APOLLO ENDOSURGERY, INC. Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
At the effective time of the Merger (the "Effective Time"), each:
(i) share of common stock, par value $0.001 per share, of the Company (the
"Shares") issued and outstanding as of immediately prior to the Effective
Time (except for Shares (A) held in the treasury of the Company or owned
by any direct or indirect wholly owned subsidiary of the Company;
(B) owned by Merger Sub, Parent or any direct or indirect wholly owned
subsidiary of Parent; and (C) held by holders (i) who are entitled to
demand appraisal rights under Section 262 of the Delaware General
Corporation Law, as amended (the "DGCL"), (ii) have properly exercised
and perfected their respective demands for appraisal of such Shares in
the time and manner provided in Section 262 of the DGCL and (iii) as of
the Effective Time, have neither effectively withdrawn nor lost their
rights to such appraisal and payment under the DGCL), in each case, will
be canceled and converted into the right to receive $10.00 in cash,
without interest (the "Merger Consideration");
(ii) outstanding and unexercised option to purchase Shares granted under any
Company stock plan (each, a "Company Option") with an exercise price per
Share that is less than the Merger Consideration, whether vested or
unvested, will be canceled and converted into the right to receive an
amount in cash, without interest, equal to the product of (A) the amount
by which the Merger Consideration exceeds the applicable exercise price
per Share of such Company Option and (B) the aggregate number of Shares
issuable upon exercise of such Company Option, less applicable taxes and
authorized deductions;
(iii) Company Option, whether vested or unvested, that has an exercise price
per Share that is greater than the Merger Consideration will be canceled
without the payment of consideration;
(iv) outstanding restricted stock unit award granted under any Company stock
plan (each, a "Company RSU"), whether vested but unsettled or unvested,
will be canceled and converted into the right to receive an amount in
cash, without interest, equal to the product of (A) the Merger
Consideration and (B) the aggregate number of Shares underlying such
Company RSU, less applicable taxes and authorized deductions; and
(v) outstanding performance restricted stock unit award granted under any
Company stock plan that vests based on achievement of any performance
condition and the passage of time (each, a "Company PSU"), whether vested
but unsettled or unvested, will be canceled and converted into the right
to receive an amount in cash, without interest, equal to the product of
(A) the Merger Consideration and (B) the aggregate number of Shares
underlying such Company PSU (determined as if all performance conditions
in the applicable award agreements relating thereto have been satisfied
as of immediately prior to the Effective Time), less applicable taxes and
authorized deductions.
Consummation of the Merger is subject to certain conditions, including, but not limited to, the: (i) the affirmative vote of the holders of a majority of all outstanding Shares to adopt the Merger Agreement (the "Company Stockholder Approval") will have been obtained; (ii) expiration or termination of any waiting periods applicable to the consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the receipt of certain additional consents, approvals, non-approvals and other authorizations of certain other governmental bodies applicable to the Merger; and (iii) absence of any decision, injunction, decree, ruling, law or order enjoining or otherwise prohibiting or making illegal the consummation of the Merger.
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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 Merger Agreement also includes covenants requiring the Company not to (i) solicit, initiate, knowingly facilitate or knowingly encourage any inquires or the implementation or submission of any acquisition proposal, or any proposals or offers that would be reasonably expected to lead to, an acquisition proposal, (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information in connection with any inquiries, proposals or offers that constitute, or would be reasonably expected to lead to, an acquisition proposal, (iii) otherwise knowingly facilitate or knowingly encourage any effort or attempt to make an acquisition proposal, or any inquiries, proposals or offers that would reasonably be expected to lead to an acquisition proposal; or (iv) execute or enter into any acquisition agreement regarding, or that is intended to result in, or could reasonably be expected to lead to, any acquisition proposal, subject to, prior to receipt of the Company Stockholder Approval, a customary "fiduciary out" provision that allows the Company, under certain specified circumstances, to furnish information to, or engage in negotiations or discussions with, third parties with respect to an acquisition proposal if the Company complies with certain notice and other requirements and the Company's board of directors (the "Company Board") (x) determines in good faith (after consultation with its outside legal counsel and financial advisor) that such acquisition proposal is, or could reasonably be expected to lead to, a superior offer and (y) determines in good faith (after consultation with its outside legal counsel) that its failure to take such actions would be reasonably likely to be inconsistent with its fiduciary duties under applicable law. The Company has also agreed to convene a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval.
The Merger Agreement contains certain termination rights for the Company and
Parent. Upon termination of the Merger Agreement in accordance with its terms,
under specified circumstances, the Company will be required to pay Parent a
termination fee in an amount equal to
The foregoing description of the Merger Agreement and the transactions contemplated thereby (the "Contemplated Transactions") does not purport to be complete, and is subject to, and qualified in its entirety by reference to, the full text of the Merger Agreement, which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
The Merger Agreement contains representations and warranties by each of Parent, Merger Sub and the Company. These representations and warranties were made solely for the benefit of the parties to the Merger Agreement and (i) should not be treated as categorical statements of fact, but rather as a way of allocating the risk among the parties if those statements prove to be inaccurate; (ii) may have been qualified in the Merger Agreement by disclosures that were made by one party to the other parties in connection with the negotiation of the Merger Agreement; and (iii) may apply contractual standards of "materiality" that are different from "materiality" under applicable securities laws.
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Support Agreement
In connection with the execution of the Merger Agreement,
The foregoing description of the CPMG Support Agreement and the transactions contemplated thereby does not purport to be complete, and is subject to, and qualified in its entirety by reference to, the full text of the CPMG Support Agreement which is attached hereto as Exhibit 10.1, and which is incorporated herein by reference.
Additional Information and Where to Find It
In connection with the Contemplated Transactions, Apollo intends to file with
the
Participants in the Solicitation
Apollo and its directors and executive officers may be deemed participants in
the solicitation of proxies from the stockholders of Apollo in connection with
the Contemplated Transactions and any other matters to be voted on at the
special meeting. Information regarding the names, affiliations and interests of
such directors and executive officers will be included in the preliminary and
definitive proxy statements (when available). Additional information regarding
such directors and executive officers is included in Apollo's definitive proxy
statement on Schedule 14A for the 2022 Annual Meeting of the Stockholders, which
was filed with the
Information regarding the persons who may, under
Legal Notice Regarding Forward-Looking Statements
This report, including exhibits attached thereto, contains forward-looking statements which involve substantial risks and uncertainties and are based on our beliefs and assumptions and on information currently available to us. All statements other than statements of historical facts contained in this press release, including statements regarding the Contemplated Transactions (as defined below), are forward-looking statements. These forward-looking statements . . .
Item 9.01 Financial Statements and Exhibits.
Exhibit No. Description of Document 2.1* Agreement and Plan of Merger, dated as ofNovember 29, 2022 , by and among Boston Scientific Corporation,Textile Merger Sub, Inc. andApollo Endosurgery, Inc. 10.1 Voting and Support Agreement, dated as ofNovember 29, 2022 , by and amongBoston Scientific Corporation ,R. Kent McGaughy , Jr., and other Stockholders party thereto. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Certain exhibits and schedules have been omitted pursuant to Item 601(b)(2) of
Regulation S-K.
of any omitted exhibits or schedules upon request.
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