past practice, and the Ordinary Course of Business of Seller shall also include actions required to effect the winding down of Seller’s prior research and Development activities (including the termination of ongoing contractual obligations relating to Seller current product candidates).
“Original PBMC Samples” means any peripheral blood mononuclear cell (“PBMC”) sample(s), including PBMCs that have been exhausted and are no longer available, from which an antibody sequence was derived that (a) is included in the Sequence Repository or the Human Antibody Repository Database or (b) was used or included in any of the Specified Programs or Specified Program Antibodies.
“Party” and “Parties” have the meaning set forth in the preamble hereto.
“Patent Assignment” means that certain Assignment of Patents in substantially the form attached hereto as Exhibit B.
“Patents” means national, regional and international patents (including utility, utility model, plant and design patents, and certificates of invention), published or unpublished patent applications (including additions, provisional, national, regional and international applications, as well as original, continuation, continuation-in-part, divisionals, continued prosecution applications, reissues, and re-examination applications), patent or invention disclosures, registrations, applications for registrations and any term extension or other action by a Governmental Body which provides rights beyond the original expiration date of any of the foregoing.
“Permitted Encumbrance” means (a) any Encumbrance that arises out of Taxes not yet due and delinquent or the validity of which is being contested in good faith by appropriate proceedings, (b) any Encumbrance representing the rights of customers, suppliers and subcontractors in the Ordinary Course of Business under the terms of any Contracts to which the relevant party is a party or under general principles of commercial or government contract Law (including mechanics’, materialmen’s, carriers’, workmen’s, warehouseman’s, repairmen’s, landlords’ and similar liens granted or which arise in the Ordinary Course of Business), (c) in the case of real property, Encumbrances that are easements, rights-of-way, encroachments, restrictions, conditions and other similar Encumbrances incurred or suffered in the Ordinary Course of Business and which, individually or in the aggregate, do not and would not materially impair the use (or contemplated use), utility or value of the applicable real property or otherwise materially impair the present or contemplated business operations at such location, or zoning, entitlement, building and other land use regulations imposed by a Governmental Body having jurisdiction over such real property or that are otherwise set forth on a title report, and (d) Encumbrances agreed by the Parties to constitute Assumed Liabilities.
“Person” means any natural person, individual, Entity or Governmental Body.
“Post-Closing Tax Period” has the meaning set forth in Section 6.3.1(b).
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“Pre-Closing Period” has the meaning set forth in Section 5.1.
“Pre-Closing Tax Period” has the meaning set forth in Section 6.3.1(b).
“Proxy Statement” has the meaning set forth in Section 3.1.11.
“Purchaser” has the meaning set forth in the preamble hereto.
“Purchaser Material Adverse Effect” means any event, fact, condition, occurrence, change or effect that prevents or materially impedes or delays the consummation by Purchaser of the transactions contemplated hereby.
“Regulatory Approvals” means any and all licenses, permits, certificates, clearances, exemptions, approvals, consents and other authorizations of any Regulatory Authority (including any pre-market notification clearances, pre-market approvals and non-clinical, pre-clinical and clinical study authorizations) that are required for or primarily relate to the Transferred Assets or the Exploitation of the Transferred Assets.
“Regulatory Authority” means any Governmental Body, including institutional review boards or other research ethics committees, that regulates or has oversight related to the safety, efficacy, reliability, manufacture, investigation, sale or marketing of pharmaceutical products, medical products, biologics, biopharmaceuticals or human biological samples, including the Specified Samples and Original PBMC Samples.
“Related Documents” means, other than this Agreement, all agreements, certificates and documents signed and delivered by either Party in connection with this Agreement or the transactions contemplated hereby, including each Ancillary Agreement.
“Representatives” means, with respect to any Person, its officers, directors, employees, attorneys, accountants, investment bankers, consultants, agents, financial advisors, other advisors and other representatives of such Person or such Person’s Affiliates.
“SEC” has the meaning set forth in Section 3.1.
“Securities Act” means the Securities Act of 1933, and the rules and regulations promulgated thereunder.
“Seller” has the meaning set forth in the preamble hereto.
“Seller Disclosure Schedule” means the disclosure schedule that has been prepared by Seller in accordance with the requirements of this Agreement and that has been delivered by Seller to Purchaser on the Execution Date.
“Seller IP”means all Patents and other Intellectual Property Rights (excluding any Trademarks and Copyrights), in each case, (a) that are owned by Seller or (b) as to which Seller has been granted a license for and that (i) are related to any Specified Program or related to the Transferred Assets or the Exploitation thereof or (ii) were acquired, conceived, reduced to practice or otherwise made or used in connection with any Specified Program or otherwise incorporated in any Specified Program. For the avoidance of doubt, “Seller IP” shall not include any Intellectual Property Rights licensed to Seller through that certain Exclusive (Equity) Agreement by and between Seller and The Board of Trustees of the Leland Stanford Junior University effective as of June 28, 2012 and as amended through the Execution Date.
“Seller’s Knowledge” means the actual knowledge, after reasonable investigation, of John A. Orwin, Philippe C. Bishop, Stephen E. Gould, Courtney J. Phillips and Tito A. Serafini, and any of their successors as President and Chief Executive Officer, Chief Medical Officer, Chief Scientific Officer, General Counsel and Corporate Secretary and Chief Strategy Officer, respectively (the “Knowledge Individuals”). For the avoidance of doubt, with respect to matters involving Intellectual Property Rights, “reasonable investigation” does not require the conducting of any freedom-to-operate opinions or similar
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opinions of counsel or any intellectual property clearance searches, and no knowledge of any third party intellectual property that would have been revealed by such inquiries, opinions or searches will be imputed to the Knowledge Individuals.
“Sequence Repository” means an archive containing antibody sequences derived from oncology patient PBMC samples that Seller generated as an initial step to discover and develop prophylactic or therapeutic antibodies and which are set forth in the archive titled “2023_11_15_atrecadb_pgdump” and delivered to Purchaser prior to the date of this Agreement.
“Shares” mean the shares of Class A Common Stock, par value $0.01 per share, or Class B Common Stock, par value $0.01 per share, of Seller, in each case, that are outstanding as of the Closing.
“Specified Programs” means each Development program on or prior to the Closing Date with respect to APN-346958, APN-497444, APN-987481, APN-685612, APN-216371, APN-051280, APN-446726, APN-122597, APN-294782, APN-917227, APN-943410, APN-323078, APN-549983, APN-831408, APN-250134, APN-541885, APN-585401, APN-267252, APN-959038, APN-459683, APN-739852, APN-362519, APN-722709, APN-407050, APN-222330, APN-095633, APN-237563, and APN-217241 (all such APNs, collectively the “Specified Program Antibodies”), and the Exploitation thereof. Notwithstanding anything to the contrary set forth herein, for purposes of this Agreement, a Specified Program to the extent relating to APN-346958 shall be deemed to only refer to the amino acid sequence of and the target for APN-346958 and not any other assets, properties or rights of any kind or nature in connection therewith, including any of Seller’s Books and Records on APN-346958.
“Specified Programs Contract” has the meaning set forth in Section 6.5.
“Specified Samples” means the human PBMCs or other available human biological samples derived from blood specimens (if available) as set forth on Schedule 2.1.2(f).
“Stockholder Approval” has the meaning set forth in Section 3.1.2.
“Stockholders Meeting” has the meaning set forth in Section 6.8.
“Superior Proposal” has the meaning set forth in Section 6.6.4(c).
“Support Agreement” has the meaning set forth in the recitals hereto.
“Tax” or “Taxes” means any U.S. federal, state, local or non-U.S. tax (including any income tax, franchise tax, service tax, capital gains tax, gross receipts tax, value-added tax, surtax, estimated tax, unemployment tax, national health insurance tax, excise tax, ad valorem tax, Transfer Tax, stamp tax, sales tax, use tax, property tax, business tax, withholding tax, social security (or similar) tax or payroll tax), levy, assessment, tariff, deficiency, fee, customs or duty in the nature of a tax, including any interest, penalty or additional amounts related to any tax, imposed, assessed or collected by or under the authority of any Governmental Body.
“Tax Return”means any return (including any information return), report, statement, declaration, filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection or payment of any Tax.
“Third Party” means any Person other than Seller, Purchaser and their respective Affiliates and permitted successors and assigns.
“Trademark” means any word, name, symbol, color, product shape, designation or device or any combination thereof that functions as a source identifier, including any trademark, trade dress, brand mark, service mark, trade name, brand name, product configuration, logo or business symbol, whether or not registered and all goodwill associated therewith.
“Transfer” has the meaning set forth in Section 3.1.12.
“Transfer Taxes” has the meaning set forth in Section 6.3.1(a).
“Transferred Assets” has the meaning set forth in Section 2.1.2.
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1.2 Interpretation. Except where the context otherwise requires, wherever used, the singular includes the plural, the plural the singular, the use of any gender shall be applicable to all genders and the word “or” is used in the inclusive sense (and/or). The captions of this Agreement are for convenience of reference only and in no way define, describe, extend or limit the scope or intent of this Agreement or the intent of any provision contained in this Agreement. The term “including” as used herein does not limit the generality of any description preceding such term. The language of this Agreement shall be deemed to be the language mutually chosen by the Parties and no rule of strict construction shall be applied against either Party. Unless otherwise specified or where the context otherwise requires, (a) references in this Agreement to any Article, Section, Schedule or Exhibit are references to such Article, Section, Schedule or Exhibit of this Agreement; (b) references in any Section to any clause are references to such clause of such Section; (c) “hereof,” “hereto,” “hereby,” “herein” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) references to a Person are also to its permitted successors and assigns; (e) references to a Law include any amendment or modification to such Law and any rules or regulations issued thereunder, in each case, as in effect at the relevant time of reference thereto; (f) references to any agreement, instrument or other document in this Agreement refer to such agreement, instrument or other document as originally executed or, if subsequently amended, replaced or supplemented from time to time, as so amended, replaced or supplemented and in effect at the relevant time of reference thereto; and (g) references to monetary amounts are denominated in United States Dollars.
ARTICLE 2 SALE AND PURCHASE
2.1 Sale and Purchase; Transferred Assets; Assumed Liabilities.
2.1.1 Sale and Purchase. Upon the terms and subject to the conditions of this Agreement, at and effective as of the Closing, Seller shall sell, transfer, convey, assign and deliver to Purchaser, free and clear of all Encumbrances, other than Permitted Encumbrances, and Purchaser shall purchase, acquire and accept from Seller all of Seller’s right, title and interest in, to and under all of the Transferred Assets. The sale and purchase of the Transferred Assets hereunder is referred to herein as the “Acquisition”.
2.1.2 Transferred Assets. The term “Transferred Assets” means all of Seller’s right, title and interest in, to and under all of the assets, properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible, wherever located and whether now existing or hereafter acquired, except for the Excluded Assets described in Section 2.1.3 below, which relate to, or are used or held for use in connection with, the Specified Programs, including all of Seller’s right, title and interest in, to and under the following assets as of the Closing Date:
(a) the Contracts set forth on Schedule 2.1.2(a), including all rights thereunder (the “Assumed Contracts”);
(b) all Seller IP, including the registrations and applications set forth on Schedule 2.1.2(b);
(c) all Books and Records;
(d) all Governmental Authorizations necessary for or primarily related to the Specified Programs;
(e) all Regulatory Approvals, including as set forth on Schedule 2.1.2(e);
(f) the Specified Samples;
(g) the Sequence Repository;
(h) the Human Antibody Database Repository; and
(i) all claims, counterclaims, credits, causes of action, choses in action, rights of recovery, and rights of indemnification or setoff against Third Parties and other claims arising out of or relating to Specified Programs, the Transferred Assets or the Assumed Liabilities (other than claims, counterclaims, defenses, causes of action, rights of recovery, rights of set-off and rights of subrogation against any Third Parties relating to the Excluded Assets o