| Item 3.02 | Unregistered Sales of Equity Securities. |
Pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of September 6, 2021, among Invitae Corporation (the “Company”), Cayman Merger Sub A Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Merger Sub A”), Cayman Merger Sub B LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Company (“Merger Sub B”), Ciitizen Corporation, a Delaware corporation (“Ciitizen”), and Fortis Advisors LLC, solely in its capacity as the representative, exclusive agent and attorney-in-fact of the holders (the acquisition transaction contemplated by the Merger Agreement, the “Ciitizen Transaction”), the Company will issue approximately 7,070,000 shares of its common stock, $0.0001 par value per share (“Common Stock”), on the closing date of the Ciitizen Transaction, in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933 (the “Securities Act”). The Company is relying on this exemption from registration based in part on representations that will be made by stockholders of Ciitizen receiving shares of Common Stock in the Ciitizen Transaction.
In addition, on July 19, 2021, the Company issued 988,751 shares of Common Stock, which included 169,330 shares subject to a 12-month holdback and 461,809 shares of deferred stock consideration, pursuant to that certain Membership Interest Purchase Agreement (the “Purchase Agreement”), dated July 19 2021, among the Company, Kamal Gogineni and Rakesh Patel (together, the “Sellers”), and Kamal Gogineni, as Sellers’ representative, pursuant to which the Company acquired 100% of the membership interests of Medneon LLC, a Delaware limited liability company (“Medneon” and such transaction, the “Medneon Transaction”). The shares of Common Stock issued in the Medneon Transaction were issued in reliance upon the exemption from registration provided by Section 4(a)(2) of the of the Securities Act. The Company relied on this exemption from registration based in part on representations that were made by the Sellers.
| Item 7.01 | Regulation FD Disclosure. |
On September 7, 2021, the Company issued a press release announcing the Ciitizen Transaction. The full text of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K. In addition, on September 7, 2021, the Company distributed an investor presentation which is furnished as Exhibit 99.2 to this Current Report on Form 8-K.
The information in Item 7.01 of this Current Report on Form 8-K, including Exhibits 99.1 and 99.2, shall not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”), or otherwise subject to the liability of that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in any such filing.
Merger Agreement
On September 6, 2021, the Company, Merger Sub A, Merger Sub B, Ciitizen, and Fortis Advisors LLC entered into the Merger Agreement pursuant to which, among other things and subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, the Company will acquire 100% of the fully diluted equity of Ciitizen. Pursuant to the Merger Agreement, Merger Sub A will merge with and into Ciitizen, with Ciitizen surviving the merger and continuing as a wholly-owned subsidiary of the Company (the “Reverse Merger”) and, promptly following the Reverse Merger, Ciitizen will merge with and into Merger Sub B, with Merger Sub B surviving the merger and continuing as a wholly-owned subsidiary of the Company (the “Forward Merger” and, together with the Reverse Merger, the “Merger”). The Merger is intended to qualify for federal income tax purposes as a tax-free reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended.
The aggregate consideration for the Merger will be approximately $325 million (subject to adjustment), consisting of approximately $125 million in cash and approximately 7,070,000 shares of Common Stock (based upon a trailing average closing price prior to the date of the Merger Agreement). The consideration to be paid on the closing date is subject to closing-related adjustments based on Ciitizen’s cash, debt, net working capital and other expenses at the closing of the Merger. Subject to the terms and conditions of the Merger Agreement, at the closing of the Merger, (i) each outstanding share of Ciitizen capital stock will be converted into the right to receive the number of shares of
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