Item 2.01 Completion of Acquisition or Disposition of Assets.
As previously disclosed in the Current Report on Form 8-K filed with the
Securities and Exchange Commission (the "SEC") by Five Prime Therapeutics, Inc.,
a Delaware corporation ("Five Prime"), on March 4, 2021, Five Prime entered into
an Agreement and Plan of Merger, dated as of March 4, 2021 (the "Merger
Agreement"), with Amgen Inc., a Delaware corporation ("Amgen"), and Franklin
Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Amgen ("Purchaser"). Pursuant to the Merger Agreement, on March 18, 2021,
Purchaser commenced a tender offer to purchase all of the outstanding shares of
common stock of Five Prime, par value $0.001 per share (the "Shares"), at a
price of $38.00 per Share (the "Offer Price"), in cash, minus any applicable
withholding taxes and without interest, upon the terms and subject to the
conditions set forth in the offer to purchase, dated March 18, 2021 (together
with any amendments, supplements or modifications thereto, the "Offer to
Purchase"), and in the related letter of transmittal (together with any
amendments, supplements or modifications thereto, the "Letter of Transmittal"
and, together with the Offer to Purchase, the "Offer").
The Offer and related withdrawal rights expired at 12:00 midnight, New York
time, on April 16, 2021 (one minute after 11:59 p.m., New York time, on
April 15, 2021) (the "Offer Expiration Time"). American Stock Transfer & Trust
Company, LLC, the depositary for the Offer, has advised Purchaser that a total
of 40,392,569 Shares (together with any Shares then owned by Purchaser and its
"affiliates" (as such term is defined in Section 251(h)(6)(a) of the General
Corporation Law of the State of Delaware (the "DGCL")), but excluding Shares
tendered pursuant to guaranteed delivery procedures that have not yet been
"received" by the "depository" (as such terms are defined in Section 251(h)(6)
of the DGCL)) had been validly tendered (and not properly withdrawn) pursuant to
the Offer prior to the Offer Expiration Time, representing approximately 87.8%
of the outstanding Shares as of the Offer Expiration Time. Accordingly, the
Minimum Condition (as defined in the Merger Agreement) has been satisfied.
As a result of the satisfaction of the Minimum Condition and each of the other
conditions to the Offer, on April 16, 2021, Purchaser accepted for payment all
Shares that were validly tendered (and not properly withdrawn) pursuant to the
Offer, and will promptly (and in any event within two business days) pay for all
such validly tendered Shares.
Following the consummation of the Offer, the remaining conditions to the Merger
(as defined below) set forth in the Merger Agreement were satisfied, and on
April 16, 2021, Purchaser was merged with and into Five Prime without a vote of
the stockholders of Five Prime (the "Merger") in accordance with Section 251(h)
of the DGCL, with Five Prime surviving the Merger as a wholly owned subsidiary
of Amgen.
At the effective time of the Merger (the "Effective Time"), each then issued and
outstanding Share not previously purchased in the Offer (other than (a) Shares
that at the Effective Time were held by Five Prime (including any Shares held in
treasury), Amgen, Purchaser or any other direct or indirect wholly owned
subsidiary of Amgen and (b) Shares outstanding immediately prior to the
Effective Time that were held by stockholders of Five Prime who were entitled to
appraisal rights under the DGCL and had properly exercised and perfected, and
not withdrawn or otherwise lost, such appraisal rights) was converted into the
right to receive the Offer Price in cash, minus any applicable withholding taxes
and without interest.
Pursuant to the Merger Agreement, at the Effective Time, each option to purchase
Shares that was outstanding and unexercised immediately prior to the Effective
Time (each, a "Five Prime Option") (whether vested or unvested) that had a per
Share exercise price that was less than the Offer Price was cancelled and
converted into the right to receive an amount in cash equal to the product of
. . .
Item 3.01 Notice of Delisting or Failure to Satisfy a Continuing Listing Rule or
Standard; Transfer of Listing.
On April 16, 2021, Five Prime notified the Nasdaq Global Select Market
("Nasdaq") of the consummation of the Merger, requested that Nasdaq suspend
trading of the Shares effective as of the close of business on April 16, 2021,
and requested that Nasdaq file with the SEC a Form 25 Notification of Removal
from Listing and/or Registration to delist and deregister the Shares, which were
previously traded under the symbol "FPRX", under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Five Prime intends to
file with the SEC a certification on Form 15 under the Exchange Act, requesting
the suspension of Five Prime's reporting obligations under Sections 13 and 15(d)
of the Exchange Act with respect to the Shares.
The information set forth in Item 2.01 is incorporated by reference into this
Item 3.01.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Items 2.01, 3.01, 5.01 and Item 5.03 is
incorporated by reference into this Item 3.03.
Item 5.01. Changes in Control of Registrant.
The information set forth in Item 2.01 is incorporated by reference into this
Item 5.01.
As a result of the consummation of the Offer and the Merger, there was a change
in control of Five Prime, and Amgen, as the parent entity of Purchaser, acquired
control of Five Prime.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
In connection with the Merger, each of Thomas Civik, Peder K. Jensen, Lori
Lyons-Williams, Franklin M. Berger, William R. Ringo, Kapil Dhingra, Garry
Nicholson and Carol Schafer resigned as a member of the board of directors of
Five Prime (the "Board") and from all committees of the Board on which such
director served, effective as of the Effective Time. Such resignations were not
in connection with any disagreement between any of the directors and Five Prime.
In addition, in connection with the Merger, all of Five Prime's executive
officers ceased to be officers of Five Prime, effective as of the Effective
Time.
On April 15, 2021, in connection with the Merger, the Board approved and
authorized the Company to enter into letter arrangements with each of Thomas
Civik, Helen Collins, Francis W. Sarena and William Ringo to provide each such
individual, if such individual is subjected to the excise tax under Section 4999
of the Internal Revenue Code, with a payment such that each individual will
retain an amount equal to the amount he or she would have received had the
excise tax not applied. This summary does not purport to be complete and is
subject to and qualified in its entirety by reference to the Gross-Up
Agreements, a form of which is filed as Exhibit 10.1 to this Current Report on
Form 8-K and incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
At the Effective Time, in connection with the consummation of the Merger, the
certificate of incorporation and bylaws attached hereto as Exhibits 3.1 and 3.2,
respectively, became the certificate of incorporation and by-laws of Five Prime
and are incorporated by reference into this Item 5.03.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit Description
2.1 Agreement and Plan of Merger, dated as of March 4, 2021, by and
among Amgen Inc., Franklin Acquisition Sub, Inc. and Five Prime
Therapeutics, Inc., incorporated by reference to Exhibit 2.1 to the
Current Report on Form 8-K filed by Five Prime with the SEC on
March 4, 2021.
3.1 Tenth Amended and Restated Certificate of Incorporation of Five
Prime Therapeutics, Inc., dated as of April 16, 2021.
3.2 Amended and Restated Bylaws of Five Prime Therapeutics, Inc., dated
as of April 16, 2021.
10.1 Form of Gross-Up Agreement.
104 Cover Page Interactive Data File (the cover page XBRL tags are
embedded within the Inline XBRL document).
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