Item 1.01. Entry into a Material Definitive Agreement
On August 3, 2022, ChemoCentryx, Inc., a Delaware corporation ("ChemoCentryx"),
entered into an Agreement and Plan of Merger (the "Merger Agreement") among
ChemoCentryx, Amgen Inc., a Delaware corporation ("Amgen"), and Carnation Merger
Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Amgen
("Merger Sub"), 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rights have been properly exercised, and not withdrawn, in accordance with the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 be converted into the right to receive
$52.00 per Share in cash, without interest (the "Merger Consideration").
Immediately prior to the Effective Time, (i) each ChemoCentryx stock option that
is outstanding immediately prior to the Effective Time shall vest in full and be
cancelled and converted into the right to receive an amount in cash equal to the
product of the excess, if any, of the Merger Consideration over the exercise
price of such ChemoCentryx stock option and the number of Shares underlying such
option; (ii) each ChemoCentryx restricted share unit that is outstanding
immediately prior to the Effective Time and that was (A) granted prior to
August 3, 2022 and/or (B) held by a non-employee member of the board of
directors of ChemoCentryx (the "Board"), shall vest in full and be cancelled and
converted into the right to receive an amount in cash equal to the product of
the Merger Consideration and the number of Shares underlying such ChemoCentryx
restricted share unit; and (iii) each ChemoCentryx restricted share award that
is outstanding immediately prior to the Effective Time and that was (A) granted
prior to August 3, 2022 and/or (B) held by a non-employee member of the Board,
shall vest in full and be cancelled and converted into the right to receive an
amount in cash equal to the Merger Consideration.
The Board has unanimously (i) determined that the Merger Agreement and the
transactions contemplated thereby, including the Merger, are fair to, and in the
best interests of, ChemoCentryx and its stockholders, (ii) approved, adopted and
declared advisable the Merger Agreement and the transactions contemplated
thereby, including the Merger, in each case, upon the terms and subject to the
conditions contained in the Merger Agreement and in accordance with the
requirements of the General Corporation Law of the State of Delaware, and
(iii) resolved, upon the terms and subject to the conditions contained in the
Merger Agreement, to recommend that ChemoCentryx's stockholders vote their
Shares in favor of adopting the Merger Agreement and approving the transactions
contemplated thereby, including the Merger.
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 entitled to vote thereon (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 (subject to certain materiality qualifications), (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
has occurred since August 3, 2022 and is continuing as of immediately prior to
the Effective Time 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 in all material respects its business in the
ordinary course consistent with past practice during the period between
execution of the Merger Agreement and the earlier of the Effective Time or the
termination of the Merger Agreement.
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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
Amgen or any of its subsidiaries or any of its or their respective businesses,
product lines, assets or operations or (y) if such action, individually or in
the aggregate, would reasonably be expected to be material to the business,
assets or financial condition of ChemoCentryx and its subsidiaries, taken as a
whole.
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 Board 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, the
"End Date"), (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
Board 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 Board 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
. . .
Item 7.01. Regulation FD Disclosure.
On August 4, 2022, ChemoCentryx and Amgen 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.
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Additional Information
This report may be deemed solicitation material in respect of the proposed
acquisition of ChemoCentryx by Amgen. ChemoCentryx expects to file with the SEC
a proxy statement and other relevant documents with respect to a special meeting
of the stockholders of ChemoCentryx to approve the proposed Merger. Investors of
ChemoCentryx are urged to read the definitive proxy statement and other relevant
materials carefully and in their entirety when they become available because
they will contain important information about ChemoCentryx, Amgen and the
proposed Merger. Investors may obtain a free copy of these materials (when they
are available) and other documents filed by ChemoCentryx with the SEC at the
SEC's website at www.sec.gov, at ChemoCentryx's website at
https://chemocentryx.com or by sending a written request to ChemoCentryx at 835
Industrial Road, Suite 600, San Carlos, CA 94070, Attention: Legal.
Participants in the Solicitation
ChemoCentryx and its directors, executive officers and certain other members of
management and employees may be deemed to be participants in soliciting proxies
from its stockholders in connection with the proposed Merger. Information
regarding the persons who may, under the rules of the SEC, be considered to be
participants in the solicitation of ChemoCentryx's stockholders in connection
with the proposed Merger will be set forth in ChemoCentryx's definitive proxy
statement for its special stockholders meeting. Additional information regarding
these individuals and any direct or indirect interests they may have in the
proposed Merger will be set forth in the definitive proxy statement when and if
it is filed with the SEC in connection with the proposed Merger.
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.
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
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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 Securities and Exchange Commission,
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. ChemoCentryx 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.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
2.1 Agreement and Plan of Merger, dated August 3, 2022, by and among
ChemoCentryx, Inc., Amgen Inc. and Carnation Merger Sub, Inc.*
99.1 Joint Press Release dated August 4, 2022 issued by ChemoCentryx, Inc.
and Amgen Inc.
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.
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