Item 8.01. Other Events.
Shareholder Litigation
As previously disclosed, on November 10, 2019, Menlo Therapeutics, Inc.
("Menlo"), Foamix Pharmaceuticals Ltd. ("Foamix") and Giants Merger Subsidiary
Ltd., a wholly-owned subsidiary of Menlo ("Merger Sub") entered into an
Agreement and Plan of Merger (as amended by Amendment No. 1 to the Agreement and
Plan of Merger, dated as of December 4, 2019, as may be further amended from
time to time, the "Merger Agreement"). Pursuant to the terms of the Merger
Agreement, Merger Sub will merge with and into Foamix, with Foamix surviving as
a wholly-owned subsidiary of Menlo (the "Merger").
As previously reported in Menlo's Registration Statement on Form S-4
(Registration No. 333-235351) (the "Registration Statement") initially filed on
December 4, 2019 (as amended by Amendment No. 1, filed January 6, 2020) relating
to the Merger Agreement and Menlo's 8-K filed on January 15, 2020 (the
"Additional Material"), on December 11, 2019 and December 18, 2019, purported
shareholders of Foamix filed putative class action lawsuits against the members
of Foamix's board of directors (the "Foamix Board"), Foamix, Menlo and Merger
Sub in the United States District Court for the District of Delaware and the
United States District Court for the District of New Jersey, respectively, and
on December 12, 2019, December 17, 2019, December 20, 2019 and January 7, 2020,
purported shareholders of Foamix filed individual lawsuits against the members
of the Foamix Board and Foamix. The lawsuits filed on December 12, 2019 and
January 7, 2020 were filed in the United States District Court for the District
of New Jersey and the lawsuits filed on December 17, 2019 and December 20, 2019
were filed in the United States District Court for the Southern District of New
York.
On January 21, 2020, a purported shareholder of Foamix filed an individual
action against Foamix and the Foamix Board in the United States District Court
for the District of New Jersey under the caption Nam v. Foamix Pharmaceuticals
Ltd., et al., Case No. 3:20-cv-00670 (D.N.J.) (the "Nam Action"). The Nam Action
generally claims that the Registration Statement issued in connection with the
Merger omitted material information in violation of Sections 14(a) and 20(a) of
the Exchange Act. The Nam Action seeks, among other things, injunctive relief to
prevent consummation of the Merger, rescission or rescissory damages in the
event the Merger is consummated, a declaration that defendants violated Sections
14(a) and/or 20(a) of the Exchange Act, costs, including attorneys' fees and
such other and further relief as the court may deem just and proper. In
addition, the Nam Action requests an order directing the individual defendants
to disseminate a proxy statement that does not contain any untrue statements of
material fact and that states all material facts necessary to make the
statements contained therein not misleading.
While Menlo believes that the disclosures set forth in the Registration
Statement and the Additional Material comply fully with applicable law, in order
to avoid nuisance, cost and distraction that may result from litigation, and to
preclude any efforts to delay Foamix's extraordinary general meeting of
shareholders and closing, Menlo has determined to voluntarily amend and
supplement the Registration Statement with the additional information set forth
below. Nothing in this Current Report on Form 8-K shall be deemed an admission
of the legal necessity or materiality under applicable laws of any of the
disclosures set forth herein.
Amendment to the Registration Statement
The following additional information should be read in conjunction with the
Registration Statement and the Additional Material, which should be read in
their entirety. To the extent that information herein differs from or updates
information contained in the Registration Statement or the Additional Material,
the information contained herein supersedes the information contained in the
Registration Statement and the Additional Material. All page references are to
pages in the Registration Statement, and terms used below, unless otherwise
defined, have the meanings set forth in the Registration Statement.
The disclosure in the Registration Statement in the section "The
Merger-Recommendation of the Foamix Board and Foamix's Reasons for the
Merger-Strategic Rationale" beginning on page 103 is amended as follows:
By replacing the second bullet under the heading "Strategic Rationale" on page
103 with the following:
• The Foamix Board considered that the proposed merger creates a stronger,
more diversified player in the dermatological space with the potential to
launch three products within the next three years and the opportunities
to take advantage of cost synergies related to overhead, sales,
marketing, distribution and administrative functions because Foamix's
existing and planned commercial infrastructure and dermatology sales
force can also support the launch of Menlo's product candidate, if
approved. Foamix's management considered that cost savings synergies
could be more than $50 million per year beginning in 2021 for the
Combined Company as compared with the costs of operating the companies
separately based upon the anticipated costs of each company to
independently commercialize their products and product candidates, if
approved.
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Additional Information and Where to Find It
On January 6, 2020, Menlo filed a Registration Statement on Form S-4 containing
a joint proxy statement/prospectus of Menlo and Foamix and other documents
concerning the proposed merger with the SEC. The registration statement has been
declared effective by the SEC. BEFORE MAKING ANY VOTING DECISION, MENLO'S AND
FOAMIX'S RESPECTIVE STOCKHOLDERS ARE URGED TO READ THE DEFINITIVE JOINT PROXY
STATEMENT/PROSPECTUS IN ITS ENTIRETY AND ANY OTHER DOCUMENTS FILED BY EACH OF
MENLO AND FOAMIX WITH THE SEC IN CONNECTION WITH THE PROPOSED MERGER OR
INCORPORATED BY REFERENCE THEREIN BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED MERGER AND THE PARTIES TO THE PROPOSED MERGER.
Security holders may obtain a free copy of the Form S-4, including the joint
proxy statement/prospectus, and other documents filed by Menlo and Foamix with
the SEC at the SEC's website at www.sec.gov. Investors and stockholders will be
able to obtain a free copy of the Form S-4, including the joint proxy
statement/prospectus, and other documents containing important information about
Menlo and Foamix through the website maintained by the SEC at www.sec.gov. Menlo
and Foamix make available free of charge at
http://ir.menlotherapeutics.com/financials/sec-filings and
https://www.foamix.com/investors/sec-filings, respectively, copies of materials
they file with, or furnish to, the SEC.
Participants in the Solicitation
This communication does not constitute a solicitation of proxy, an offer to
purchase or a solicitation of an offer to sell any securities. Menlo, Foamix and
their respective directors, executive officers and certain employees may be
deemed to be participants in the solicitation of proxies from the stockholders
of Menlo and Foamix in connection with the proposed merger. Security holders may
obtain information regarding the names, affiliations and interests of Menlo's
directors and officers in Menlo's Annual Report on Form 10-K for the fiscal year
ended December 31, 2018, which was filed with the SEC on February 28, 2019, and
its definitive proxy statement for the 2019 annual meeting of stockholders,
which was filed with the SEC on May 10, 2019. Security holders may obtain
information regarding the names, affiliations and interests of Foamix's
directors and officers in Foamix's Annual Report on Form 10-K for the fiscal
year ended December 31, 2018, which was filed with the SEC on February 28, 2019,
and its definitive proxy statement for the 2019 annual meeting of stockholders,
which was filed with the SEC on March 11, 2019. To the extent the holdings of
Menlo securities by Menlo's directors and executive officers or the holdings of
Foamix securities by Foamix's directors and executive officers have changed
since the amounts set forth in Menlo's or Foamix's respective proxy statement
for its 2019 annual meeting of stockholders, such changes have been or will be
reflected on Statements of Change in Ownership on Form 4 filed with the SEC.
Additional information regarding the interests of such individuals in the
proposed merger is contained in the joint proxy statement/prospectus relating to
the proposed merger filed, and may be contained in other relevant materials that
may in the future be filed, with the SEC regarding the proposed merger. These
documents may be obtained free of charge from the SEC's website at www.sec.gov,
Menlo's website at http://ir.menlotherapeutics.com/financials/sec-filings and
Foamix's website at https://www.foamix.com/investors/sec-filings.
Forward-Looking Statements
This communication contains forward-looking statements within the meaning of the
federal securities law that are subject to various risks and uncertainties that
could cause our actual results to differ materially from those expressed or
implied in such statements. Words such as "anticipate," "expect," "project,"
"intend," "believe," and words and terms of similar substance used in connection
with any discussion of future plans, actions or events identify forward-looking
statements. Such factors include, but are not limited to: (i) Menlo or Foamix
may be unable to obtain stockholder approval as required for the merger;
(ii) other conditions to the closing of the merger may not be satisfied;
(iii) the merger may involve unexpected costs, liabilities or delays; (iv) the
effect of the announcement of the merger on the ability of Menlo or Foamix to
retain and hire key personnel and maintain relationships with customers,
suppliers and others with whom Menlo or Foamix does business, or on Menlo's or
Foamix's operating results and business generally; (v) Menlo's or Foamix's
respective businesses may suffer as a result of uncertainty surrounding the
merger and disruption of management's attention due to the merger; (vi) the
outcome of any legal proceedings related to the merger; (vii) Menlo or Foamix
may be adversely affected by other economic, business, and/or competitive
factors; (viii) the occurrence of any event, change or other circumstances that
could give rise to the termination of the merger agreement; (ix) risks that the
merger disrupts current plans and operations and the potential difficulties in
employee retention as a result of the merger; (x) the risk that Menlo or Foamix
may be unable to obtain governmental and regulatory approvals required for the
transaction, or that required governmental and regulatory approvals may delay
the transaction or result in the imposition of conditions that could reduce the
anticipated benefits from the proposed transaction or cause the parties to
abandon the proposed transaction; and (xi) other risks to consummation of the
merger, including the risk that the merger will not be consummated within the
expected time period or at all. Additional factors that may affect the future
results of Menlo and Foamix are set forth in their respective filings with the
SEC, including each of Menlo's or Foamix's most recently filed Annual Report on
Form 10-K, subsequent Quarterly Reports on Form 10-Q, Current Reports on Form
8-K and other filings with the SEC, which are available on the SEC's website at
www.sec.gov. See in particular Item 1A of Part II of Menlo's Quarterly Report on
Form 10-Q for the quarter ended September 30, 2019 under the heading "Risk
Factors" and Item 1A of Part II of Foamix's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2019 under the heading "Risk Factors." The risks
and uncertainties described above and in Menlo's most recent Quarterly Report on
Form 10-Q and Foamix's most recent Quarterly Report on Form 10-Q are not
exclusive and further information concerning Menlo and Foamix and their
respective businesses, including factors that potentially could materially
affect its business, financial condition or operating results, may emerge from
time to time. Readers are urged to consider these factors carefully in
evaluating these forward-looking statements. Readers should also carefully
review the risk factors described in other documents that Menlo and Foamix file
from time to time with the SEC. The forward-looking statements in this press
release speak only as of the date of this press release. Except as required by
law, Menlo and Foamix assume no obligation to update or revise these
forward-looking statements for any reason, even if new information becomes
available in the future.
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