FLEXION THERAPEUTICS, INC.

(FLXN)
Delayed Nasdaq  -  11/18 04:00:00 pm EST
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FLEXION THERAPEUTICS INC : Entry into a Material Definitive Agreement, Termination of a Material Definitive Agreement, Completion of Acquisition or Disposition of Assets, Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement, Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing, Material Modification to Rights of Security Holders, Changes in Control or Registrant, (form 8-K)

11/19/2021 | 09:28am EDT

Item 1.01 Entry into a Material Definitive Agreement.

In connection with the consummation of the Merger (as defined below), the Company and Wells Fargo Bank, National Association (the "Trustee"), entered into a First Supplemental Indenture (the "Supplemental Indenture"), dated as of November 19, 2021, which amends and supplements the Indenture (the "Original Indenture" and, together with the Supplemental Indenture, the "Indenture"), dated as of May 2, 2017, by and between the Company and the Trustee, governing the Company's 3.375% Convertible Senior Notes due 2024 (the "Notes"), of which $201.3 million aggregate principal amount was outstanding as of September 30, 2021.

The Supplemental Indenture provides that, among other things, at and after the Effective Time (as defined below), (a) the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the number of units of Reference Property (as defined in the Indenture) that a holder of a number of Shares (as defined below) equal to the Conversion Rate (as defined in the Indenture) immediately prior to the Merger would have owned or been entitled to receive upon such Merger, and (b) a "unit of Reference Property" shall mean $8.50 per Share, in cash, plus one (1) CVR (as defined below), subject to certain adjustments set forth in the Supplemental Indenture with respect to the date of any such conversions.

The foregoing description of the Indenture does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Original Indenture, which is included as Exhibit 4.1 of the Company's Current Report on Form 8-K filed on May 7, 2017, and is incorporated into this Item 1.01 by reference, and the full text of the Supplemental Indenture, which is included as Exhibit 4.1 hereto and incorporated into this Item 1.01 by reference.

The disclosure contained in Item 2.01 below is incorporated herein by reference.

Item 1.02 Termination of Material Definitive Agreement.

In connection with the consummation of the Merger, on November 19, 2021, all amounts outstanding under the Amended and Restated Credit and Security Agreement, dated as of August 2, 2019, by and among the Company and Silicon Valley Bank, as collateral agent and administrative agent, and as a lender, Midcap Financial Trust, as a lender, and the other lenders from time to time party thereto (as amended, restated, or otherwise modified from time to time, the "Credit Agreement") were repaid in full and the Credit Agreement was terminated.

Item 2.01 Completion of Acquisition or Disposition of Assets.

As previously disclosed, pursuant to the Merger Agreement, on October 22, 2021, Purchaser commenced a tender offer to acquire all of the outstanding shares of common stock of the Company, $0.001 par value per share (the "Shares"), at an offer price of (i) $8.50 per Share, in cash, net of applicable withholding taxes and without interest (the "Cash Amount"), plus (ii) one contingent value right per Share (each, a "CVR"), which will represent the right to receive one or more contingent payments of up to $8.00 per Share in the aggregate, in cash, net of applicable withholding taxes and without interest, upon the achievement of specified milestones on or prior to December 31, 2030, pursuant to the terms of that certain Contingent Value Right Agreement, dated as of November 19, 2021, by and between Pacira and American Stock Transfer & Trust Company, LLC, as rights agent (the "Offer Price"), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated October 22, 2021 (as it may be amended or supplemented from time to time, the "Offer to Purchase"), and in the related Letter of Transmittal (which, together with the Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, constitute the "Offer").

On November 19, 2021, Pacira announced that the offering period of the Offer had expired at one minute following 11:59 p.m., Eastern Time, on November 18, 2021 (the "Expiration Time"), and that as of such time, based on the information provided by the depositary for the Offer, 26,026,307 Shares were validly tendered and not validly withdrawn pursuant to the Offer prior to the Expiration Time, representing approximately 51.7% of the outstanding Shares as of such time, which Shares were sufficient to have met the minimum condition of the Offer and to enable the Merger to occur under Delaware law without a meeting of the Company's stockholders and without a vote of the Company's stockholders. In addition, the depositary for the Offer also advised Purchaser that, as of such time, notices of guaranteed delivery had been received for 9,526,961 Shares, representing approximately 18.9% of the outstanding Shares as of such time. All conditions to the Offer having been satisfied, Purchaser subsequently accepted for payment all Shares validly tendered and not validly withdrawn prior to the Expiration Time, and will promptly pay for such Shares in accordance with the terms of the Offer.

Following the completion of the Offer, on November 19, 2021, pursuant to the terms of the Merger Agreement and in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (the "DGCL"), Purchaser merged with and into the Company with the Company surviving as a wholly owned subsidiary of Pacira (the "Merger"). At the effective time of the Merger (the "Effective Time"), Shares that were not purchased pursuant to the Offer (other than Shares held (i) by the Company or its subsidiaries (including Shares held in the Company's treasury), (ii) by Pacira, Purchaser, any other direct or indirect wholly owned subsidiary of Pacira, or (iii) by stockholders of the Company who have properly exercised and perfected their statutory rights of . . .

Item 2.04. Triggering Events that Accelerate or Increase a Direct Financial

            Obligations or an Obligation under an Off-Balance Sheet Arrangement.



The disclosure contained under the Introductory Note and in Items 1.01, 1.02 and 2.01 above is incorporated herein by reference.

Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or

            Standard; Transfer of Listing.



On November 19, 2021, the Company notified the Nasdaq Global Market ("Nasdaq") of the consummation of the Merger, and requested that Nasdaq (i) suspend trading of the Shares as of the close of business on November 19, 2021 and (ii) file with the SEC a Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on Form 25 to effect the delisting of the Shares from Nasdaq and to deregister the Shares under Section 12(b) of the Exchange Act. In addition, the Company intends to file with the SEC a certification on Form 15 under the Exchange Act requesting the Company's reporting obligations under Sections 13 and 15(d) of the Exchange Act be suspended.

The disclosure contained under the Introductory Note and in Item 2.01 above is incorporated herein by reference.

Item 3.03. Material Modification to Rights of Security Holders.

The disclosure contained under the Introductory Note and in Items 2.01 and 3.01 above and in Items 5.01 and 5.03 below is incorporated herein by reference.

Item 5.01. Changes in Control of Registrant.

The disclosure contained under the Introductory Note and in Item 2.01 above and in Items 5.02 and 5.03 below is incorporated herein by reference.

As a result of the consummation of the Offer and the Merger pursuant to Section 251(h) of the DGCL, on November 19, 2021, a change in control of the Company occurred. At the Effective Time, the Company became a wholly owned subsidiary of Pacira.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors;

            Appointment of Certain Officers; Compensatory


Arrangements of Certain Officers.

Pursuant to the Merger Agreement, effective immediately after the Effective Time, each of Michael D. Clayman, M.D., Elizabeth Kwo, M.D., Ann Merrifield, Scott A. Canute, Samuel D. Colella, Mark P. Stejbach, Heath Lukatch, Ph.D., Patrick J. Mahaffy, Alan W. Milinazzo and Utpal Koppikar ceased serving as a member of the board of directors of the Company and each committee thereof and each of Michael D. Clayman, M.D., William T. Andrews, M.D., Frederick Driscoll, Melissa Layman, Mark S. Levine, Adam Muzikant, Kerry Wentworth and Christina Willwerth ceased serving as an officer of the Company.

Further, pursuant to the Merger Agreement and effective immediately after the Effective Time, Ronald J. Ellis, Jr., Charles A. Reinhart, III and Kristen Williams became the officers and directors of the surviving corporation. Information regarding the new officers and directors of the Company has been previously disclosed in the Tender Offer Statement on Schedule TO, filed by Pacira and Purchaser with the SEC on October 22, 2021 (together with the exhibits and annexes thereto and as amended or supplemented from time to time), and is incorporated herein by reference.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal

            Year.



Pursuant to the Merger Agreement, effective as of the Effective Time, the amended and restated certificate of incorporation of the Company and the amended and restated bylaws of the Company were each amended and restated in its entirety. Copies of the amended and restated certificate of incorporation and amended and restated bylaws are filed as Exhibits 3.1 and 3.2, respectively, to this Form 8-K and are incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits





(d) Exhibits.




 Number                                 Description

  2.1*       Agreement and Plan of Merger, dated as of October 11, 2021, by and
           among Flexion Therapeutics, Inc., Pacira BioSciences, Inc. and Oyster
           Acquisition Company Inc. (incorporated by reference to the Company's
           Current Report on Form 8-K filed with the SEC on October 12, 2021).

  3.1        Amended and Restated Certificate of Incorporation of Flexion
           Therapeutics, Inc.

  3.2        Amended and Restated Bylaws of Flexion Therapeutics, Inc.

  4.1        First Supplemental Indenture, dated as of November 19, 2021, by and
           between Flexion Therapeutics, Inc. and Wells Fargo Bank, National
           Association, as trustee.

104        Cover Page Interactive Date File (embedded within the Inline XBRL
           document)





 *         Certain exhibits and schedules have been omitted pursuant to Item
           601(b)(2) of Regulation S-K. The Company agrees to furnish
           supplementally to the SEC a copy of any omitted exhibits or schedules
           upon request; provided that the Company may request confidential
           treatment pursuant to Rule 24b-2 of the Securities Exchange Act of
           1934, as amended.

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