Item 1.01 Entry into a Material Definitive Agreement.
In connection with the consummation of the Merger (as defined below), the
Company and Wells Fargo Bank, National Association (the "Trustee"), entered into
a First Supplemental Indenture (the "Supplemental Indenture"), dated as of
November 19, 2021, which amends and supplements the Indenture (the "Original
Indenture" and, together with the Supplemental Indenture, the "Indenture"),
dated as of May 2, 2017, by and between the Company and the Trustee, governing
the Company's 3.375% Convertible Senior Notes due 2024 (the "Notes"), of which
$201.3 million aggregate principal amount was outstanding as of September 30,
2021.
The Supplemental Indenture provides that, among other things, at and after the
Effective Time (as defined below), (a) the right to convert each $1,000
principal amount of Notes shall be changed into a right to convert such
principal amount of Notes into the number of units of Reference Property (as
defined in the Indenture) that a holder of a number of Shares (as defined below)
equal to the Conversion Rate (as defined in the Indenture) immediately prior to
the Merger would have owned or been entitled to receive upon such Merger, and
(b) a "unit of Reference Property" shall mean $8.50 per Share, in cash, plus one
(1) CVR (as defined below), subject to certain adjustments set forth in the
Supplemental Indenture with respect to the date of any such conversions.
The foregoing description of the Indenture does not purport to be complete and
is subject to, and qualified in its entirety by, the full text of the Original
Indenture, which is included as Exhibit 4.1 of the Company's Current Report on
Form 8-K filed on May 7, 2017, and is incorporated into this Item 1.01 by
reference, and the full text of the Supplemental Indenture, which is included as
Exhibit 4.1 hereto and incorporated into this Item 1.01 by reference.
The disclosure contained in Item 2.01 below is incorporated herein by reference.
Item 1.02 Termination of Material Definitive Agreement.
In connection with the consummation of the Merger, on November 19, 2021, all
amounts outstanding under the Amended and Restated Credit and Security
Agreement, dated as of August 2, 2019, by and among the Company and Silicon
Valley Bank, as collateral agent and administrative agent, and as a lender,
Midcap Financial Trust, as a lender, and the other lenders from time to time
party thereto (as amended, restated, or otherwise modified from time to time,
the "Credit Agreement") were repaid in full and the Credit Agreement was
terminated.
Item 2.01 Completion of Acquisition or Disposition of Assets.
As previously disclosed, pursuant to the Merger Agreement, on October 22, 2021,
Purchaser commenced a tender offer to acquire all of the outstanding shares of
common stock of the Company, $0.001 par value per share (the "Shares"), at an
offer price of (i) $8.50 per Share, in cash, net of applicable withholding taxes
and without interest (the "Cash Amount"), plus (ii) one contingent value right
per Share (each, a "CVR"), which will represent the right to receive one or more
contingent payments of up to $8.00 per Share in the aggregate, in cash, net of
applicable withholding taxes and without interest, upon the achievement of
specified milestones on or prior to December 31, 2030, pursuant to the terms of
that certain Contingent Value Right Agreement, dated as of November 19, 2021, by
and between Pacira and American Stock Transfer & Trust Company, LLC, as rights
agent (the "Offer Price"), upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated October 22, 2021 (as it may be amended or
supplemented from time to time, the "Offer to Purchase"), and in the related
Letter of Transmittal (which, together with the Offer to Purchase and other
related materials, as each may be amended or supplemented from time to time,
constitute the "Offer").
On November 19, 2021, Pacira announced that the offering period of the Offer had
expired at one minute following 11:59 p.m., Eastern Time, on November 18, 2021
(the "Expiration Time"), and that as of such time, based on the information
provided by the depositary for the Offer, 26,026,307 Shares were validly
tendered and not validly withdrawn pursuant to the Offer prior to the Expiration
Time, representing approximately 51.7% of the outstanding Shares as of such
time, which Shares were sufficient to have met the minimum condition of the
Offer and to enable the Merger to occur under Delaware law without a meeting of
the Company's stockholders and without a vote of the Company's stockholders. In
addition, the depositary for the Offer also advised Purchaser that, as of such
time, notices of guaranteed delivery had been received for 9,526,961 Shares,
representing approximately 18.9% of the outstanding Shares as of such time. All
conditions to the Offer having been satisfied, Purchaser subsequently accepted
for payment all Shares validly tendered and not validly withdrawn prior to the
Expiration Time, and will promptly pay for such Shares in accordance with the
terms of the Offer.
Following the completion of the Offer, on November 19, 2021, pursuant to the
terms of the Merger Agreement and in accordance with Section 251(h) of the
General Corporation Law of the State of Delaware (the "DGCL"), Purchaser merged
with and into the Company with the Company surviving as a wholly owned
subsidiary of Pacira (the "Merger"). At the effective time of the Merger (the
"Effective Time"), Shares that were not purchased pursuant to the Offer (other
than Shares held (i) by the Company or its subsidiaries (including Shares held
in the Company's treasury), (ii) by Pacira, Purchaser, any other direct or
indirect wholly owned subsidiary of Pacira, or (iii) by stockholders of the
Company who have properly exercised and perfected their statutory rights of
. . .
Item 2.04. Triggering Events that Accelerate or Increase a Direct Financial
Obligations or an Obligation under an Off-Balance Sheet Arrangement.
The disclosure contained under the Introductory Note and in Items 1.01, 1.02 and
2.01 above 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 November 19, 2021, the Company notified the Nasdaq Global Market ("Nasdaq")
of the consummation of the Merger, and requested that Nasdaq (i) suspend trading
of the Shares as of the close of business on November 19, 2021 and (ii) file
with the SEC a Notification of Removal from Listing and/or Registration under
Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on Form 25 to effect the delisting of the Shares from Nasdaq and to
deregister the Shares under Section 12(b) of the Exchange Act. In addition, the
Company intends to file with the SEC a certification on Form 15 under the
Exchange Act requesting the Company's reporting obligations under Sections 13
and 15(d) of the Exchange Act be suspended.
The disclosure contained under the Introductory Note and in Item 2.01 above is
incorporated herein by reference.
Item 3.03. Material Modification to Rights of Security Holders.
The disclosure contained under the Introductory Note and in Items 2.01 and 3.01
above and in Items 5.01 and 5.03 below is incorporated herein by reference.
Item 5.01. Changes in Control of Registrant.
The disclosure contained under the Introductory Note and in Item 2.01 above
and in Items 5.02 and 5.03 below is incorporated herein by reference.
As a result of the consummation of the Offer and the Merger pursuant to Section
251(h) of the DGCL, on November 19, 2021, a change in control of the Company
occurred. At the Effective Time, the Company became a wholly owned subsidiary of
Pacira.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
Pursuant to the Merger Agreement, effective immediately after the Effective
Time, each of Michael D. Clayman, M.D., Elizabeth Kwo, M.D., Ann Merrifield,
Scott A. Canute, Samuel D. Colella, Mark P. Stejbach, Heath Lukatch, Ph.D.,
Patrick J. Mahaffy, Alan W. Milinazzo and Utpal Koppikar ceased serving as a
member of the board of directors of the Company and each committee thereof and
each of Michael D. Clayman, M.D., William T. Andrews, M.D., Frederick Driscoll,
Melissa Layman, Mark S. Levine, Adam Muzikant, Kerry Wentworth and Christina
Willwerth ceased serving as an officer of the Company.
Further, pursuant to the Merger Agreement and effective immediately after the
Effective Time, Ronald J. Ellis, Jr., Charles A. Reinhart, III and Kristen
Williams became the officers and directors of the surviving corporation.
Information regarding the new officers and directors of the Company has been
previously disclosed in the Tender Offer Statement on Schedule TO, filed by
Pacira and Purchaser with the SEC on October 22, 2021 (together with the
exhibits and annexes thereto and as amended or supplemented from time to time),
and is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Pursuant to the Merger Agreement, effective as of the Effective Time, the
amended and restated certificate of incorporation of the Company and the amended
and restated bylaws of the Company were each amended and restated in its
entirety. Copies of the amended and restated certificate of incorporation and
amended and restated bylaws are filed as Exhibits 3.1 and 3.2, respectively, to
this Form 8-K and are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Number Description
2.1* Agreement and Plan of Merger, dated as of October 11, 2021, by and
among Flexion Therapeutics, Inc., Pacira BioSciences, Inc. and Oyster
Acquisition Company Inc. (incorporated by reference to the Company's
Current Report on Form 8-K filed with the SEC on October 12, 2021).
3.1 Amended and Restated Certificate of Incorporation of Flexion
Therapeutics, Inc.
3.2 Amended and Restated Bylaws of Flexion Therapeutics, Inc.
4.1 First Supplemental Indenture, dated as of November 19, 2021, by and
between Flexion Therapeutics, Inc. and Wells Fargo Bank, National
Association, as trustee.
104 Cover Page Interactive Date File (embedded within the Inline XBRL
document)
* Certain exhibits and schedules have been omitted pursuant to Item
601(b)(2) of Regulation S-K. The Company agrees to furnish
supplementally to the SEC a copy of any omitted exhibits or schedules
upon request; provided that the Company may request confidential
treatment pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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FLEXION THERAPEUTICS, INC. 
