UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the month of June 2017
Commission File Number: 001-32371
SINOVAC BIOTECH LTD.
No. 39 Shangdi Xi Road
Haidian District
Beijing 100085, People’s Republic of China
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F x Form 40-F ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule: ☐
CONTENTS
Explanatory Note
On March 28, 2016, Sinovac Biotech Ltd. (the “Company”) entered into a rights agreement with Pacific Stock Transfer Company, as rights agent (the “Rights Agent”), as described on the Company’s Form 6-K filed with the SEC on March 29, 2016. On March 24, 2017, the Company entered into an amendment to the rights agreement (as amended, the “Rights Agreement”), as described on the Company’s Form 6-K filed with the SEC on March 24, 2017.
On June 26, 2017, the Company entered into an amalgamation agreement (the “Amalgamation Agreement”) with Sinovac (Cayman) Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Parent”), and Sinovac Amalgamation Sub Limited, an international business corporation incorporated under the laws of Antigua and Barbuda and a wholly-owned subsidiary of Parent (“Amalgamation Sub”). Pursuant to the Amalgamation Agreement, Amalgamation Sub will be amalgamated with and into the Company (the “Amalgamation”), with the Company surviving the Amalgamation and becoming a wholly-owned subsidiary of Parent.
Concurrently with the execution of the Amalgamation Agreement, certain of the Company’s shareholders, directors and officers (the “Rollover Shareholders”) entered into a support agreement (the “Support Agreement”) with Parent and Parent’s sole shareholder providing that, among other things, the Rollover Shareholders will vote all shares held directly or indirectly by them in favor of the authorization and approval of the Amalgamation Agreement and the transactions contemplated by the Amalgamation Agreement, including the Amalgamation.
Immediately prior to the execution of the Amalgamation Agreement, the Company entered into a second amendment to the Rights Agreement with the Rights Agent (the “Rights Agreement Amendment”), which provides, among other things, that:
| (i) | Parent, its direct and indirect shareholders, Amalgamation Sub, any party to the Support Agreement and their respective affiliates and associates will be exempt from the Rights Agreement solely to the extent of their beneficial ownership of any common shares of the Company pursuant to or arising out of the Amalgamation Agreement, the Support Agreement or any of the other transactions contemplated thereby; |
| (ii) | the Rights Agreement and the related purchase rights to purchase Series A Junior Participating Preferred Shares of the Company issued pursuant to the Rights Agreement (the “Rights”) will terminate immediately prior to the consummation of the Amalgamation, and as a result the Rights Agreement will no longer be in effect, and the Rights will no longer be issued or outstanding upon the consummation of the Amalgamation; |
| (iii) | none of the execution, delivery or performance of the Amalgamation Agreement or Support Agreement, or the consummation of any of the transactions contemplated thereby, including the Amalgamation, will permit the Rights to be exercised; and |
| (iv) | the Rights Agreement Amendment will terminate and will be of no further force or effect if the Amalgamation Agreement is terminated in accordance with its terms prior to the consummation of the Amalgamation. |
The Rights Agreement Amendment is attached hereto as Exhibit 4.1 and incorporated herein by reference. As described above, a copy of the Rights Agreement and a summary of its material terms were filed with the SEC on Form 6-K on March 29, 2016 (incorporated herein by reference by Exhibit 4.2), and a copy of the previous amendment to the Rights Agreement and a summary of its material terms were filed with the SEC on Form 6-K on March 24, 2017 (incorporated herein by reference by Exhibit 4.3). The foregoing descriptions of the Rights Agreement Amendment and the Rights Agreement, as amended by the Rights Agreement Amendment, do not purport to be complete and are qualified in their entirety by reference to the full text of the Rights Agreement Amendment and the Rights Agreement.
Incorporation by Reference
The summary of the Rights Agreement Amendment above and Exhibit 4.1 attached hereto are hereby incorporated by reference into our registration statements on Form S-8 filed with the Securities and Exchange Commission on September 10, 2009 (File No. 333-161827) and Form S-8 filed with the Securities and Exchange Commission on September 4, 2013 (File No. 333-190980).
SIGNATURE
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, thereunto duly authorized.
| SINOVAC BIOTECH LTD. | ||
| By: | /s/ Nan Wang | |
| Name: | Nan Wang | |
| Title: | Chief Financial Officer | |
Date: June 30, 2017
Exhibit Index
| Exhibit 4.1 | Second Amendment to Rights Agreement, dated as of June 26, 2017, between Sinovac Biotech Ltd. and Pacific Stock Transfer Company, as Rights Agent |
| Exhibit 4.2 | Rights Agreement, dated as of March 28, 2016, between Sinovac Biotech Ltd. and Pacific Stock Transfer Company, as Rights Agent, which includes the Form of Certificate of Designations of Series A Junior Participating Preferred Shares as Exhibit A, the Form of Right Certificate as Exhibit B and the Summary of Rights to Purchase Preferred Shares as Exhibit C (incorporated by reference to Exhibit 4.1 of the Report on Form 6-K dated March 29, 2016 of Sinovac Biotech Ltd.) |
| Exhibit 4.3 | Amendment to Rights Agreement, dated as of March 24, 2017, between Sinovac Biotech Ltd. and Pacific Stock Transfer Company, as Rights Agent (incorporated by reference to Exhibit 4.1 of the Report on Form 6-K dated March 24, 2017 of Sinovac Biotech Ltd.) |
Exhibit 4.1
SINOVAC BIOTECH LTD.
and
PACIFIC STOCK TRANSFER COMPANY
as Rights Agent
SECOND AMENDMENT
TO
RIGHTS AGREEMENT
Effective as of June 26, 2017
This Second Amendment (this “Amendment”), dated as of June 26, 2017, to the Rights Agreement, dated as of March 28, 2016 (the “Rights Agreement”), as amended on March 24, 2017, is between Sinovac Biotech Ltd., a company limited by shares under the laws of Antigua and Barbuda company (the “Company”), and Pacific Stock Transfer Company (the “Rights Agent”), and shall be effective immediately prior to the Company’s entry into that certain Amalgamation Agreement (as it may be amended from time to time, the “Amalgamation Agreement”) to be entered into by and among Sinovac (Cayman) Limited, an exempted limited liability company incorporated with limited liability under the laws of the Cayman Islands (“Parent”), Sinovac Amalgamation Sub Limited, an international business corporation incorporated under the laws of Antigua and Barbuda and a wholly-owned subsidiary of Parent, and the Company; provided, however, if (i) the Amalgamation Agreement is not executed as of even date herewith, or (ii) the Amalgamation Agreement terminates or is terminated in accordance with the terms thereof prior to the Effective Time (as defined therein), this Amendment shall terminate, in either such case, immediately upon the Rights Agent’s receipt of written notice thereof from the Company, and shall be of no further force and effect.
WHEREAS, the Company and the Rights Agent have heretofore executed and entered into the Rights Agreement;
WHEREAS, Section 26 of the Rights Agreement provides that the Company and the Rights Agent shall, if the Company so directs, supplement or amend any provision of the Rights Agreement without the approval of any holders of the Rights or Common Shares;
WHEREAS, the Board of Directors of the Company has determined that it is in the best interests of the Company and the holders of the Rights to amend the Rights Agreement as provided herein; and
WHEREAS, all acts and things necessary to make this Amendment a valid agreement according to its terms have been done and performed, and the execution and delivery of this Amendment by the Company and the Rights Agent have been in all respects authorized by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the foregoing and mutual agreements set forth herein, the Company and the Rights Agent agree as follows:
1. Amendments.
1.1. Section 1.8 shall be amended and restated in its entirety as follows:
“Exempt Person” shall mean each of (i) the Company, any Subsidiary of the Company, or any employee benefit plan of the Company or of any Subsidiary of the Company or any entity or trustee holding (or acting in a fiduciary capacity in respect of) share capital of the Company for or pursuant to the terms of any such plan, or for the purpose of funding other employee benefits for employees of the Company or any Subsidiary of the Company, and (ii) Parent, its direct and indirect shareholders, Amalgamation Sub, any party to the Support Agreement and their respective Affiliates and Associates to the extent that any of them would otherwise become an Acquiring Person solely as the result of (x) the execution, delivery or performance of the Amalgamation Agreement or the Support Agreement, (y) their acquisition or their right to acquire beneficial ownership of the Common Shares as a result of their execution of the Amalgamation Agreement, or (z) the consummation of the Amalgamation or any of the other transactions contemplated by the Amalgamation Agreement and the Support Agreement.
1.2. Section 1 shall be amended by adding the following new Section 1.17 at the end of Section 1:
1.17 The following additional terms shall have the meanings indicated:
(i) “Amalgamation” shall mean the merger of Amalgamation Sub with and into the Company pursuant to and in accordance with the terms of the Amalgamation Agreement.
(ii) “Amalgamation Agreement” shall mean that certain Amalgamation Agreement to be entered into by and among the Company, Parent and Amalgamation Sub, as amended from time to time in accordance with the terms thereof.
(iii) “Amalgamation Sub” shall mean Sinovac Amalgamation Sub Limited, an international business corporation incorporated under the laws of Antigua and Barbuda and a wholly-owned Subsidiary of Parent.
(iv) “Effective Time” shall mean the effective time of the Amalgamation.
(v) “Parent” shall mean Sinovac (Cayman) Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands.
(vi) “Support Agreement” shall mean the support agreement in favor of Parent to be executed concurrently with the execution of the Amalgamation Agreement by Parent, Parent’s sole shareholder and certain shareholders, directors and officers of the Company.
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1.3. Section 7.1 shall be amended and restated in its entirety as follows:
7.1 Exercise of Rights. Subject to Section 11.1.2 and except as otherwise provided herein, the registered holder of any Right Certificate may exercise the Rights evidenced thereby in whole or in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase and certification on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Purchase Price for the total number of one one-thousandths of a Series A Preferred Share (or other securities, cash or other assets) as to which the Rights are exercised, at or prior to the time (the “Expiration Date”) that is the earliest of (i) the close of business on March 28, 2018 (the “Final Expiration Date”), (ii) the time at which the Rights are redeemed as provided in Section 23 (the “Redemption Date”), (iii) the time immediately prior to the Effective Time (but subject to the occurrence of the Effective Time), or (iv) the time at which the Rights are exchanged as provided in Section 27.
1.4. The following is added as a new Section 35 of the Rights Agreement:
SECTION 35. Termination Upon Expiration Date. Notwithstanding anything to the contrary in this Agreement, upon the Expiration Date and without any further action by the Rights Agent, the Company, Parent, Amalgamation Sub or any current or former holder of Rights, this Agreement, the Rights and any right to exercise the Rights provided for hereunder shall terminate and be void and of no further force or effect.
1.5. The following is added as a new Section 36 of the Rights Agreement:
SECTION 36. Exception for Amalgamation Agreement. Notwithstanding anything to the contrary in this Agreement, none of the execution, delivery or performance of the Amalgamation Agreement or the Support Agreement, or the consummation of the Amalgamation or any of the other transactions contemplated by the Amalgamation Agreement or the Support Agreement, shall result in a Distribution Date (or the occurrence of a Trigger Event or a Share Acquisition Date) or in any way permit any Rights to be exercised pursuant to Section 7, Section 11.1.2 or Section 13, or otherwise for consideration or exchanged pursuant to Section 27. Nothing in this Agreement shall be construed to give any holder of Rights or any other Person any legal or equitable rights, remedy or claim under this Agreement in connection with the execution, delivery or performance of the Amalgamation Agreement or the Support Agreement, or the Amalgamation or any of the other transactions contemplated by the Amalgamation Agreement or the Support Agreement.
2. Capitalized Terms. Capitalized terms used herein but not defined shall have the meanings given to them in the Rights Agreement.
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3. Effect of Amendment. Except as expressly amended hereby, the Rights Agreement shall remain in full force and effect in accordance with its terms.
4. Benefits of Amendment. Nothing in this Amendment shall be construed to give to any Person or corporation other than the Company, the Rights Agent and the registered holders of the Right Certificates (and, prior to the Distribution Date, the Common Shares) any legal or equitable right, remedy or claim under this Amendment; but this Amendment shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Right Certificates (and, prior to the Distribution Date, the Common Shares).
5. Severability. If any term, provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The parties hereto further agree to replace such invalid, void or unenforceable provision of this Amendment with a valid, legal and enforceable provision that carries out the parties’ intentions to the greatest lawful extent under this Amendment.
6. Governing Law. This Amendment shall be deemed to be a contract made under the internal laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State.
7. Counterparts. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Amendment transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
8. Descriptive Headings. Descriptive headings of the several Sections of this Amendment are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Rights Agreement to be duly executed, as of the day and year first above written.
| SINOVAC BIOTECH LTD. | ||
| By: | /s/ Simon Anderson | |
| Name: Simon Anderson | ||
| Title: Director, Chairman of the Special Committee | ||
[Signature Page to Second Amendment to Rights Plan]
| PACIFIC STOCK TRANSFER COMPANY, | ||
| as Rights Agent | ||
| By: | /s/ Joslyn Claiborne | |
| Name: Joslyn Claiborne | ||
| Title: Director of Operation, PSTC | ||
[Signature Page to Second Amendment to Rights Plan]