BIODELIVERY SCIENCES INTERNATIONAL, INC. Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
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Pursuant to the Merger Agreement, upon the terms and subject to the conditions
thereof, as promptly as practicable (but in no event more than 10 business days
after the date of the Merger Agreement), Purchaser will commence a cash tender
offer (the "Offer"), to acquire all of the outstanding shares (the "Shares") of
BDSI's common stock,
The obligation of Purchaser to purchase Shares tendered in the Offer is subject to customary closing conditions set forth in the Merger Agreement, including, but not limited to, that (i) at least one Share more than 50% of the total number of Shares of BDSI Common Stock issued and outstanding have been validly tendered into and not validly withdrawn from the Offer and (ii) the waiting period (or any extension thereof) applicable to the Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder, have expired or been terminated. Neither the completion of the Offer nor the closing of the Merger are subject to a financing condition.
Following the completion of the Offer and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, Purchaser will merge with and into BDSI, with BDSI surviving as a wholly owned subsidiary of Collegium (the "Merger"). The Merger shall be governed by and effected under Section 251(h) of the Delaware General Corporation Law (the "DGCL"), with no stockholder vote required to consummate the Merger. At the effective time of the Merger (the "Effective Time"), the Shares then outstanding (other than Shares held by (i) BDSI or its subsidiaries (including Shares held in BDSI's treasury), (ii) Collegium, Purchaser, any other direct or indirect wholly owned subsidiary of Collegium, or (iii) stockholders of BDSI who have properly exercised and perfected their statutory rights of appraisal under the DGCL) will each be converted into the right to receive the Offer Price.
The board of directors of BDSI (the "BDSI Board") has unanimously (i) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger (the "Transactions"), (ii) determined that the transactions contemplated thereby, including the Transactions, are in the best interests of BDSI and its stockholders, (iii) resolved that the Merger shall be governed by and effected under Section 251(h) of the DGCL and (iv) resolved to recommend that the stockholders of BDSI accept the Offer and tender their Shares to Purchaser pursuant to the Offer.
The Merger Agreement provides that each stock option to purchase shares of BDSI Common Stock (a "BDSI Option") that is outstanding as of immediately prior to the Effective Time shall automatically accelerate and become fully vested and exercisable effective immediately prior to, and contingent upon, the Effective Time. As of the Effective Time, each BDSI Option with a per share exercise price less than the Offer Price that is then outstanding and unexercised shall be cancelled and converted into the right to receive cash in an amount equal to the product of (x) the total number of Shares subject to such BDSI Option multiplied by (y) the excess, if any, of the Offer Price over the exercise price payable per Share under such BDSI Option, net of applicable withholding taxes. Each BDSI Option with an exercise price equal to, or greater than, the Offer Price that is then outstanding and unexercised shall be cancelled without any consideration paid therefor whether before or after the Effective Time.
The Merger Agreement also provides that each restricted stock unit award issued by BDSI (a "BDSI RSU") that is outstanding as of immediately prior to the Effective Time shall automatically accelerate and become fully vested immediately prior to, and contingent upon, the Effective Time. As of the Effective Time, each BDSI RSU that is then outstanding shall be cancelled and converted into the right to receive cash in an amount equal to the product of (x) the total number of Shares issuable in settlement of such BDSI RSU multiplied by (y) the Offer Price.
The Merger Agreement further provides that, as of the Effective Time, each outstanding warrant to purchase shares of BDSI Common Stock (a "BDSI Warrant") that is outstanding as of immediately prior to the Effective Time with an exercise price less than the Offer Price shall be cancelled and converted into the right to receive cash in an amount equal to the product of (x) the total number of Shares subject to such BDSI Warrant multiplied by (y) the excess, if any, of the Offer Price over the exercise price payable per Share under such BDSI Warrant.
The Merger Agreement includes representations, warranties and covenants of the parties customary for a transaction of this nature. From the date of the Merger Agreement until the earlier of the Effective Time and the termination of the Merger Agreement, BDSI has agreed, subject to certain exceptions, to conduct in all material respects its business and operations in the ordinary course and has agreed to certain other customary operating covenants, as set forth more fully in the Merger Agreement. BDSI has also agreed not to, directly or indirectly, (i) solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal (as defined in the Merger Agreement), (ii) engage in, continue or otherwise participate in any discussions (except to notify a person that makes any inquiry or offer with respect to an Acquisition Proposal of the existence of the applicable provisions of the Merger Agreement or to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal) or negotiations regarding, or furnish to any other person any information in connection with, or for the purpose of soliciting, knowingly encouraging or facilitating, an Acquisition Proposal, (iii) adopt, approve or enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal or (iv) waive or release any person from, fail to use reasonable best efforts to enforce any standstill agreement or any standstill provisions of any contract . . .
Item 5.03 Amendments to Articles of Incorporation or By-Laws; Change in Fiscal Year.
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The foregoing description of the Bylaw Amendment is not complete and is qualified in its entirety by reference to the full text of the Bylaw Amendment, which is attached as Exhibit 3.1 to this Current Report on Form 8-K and incorporated by reference herein.
Item 7.01 Regulation FD Disclosure.
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The information included in this item and Exhibit 99.1 are not deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), nor shall this item and Exhibit 99.1 be incorporated by reference into Collegium's filings under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such future filing.
Important Information about the Transaction and Where to Find It
The Offer for shares of BDSI Common Stock has not yet commenced, and this
release is neither a recommendation, nor an offer to purchase nor a solicitation
of an offer to sell any shares of BDSI Common Stock or any other securities. On
the commencement date of the Offer, a tender offer statement on Schedule TO,
including an offer to purchase, a letter of transmittal and related documents,
will be filed with the
Cautionary Forward-Looking Statements
Any statements made in this Current Report on Form 8-K that are not statements
of historical fact, including statements about BDSI's beliefs and expectations
and statements about the Offer and Collegium's proposed acquisition of BDSI,
including the timing of and closing conditions to the acquisition, and the
potential effects of the pending acquisition on BDSI are forward-looking
statements that are based on management's beliefs, certain assumptions and
current expectations and should be evaluated as such. These statements may be
identified by their use of forward-looking terminology such as the words
"intend," "believe," "expect," "anticipate," "should," "planned," "projected,"
"estimated," and "potential," among others. Such forward-looking statements
involve risks and uncertainties that could cause actual results to differ
materially from those projected. These risks and uncertainties include, but are
not limited to: the possibility that various closing conditions set forth in the
Merger Agreement may not be satisfied or waived, including uncertainties as to
the percentage of BDSI's stockholders tendering their shares in the Offer; the
possibility that competing offers will be made; the effect of the announcement
of the proposed acquisition on the ability of BDSI to retain and hire key
personnel and maintain relationships with customers, strategic partners,
suppliers, regulatory authorities and others with whom BDSI does business, or on
BDSI's operating results and business generally; the risk that BDSI and
Collegium may be unable to obtain governmental and regulatory approvals required
for the Transactions, or that required governmental and regulatory approvals may
delay the Transactions or cause the parties to abandon the proposed
Transactions; the impact of legislative, regulatory, competitive and
technological changes; the risk that any stockholder litigation in connection
with the Transactions may result in significant costs of defense,
indemnification and liability; and other risks and uncertainties discussed in
filings that BDSI makes with the
The forward-looking statements contained in this Current Report on Form 8-K are made as of the date hereof, and BDSI undertakes no obligation to update any forward-looking statements, whether as a result of future events, new information or otherwise, except as expressly required by law. All forward-looking statements in this document are qualified in their entirety by this cautionary statement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. Description
2.1* Agreement and Plan of Merger, dated as of February 14, 2022 , by
and among Collegium Pharmaceutical, Inc., Bristol Acquisition
Company Inc. and BioDelivery Sciences International, Inc.
3.1** Amendment No. 1 to Second Amended and Restated Bylaws of
BioDelivery Sciences International, Inc. , adopted February 13,
2022 .
99.1** Press release ofBioDelivery Sciences International ,
Inc.datedFebruary 14, 2022.
99.2 Form of Tender and Support Agreement (attached as Exhibit C to
Agreement and Plan of Merger filed as Exhibit 2.1 hereto).
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document contained in Exhibit 104)
* Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K. BDSI agrees to
furnish supplementally a copy of any omitted schedule to the
** Previously filed as an exhibit to the Original 8-K.
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