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, Purchaser will commence a tender offer (the "Offer"), to
purchase all of the issued and outstanding shares (the "Shares") of common
stock, par value
The Offer will initially remain open for a minimum of 20 business days from the date of commencement of the Offer. Under certain circumstances set forth in the Merger Agreement, Purchaser may be required to extend, or may elect to extend, the Offer on one or more occasions.
The obligation of Purchaser to consummate the Offer is subject to (i) the non-waivable condition that there shall have been validly tendered and not validly withdrawn Shares that, excluding the Shares beneficially owned by Ionis, its affiliates (other than Akcea and its subsidiaries), their respective directors and executive officers and certain other affiliated person(s) set forth in an exhibit to the Merger Agreement, represent one more Share than 50% of the Shares not beneficially owned by such entities and persons outstanding at the time of the expiration of the Offer, (ii) the satisfaction or waiver of other customary conditions set forth in Annex I to the Merger Agreement, including, among others, the absence of any law or order prohibiting the consummation of the Offer or the Merger. Given the current level of ownership by Ionis in Akcea, the transaction is not anticipated to be subject to any antitrust or competition regulatory approvals.
Following the consummation of the Offer and subject to the terms and conditions
of the Merger Agreement, Purchaser will merge with and into Akcea pursuant to
Section 251(h) of the General Corporation Law of the
At the effective time of the Merger, each Share (other than Shares held by Akcea, Ionis, Purchaser, any wholly owned subsidiary of Ionis or Purchaser, or by stockholders of Akcea who have perfected their statutory rights of appraisal under the DGCL) will be converted into the right to receive an amount in cash equal to the Offer Price, without any interest thereon and subject to any withholding of taxes.
In addition, at the effective time of the Merger, each option to purchase Akcea common stock with an exercise price lower than the Offer Price and each Akcea restricted stock unit, in each case whether or not vested, will be cancelled, and the holder thereof will be entitled to receive the Offer Price (less any applicable exercise price in the case of options) for each share subject to such award, pursuant to the terms set forth in the Merger Agreement. Each option to purchase Akcea common stock with an exercise price greater than or equal to the Offer Price will be cancelled with no consideration payable.
The Merger Agreement includes customary representations, warranties and covenants of Akcea, Ionis and Purchaser. Akcea 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, subject to certain limited exceptions.
The Merger Agreement also provides that, in connection with the termination of
the Merger Agreement under specified circumstances, including termination by
Akcea to accept and enter into an agreement with respect to a Superior Offer (as
such term is defined in the Merger Agreement), Akcea will pay Ionis a
termination fee of
2
--------------------------------------------------------------------------------
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 intended to provide any other factual information about Ionis, Purchaser or Akcea, their respective businesses, or the actual conduct of their respective businesses during the period prior to the consummation of the Offer, the Merger or the other transactions contemplated by the Merger Agreement. The Merger Agreement and this summary should not be relied upon as disclosure about Ionis or Akcea. None of Akcea's stockholders or any other third parties should rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of Ionis, Purchaser, Akcea or any of their respective subsidiaries or affiliates. The Merger Agreement contains representations and warranties that are the product of negotiations among the parties thereto and that the parties made to, and solely for the benefit of, each other as of specified dates. The assertions embodied in those representations and warranties are subject to qualifications and limitations agreed to by the respective parties and are also qualified in important part by confidential disclosure schedules delivered in connection with the Merger Agreement. The representations and warranties may have been made for the purpose of allocating contractual risk between the parties to the agreements instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors.
Item 8.01. Other Events.
On
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit Number Description 2.1* Agreement and Plan of Merger, dated as ofAugust 30, 2020 , amongAkcea Therapeutics, Inc. ,Ionis Pharmaceuticals, Inc. andAvalanche Merger Sub, Inc. 99.1 Joint Press Release, datedAugust 31, 2020 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
* Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K. Ionis agrees to
furnish supplementally a copy of any omitted schedule to the
Notice to Investors and Security Holders
The tender offer referred to in this Current Report has not yet commenced. The
description contained in this Current Report is neither an offer to purchase nor
a solicitation of an offer to sell any securities, nor is it a substitute for
the tender offer materials that Ionis will file with the
3
--------------------------------------------------------------------------------
In addition to the offer to purchase, the related letter of transmittal and
certain other tender offer documents to be filed by Ionis, as well as the
solicitation/recommendation statement to be filed by Akcea, Ionis and Akcea will
also file quarterly and current reports with the
Forward-Looking Statements
4
--------------------------------------------------------------------------------
© Edgar Online, source