LA JOLLA PHARMACEUTICAL COMPANY Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
The Company's Board of Directors has unanimously approved the Merger (as defined
below) and the Merger Agreement and recommended that the stockholders of the
Company accept the Offer and tender their shares of Common Stock pursuant to the
Offer. Under the Merger Agreement, the Parent is required to commence the Offer
as promptly as reasonably practicable, and in any event on or prior to
Pursuant to the terms of the Merger Agreement, as of immediately prior to the
effective time of the Merger (the "Effective Time"), by virtue of the Merger and
without any action on the part of the Parent, Purchaser, the Company or any
stockholder of the Company, (i) any shares of Common Stock and any shares of the
Company's preferred stock ("Preferred Stock") held by the Company or any
wholly-owned subsidiary of the Company as of immediately prior to the Effective
Time (or held in the Company's treasury) shall be cancelled and retired and
shall cease to exist, and no consideration shall be delivered in exchange
therefor, (ii) any shares of Common Stock and Preferred Stock held by Parent,
Purchaser or any other wholly-owned Subsidiary of Parent as of immediately prior
to the Effective Time shall be cancelled and retired and shall cease to exist,
and no consideration shall be delivered in exchange therefor, (iii) except as
provided in clauses "(i)" and "(ii)" above: (A) each share of Common Stock
outstanding immediately prior to the Effective Time (other than any holders of
Common Stock who are entitled to and who properly exercise appraisal rights
under
The Purchaser's obligation to accept shares of Common Stock tendered in the Offer is subject to customary closing conditions, including: (a) that the number of shares of Common Stock validly tendered and not validly withdrawn, together with any shares of Common Stock beneficially owned by the Parent or any subsidiary of the Parent, equals at least one share more than 50% of all shares of Common Stock then outstanding; (b) the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 in respect of the transactions contemplated by the Merger Agreement have expired or been terminated and the absence of any injunction or legal restraint which has the effect of prohibiting the consummation of the Offer or making the Offer or the Merger illegal; (c) since the date of the Merger Agreement, there shall not have occurred any Company Material Adverse Effect; (d) compliance by the Company with its covenants under the Merger Agreement; (e) the accuracy of representations and warranties of the Company as of the expiration of the Offer; (f) the absence of any pending legal proceeding in which a governmental body is a party challenging the Offer or the Merger; and (g) other customary conditions. The obligations of the Parent and the Purchaser to consummate the Offer and the Merger under the Merger Agreement are not subject to a financing condition.
Following the completion of the Offer, subject to the absence of injunctions or other legal restraints preventing the consummation of the Merger, the Purchaser will merge with and into the Company (the "Merger"), with the Company surviving as a wholly owned subsidiary of the Parent, pursuant to the procedure provided for under Section 251(h) of the Delaware General Corporation Law, without any additional stockholder approval, on the terms and subject to the conditions set forth in the Merger Agreement. The Merger will be effected as soon as practicable following the time of purchase by the Purchaser of shares of Common Stock validly tendered and not withdrawn in the Offer.
The Requisite Holders (as defined in the Company's certificate of incorporation) of the Preferred Stock have waived the right to approve a Change of Control (as defined in the Company's certificate of incorporation) as relating to the Offer and the Merger, which right is provided for in Article IV, Section (d)(9)(B) of the Company's certificate of incorporation.
- 2 -
--------------------------------------------------------------------------------
The Merger Agreement contains customary representations and warranties from both the Company, on the one hand, and the Parent and the Purchaser, on the other hand. It also contains customary covenants, including covenants providing for the Company to (i) cause each of the Company and its subsidiaries to conduct its business and operations in the ordinary course and in accordance in all material respects with past practice; (ii) not to engage in specified types of transactions during such period; and (iii) not (a) solicit, initiate, or knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an alternative acquisition proposal, (b) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information in connection with an alternative acquisition proposal or any proposal or offer that would reasonably be expected to lead to an alternative acquisition proposal, (c) adopt any resolution for the purpose of exempting any person (other than Parent and its subsidiaries) from the restriction on "business combinations" or any similar provision contained in applicable anti-takeover law or the Company's organizational or other governing documents or (d) enter into any letter of intent, contract, commitment or agreement in principle with respect to an alternative acquisition proposal.
The Merger Agreement contains customary termination rights for both the Parent
and the Purchaser, on the one hand, and the Company, on the other hand,
including, among others, for failure to consummate the Offer on or before
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
The Merger Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company, the Parent, the Purchaser or their respective subsidiaries and affiliates. The Merger Agreement contains representations and warranties by the Company, on the one hand, and the Parent and the Purchaser, on the other hand, made solely for the benefit of the other. The assertions embodied in those representations and warranties are subject to qualifications and limitations agreed to by the respective parties in negotiating the terms of the Merger Agreement, including information in confidential disclosure schedules delivered in connection with the signing of the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were made as of a specified date, may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose of allocating risk between the Company, on the one hand, and the Parent and the Purchaser, on the other hand, rather than establishing matters as facts. Accordingly, the representations and warranties in the Merger Agreement should not be relied on by any persons as characterizations of the actual state of facts about the Company, the Parent, the Purchaser or their respective subsidiaries or affiliates at the time they were made or otherwise. In addition, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may . . .
Item 8.01 Other Events. Press Release
On
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No. Description
2.1† Agreement and Plan of Merger by and among the Parent, the Purchaser
and the Company, dated as of July 10, 2022 .
10.1 Support Agreement, dated as of July 10, 2022 , by and among the
Parent, the Purchaser and the stockholders named therein.
99.1 Joint Press Release, dated July 11, 2022 .
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
† Certain schedules and exhibits omitted pursuant to item 601(b)(2) of Regulation
S-K.
schedule or exhibit to the
Additional Information
The tender offer for the outstanding shares of the Company referenced in this
Current Report on Form 8-K has not yet commenced. This Current Report on Form
8-K is for informational purposes only and 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 the Parent and its subsidiary will file with the
In addition to the Offer to Purchase, the related Letter of Transmittal and
certain other tender offer documents, the Company and the Parent file annual,
quarterly and special reports, proxy statements and other information with the
Forward-Looking Statements
Any statements in this Form 8-K regarding the proposed transaction between the Parent and the Company and any other statements about the Company management's future expectations, beliefs, goals, plans or prospectus constitute forward-looking statements. Any statements that are not statements of historical fact (including statements containing "believes," "anticipates," "plans," "expects," "may," "will," "would," "intends," "estimates," and similar
- 4 -
--------------------------------------------------------------------------------
expressions), should also be considered to be forward-looking statements. There
are a number of important factors that could cause actual results or events to
differ materially from those indicated by such forward-looking statements,
including the risk that the proposed Offer and Merger may not be completed in a
timely manner, or at all, which may adversely affect the Company's business and
the price of its common stock; risks as to the percentage of the Company's
stockholders tendering their shares in the Offer; the possibility that competing
offers will be made; the failure to satisfy all of the closing conditions of the
Offer and/or the Merger; the occurrence of any event, change or other
circumstance that could give rise to the termination of the Merger Agreement,
the Offer and/or the other proposed transactions; the effect of the announcement
or pendency of the Offer, Merger or other proposed transactions on the Company's
business, operating results, and relationships with customers, suppliers,
competitors and others; risks that the Offer, Merger or other proposed
transactions may disrupt the Company's current plans and business operations;
potential difficulties retaining employees as a result of the proposed
transactions; risks related to the diverting of management's attention from the
Company's ongoing business operations; the outcome of any legal proceedings that
may be instituted against the Company related to the Merger Agreement, the
Offer, the Merger or the other proposed transactions; risks associated with
GIAPREZA® (angiotensin II) and XERAVA® (eravacycline) sales; risks related to
operating costs; regulatory actions relating to the Company's products by the
- 5 -
--------------------------------------------------------------------------------
© Edgar Online, source
