Item 1.01. Entry into a Material Definitive Agreement.
On August 3, 2022, Amgen Inc., a Delaware corporation ("Amgen") entered into an
Agreement and Plan of Merger (the "Merger Agreement") among Amgen, Carnation
Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Amgen
("Merger Sub") and ChemoCentryx, Inc., a Delaware corporation ("ChemoCentryx"),
pursuant to and subject to the terms and conditions of which Merger Sub will be
merged with and into ChemoCentryx, with ChemoCentryx surviving the merger as a
wholly owned subsidiary of Amgen (the "Merger").
Subject to the terms and conditions set forth in the Merger Agreement, at the
effective time of the Merger (the "Effective Time"), each share of common stock,
par value $0.001 per share, of ChemoCentryx (the "ChemoCentryx Common Stock" and
such shares, collectively, the "Shares") outstanding immediately prior to the
Effective Time (other than any such Shares (i) held by ChemoCentryx as treasury
stock or owned by Amgen or Merger Sub, (ii) held by any subsidiary of
ChemoCentryx or Amgen (other than Merger Sub) or (iii) as to which appraisal
rights have been properly exercised, and not withdrawn, in accordance with the
Delaware General Corporation Law) will generally be converted into the right to
receive $52.00 per Share in cash, without interest (the "Merger Consideration").
In addition, at the Effective Time, each equity award with respect to
ChemoCentryx Common Stock (other than restricted stock unit awards granted to
employees after the date of the Merger Agreement) will, to the extent unvested,
vest in full and be cancelled and converted into the right to receive the Merger
Consideration (less the applicable exercise price in the case of stock options).
Restricted stock unit awards granted after the date of the Merger Agreement will
generally be converted into an amount in cash equal to the Merger Consideration,
which amount will vest and become payable at the same time the original
restricted stock unit award otherwise would have vested and become payable,
subject to continued service.
Conditions to the Merger
The consummation of the Merger is subject to certain customary closing
conditions set forth in the Merger Agreement, including (i) adoption of the
Merger Agreement and approval of the Merger by the affirmative vote of the
holders of a majority of the outstanding Shares (the "ChemoCentryx Stockholder
Approval"), (ii) the absence of any temporary restraining order, preliminary or
permanent injunction or other order by any court of competent jurisdiction
preventing the consummation of the Merger, or any applicable law or order by any
governmental authority that prohibits or makes illegal the consummation of the
Merger and (iii) the expiration or early termination of the waiting period (and
any extension thereof) applicable to the consummation of the Merger under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. Each party's
obligation to complete the Merger is also subject to certain additional
conditions, including (i) subject to certain exceptions, the accuracy of the
representations and warranties of the other party, (ii) in the case of Amgen's
obligation to complete the Merger, the absence of a Material Adverse Effect (as
defined in the Merger Agreement) with respect to ChemoCentryx that is continuing
and (iii) compliance and performance in all material respects by the other party
of its covenants and agreements set forth in the Merger Agreement.
Representations and Warranties; Covenants
The Merger Agreement contains customary representations and warranties with
respect to each party. The Merger Agreement also contains customary covenants,
including, among others, covenants requiring ChemoCentryx to use commercially
reasonable efforts to conduct its business in the ordinary course consistent
with past practice during the period between execution of the Merger Agreement
and the Effective Time.
Under the Merger Agreement, each of Amgen and ChemoCentryx has agreed to use its
respective reasonable best efforts to take all actions under antitrust laws or
other applicable law to consummate and make effective the transactions
contemplated by the Merger Agreement as soon as reasonably practicable. The
parties have also agreed to use reasonable best efforts to promptly take all
actions to obtain required regulatory approvals, subject to the limitation that
Amgen is not obligated to take certain specified actions (x) with respect to any
assets, categories of assets or portions of any business of Amgen or any of its
subsidiaries or (y) with respect to assets, categories of assets or portions of
any business of ChemoCentryx or its subsidiaries, if such action, individually
or in the aggregate, would reasonably be expected to be material to ChemoCentryx
and its subsidiaries, taken as a whole.
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The Merger Agreement also includes covenants requiring ChemoCentryx (i) not to
solicit, or enter into discussions with third parties relating to, alternative
acquisition proposals during the period between the execution of the Merger
Agreement and the Effective Time, subject to certain exceptions, and (ii) to
call and hold a special meeting of the ChemoCentryx stockholders to adopt the
Merger Agreement and approve the Merger and, subject to certain exceptions, not
to withdraw, qualify or modify in a manner adverse to Amgen the recommendation
of the ChemoCentryx board of directors that the ChemoCentryx stockholders adopt
the Merger Agreement and approve the Merger.
Termination and Termination Fees
The Merger Agreement may be terminated by Amgen and ChemoCentryx by mutual
agreement in writing. In addition, either party may terminate the Merger
Agreement if (a) there has been a breach of any representation, warranty,
covenant or agreement made by the other party in the Merger Agreement such that
an applicable closing condition would not be satisfied (subject to cure rights),
(b) the Merger does not occur by May 3, 2023 (which date will automatically be
extended by three months to August 3, 2023 if the only then-outstanding closing
conditions relate to regulatory approval) (such date, as may be extended), (c)
there is a final and non-appealable order, decree or ruling permanently
restraining, enjoining or otherwise prohibiting the consummation of the Merger
or a governmental authority that must grant a required regulatory approval has
denied such approval and such denial has become final and non-appealable or
(d) the ChemoCentryx Stockholder Approval has not been obtained at a duly
convened meeting of ChemoCentryx's stockholders held to consider the adoption of
the Merger Agreement at which a vote on the Merger Agreement is taken. Prior to
receipt of the ChemoCentryx Stockholder Approval, each party has additional
termination rights specified in the Merger Agreement, including (x) the right of
ChemoCentryx to terminate the Merger Agreement in order to enter into a
definitive agreement providing for a Superior Proposal (as defined in the Merger
Agreement), subject to compliance by ChemoCentryx with certain requirements in
the Merger Agreement and payment of the termination fee described below, (y) the
right of Amgen to terminate the Merger Agreement if the ChemoCentryx board of
directors changes its recommendation in favor of the Merger and (z) the right of
Amgen to terminate the Merger Agreement if there has been an intentional and
material breach by ChemoCentryx of the non-solicitation provisions in the Merger
Agreement.
The Merger Agreement provides that ChemoCentryx must pay Amgen a termination fee
equal to approximately $119 million if (i) ChemoCentryx terminates the Merger
Agreement prior to receipt of the ChemoCentryx Stockholder Approval to enter
into a definitive agreement providing for a Superior Proposal, (ii) Amgen
terminates the Merger Agreement prior to receipt of the ChemoCentryx Stockholder
Approval in the event that the ChemoCentryx board of directors changes its
recommendation to its stockholders in favor of the Merger or there has been an
intentional and material breach by ChemoCentryx of the non-solicitation
provisions in the Merger Agreement, or (iii) if the Merger Agreement is
terminated in certain circumstances following ChemoCentryx's receipt of an
acquisition proposal and, within twelve (12) months of such termination, an
acquisition proposal is consummated or a definitive agreement is entered into
with respect to an acquisition proposal.
Additional Information
The foregoing description of the Merger Agreement does not purport to be
complete and is subject to, and qualified in its entirety by, the full text of
the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and is
incorporated by reference herein.
The Merger Agreement has been included to provide investors with information
regarding its terms. It is not intended to provide any other factual information
about Amgen, Merger Sub, ChemoCentryx or their respective subsidiaries or
affiliates or to modify or supplement any factual disclosures about Amgen or
ChemoCentryx included in their respective public reports filed with the
Securities and Exchange Commission ("SEC"). The representations, warranties and
covenants contained in the Merger Agreement were made only for purposes of the
Merger Agreement and as of the specific dates therein, were solely for the
benefit of the parties to the Merger Agreement, may be subject to limitations,
qualifications or other particulars agreed upon by the contracting parties,
including being qualified by confidential disclosures, and were made for the
purposes of allocating contractual risk
. . .
Item 7.01. Regulation FD Disclosure.
On August 4, 2022, Amgen and ChemoCentryx issued a joint press release
announcing the entry into the Merger Agreement, a copy of which is attached as
Exhibit 99.1 to this report and incorporated into this Item 7.01 by reference.
The information contained in this Item 7.01 and Exhibit 99.1 shall not be deemed
to be "filed" for the purposes of Section 18 of the Securities Exchange Act of
1934 (the "Exchange Act"), or otherwise subject to the liabilities of such
section, nor will such information be deemed incorporated by reference in any
filing under the Securities Act of 1933, as amended, or the Exchange Act, except
as may be expressly set forth by specific reference in such filing.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit
No. Description of Exhibit
2.1 Agreement and Plan of Merger, dated as of August 3, 2022 among
ChemoCentryx, Inc., Amgen Inc. and Carnation Merger Sub, Inc.*
99.1 Joint Press Release, dated as of August 4, 2022.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
* Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of
Regulation S-K. The registrant agrees to furnish supplementally a copy of any
omitted schedule or exhibit to the SEC upon its request.
Forward-Looking Statements
This communication contains forward-looking statements. These forward-looking
statements generally include statements that are predictive in nature and depend
on or refer to future events or conditions, and include words such as "expect,"
"anticipate," "outlook," "could," "target," "project," "intend," "plan,"
"believe," "seek," "estimate," "should," "may," "assume" and "continue" as well
as variations of such words and similar expressions. By their nature,
forward-looking statements involve risks and uncertainty because they relate to
events and depend on circumstances that will occur in the future, and there are
many factors that could cause actual results and developments to differ
materially from those expressed or implied by these forward-looking statements.
Forward-looking statements include, among other things, statements about the
potential benefits of the proposed acquisition of ChemoCentryx by Amgen (the
"proposed transaction"); the prospective performance and outlook of
ChemoCentryx's business, performance and opportunities; any potential strategic
benefits, synergies or opportunities expected as a result of the proposed
transaction; the ability of the parties to complete the proposed transaction and
the expected timing of completion of the proposed transaction; as well as any
assumptions underlying any of the foregoing.
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These statements are not guarantees of future performance and they involve
certain risks, uncertainties and assumptions that are difficult to predict. We
caution you that actual outcomes and results may differ materially from what is
expressed, implied or forecasted by our forward-looking statements. There can be
no guarantee that the proposed transaction will be completed, or that it will be
completed as currently proposed, or at any particular time. Neither can there be
any guarantee that Amgen or ChemoCentryx will achieve any particular future
financial results, or that Amgen will be able to realize any of the potential
strategic benefits, synergies or opportunities as a result of the proposed
acquisition. In particular, our expectations could be affected by, among other
things: the risk that the proposed transaction may not be completed in a timely
manner or at all; the possibility that competing offers or acquisition proposals
for ChemoCentryx will be made; the possibility that required regulatory,
stockholder or other approvals or other conditions to the consummation of
proposed transaction may not be satisfied on a timely basis or at all (and the
risk that such approvals may result in the imposition of conditions that could
adversely affect Amgen or ChemoCentryx or the expected benefits of the proposed
transaction); regulatory actions or delays or government regulation generally,
including potential regulatory actions or delays relating to the completion of
the potential transaction; the occurrence of any event, change or other
circumstance that could give rise to the right of Amgen or ChemoCentryx to
terminate the definitive merger agreement governing the terms and conditions of
the proposed transaction; effects of the announcement, pendency or consummation
of the proposed transaction on ChemoCentryx's ability to retain and hire key
personnel, its ability to maintain relationships with its customers, suppliers
and others with whom it does business, its business generally or its stock
price; risks related to the diversion of management's attention from ongoing
business operations and opportunities; the risk that stockholder litigation in
connection with the proposed transaction may result in significant costs of
defense, indemnification and liability; the potential that the strategic
benefits, synergies or opportunities expected from the proposed transaction may
not be realized or may take longer to realize than expected; the successful
integration of ChemoCentryx into Amgen subsequent to the closing of the proposed
transaction and the timing, difficulty and cost of such integration; the
possibility that the proposed transaction may be more expensive to complete than
anticipated, including as a result of unexpected factors or events; and other
risks and factors referred to from time to time in Amgen's and ChemoCentryx's
filings with the SEC, including Amgen's Annual Report on Form 10-K for the year
ended December 31, 2021 and subsequent Quarterly Reports on Form 10-Q and
ChemoCentryx's Annual Report on Form 10-K for the year ended December 31, 2021
and subsequent Quarterly Reports on Form 10-Q, including those related to the
uncertainties inherent in the research and development of new and existing
healthcare products, including clinical and regulatory developments and
additional analysis of existing clinical data; our ability to obtain or maintain
proprietary intellectual property protection; safety, quality or manufacturing
issues or delays; changes in expected or existing competition; and domestic and
global trends toward health care cost containment, including government, payor
and general public pricing and reimbursement pressures. The effects of the
COVID-19 pandemic may give rise to risks that are currently unknown or amplify
the risks associated with many of these factors. Amgen is providing the
information in this communication as of this date and does not undertake any
obligation to update any forward-looking statements as a result of new
information, future events or otherwise.
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