Item 1.01 Entry into a Material Definitive Agreement.
On
Merger Sub's obligation to purchase the Company Common Stock validly tendered
pursuant to the Offer is subject to the satisfaction or waiver of certain
conditions set forth in the Merger Agreement, including, (i) that enough shares
of Company Common Stock be validly tendered and not validly withdrawn which,
when added to the shares of Company Common Stock owned by Nestlé and its wholly
owned subsidiaries, would represent at least a majority of the outstanding
shares of Company Common Stock as of the expiration of the Offer; (ii) the
waiting period applicable to the purchase of shares of Company Common Stock
pursuant to the Offer and the consummation of the Merger (as defined below)
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (or
any extension thereof) will have either expired or terminated; (iii) there is no
temporary restraining order, preliminary or permanent injunction or judgment
issued by any court of competent jurisdiction or law in
Following the completion of the Offer, and upon the terms and subject to the
conditions set forth in the Merger Agreement and in accordance with the Delaware
General Corporation Law (the "DGCL"), Merger Sub will merge with and into the
Company (the "Merger"). Following the Merger, the separate corporate existence
of Merger Sub will cease, and the Company will continue as the surviving
corporation in the Merger as a wholly owned subsidiary of Nestlé (the "Surviving
Corporation"). The Merger will be governed by Section 251(h) of the DGCL and
will be effected without a vote of the Company's stockholders. At the date and
time at which the Merger becomes effective (the "Effective Time"), by virtue of
the Merger and without any action on the part of the holders of any shares of
capital stock of Nestlé, Merger Sub or the Company, (i) each share of capital
stock of Merger Sub issued and outstanding immediately prior to the Effective
Time will be automatically converted into one validly issued, fully paid and
nonassessable share of common stock, par value
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outstanding immediately prior to the Effective Time (other than shares to be canceled in accordance with the foregoing and any shares of Company Common Stock owned by Company stockholders who are entitled to appraisal rights under Section 262 of the DGCL and have complied with all provisions of the DGCL concerning such rights (the "Dissenting Shares")) will automatically be converted into the right to receive an amount in cash equal to the Offer Price, subject to reduction for any applicable withholding taxes and without interest (the "Merger Consideration"). Dissenting Shares will not be converted into the right to receive the Merger Consideration, but will become the right to receive the fair value of such shares of Company Common Stock pursuant to the procedures set forth in Section 262 of the DGCL.
In addition, as of the Effective Time, (i) each Company Stock Option (as defined in the Merger Agreement) that is outstanding and unexercised immediately prior to the Effective Time will vest in full and will terminate and will be converted into the right to receive a cash payment, less any required withholding, equal to the product of (A) the number of shares of Company Common Stock that were subject to such Company Stock Option immediately prior to the Effective Time and (B) the excess, if any, of the Offer Price over the per share exercise price of such Company Stock Option; provided, however, that if the exercise price is equal to or greater than the Offer Price, the Company Stock Option will be terminated and cancelled for no payment as provided under the Company Equity Plans (as defined in the Merger Agreement); (ii) each Company RSU (as defined in the Merger Agreement) that is outstanding immediately prior to the Effective Time will vest in full (which, for the Company PSUs (as defined in the Merger Agreement), will assume that all performance vesting conditions have been met) and will terminate and will be converted into the right to receive a cash payment, less any required withholding, equal to (A) the Offer Price multiplied by (B) the number of shares of Company Common Stock subject to the Company RSU; and (iii) all Company Equity Plans will be terminated.
The Merger Agreement contains customary representations, warranties and covenants, including covenants obligating the Company to continue to conduct its business in the ordinary course, to cooperate in seeking regulatory approvals and not to engage in certain specified transactions or activities without Nestlé's prior consent. In addition, subject to certain exceptions, the Company has agreed not to solicit, initiate, knowingly facilitate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to a Takeover Proposal (as defined in the Merger Agreement), or take certain other restricted actions in connection therewith. Notwithstanding the foregoing, if the Company receives a bona fide written Takeover Proposal from a third party after the date of the Merger Agreement that did not result from a material breach of the non-solicitation provisions of the Merger Agreement and the Company's Board of Directors (the "Board") determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal (as defined in the Merger Agreement) and the failure to take certain actions would be inconsistent with the Board's fiduciary duties under applicable law, then, the Company may take certain actions to participate in discussions and negotiations and furnish information with respect to such Takeover Proposal, after providing written notice to Nestlé of such determination.
The Company will (i) file with the
Item 7.01 Regulation FD Disclosure.
On
The information contained in this Item 7.01 and in Exhibit 99.1 of this Report shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, nor shall it be incorporated by reference into any filing under the Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act, except as expressly set forth by specific reference in such filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofAugust 29, 2020 , by and amongAimmune Therapeutics, Inc. , Sociétés des Produits Nestlé S.A., andSPN MergerSub, Inc. 99.1 Press Release of the Company, datedAugust 31, 2020 . 104 Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document.
* Certain exhibits and schedules have been omitted pursuant to Item 601(b)(2) of
Regulation S-K.
any of the omitted exhibits and schedules upon request by the
however, that the Company may request confidential treatment pursuant to Rule
24b-2 of the Exchange Act for any exhibits or schedules so furnished.
Additional Information and Where to Find It:
The Offer described above has not yet commenced. This communication is neither
an offer to purchase nor a solicitation of an offer to sell any securities of
the Company. The solicitation and the offer to purchase shares of Company Common
Stock will only be made pursuant to a tender offer statement on Schedule TO,
including an offer to purchase, a letter of transmittal and other related
materials that Nestlé and Merger Sub intend to file with the
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Forward-Looking Statements
The statements included above that are not a description of historical facts are forward-looking statements. Words or phrases such as "believe," "may," "could," "will," "estimate," "continue," "anticipate," "intend," "seek," "plan," "expect," "should," "would" or similar expressions are intended to identify forward-looking statements. These forward-looking statements include, without limitation, statements regarding the planned completion of the transactions contemplated by the Merger Agreement. Additional statements include, but are not limited to, statements regarding: the Company's expectations regarding the potential benefits of PALFORZIA; the Company's expectations regarding the potential commercial launch of PALFORZIA; and the Company's expectations regarding potential applications of the CODIT approach to treating life-threatening food allergies.
Risks and uncertainties that could cause results to differ from expectations
include: uncertainties as to the timing and completion of the Offer and the
Merger; uncertainties as to the percentage of the Company stockholders tendering
their shares in the Offer; the possibility that competing offers may be made;
the possibility that various closing conditions for the Offer or the Merger may
not be satisfied or waived, including that a governmental entity may prohibit,
delay or refuse to grant approval for the consummation of the Merger; the
occurrence of any event, change or other circumstance that could give rise to
the termination of the Merger Agreement; the effects of disruption caused by the
transaction making it more difficult to maintain relationships with employees,
collaborators, vendors 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; and risks and uncertainties
pertaining to the Company's business, including the risks and uncertainties
detailed in the Company's public periodic filings with the
You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement and the Company undertakes no obligation to revise or update these statements to reflect events or circumstances after the date hereof, except as required by law.
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