Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On April 12, 2022, Halozyme Therapeutics, Inc., a Delaware corporation
("Halozyme"), entered into an Agreement and Plan of Merger (the "Merger
Agreement") with Antares Pharma, Inc., a Delaware corporation (the "Company"),
and Atlas Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary
of Halozyme ("Purchaser").
Pursuant to the Merger Agreement, on the terms and subject to the conditions
thereof, Purchaser will commence a cash tender offer (the "Offer") to acquire
all of the outstanding shares of common stock of the Company, $0.01 par value
per share (the "Shares"), at a purchase price of $5.60 per Share in cash (the
"Offer Price"), without interest and subject to any withholding of taxes
required by applicable legal requirements.
The obligation of Purchaser to purchase Shares tendered in the Offer is subject
to the conditions set forth in the Merger Agreement, including (1) that the
number of Shares validly tendered in accordance with the terms of the Offer and
not validly withdrawn, considered together with all other Shares otherwise
beneficially owned by Halozyme or any of its wholly owned subsidiaries
(including Purchaser) (but excluding Shares tendered pursuant to guaranteed
delivery procedures that have not yet been received, as defined by
Section 251(h)(6) of the Delaware General Corporation Law (the "DGCL")), would
represent one more than 50% of the total number of Shares outstanding at the
time of the expiration of the Offer, (2) the absence of any injunction or other
order issued by a court of competent jurisdiction or law prohibiting
consummation of the Offer or the Merger, (3) the expiration or early termination
of the applicable waiting period (and any timing agreements, any extensions of
any waiting period, any understandings or commitments obtained by request or
other action of the U.S. Federal Trade Commission and/or the U.S. Department of
Justice, as applicable) under the HSR Act (as defined in the Merger Agreement),
(4) the accuracy of the Company's representations and warranties, subject to
certain materiality standards set forth in the Merger Agreement (5) compliance
by the Company in all material respects with its obligations under the Merger
Agreement and (6) the absence of a Material Adverse Effect (as defined in the
Merger Agreement).
Following the completion of the Offer and subject to the satisfaction or waiver
of certain conditions set forth in the Merger Agreement, Purchaser will merge
with and into the Company, with the Company continuing as the surviving
corporation and as a wholly owned subsidiary of Halozyme (the "Merger").
Halozyme, Purchaser and the Company will effect the Merger after consummation of
the Offer pursuant to Section 251(h) of the DGCL. At the effective time of the
Merger (the "Effective Time"), the Shares then outstanding (other than Shares
(1) held by the Company (or in the Company's treasury), Halozyme or any direct
or indirect wholly owned subsidiary of Halozyme (other than Purchaser), or by
stockholders of the Company who have properly exercised and perfected their
statutory rights of appraisal under Delaware law, or (2) irrevocably accepted
for purchase in the Offer) will each be converted into the right to receive an
amount in cash equal to the Offer Price (the "Merger Consideration"), without
interest and subject to any withholding of taxes required by applicable legal
requirements.
Each of the Company's stock options (the "Company Options") that is outstanding
as of immediately prior to the Effective Time will, to the extent unvested,
accelerate and become fully vested and exercisable effective prior to the
Effective Time. As of the Effective Time, (1) each Company Option that is
outstanding and unexercised as of immediately prior to the Effective Time will
be cancelled and converted into the right to receive cash in an amount equal to
the total number of Shares subject to such Company Option immediately prior to
the Effective Time multiplied by the excess (if any) of the Merger Consideration
over the exercise price payable per Share under such Company Option, (2) each
performance stock unit award granted pursuant to any of the Company equity plans
or otherwise ("Company PSUs") that is outstanding as of immediately prior to the
Effective Time will be cancelled and converted into the right to receive cash in
an amount equal to the number of Shares subject to such Company PSU (determined
at the target level of performance) multiplied by the Merger Consideration and
(3) each restricted stock unit award granted pursuant to any of the Company
equity plans or otherwise ("Company RSUs") that is outstanding as of immediately
prior to the Effective Time will be cancelled and converted into the right to
receive cash in an amount equal to the number of Shares subject to such Company
RSU multiplied by the Merger Consideration.
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Representations, Warranties and Covenants
The Merger Agreement includes representations, warranties and covenants of the
parties customary for a transaction of this nature. From the date of the Merger
Agreement until the earlier of the Effective Time and the termination of the
Merger Agreement, the Company has agreed, subject to certain exceptions, to
conduct its business in all material respects in the ordinary course and has
agreed to certain other operating covenants, as set forth in the Merger
Agreement. The Company has also agreed not to directly or indirectly solicit or
encourage discussions or negotiations with any third party regarding alternative
acquisition proposals. Notwithstanding these restrictions, the Company may under
certain circumstances furnish, pursuant to an acceptable confidentiality
agreement, information to and engage in or otherwise participate in discussions
or negotiations with third parties with respect to a written alternative
acquisition proposal if the board of directors of the Company has determined in
good faith, after consultation with its financial advisors and outside legal
counsel that such alternative acquisition proposal constitutes or could
reasonably be expected to lead to a "Superior Offer" (as defined in the Merger
Agreement) and that the failure to take any such action would reasonably be
expected to be inconsistent with its fiduciary duties under applicable law.
Termination
The Merger Agreement includes a remedy of specific performance for Halozyme,
Purchaser and the Company. The Merger Agreement also includes customary
termination provisions for both Halozyme and the Company and provides that, in
connection with the termination of the Merger Agreement under specified
circumstances, including termination by the Company in order to accept and enter
into a definitive agreement with respect to a Superior Offer, the Company will
be required to pay a termination fee of an amount in cash equal to $33 million.
Any such termination of the Merger Agreement by the Company is subject to
certain conditions, including the Company's compliance with certain process and
notice requirements.
The foregoing description of the Merger Agreement is not complete and is
qualified in its entirety by reference to the Merger Agreement, which is
attached as Exhibit 2.1 to this current report and incorporated herein by
reference. The Merger Agreement and the foregoing description of the Merger
Agreement have been included to provide investors and stockholders with
information regarding the terms of the Merger Agreement. The assertions embodied
in the representations and warranties contained in the Merger Agreement are
qualified by information in confidential disclosure schedules delivered by the
Company to Halozyme in connection with the signing of the Merger Agreement.
Moreover, certain representations and warranties in the Merger Agreement were
made as of a specified date, may be subject to a contractual standard of
materiality different from what might be viewed as material to stockholders, or
may have been used for the purpose of allocating risk between the parties to the
Merger Agreement. Accordingly, the representations and warranties in the Merger
Agreement should not be relied on by any persons as characterizations of the
actual state of facts and circumstances of Halozyme, the Company or Purchaser,
as applicable, at the time they were made and investors should consider the
information in the Merger Agreement in conjunction with the entirety of the
factual disclosure about Halozyme, the Company or Purchaser in Halozyme's or the
Company's public reports filed with the SEC, as applicable. Information
concerning the subject matter of the representations and warranties may change
after the date of the Merger Agreement, which subsequent information may or may
not be fully reflected in Halozyme's or the Company's public disclosures, as
applicable.
Debt Commitment Letter
In connection with the Merger Agreement, Halozyme entered into a commitment
letter (the "Debt Commitment Letter") with BofA Securities, Inc. ("BofA
Securities") and Bank of America, N.A. (together with BofA Securities, the
"Commitment Parties") on April 12, 2022, pursuant to which the Commitment
Parties have committed to provide a $375 million senior secured term loan and a
$75 million revolving credit facility, the proceeds of which, in addition to a
portion of Halozyme's existing cash on hand, would be used to pay the Merger
Consideration, refinance the Company's existing indebtedness and pay any fees
and expenses in connection with any of the foregoing. The commitments to provide
each of the term loan and revolving credit facility are subject to certain
. . .
Item 7.01 Regulation FD Disclosure.
On April 13, 2022, Halozyme and the Company issued a joint press release
announcing the execution of the Merger Agreement (the "Press Release"). Also on
April 13, 2022, Halozyme held a conference call to discuss, among other things,
the announcement of the execution of the Merger Agreement, as well as an
investor presentation regarding the same (the "Investor Presentation"). A copy
of the Press Release and the Investor Presentation are furnished as Exhibit 99.1
and Exhibit 99.2, respectively, to this Current Report on Form 8-K.
The information set forth under this Item 7.01 of this Current Report on Form
8-K, including Exhibit 99.1 and Exhibit 99.2, shall not be deemed "filed" for
the 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.
The information in this Current Report on Form 8-K shall not be incorporated by
reference into any registration statement or other document pursuant to the
Securities Act of 1933, as amended, or the Exchange Act.
Item 9.01 Financial Statements and Exhibits.
Exhibit
No. Description
2.1* Agreement and Plan of Merger, dated as of April 12, 2022, by and
among Halozyme Therapeutics, Inc., Atlas Merger Sub, Inc. and Antares
Pharma, Inc.
99.1 Joint Press Release of Halozyme Therapeutics, Inc. and Antares
Pharma, Inc., dated as of April 13, 2022
99.2 Investor Presentation of Halozyme Therapeutics, Inc., dated as of
April 13, 2022
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
* Schedules omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company
agrees to furnish supplementally a copy of any omitted schedule to the SEC upon
request.
Forward-Looking Statements
This current report contains "forward-looking statements". All statements, other
than statements of historical fact, included herein, including without
limitation those regarding our future product development and regulatory events
and goals, product collaborations, our business intentions and financial
estimates and anticipated results, are, or may be deemed to be, forward-looking
statements. Words such as "expect," "anticipate," "intend," "plan," "believe,"
"seek," "estimate," "think," "may," "could," "will," "would," "should,"
"continue," "potential," "likely," "opportunity," "project" and similar
expressions or variations of such words are intended to identify forward-looking
statements, but are not the exclusive means of identifying forward-looking
statements in this current report. Although Halozyme's and the Company's
management each believes that the expectations reflected in such forward-looking
statements are reasonable, investors are cautioned that forward-looking
information and statements are subject to various risks and uncertainties, many
of which are difficult to predict and generally beyond the control of Halozyme
and the Company, that could cause actual results and developments to differ
materially from those expressed in, or implied or projected by, the
forward-looking information and statements. These risks and uncertainties
include among other things, risks related to Halozyme's and the Company's
ability to complete the proposed acquisition on the proposed terms or on the
proposed timeline, including the receipt of required regulatory approvals, the
possibility that competing offers will be made, other risks associated with
executing proposed acquisition, such as the risk that the businesses will not be
integrated successfully, that such integration may be more difficult,
time-consuming or costly than expected or that the expected benefits of the
proposed acquisition will not be realized, risks related to future opportunities
and plans for the combined company, including uncertainty of the expected
financial performance and results of the combined company following completion
of the proposed acquisition, disruption from the proposed acquisition making it
more difficult to conduct business as usual or to maintain relationships with
customers, employees, manufacturers or suppliers, and the possibility that, if
the combined company does not achieve the perceived benefits of the proposed
acquisition as rapidly or to the extent anticipated by financial analysts or
investors,
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the market price of Halozyme's shares could decline, as well as other risks
related Halozyme's and the Company's respective businesses, including the
ability to grow sales and revenues from existing products and to develop,
commercialize or market new products, competition, including potential generic
competition, the uncertainties inherent in research and development, including
future clinical data and analysis, regulatory obligations and oversight by
regulatory authorities, such as the U.S. Food and Drug Administration, including
decisions of such authorities regarding whether and when to approve any drug,
device or biological application that may be filed for any product candidates as
well as decisions regarding labelling and other matters that could affect the
availability or commercial potential of any product candidates, the absence of a
guarantee that any product candidates, if approved, will be commercially
successful, Halozyme's ability to execute its share repurchase program according
to plan, Halozyme's ability to benefit from external growth opportunities, to
complete related transactions and/or obtain regulatory clearances, risks
associated with Halozyme's and the Company's intellectual property and any
related pending or future litigation and the ultimate outcome of such
litigation, trends in exchange rates and prevailing interest rates, volatile
economic and market conditions, cost containment initiatives and subsequent
changes thereto, and the impact that COVID-19 will have on Halozyme and on the
Company and their respective customers, suppliers, vendors, and other business
partners, and the financial condition of any one of them, as well as on
Halozyme's and the Company's employees and on the global economy as a whole. Any
material effect of COVID-19 on any of the foregoing could also adversely impact
Halozyme and the Company. This situation is changing rapidly and additional
impacts may arise of which Halozyme and the Company are not currently aware and
may exacerbate other previously identified risks. While the list of factors
presented here is representative, no list should be considered a statement of
all potential risks, uncertainties or assumptions that could have a material
adverse effect on Halozyme's consolidated financial condition or results of
operations. The foregoing factors should be read in conjunction with the risks
and cautionary statements discussed or identified in the public filings with the
U.S. Securities and Exchange Commission (the "SEC") made by Halozyme, including
those listed under "Risk Factors" and "Cautionary Statement Regarding
Forward-Looking Statements" in Halozyme's annual report on Form 10-K for the
year ended December 31, 2021 and Antares' annual report on Form 10-K for the
year ended December 31, 2021. The forward-looking statements speak only as of
the date hereof and, other than as required by applicable law, Halozyme and the
Company do not undertake any obligation to update or revise any forward-looking
information or statements. Investors are urged not to place undue reliance on
these forward-looking statements, which speak only as of the date of this
current report.
About the Offer
The tender offer for the outstanding shares of Company common stock referenced
in this current report has not yet commenced. This current report is for
informational purposes only and is neither an offer to purchase nor a
solicitation of an offer to sell securities, nor is it a substitute for the
tender offer materials that Halozyme and its acquisition subsidiary will file
with the SEC, upon the commencement of the tender offer. At the time the tender
offer is commenced, Halozyme and its acquisition subsidiary will file a tender
offer statement on Schedule TO and thereafter the Company will file a
Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC with
respect to the tender offer.
THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF
TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS) AND THE
SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 WILL CONTAIN IMPORTANT
INFORMATION. THE COMPANY'S STOCKHOLDERS ARE URGED TO READ THESE DOCUMENTS
CAREFULLY WHEN THEY BECOME AVAILABLE (AS EACH MAY BE AMENDED OR SUPPLEMENTED
FROM TIME TO TIME) BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT HOLDERS
OF THE COMPANY'S SHARES SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING
TENDERING THEIR SHARES.
The Offer to Purchase, the related Letter of Transmittal and certain other
tender offer documents, as well as the Solicitation/Recommendation Statement,
will be made available to all holders of the Company's stock at no expense to
them. The tender offer materials and the Solicitation/Recommendation Statement
will be made available for free at the SEC's website at www.sec.gov. Additional
copies may be obtained for free by contacting Halozyme or the Company. Copies of
the documents filed with the SEC by the Company will be available free of charge
on the Company's internet website at
https://www.antarespharma.com/investors/sec-filings or by contacting the
Company's Investor Relations Department at +1 609-359-3016. Copies of the
documents filed with the SEC by Halozyme will be available free of charge on
Halozyme's internet website at https://ir.halozyme.com or by contacting
Halozyme's Investor Relations Department at ir@halozyme.com.
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Additional Information
In addition to the Offer to Purchase, the related Letter of Transmittal and
certain other tender offer documents, as well as the Solicitation/Recommendation
Statement, Halozyme files annual, quarterly and special reports and other
information with the SEC and the Company files annual, quarterly and special
reports and other information with the SEC. You may read and copy any reports or
other information filed by Halozyme and the Company at the SEC public reference
room at 100 F. Street, N.E., Washington D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room. Halozyme's
and the Company's filings with the SEC are also available to the public from
commercial document-retrieval services and at the website maintained by the SEC
at www.sec.gov.
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