Item 1.01.
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Entry into a Material Definitive Agreement.
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Merger Agreement
On January 15, 2020, Neon Therapeutics,
Inc., a Delaware corporation (“Neon”), entered into an Agreement and Plan of Merger (the “Merger Agreement”)
with BioNTech SE, a Societas Europaea organized and existing under the laws of Germany (“Parent”), and
Endor Lights, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of Parent (“Merger Sub” and,
together with Parent, the “Acquiring Parties”), pursuant to which, subject to the satisfaction or waiver of the
conditions therein, Merger Sub will merge with and into Neon (the “Merger”), with Neon surviving as a wholly-owned
subsidiary of Parent. The Merger Agreement was unanimously approved by the members of the board of directors of Neon (the “Board”)
and the Board resolved to recommend approval of the Merger Agreement to Neon’s shareholders.
Subject to the terms of the Merger Agreement,
at the effective time of the Merger (the “Effective Time”), each share of Neon common stock issued and outstanding
immediately prior to the Effective Time shall automatically be cancelled and converted into the right to receive 0.063 of an American
Depositary Share of Parent (“Parent ADS”), with each Parent ADS representing one ordinary share of Parent,
without interest but subject to any withholding required under applicable law (the “Merger Consideration”).
At the Effective Time, (i) each Neon stock
option, whether or not then vested or exercisable, that is outstanding immediately prior to the Effective Time will be cancelled
and converted automatically into the right to receive, as soon as reasonably practicable after the Effective Time (but no later
than ten business days thereafter), a cash payment in an amount equal to the product of (x) the total number of Shares (as defined
in the Merger Agreement) subject to such stock option immediately prior to such cancellation and (y) the excess, if any, of the
Merger Consideration over the exercise price per share subject to such stock option immediately prior to such cancellation; (ii)
each share of Neon restricted stock that is outstanding as of immediately prior to the Effective Time shall vest in full and each
such share of Neon restricted stock shall be cancelled and converted automatically into the right to receive the Merger Consideration
in the same manner as the other outstanding Shares; and (iii) each Neon restricted stock unit (“RSU”) that is
held by any current Neon employee and is outstanding as of immediately prior to the Effective Time shall vest in full and each
such RSU shall be cancelled and converted automatically into the right to receive from the Company Trust (as defined in the Merger
Agreement), as soon as reasonably practicable after the Effective Time (but no later than five business days thereafter), the Merger
Consideration in respect of each Neon share underlying the unsettled portion of the RSU.
The Merger Agreement contains customary
representations, warranties and covenants of Neon and the Acquiring Parties, including, among others, covenants by Neon to conduct
its business in the ordinary course of business during the period between execution of the Merger Agreement and consummation of
the Merger (the “Closing”) and prohibiting Neon from engaging in certain kinds of activities during such period
without the consent of Parent. The Merger Agreement also contains customary termination provisions for both Neon and Parent,
as discussed in more detail below.
The Merger is conditioned upon, among other
things, the approval of the Merger Agreement by the affirmative vote of holders of at least a majority of the shareholders of Neon
(the “Shareholders”) present at a meeting of the Shareholders held for such purpose, the delivery of tax opinions
confirming the transaction is tax-free and other customary closing conditions. The Closing is not subject to a financing condition.
The Merger Agreement contains a customary
“no-shop” provision whereby, subject to certain exceptions, Neon will be prohibited from (i) entering into discussions
concerning, or providing confidential information in connection with, any alternative transaction proposal and (ii) withholding,
withdrawing, or modifying in any manner adverse to Parent the recommendation of the Board that the Shareholders adopt the Merger
Agreement, subject to certain exceptions. Neon is also subject to a “force the vote” provision, which requires
Neon to hold a meeting of its Shareholders even if the Board changes its recommendation.
The Merger Agreement contains certain termination
rights for both Neon and Parent, and provides that, upon termination of the Merger Agreement under specified circumstances, the
Company will be required to pay to Parent a termination fee of approximately $3.2 million.
The foregoing description of the Merger
Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety
by, the full text of the Merger Agreement, which accompanies this Current Report on Form 8-K as Exhibit 2.1 and which is incorporated
herein by reference.
The Merger Agreement is attached to provide
investors with information regarding its terms and is not intended to provide any other factual information about Neon, Parent
or Merger Sub. The Merger Agreement also contains representations and warranties of each of Neon, Parent and Merger Sub. The
assertions embodied in those representations and warranties were made for purposes of the Merger Agreement and are subject to qualifications
and limitations agreed to by the respective parties in connection with negotiating the terms of the Merger Agreement, including
information contained in certain disclosures between the parties. Accordingly, investors and security holders should not rely
on such representations and warranties as characterizations of the actual state of facts or circumstances, since they were only
made as of a specific date and are modified in important part by the disclosures between the parties. In addition, certain
representations and warranties may be subject to a contractual standard of materiality different from what might be viewed as material
to Shareholders, or may have been used for purposes of allocating risk between the respective parties rather than establishing
matters of fact. Moreover, information concerning the subject matter of such representations and warranties may change after
the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Neon’s or the Acquiring
Parties’ public disclosures.
Voting Agreements
In connection with the execution and delivery
of the Merger Agreement, certain directors, executive officers and Third Rock Ventures have entered into voting agreements with
Parent (the “Voting Agreements”), pursuant to which such directors, executive officers and Third Rock
Ventures have agreed, among other things, to vote their respective Shares for the approval and adoption of the Merger Agreement,
the approval of the Merger and the other transactions contemplated by the Merger Agreement. The Shareholders signing Voting Agreements
currently own an aggregate of approximately 36% of Neon’s outstanding Shares. The foregoing description of the Voting Agreements
does not purport to be complete and is subject to, and qualified in its entirety, by the Form of Voting Agreement, which accompanies
this Current Report on Form 8-K as Exhibit 99.1 and which is incorporated herein by reference.