UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 18, 2023
Lucira Health, Inc.
(Exact name of Registrant as Specified in Its Charter)
| Delaware | 001-39976 | 27-2491037 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 1315 63rd Street | ||
| Emeryville, California | 94608 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: (814) 574-1546
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading |
Name of each exchange | ||
| Common Stock, par value $0.001 per share | LHDXQ | * |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| * | The registrant’s common stock began trading exclusively on the on March 6, 2023 under the symbol “LHDXQ”. |
Item 1.01 Entry into a Material Definitive Agreement.
Amendment to Asset Purchase Agreement
As previously disclosed, on February 22, 2023, Lucira Health, Inc. (the “Company”) filed a voluntary petition (Case No. 23-10242) for relief under chapter 11 of title 11 the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (such court, the “Bankruptcy Court”). On April 6, 2023, the Company held an auction (the “Auction”) under Section 363 of the Bankruptcy Code relating to the disposition of all or substantially all of the Company’s assets (the “Assets”). The winning bid at the Auction was submitted by Pfizer Inc. (the “Buyer”).
On April 18, 2023, the Company entered into an Amendment to Asset Purchase Agreement (the “Amendment”) with the Buyer that amended the Asset Purchase Agreement by and between the Company and the Buyer, dated April 12, 2023 (the “Original Purchase Agreement,” and as amended by the Amendment, the “Purchase Agreement”). The Amendment amended the Original Purchase Agreement to, among other things, (i) update the consideration and payment section to specify a fixed dollar amount of $6.5 million for the aggregate amount to be paid to cure any defaults (the “Cure Costs”) under each of the Jabil Contracts (as defined in the Purchase Agreement) and (ii) add an additional cash payment of $10.4 million less the aggregate amount of Cure Costs paid, satisfied or resolved by the Buyer in connection with certain other contracts as described therein. The Amendment also contains the Buyer’s confirmation, agreement and ratification that (a) the closing condition set forth in Section 9.6 of the Purchase Agreement, requiring that Buyer receive a signed offer letter or consulting agreement from at least three of the seven individuals set forth in a confidential email provided to Company’s counsel on April 6, 2023, has been satisfied in all respects and (b) the closing condition set forth in Section 9.17 of the Purchase Agreement, requiring the Buyer to enter into the Jabil Term Sheet (as defined in the Purchase Agreement) is waived and deemed satisfied in all respects.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by the full text of the Amendment, a copy of which is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets.
The information set forth in Item 1.01 of this Current Report on Form 8-K relating to the Purchase Agreement is incorporated into this Item 2.01.
On April 19, 2023, the Bankruptcy Court entered an order approving the sale of substantially all of the Company’s assets to the Buyer pursuant to the Purchase Agreement for approximately $36.4 million, which is comprised of a combination of cash, payments of Cure Costs to counterparties to assigned contracts and leases, and assumed or otherwise satisfied liabilities (the “Asset Sale”). The Asset Sale closed on April 20, 2023.
The Company does not anticipate filing financial statements for the Asset Sale, or pro forma financial statements, due to the fact that following the Asset Sale, the Company is no longer an operating company and lacks the personnel required to do so.
Item 8.01 Other Events.
As of April 1, 2023, the Company had net operating losses (“NOLs”) of approximately $132.8 million of federal NOLs and $81.6 million of state NOLS. Our ability to use our NOLs is subject to certain limitations set forth in the Internal Revenue Code.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit Number |
Description | |
| 2.1 | Amendment to Asset Purchase Agreement, dated April 18, 2023, by and between Lucira Health, Inc. and Pfizer Inc. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Lucira Health, Inc. | ||||||
| Date: April 24, 2023 | By: | /s/ Richard Narido | ||||
| Richard Narido, Chief Financial Officer | ||||||
Exhibit 2.1
Execution Version
AMENDMENT TO
ASSET PURCHASE AGREEMENT
This AMENDMENT TO ASSET PURCHASE AGREEMENT (this Amendment) is made and entered into as of April 18, 2023, by and between Pfizer Inc., a Delaware corporation (Buyer), and Lucira Health, Inc., a Delaware corporation (Seller).
BACKGROUND
WHEREAS, on February 22, 2023, Seller filed a voluntary petition for relief commencing a case under Chapter 11 of Title 11 of the United States Code (the Bankruptcy Code) in the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court and the case arising under such petition, the Bankruptcy Case);
WHEREAS, on April 12, 2023, Buyer and Seller entered into that certain Asset Purchase Agreement (the Agreement);
WHEREAS, prior to the Sale Hearing, Buyer provided written notice to Seller that the condition set forth in Section 9.6 of the Agreement has been satisfied;
WHEREAS, prior to 10:00 a.m. Eastern Daylight Time on April 13, 2023, Buyer provided written notice to Seller waiving the condition in Section 9.17 of the Agreement;
WHEREAS, following hearings before the Bankruptcy Court and further bidding at the reopened Auction held in open court before the Bankruptcy Court on April 14, 2023, Buyer modified the terms of its bid to purchase the Transferred Assets and to assume the Assumed Liabilities to increase the Consideration by an additional $10,400,000, among other things, all in the manner and subject to the terms and conditions set forth in the Agreement, as amended herein, and in accordance with Sections 105, 363 and 365 of the Bankruptcy Code, subject to Buyers right to assign its rights and obligations hereunder to one of more of its Affiliates (such sale and purchase of the Transferred Assets and such assignment and assumption of the Assumed Liabilities, as amended herein, the Transaction); and
WHEREAS, Buyer and Seller desire to reflect the terms of Buyers modified bid in this Amendment, subject to the approval of the Bankruptcy Court in accordance with Article II of the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations, warranties, and agreements set forth in this Amendment, and intending to be legally bound hereby, the parties hereto agree as follows:
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby covenant and agree as follows:
| 1. | Background. The Background provisions set forth above (including, but not limited to, the defined terms set forth therein) are hereby incorporated by reference in this Amendment and made a part hereof as if set forth in their entirety in this Section 1. |
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| 2. | Capitalized Terms. Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Agreement. |
| 3. | Amendment to Section 4.1(a) of the Agreement. Section 4.1(a) of the Agreement is hereby deleted and replaced in its entirety with the following: |
(a) The aggregate consideration (collectively, the Consideration) to be paid by Buyer for the purchase of the Transferred Assets shall be:
(i) the assumption of Assumed Liabilities;
(ii) the sum of:
(A) a cash payment (the Cash Payment) equal to Five Million Dollars ($5,000,000), plus
(B) the payment of Cure Costs in respect of the Assigned Contracts set forth on Schedule 1.1(e) (other than Cure Costs for the Jabil Contracts, which shall be paid by Buyer pursuant to Section 4.1(a)(ii)(C)); plus
(C) an additional cash payment of Seven Million ($7,000,000) less the aggregate amount of paid Cure Costs associated with (x) the Jabil Contracts which Buyer and Seller agree shall be fixed in the amount of Six Million Five Hundred Thousand Dollars ($6,500,000) and (y) any Transition Contracts to be assumed and assigned to Buyer as designated by Buyer pursuant to Section 8.5(c), if any (the First Additional Amount); provided that Buyer must provide Seller with a detailed written accounting of the Cure Costs paid by Buyer under subclause (y) within sixty-five (65) days following Closing; plus
(D) an additional cash payment of Ten Million Four Hundred Thousand Dollars ($10,400,000) less the aggregate amount of Cure Costs paid, satisfied, or resolved by Buyer (provided, however, if a lesser amount is agreed to, the remaining amount of any claim shall be waived and not treated as an unsecured claim against the Debtors estate) in connection with (x) any Transition Contracts which are assumed and assigned to Buyer as designated by Buyer pursuant to Section 8.5(c) (and without duplication to any Transition Contracts which are the subject of subclause (C)(y) above), and (y) any other additional contracts (excluding Assumed Contracts and Transition Contracts) which are designated by Buyer and assumed and assigned to Buyer pursuant to the procedures set forth in the order of the Bankruptcy Court approving the Transaction or, to the extent required, such motion by the Seller to the Bankruptcy Court for approval of such assumption and assignment and entry of an order of the Bankruptcy Court approving such assumption and assignment (the Second Additional Amount and together with the First Additional Amount, the Additional Amount); provided that Buyer must provide Seller with a detailed written accounting of the Cure Costs paid by Buyer under subclauses (x) and (y) within sixty-five (65) days following Closing.
| 4. | Amendment to Section 4.1(b) of the Agreement. Section 4.1(b) of the Agreement is hereby deleted and replaced in its entirety with the following: |
(b) At the Closing, Buyer shall deliver, or cause to be delivered to Seller, the Cash Payment less the Deposit (the Closing Date Payment). Within sixty-five (65) days following Closing, Buyer shall deliver, or cause to be delivered to Seller, the Additional Amount. The Closing Date Payment, the Additional Amount and any payment required to be made pursuant to any other provision hereof shall be made in cash by wire transfer of immediately available funds to such bank account as shall be designated in writing by the applicable party to (or for the benefit of) whom such payment is to be made on the date such payment is to be made.
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| 5. | Satisfaction of Section 9.6 (Employment Matters). Buyer hereby agrees, confirms and ratifies that the closing condition set forth in Section 9.6 of the Agreement (Employment Matters) has been satisfied in all respects. |
| 6. | Waiver and Deemed Satisfaction of Section 9.17 (Jabil Contracts). Buyer hereby agrees, confirms and ratifies that the closing condition set forth in Section 9.17 of the Agreement (Jabil Contracts) is waived and deemed satisfied in all respects. |
| 7. | Applicable Law. This Amendment shall be governed by and construed in accordance with the Laws of the State of Delaware (without application of principles of conflicts of law). |
| 8. | Ratification of Agreement. Except as modified and amended by this Amendment, the Agreement is hereby ratified and confirmed in all respects and remains in full force and effect. |
| 9. | Counterparts. This Amendment may be executed in one or more counterparts, each of which when so executed shall be an original, but all of which together shall constitute one agreement. Facsimile and/or PDF signatures shall be deemed original signatures. |
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused their respective authorized officers to duly execute this Amendment to Asset Purchase Agreement as of the day and year first written above.
| PFIZER INC. | ||
| By: | /s/ Latif Akintade | |
| Name: | Latif Akintade | |
| Title: | Senior Vice President, Head of Global Access Value | |
(Signature Page to Amendment to Asset Purchase Agreement)
IN WITNESS WHEREOF, the parties hereto have caused their respective authorized officers to duly execute this Amendment to Asset Purchase Agreement as of the day and year first written above.
| LUCIRA HEALTH, INC. | ||
| By: | /s/ Richard Narido | |
| Name: | Richard Narido | |
| Title: | Chief Financial Officer | |
(Signature Page to Amendment to Asset Purchase Agreement)