Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
Consummation of the Offer is subject to various conditions set forth in the Merger Agreement, including (a) a majority of shares of Common Stock then-outstanding being tendered in the Offer, (b) the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (c) the accuracy of the Company's representations and warranties contained in the Merger Agreement (except, generally, for any inaccuracies that have not had a Company Material Adverse Effect (as defined in the Merger Agreement)), (d) the Company's performance in all material respects of its obligations under the Merger Agreement and (e) the other conditions set forth in Exhibit A to the Merger Agreement. The consummation of the Offer and Merger is not subject to a financing condition.
The Offer will expire at one minute after
Following consummation of the Offer, Merger Sub will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of Parent (the "Merger"). In the Merger, each outstanding Share that is not tendered and accepted pursuant to the Offer (other than the Shares held in the treasury of the Company, Shares held by Parent or Merger Sub, and Shares as to which appraisal rights have been perfected in accordance with applicable law) will be cancelled and converted into the right to receive the Offer Price, on the terms and conditions set forth in the Merger Agreement. Immediately prior to the Effective Time, all unvested stock options and unvested restricted stock units will become fully vested, and at the Effective Time, each stock option and restricted stock unit will be canceled and converted into the right to receive an amount in cash equal to the Merger Consideration (or, in the case of stock options, the difference between the Merger Consideration and the applicable per share exercise price), less any applicable tax withholding.
The board of directors of the Company (the "Board") has (i) determined that the Offer, the Merger, the Merger Agreement and the other transactions contemplated by the Merger Agreement and/or the ancillary agreements and plans to be entered into as contemplated by the Merger Agreement (collectively, the "Transactions") are advisable and in the best interests of the stockholders of the Company, (ii) approved and declared advisable the Merger Agreement and the Transactions and (iii) resolved, subject to the terms and conditions of the Merger Agreement, to recommend acceptance of the Offer by the stockholders of the Company.
The Merger Agreement provides that the Merger will be governed by Section 251(h) of the Delaware General Corporation Law (the "DGCL") and shall be effected by Merger Sub and the Company as soon as practicable following the consummation of the Offer without a stockholders' meeting pursuant to the DGCL.
The Merger Agreement contains customary representations and warranties by Parent, Merger Sub and the Company. The Merger Agreement also contains customary covenants and agreements, including with respect to the operations of the business of the Company between signing and closing, governmental filings and approvals and other matters.
The Merger Agreement contains customary non-solicitation restrictions prohibiting the Company's solicitation of proposals relating to alternative business combination transactions and restricts the Company's ability to furnish non-public information to, or participate in any discussions or negotiations with, any third party with respect to any such transaction, subject to customary exceptions in the event of an acquisition proposal that was not solicited in violation of these restrictions and that the Company's board of directors determines constitutes or could reasonably be expected to lead to a Superior Company Proposal (as defined in the Merger Agreement).
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The Merger Agreement contains termination rights for each of Parent, Merger Sub
and the Company including by either Parent or the Company if the Offer Closing
Time (as defined in the Merger Agreement) shall not have occurred on or before
A copy of the Merger Agreement is attached hereto as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement. The Merger Agreement has been attached to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company, Merger Sub or Parent. In particular, the assertions embodied in the representations and warranties contained in the Merger Agreement are qualified by information in confidential disclosure schedules provided by the parties thereto in connection with the signing of the Merger Agreement. These disclosure schedules include information that modifies, qualifies and creates exceptions to the representations, warranties and covenants set forth in the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were used for the purpose of allocating risk between the Company, Merger Sub and Parent, rather than establishing matters of fact. Accordingly, the representations and warranties in the Merger Agreement may not constitute the actual state of facts about the Company, Merger Sub or Parent.
Tender and Support Agreements
On
The Tender and Support Agreements have been included to provide information
regarding their terms. They are not intended to modify or supplement any factual
disclosures about the applicable stockholder or the Company, Parent or Merger
Sub in any public reports filed with the
The foregoing descriptions of each of the Merger Agreement and the Tender and Support Agreements do not purport to be complete and are qualified in their entirety by reference to the full text of each such agreement, which are attached hereto as Exhibits 2.1, 10.1 and 10.2, respectively, and are incorporated herein by reference.
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Item 8.01Other Events.
On
Additional Information about the Merger and Where to Find It
The Offer for the Shares referenced in this Current Report on Form 8-K has not
yet commenced. This announcement is for informational purposes only and is
neither an offer to purchase nor a solicitation of an offer to sell Shares, nor
is it a substitute for the Offer materials that Parent and Merger Sub will file
with the
In addition to the Offer to Purchase, the related Letter of Transmittal and
certain other tender offer documents, as well as the Solicitation/Recommendation
Statement, Parent and the Company file annual, quarterly and current reports and
other information with the
Cautionary Notice Regarding Forward-Looking Statements
This Form 8-K contains "forward-looking statements" relating to the acquisition
of Company by Parent. Such forward-looking statements include the ability of the
Company and Parent to complete the transactions contemplated by the Merger
Agreement, including the parties' ability to satisfy the conditions to the
consummation of the Offer and the other conditions set forth in the Merger
Agreement and the possibility of any termination of the Merger Agreement. Such
forward-looking statements are based upon current expectations that involve
risks, changes in circumstances, assumptions and uncertainties. Actual results
may differ materially from current expectations because of risks associated with
uncertainties as to the timing of the Offer and the subsequent Merger;
uncertainties as to how many of the Company's stockholders will tender their
Shares in the Offer; the risk that competing offers or acquisition proposals
will be made; the possibility that various conditions to the consummation of the
Offer or the Merger may not be satisfied or waived; the effects of disruption
from the transactions contemplated by the Merger Agreement on the Company's
business and the fact that the announcement and pendency of the transactions may
make it more difficult to establish or maintain relationships with employees,
suppliers and other business partners; the risk that stockholder litigation in
connection with the Offer or the Merger may result in significant costs of
defense, indemnification and liability; other uncertainties pertaining to the
business of the Company, including those set forth in the "Risk Factors" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" sections of the Company's Annual Report on Form 10-K for the year
ended
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit No. 2.1 Agreement and Plan of Merger by and among Eli Lilly, Bald EagleAcquisition Corporation andDermira, Inc. , datedJanuary 10, 2020 .* 10.1 Tender and Support Agreement, dated as ofJanuary 10, 2020 , by and among Eli Lilly and Company,Bald Eagle Acquisition Corporation ,New Enterprise Associates 13, L.P. andNEA Ventures 2011, Limited Partnership. 10.2 Tender and Support Agreement, dated as ofJanuary 10, 2020 , by and among Eli Lilly and Company,Bald Eagle Acquisition Corporation ,Bay City Capital Fund V, L.P. ,Bay City Capital Fund V Co-Investment Fund, L.P. andBay City Capital LLC . 99.1 Joint Press Release, datedJanuary 10, 2020 .
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A
copy of any omitted schedule will be furnished supplementally to the
request.
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