Item 1.02. Termination of a Material Definitive Agreement.
In March 2018, the Company entered into a Sales Agreement (the "Sales
Agreement") with Cowen and Company, LLC ("Cowen") to sell shares of the
Company's common stock yielding aggregate sales gross proceeds of $150 million,
from time to time, through an "at the market" equity offering program under
which Cowen acted as sales agent. A description of the Sales Agreement was
included in the prospectus supplement filed with the SEC on March 29, 2018
pursuant to Rule 424(b)(5) relating to the Sales Agreement.
In connection with Merger (as defined below), on January 15, 2020, the Company
provided notice to Cowen of its decision to terminate the Sales Agreement
contingent on the occurrence of, and effective upon, the Effective Time (as
defined below). The Company is not subject to any termination penalties related
to termination of the Sales Agreement.
Item 2.01 Completion of Acquisition or Disposition of Assets.
The information set forth under the Introductory Note of this Current Report on
Form 8-K is incorporated herein by reference.
The Offer and withdrawal rights expired at 12:00 midnight, New York City time,
at the end of the day on January 14, 2020 as scheduled and was not extended.
American Stock Transfer & Trust Company, LLC, in its capacity as depositary for
the Offer (the "Depositary"), advised Astellas and Merger Sub that, as of
expiration of the Offer, a total of 35,852,857 Shares had been validly tendered
and not validly withdrawn pursuant to the Offer, representing approximately
76.7% of the outstanding Shares.
The number of Shares validly tendered and not validly withdrawn pursuant to the
Offer satisfied the Minimum Condition of the Offer (as defined in the Merger
Agreement). All conditions to the Offer having been satisfied, on January 15,
2020, Merger Sub accepted for payment all Shares validly tendered and not
validly withdrawn pursuant to, and prior to the expiration of, the Offer.
Astellas and Merger Sub are required to make prompt payment of the Offer Price
for such tendered Shares to the Depositary, which will transmit payments to
tendering stockholders in accordance with the terms of the Offer.
Also on January 15, 2020, following acceptance of the tendered Shares and
pursuant to the terms of the Merger Agreement and in accordance with
Section 251(h) of the Delaware General Corporation Law (the "DGCL"), Merger Sub
merged with and into the Company (the "Merger"), with the Company being the
surviving corporation of the Merger. No stockholder vote was required to
consummate the Merger. Upon completion of the Merger, the Company became an
indirect, wholly-owned subsidiary of Astellas.
Also on January 15, 2020, pursuant to the Merger Agreement, at the effective
time of the Merger (the "Effective Time"), each outstanding Share (other than
(i) the Shares held in the treasury of the Company or owned by Astellas or
Merger Sub immediately prior to the Effective Time and (ii) Shares as to which
appraisal rights have been perfected in accordance with the DGCL) were canceled
and converted into the right to receive an amount in cash equal to the Offer
Price, without interest and less any applicable tax withholding. The effect of
the Merger on Company stock options and other equity-based awards is described
on pages 6-8 of the Company's Solicitation/Recommendation Statement on Schedule
14D-9 originally filed with the SEC on December 16, 2019, as amended,
supplemented or otherwise modified from time to time, which description is
incorporated herein by reference.
The aggregate cash consideration paid by Merger Sub in the Offer and the Merger
was approximately $3.0 billion, excluding related transaction fees and expenses.
Astellas funded the consideration paid to stockholders and holders of
outstanding stock options and restricted stock units in the Offer and pursuant
to the Merger through Astellas' cash on hand and existing loan facilities.
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The foregoing summary description of the Merger Agreement and related
transactions does not purport to be complete and is subject to, and qualified in
its entirety by, the full text of the Merger Agreement, a copy of which was
filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with
the SEC on December 3, 2019, and which is incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
On January 15, 2020, in connection with the consummation of the Merger, Astellas
and the Company (i) notified the Nasdaq Stock Market LLC ("Nasdaq") that the
Merger had been consummated, and (ii) requested that Nasdaq (x) halt trading in
the Shares for January 15, 2020 and suspend trading of the Shares effective at
the close of business on January 15, 2020 and (y) file with the SEC a Form 25
Notification of Removal from Listing and/or Registration to delist and
deregister the Shares under Section 12(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"). The Company intends to file with the SEC
a certification on Form 15 under the Exchange Act, requesting the deregistration
of the Shares and the suspension of the Company's reporting obligations under
Sections 13 and 15(d) of the Exchange Act.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth under the Introductory Note, Item 2.01, Item 3.01,
Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated
herein by reference.
Item 5.01 Changes in Control of Registrant.
As a result of Merger Sub's acceptance for payment of all Shares that were
validly tendered and not validly withdrawn pursuant to the Offer and the
consummation of the Merger pursuant to Section 251(h) of the DGCL on January 15,
2020, a change in control of the Company occurred, and the Company now is an
indirect, wholly-owned subsidiary of Astellas. To the knowledge of the Company,
there are no arrangements which may at a subsequent date result in a further
change in control of the Company. The information set forth under the
Introductory Note, Item 2.01, Item 5.02 and Item 5.03 of this Current Report on
Form 8-K is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangement of Certain
Officers.
In connection with the Merger, effective at the Effective Time, (i) each of
Matthew Patterson, Mark Goldberg, M.D., Louis Lange, M.D., Ph.D., Jennifer
Jarrett, Scott Morrison, Thomas Schuetz, M.D., Ph.D. and Julie Smith resigned
from his or her respective position as a member of the Company's Board of
Directors, and each committee thereof, and (ii) Matthew Patterson ceased to be
an executive officer of the Company. These resignations were not a result of any
disagreement between the Company and the directors on any matter relating to the
Company's operations, policies or practices.
At the Effective Time, (i) each of Natalie Holles, Percival Barretto-Ko, Masaaki
Hirano and Toru Yoshimitsu became directors of the Company, (ii) Natalie Holles
became the President and Chief Executive Officer of the Company and (iii) Thomas
Soloway became the Treasurer of the Company. In addition, Thomas Soloway will
remain in his position as Senior Vice President and Chief Financial Officer of
the Company. Information regarding the new directors (other than Natalie Holles)
has been previously disclosed in the Schedule TO originally filed with the SEC
by Astellas and Merger Sub on December 16, 2019 (together with the exhibits and
annexes thereto and as amended, supplemented, or otherwise modified from time to
time), which is incorporated herein by reference. Information regarding Natalie
Holles and the officers of the Company has been previously disclosed in the
proxy statement filed with the SEC on April 26, 2019 and is incorporated herein
by reference. Information regarding contractual arrangements between Natalie
Holles and the Company and Thomas Soloway and the Company has been previously
disclosed in the Schedule 14D-9 originally filed with the SEC on December 16,
2019, as amended, supplemented or otherwise modified from time to time, which
description is incorporated herein by reference.
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Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
At the Effective Time, the Company's certificate of incorporation and bylaws
were amended and restated in their entirety.
Copies of the Company's amended and restated certificate of incorporation and
the Company's amended and restated bylaws are attached as Exhibits 3.1 and 3.2,
respectively, hereto, each of which are incorporated herein by reference.
On January 15, 2020, immediately following the Effective Time, the Company's
Board of Directors approved a change in the Company's fiscal year to end on
March 31.
Item 8.01 Other Events.
On January 15, 2020, Astellas and the Company issued a press release announcing
the expiration and results of the Offer and the consummation of the Merger. A
copy of the press release is attached as Exhibit 99.1 hereto and is incorporated
herein by reference.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description
2.1 Agreement and Plan of Merger, dated as of December 2, 2019, by and
among Astellas Pharma Inc., Asilomar Acquisition Corp., and Audentes
Therapeutics, Inc. (incorporated herein by reference to Exhibit 2.1
to the Current Report on Form 8-K filed by Audentes Therapeutics,
Inc. with the SEC on December 3, 2019)
3.1* Amended and Restated Certificate of Incorporation of Audentes
Therapeutics, Inc.
3.2* Amended and Restated Bylaws of Audentes Therapeutics, Inc.
99.1** Press Release of Astellas Pharma Inc. and Audentes Therapeutics,
Inc., issued on January 15, 2020
104 Cover Page Interactive Data File (the cover page XBRL tags are
embedded within the inline XBRL document).
* Filed herewith
** Furnished herewith.
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