FIVE PRIME THERAPEUTICS, INC. Item 1.01 Entry into a Material Definitive Agreement.
On
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions thereof, Parent has agreed to cause Purchaser to commence a cash
tender offer (the "Offer") to purchase all of the outstanding shares of common
stock of the Company, par value
The Offer will initially remain open for 20 business days from the date of commencement of the Offer. If at the scheduled expiration time of the Offer any of the conditions to the Offer have not been satisfied (unless such condition is waivable by Purchaser or Parent and has been waived), Purchaser, at its discretion, may extend, and at the request of the Company, Purchaser will extend, the Offer to permit the satisfaction of all Offer conditions.
The obligation of Purchaser to accept for payment, and pay for, Shares validly tendered (and not validly withdrawn) pursuant to the Offer is subject to satisfaction or waiver, to the extent permitted under applicable legal requirements, of customary conditions, including (i) there being validly tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Purchaser and its affiliates, represent one more Share than 50% of the total number of Shares outstanding at the expiration of the Offer, (ii) the accuracy of the Company's representations and warranties (subject to customary materiality qualifiers), (iii) the Company's compliance or performance in all material respects of its obligations, covenants and agreements it is required to comply with or perform at or prior to the expiration of the Offer, (iv) the absence, since the date of the Merger Agreement, of a Material Adverse Effect (as defined in the Merger Agreement) that is continuing, (v) the expiration or termination of the waiting period (or any extension thereof) applicable to the Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and (vi) the absence of any law or order prohibiting the consummation of the Offer or the Merger.
The Merger Agreement includes certain representations, warranties and covenants of the Company, Parent and Purchaser, including certain restrictions with respect to the Company's business between signing and consummation of the Merger. Parent and the Company also agreed to use their respective commercially reasonable efforts to take all actions, to file all documents and to do all things necessary, proper or advisable under applicable antitrust laws to consummate and make effective the transactions as soon as reasonably practicable, subject to certain limitations set forth in the Merger Agreement.
The Company has agreed to customary "no-shop" restrictions on its ability to solicit alternative acquisition proposals from third parties and engage in discussions or negotiations with third parties regarding alternative acquisition proposals. Notwithstanding these restrictions, the Company may under certain circumstances provide information to and engage in or otherwise participate in discussions or negotiations with third parties with respect to a bona fide written alternative acquisition proposal that the board of directors of the Company (the "Company Board") has determined in good faith, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Offer (as defined in the Merger Agreement) and that failure to take such action would reasonably be expected to constitute a breach of the Company Board's fiduciary duties under applicable legal requirements. The Merger Agreement also requires that the Company Board recommend that the stockholders of the Company accept the Offer and tender their Shares to Purchaser pursuant to the Offer and not, among other things, (i) withdraw (or modify, amend or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw (or modify, amend or qualify in a manner adverse to Parent or Purchaser), the Company Board's
1
--------------------------------------------------------------------------------
recommendation, (ii) approve, recommend or declare advisable, or propose to
approve, recommend or declare advisable, any alternative acquisition proposal,
(iii) fail to include the Company Board's recommendation in the Company's Tender
Offer Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule
14D-9") when filed with the
The Merger Agreement contains certain termination rights for both the Company
and Parent, including if (i) the consummation of the transactions has not
occurred prior to
The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which is filed as Exhibit 2.1 hereto and which is incorporated herein by reference. The Merger Agreement has been filed to provide information to investors regarding its terms. It is not . . .
Item 8.01 Other Events.
On
Additional Information and Where to Find It
This filing is for informational purposes only and is neither an offer to
purchase nor a solicitation of an offer to sell securities. The tender offer for
the outstanding shares of common stock of the Company described in this filing
has not commenced. At the time the tender offer is commenced, Amgen and its
acquisition subsidiary, Purchaser, will file, or will cause to be filed, tender
offer materials on Schedule TO with the
Forward Looking Statements
This filing contains forward-looking statements. These forward-looking statements generally include statements that are predictive in nature and depend on or refer to future events or conditions, and include words such as "expect," "anticipate," "outlook," "could," "target," "project," "intend," "plan," "believe," "seek," "estimate," "should," "may," "assume" and "continue" as well as variations of such words and similar expressions. By their nature, forward-looking statements involve risks and uncertainty because they relate to events and depend on circumstances that will occur in the future, and there are many factors that could cause actual results and developments to differ materially from those expressed or implied by these forward-looking statements. Forward-looking statements include, among other things, statements about the potential benefits of the proposed transaction; the prospective performance and outlook of the Company's business, performance and opportunities; any potential strategic benefits, synergies or opportunities expected as a result of the proposed transaction; the ability of the parties to complete the proposed transaction and the expected timing of completion of the proposed transaction; potential marketing or regulatory approvals for bemarituzumab, or potential future revenues from such product; as well as any assumptions underlying any of the foregoing.
These statements are not guarantees of future performance and they involve certain risks, uncertainties and assumptions that are difficult to predict. We caution you that actual outcomes and results may differ materially from what is expressed, implied or forecasted by our forward-looking statements. There can be no guarantee that the proposed tender offer or the transaction described in this press release will be completed, or that it will be completed as currently proposed, or at any particular time. Neither can there be any guarantee that Amgen or the Company's product, bemarituzumab, will achieve any particular future financial results, or that Amgen will be able to realize any of potential strategic benefits, synergies or opportunities as a result of the proposed acquisition. Nor can there be any guarantee that bemarituzumab will be submitted or approved for sale in any market, or at any particular time.
3
--------------------------------------------------------------------------------
Neither can there be any guarantee that such product will be successfully
commercialized even if regulatory approvals are obtained. In particular, our
expectations could be affected by, among other things: uncertainties as to the
timing of the tender offer and the merger; the risk that the proposed
transaction may not be completed in a timely manner or at all; uncertainties as
to the percentage of the Company's stockholders tendering their shares in the
tender offer; the possibility that competing offers or acquisition proposals for
the Company will be made; the possibility that any or all of the various
conditions to the consummation of the tender offer or the merger may not be
satisfied or waived, including the failure to receive any required regulatory
approvals from any applicable governmental entities (or any conditions,
limitations or restrictions placed on such approvals); regulatory actions or
delays or government regulation generally, including potential regulatory
actions or delays relating to the completion of the potential transaction
described in this release, as well as potential regulatory actions or delays
with respect to the development of bemarituzumab; the occurrence of any event,
change or other circumstance that could give rise to the termination of the
merger agreement; the effect of this announcement or pendency of the proposed
transaction on the Company's ability to retain and hire key personnel, its
ability to maintain relationships with its customers, suppliers and others with
whom it does business, its business generally or its stock price; risks related
to diverting management's attention from the Company's ongoing business
operations; the risk that stockholder litigation in connection with the proposed
transaction may result in significant costs of defense, indemnification and
liability; the potential that the strategic benefits, synergies or opportunities
expected from the proposed acquisition may not be realized or may take longer to
realize than expected; the successful integration of the Company into Amgen
subsequent to the closing of the transaction and the timing of such integration;
and other risks and factors referred to from time to time in Amgen's and
Franklin's filings with the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit Description 2.1* Agreement and Plan of Merger, dated as ofMarch 4, 2021 , by and among Amgen Inc.,Franklin Acquisition Sub, Inc. andFive Prime Therapeutics, Inc. 99.1 Joint Press Release, datedMarch 4, 2021 . 104 Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document).
* Schedules omitted pursuant to Item 601 of Regulation S-K.
furnish supplementally a copy of any omitted schedule to the
4
--------------------------------------------------------------------------------
© Edgar Online, source
