Item 1.01 Entry into a Material Definitive Agreement.
On
At the Effective Time of the Merger, each share of common stock, par value
Consummation of the Merger is subject to customary closing conditions,
including, without limitation, the absence of certain legal impediments, no
Material Adverse Effect having occurred since the signing of the Merger
Agreement, the expiration or termination of the required waiting periods under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and any
other
The Company has made customary representations and warranties in the Merger Agreement and has agreed to customary covenants regarding the operation of the business of the Company and its Subsidiaries prior to the Effective Time. The Company is also subject to customary restrictions on its ability to solicit alternative acquisition proposals from third parties and to provide non-public information to, and participate in discussions and engage in negotiations with, third parties regarding alternative acquisition proposals, with customary exceptions to allow the Board of Directors to exercise its fiduciary duties.
The Merger Agreement contains certain termination rights for the Company and
Parent. Subject to certain limitations, the Company or Parent may terminate the
Merger Agreement if the Merger is not consummated by
Upon termination of the Merger Agreement, under specified circumstances, the
Company will be required to pay Parent a termination fee of
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At the Effective Time, each Company Option that is then outstanding and unexercised, whether or not vested and which has a per share exercise price that is less than the Merger Consideration (each, an "In the Money Option"), will be cancelled and converted into the right to receive a cash payment equal to (A) the excess of (x) the Merger Consideration over (y) the exercise price payable per share under such In the Money Option, multiplied by (B) the total number of shares subject to such In the Money Option immediately prior to the Effective Time (without regard to vesting). In addition, at the Effective Time, each Company Option other than an In the Money Option that is then outstanding and unexercised, whether or not vested, will be cancelled with no consideration payable in respect thereof. At the Effective Time, each then outstanding Company RSU will be canceled and the holder thereof will be entitled to receive a cash payment equal to the product of (x) the Merger Consideration and (y) the number of shares subject to such Company RSU. At the Effective Time, each then outstanding Company PSU will be canceled and converted into a cash-based award, which will entitle the holder thereof to receive a cash payment equal to the product of (x) the Merger Consideration, and (y) the number of shares subject to such Company PSU, subject to the same terms and conditions (including vesting, forfeiture and acceleration provisions) that were applicable to the corresponding Company PSU immediately prior to the Effective Time.
The representations, warranties and covenants of the Company contained in the
Merger Agreement have been made solely for the benefit of Parent and Merger Sub.
In addition, such representations, warranties and covenants (i) have been made
only for purposes of the Merger Agreement, (ii) have been qualified by
(a) subject to certain terms and conditions, matters specifically disclosed in
the Company's filings with the
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On
The Forum Selection Amendment provides that, unless the Company consents in
writing to the selection of an alternative forum, the
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This summary is qualified in its entirety by reference to the Forum Selection Amendment, which is filed as Exhibit 3.1 hereto and incorporated by reference herein.
Item 8.01 Other Events.
On
Item 9.01. Financial Statements and Exhibits
(d) Exhibits. Exhibit No. Description 2.1 Agreement and Plan of Merger, dated as ofApril 28, 2023 , by and amongAstellas US Holding, Inc. ,Berry Merger Sub, Inc. ,IVERIC bio, Inc. and, solely as provided by Section ?8.10(b) therein, Astellas Pharma Inc.* 3.1 Amendment toIVERIC bio, Inc.'s Amended and Restated Bylaws, datedApril 28, 2023 99.1 Joint Press Release issued byIVERIC bio, Inc. and Astellas Pharma Inc. onApril 30, 2023
* Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
* * * Forward Looking Statements
All statements in this Current Report on Form 8-K, other than statements of
historical fact, are statements that could be deemed "forward-looking
statements." In some cases, forward-looking statements may be identified by
terminology such as "believe," "may," "will," "should", "predict", "goal",
"strategy", "potentially," "estimate," "continue," "anticipate," "intend,"
"could," "would," "project," "plan," "expect," "seek" and similar expressions
and variations thereof. The Company intends these forward-looking statements to
be covered by the safe harbor provisions for forward-looking statements in the
This Current Report on Form 8-K contains "forward-looking statements" relating to, among other things, the proposed acquisition of the Company, by way of a merger of a subsidiary of Guarantor (together with its subsidiaries, "Astellas") with and into the Company and the objectives of such proposed acquisition, Astellas' and the Company's beliefs and expectations regarding the potential benefits sought to be achieved by Astellas' proposed acquisition of the Company, the potential effects of the proposed acquisition on both Astellas and the Company, the expected benefits and success of the Company's product candidates, the anticipated timing for approval of ACP, the anticipated financing of the proposed acquisition, and the anticipated timing of completion of the proposed acquisition, each of which involves substantial risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statements.
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Risks and uncertainties include, among other things, risks related to the ability of the Company and Astellas to complete the transactions contemplated by the Merger Agreement; the satisfaction or waiver of the conditions to closing the proposed acquisition set forth in the Merger Agreement (including the failure to obtain necessary regulatory approvals and failure to obtain the requisite vote by the Company's stockholders) in the anticipated timeframe or at all, including the possibility that the proposed acquisition does not close; the timing and nature of regulatory filings for the Company's product candidates, and the possibility of a termination of the Merger Agreement; the possibility that competing offers to acquire the Company may be made; risks related to the ability to realize the anticipated benefits of the proposed acquisition, including the possibility that the expected benefits from the acquisition will not be realized or will not be realized within the expected time period; the risk that the Company's business and products will not be integrated with those of Astellas successfully; 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; negative effects of this announcement or the consummation of the proposed acquisition on the market price of Astellas' or the Company's common stock and/or operating results; significant transaction costs; unknown liabilities; the risk of litigation and/or regulatory actions related to the proposed acquisition or the Company's business; risks related to the financing of the acquisition; other business effects and uncertainties, including the effects of industry, market, business, economic, political or regulatory conditions; future exchange and interest rates; changes in tax and other laws, regulations, rates and policies; future business combinations or disposals; the uncertainties inherent in research and development, including the ability to meet anticipated clinical endpoints, commencement and/or completion dates for clinical trials, regulatory submission dates, regulatory approval dates and/or launch dates, as well as the possibility of unfavorable new clinical data and further analyses of existing clinical data; risks associated with interim data; the risk that clinical trial data is subject to differing interpretations and assessments by regulatory authorities; whether regulatory authorities will be satisfied with the design of and results from the clinical studies; whether and when drug applications may be filed in any jurisdictions for the Company's pipeline products; whether and when any such applications may be approved by regulatory authorities, which will depend on myriad factors, including making a determination as to whether the product's benefits outweigh its known risks and determination of the product's efficacy and, if approved, whether any such products will be commercially successful; decisions by regulatory authorities impacting labeling, manufacturing processes, safety or other matters that could affect the availability or commercial potential of such products; expectations for personnel and human capital matters; and competitive developments.
Moreover, Astellas and the Company operate in very competitive and rapidly
changing environments, and new risks emerge from time to time. Astellas and the
Company have based these forward-looking statements on their current
expectations and projections about future events and trends that they believe
may affect the financial condition, results of operations, business strategy,
short-term and long-term business operations and objectives and financial needs
of Astellas and the Company, but they cannot guarantee future events, results,
actions, levels of activity, performance or achievements, business and market
conditions, the timing and results of biotechnology development and potential
regulatory approval. The foregoing factors are not exhaustive. You should also
carefully consider other risks and uncertainties that may affect the business of
the Company, including those described in the "Forward-Looking Statements",
"Summary of Principal Risk Factors", and "Risk Factors" sections of the
Company's Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and other
documents filed from time to time with the
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Additional Information and Where to Find It
In connection with the proposed acquisition, the Company will be filing
documents with the
IVERIC bio, Inc. Kathy Galante Senior Vice President, Investor Relations kathy.galante@ivericbio.com
Participants in the Solicitation
The Company, and its directors, executive officers and other members of
management and certain other people may be deemed to be participants in the
solicitation of proxies in connection with the proposed acquisition. Information
about the Company's directors and executive officers is included in the proxy
statement for the Company's annual meeting of stockholders for 2023, filed with
the
Important Additional Information
This Current Report on Form 8-K is for informational purposes only and is not intended to and does not constitute, or form part of, an offer, invitation or the solicitation of an offer or invitation to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of the Company's common stock or any other securities, or the solicitation of any vote or approval in any jurisdiction, pursuant to the proposed acquisition or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law.
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