Item 2.01. Completion of Acquisition or Disposition of Assets
As previously disclosed, on September 13, 2020, Immunomedics, Inc., a Delaware
corporation (the "Company") entered into an Agreement and Plan of Merger (the
"Merger Agreement"), by and among the Company, Gilead Sciences, Inc., a Delaware
corporation ("Gilead"), and Maui Merger Sub, Inc., a Delaware corporation and a
wholly owned subsidiary of Gilead ("Purchaser").
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions thereof, on September 24, 2020, Purchaser commenced a tender offer
(the "Offer"), to purchase all of the issued and outstanding shares (the
"Shares") of common stock, par value $0.01 per share, of the Company, other than
any Shares held immediately prior to the effective time of the Merger by the
Company (or held in the Company's treasury) and any Shares held immediately
prior to the effective time of the Merger by Gilead, Purchaser or any other
direct or indirect wholly owned subsidiary of Gilead, at a price of $88.00 per
Share (the "Offer Price"), net to the seller in cash, without interest and
subject to any required withholding of taxes.
The Offer expired at one minute after 11:59 p.m., Eastern Time, on October 22,
2020. According to Computershare Trust Company, N.A., the depositary for the
Offer, 188,227,162 Shares were validly tendered and not withdrawn in the Offer,
representing approximately 81.38% of the outstanding Shares (not including
12,451,797 Shares delivered through notices of guaranteed delivery, representing
approximately 5.38% of the Shares outstanding). The number of Shares tendered
satisfied the condition to the Offer that there be validly tendered and not
validly withdrawn prior to the expiration of the Offer a number of Shares that,
considered together with all other Shares (if any) beneficially owned by Gilead
and its affiliates, represent one more Share than 50% of the total number of
Shares outstanding at the expiration of the Offer (excluding Shares tendered by
notice of guaranteed delivery that have not yet been "received" (as such term is
defined in Section 251(h)(6)(f) of the General Corporation Law of the State of
Delaware (the "DGCL"))). All conditions to the Offer having been satisfied or
waived, Gilead and Purchaser accepted for payment all Shares validly tendered
and not validly withdrawn.
Following the consummation of the Offer, the remaining conditions to the Merger
set forth in the Merger Agreement were satisfied or waived, and on October 23,
2020, Purchaser merged with and into the Company pursuant to Section 251(h) of
the DGCL, with the Company being the surviving corporation (the "Merger"). At
the effective time of the Merger, each Share (other than (i) Shares held by the
Company (or held in the Company's treasury), (ii) Shares held by Gilead,
Purchaser, or any other direct or indirect wholly owned subsidiary of Gilead and
(iii) Shares held by stockholders who have properly exercised and perfected
their demands for appraisal of such Shares in accordance with the DGCL and have
neither withdrawn nor lost such rights prior to the effective time of the
Merger) converted into the right to receive an amount in cash equal to the Offer
Price, without interest and subject to any required withholding of taxes.
The aggregate consideration paid by Purchaser to acquire the Shares in the Offer
and Merger was approximately $21 billion.
The foregoing description of the Merger Agreement and the transactions
contemplated thereby does not purport to be complete and is qualified in its
entirety by reference to the Merger Agreement, a copy of which was filed as
Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with the
Securities and Exchange Commission (the "SEC") on September 14, 2020 and which
is incorporated by reference herein.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing
In connection with the consummation of the transactions described in Item 2.01
of this Current Report on Form 8-K, which are incorporated by reference herein,
the Company notified The Nasdaq Global Market (the "NASDAQ") of the consummation
of the Merger and requested that the NASDAQ (i) halt trading in the Shares, (ii)
suspend trading of and delist the Shares and (iii) file with the SEC a
notification of removal from listing and/or registration on Form 25 to effect
the delisting of all Shares from the NASDAQ and the deregistration of such
Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). The NASDAQ filed the Form 25 with the SEC on October 23,
2020 and trading of the Shares is expected to be suspended effective as of prior
to the open of business on October 26, 2020. In addition, the Company intends to
file a certification and notice of termination of registration on Form 15 with
the SEC requesting the termination of registration of the Shares under Section
12(g) of the Exchange Act and the suspension of reporting obligations under
Sections 13 and 15(d) of the Exchange Act with respect to the Shares.
Item 3.03. Material Modification to Rights of Security Holders
The information set forth under Items 2.01, 3.01, 5.01 and 5.03 of this Current
Report on Form 8-K is incorporated by reference into this Item 3.03.
As set forth under Item 2.01 of this Current Report on Form 8-K, at the
effective time of the Merger, each Share (other than (i) Shares held by the
Company (or held in the Company's treasury), (ii) Shares held by Gilead,
Purchaser, or any other direct or indirect wholly owned subsidiary of Gilead and
(iii) Shares held by stockholders who have properly exercised and perfected
their demands for appraisal of such Shares in accordance with the DGCL and have
neither withdrawn nor lost such rights prior to the effective time of the
Merger) converted into the right to receive an amount in cash equal to the Offer
Price, without interest and subject to any required withholding of taxes.
Item 5.01. Changes in Control of Registrant
The information set forth under Items 2.01 and 5.02 of this Current Report on
Form 8-K is incorporated by reference into this Item 5.01.
As a result of the completion of the Merger, a change in control of the Company
occurred, and the Company became a wholly owned subsidiary of Gilead. Gilead
obtained the funds necessary to fund the acquisition through (i) proceeds from
the borrowings under the Term Loan Facility Credit Agreement dated October 23,
2020 among Gilead, as borrower, each lender from time to time party thereto and
Barclays Bank PLC, as administrative agent, consisting of a $1 billion senior
unsecured term loan facility, (ii) proceeds from the offering of senior
unsecured notes, consisting of $500 million aggregate principal amount of
floating rate notes due 2021, $500 million aggregate principal amount of
floating rate notes due 2023, $2 billion aggregate principal amount of 0.75%
senior notes due 2023, $1 billion aggregate principal amount of 1.65% senior
notes due 2030 and $1 billion aggregate principal amount of 2.60% senior notes
due 2040, on the terms and conditions previously disclosed in the final
prospectus supplement filed by Gilead with the SEC pursuant to Rule 424(b)(5) on
September 25, 2020 and (iii) cash on hand.
Item 5.02. Departure of Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers
In accordance with the Merger Agreement, at the effective time of the Merger,
Behzad Aghazadeh resigned as Executive Chairman and from the board of directors
of the Company, and each of Robert Azelby, Charles Baum, Scott Canute, Barbara
Duncan, Peter Barton Hutt and Khalid Islam resigned from the board of directors
of the Company. These resignations were in connection with the Merger and not as
a result of any disagreements between the Company and the resigning individuals
on any matters relating to the Company's operations, policies or practices.
Pursuant to the terms of the Merger Agreement, at the effective time of the
Merger, the directors and officers of Purchaser as of immediately prior to the
effective time of the Merger became the directors and officers of the Company.
Andrew D. Dickinson assumed the roles of director and President and Treasurer of
the Company, Brett A. Pletcher assumed the roles of director and Secretary of
the Company and Christina Carlson assumed the roles of director and Assistant
Secretary of the Company.
Information about Mr. Dickinson, Mr. Pletcher and Ms. Carlson is contained in
the Offer to Purchase, dated September 24, 2020, filed by Gilead and Purchaser
as Exhibit (a)(1)(A) to the Tender Offer Statement on Schedule TO, originally
filed with the SEC on September 24, 2020, which information is incorporated
herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
Pursuant to the terms of the Merger Agreement, at the effective time of the
Merger, the Company's certificate of incorporation and bylaws were each amended
and restated in their entirety. Copies of the amended and restated certificate
of incorporation and amended and restated bylaws are attached as Exhibit 3.1 and
Exhibit 3.2, respectively, to this Current Report on Form 8-K, and are
incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit Description
2.1* Agreement and Plan of Merger, dated as of September 13, 2020, by and
among Immunomedics, Inc., Gilead Sciences, Inc. and Maui Merger Sub,
Inc. (incorporated by reference to Exhibit 2.1 to the Current Report
on Form 8-K filed by the Company on September 14, 2020)
3.1 Amended and Restated Certificate of Incorporation of Immunomedics,
Inc.
3.2 Amended and Restated Bylaws of Immunomedics, Inc.
104 The cover page from this Current Report on Form 8-K, formatted in
Inline XBRL
* Schedules omitted pursuant to Item 601(a)(5) of Regulation S-K. Immunomedics,
Inc. agrees to furnish supplementally a copy of any omitted schedule to the SEC
upon request.
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