Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On
Subject to the terms and conditions of the Merger Agreement, at the closing of the Merger, (a) each then outstanding share of Tempest common stock (including shares of Tempest common stock issued upon conversion of Tempest preferred stock and shares of Tempest common stock issued in the financing transaction described below) will be converted into the right to receive a number of shares of Millendo common stock (subject to the payment of cash in lieu of fractional shares and after giving effect to a reverse stock split of Millendo common stock described below) calculated in accordance with the Merger Agreement (the "Exchange Ratio"); and (b) each then outstanding Tempest stock option and warrant to purchase Tempest common stock will be assumed by Millendo, subject to adjustment as set forth in the Merger Agreement. Under the terms of the Merger Agreement, the Millendo board of directors may accelerate the vesting of any Millendo stock options that are outstanding as of immediately prior to the closing of the Merger.
Under the Exchange Ratio formula in the Merger Agreement, upon the closing of
the Merger, on a pro forma basis and based upon the number of shares of Millendo
common stock expected to be issued in the Merger, pre-Merger Millendo
shareholders will own approximately 18.5% of the combined company and pre-Merger
Tempest stockholders will own approximately 81.5% of the combined company
(assuming the financing transaction described below results in gross proceeds of
approximately
In connection with the Merger, Millendo will seek the approval of its
stockholders to (a) issue the shares of Millendo common stock issuable in
connection with the Merger under the rules of
Each of Millendo and Tempest has agreed to customary representations, warranties
and covenants in the Merger Agreement, including, among others, covenants
relating to (1) using reasonable best efforts to obtain the requisite approval
of its stockholders, (2) non-solicitation of alternative acquisition proposals,
(3) the conduct of their respective businesses during the period between the
date of signing the Merger Agreement and the closing of the Merger, (4) Millendo
using reasonable best efforts to maintain the existing listing of the Millendo
common stock on Nasdaq and Millendo causing the shares of Millendo common stock
to be issued in connection with the Merger to be approved for listing on Nasdaq
prior to the closing of the Merger, and (5) Millendo filing with the
Consummation of the Merger is subject to certain closing conditions, including,
among other things, (1) approval by Millendo stockholders of the Millendo Voting
Proposals, (2) approval by the Tempest stockholders of the adoption of the
Merger Agreement, (3) Nasdaq's approval of the listing of the shares of Millendo
common stock to be issued in connection with the Merger, (4) the effectiveness
of the Registration Statement, and (5) the determination of Millendo's net cash
in accordance with the Merger Agreement. Each party's obligation to consummate
the Merger is also subject to other specified customary conditions, including
the representations and warranties of the other party being true and correct as
of the date of the Merger Agreement and as of the closing date of the Merger,
generally subject to an overall material adverse effect qualification, and the
performance in all material respects by the other party of its obligations under
the Merger Agreement required to be performed on or prior to the date of the
closing of the Merger. Millendo's obligation to consummate the Merger also is
subject to the completion of at least
The Merger Agreement contains certain termination rights of each of Millendo and
Tempest, including, subject to compliance with the applicable terms of the
Merger Agreement, the right of each party to terminate the Merger Agreement to
enter into a definitive agreement for a superior proposal. Upon termination of
the Merger Agreement under specified circumstances, Millendo may be required to
pay Tempest a termination fee of
At the effective time of the Merger, the Board of Directors of Millendo is expected to consist of seven members, six of whom will be designated by Tempest and one of whom will be designated by Millendo.
Financing Transaction
Concurrently with the execution and delivery of the Merger Agreement, certain
parties have entered into agreements with Tempest pursuant to which they have
agreed, subject to the terms and conditions of such agreements, to purchase
prior to the consummation of the Merger shares of Tempest common stock for an
aggregate purchase price of approximately
Support Agreements and Lock-Up Agreements
Concurrently with the execution of the Merger Agreement, (i) certain executive officers, directors and stockholders of Tempest (solely in their respective capacities as Tempest stockholders) holding approximately 87% of the outstanding shares of Tempest capital stock have entered into support agreements with Millendo and Tempest to vote all of their shares of Tempest capital stock in favor of adoption of the Merger Agreement and against any alternative acquisition proposals (the "Tempest Support Agreements") and (ii) certain executive officers, directors and stockholders of Millendo (solely in their respective capacities as Millendo stockholders) holding approximately 16% of the outstanding shares of Millendo common stock have entered into support agreements with Millendo and Tempest to vote all of their shares of Millendo common stock in favor of the Millendo Voting Proposals and against any alternative acquisition proposals (the "Millendo Support Agreements", and together with the Tempest Support Agreements, the "Support Agreements").
Concurrently with the execution of the Merger Agreement, certain executive officers, directors and stockholders of Tempest have entered into lock-up agreements (the "Lock-Up Agreements") pursuant to which, subject to specified exceptions, they agreed not to transfer their shares of Millendo common stock for the 180-day period following the closing of the Merger. In addition, each of Millendo and Tempest is obligated under the Merger Agreement to use reasonable best efforts prior to the closing of the Merger to obtain a Lock-Up Agreement from any person who will serve as a director or officer of Millendo following completion of the Merger.
The preceding summaries of the Merger Agreement, the Support Agreements and the Lock-Up Agreements do not purport to be complete and are qualified in their entirety by reference to the Merger Agreement, the form of Tempest Support Agreement, the form of Millendo Support Agreement and the form of Lock-Up Agreement, which are filed as Exhibits 2.1, 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K and which are incorporated herein by reference. The Merger Agreement has been attached as an exhibit to this Current . . .
Item 8.01. Other Events.
On
On
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofMarch 29, 2021 , by and amongMillendo Therapeutics, Inc. ,Mars Merger Corp. andTempest Therapeutics, Inc. 10.1 Form of Tempest Support Agreement 10.2 Form of Millendo Support Agreement 10.3 Form of Lock-Up Agreement 99.1 Joint Press Release issued onMarch 29, 2021 99.2 Investor Presentation, datedMarch 29, 2021
_______________________________
* Exhibits and/or schedules have been omitted pursuant to Item 601(a)(5) of
Regulation S-K. The registrant hereby undertakes to furnish supplementally
copies of any of the omitted exhibits and schedules upon request by the
provided, however, that the registrant may request confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), for any exhibits or schedules so furnished. A list
identifying the contents of all omitted exhibits and schedules can be found on
page iv of Exhibit 2.1. Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements (including
within the meaning of Section 21E of the Exchange Act and Section 27A of the
Securities Act of 1933, as amended (the "Securities Act")) concerning Millendo,
Tempest, the proposed transaction and other matters. These statements may
discuss goals, intentions and expectations as to future plans, trends, events,
results of operations or financial condition, or otherwise, based on current
beliefs of the management of Millendo, as well as assumptions made by, and
information currently available to, management of Millendo. Forward-looking
statements generally include statements that are predictive in nature and depend
upon or refer to future events or conditions, and include words such as "may,"
"will," "should," "would," "expect," "anticipate," "plan," "likely," "believe,"
"estimate," "project," "intend," and other similar expressions. Statements that
are not historical facts are forward-looking statements. Forward-looking
statements are based on current beliefs and assumptions that are subject to
risks and uncertainties and are not guarantees of future performance. Actual
results could differ materially from those contained in any forward-looking
statement as a result of various factors, including, without limitation: the
risk that the conditions to the closing of the transaction are not satisfied,
including the failure to obtain stockholder approval for the transaction or to
complete the financing in a timely manner or at all; uncertainties as to the
timing of the consummation of the transaction and the ability of each of
Millendo and Tempest to consummate the transaction; risks related to Millendo's
continued listing on the
No Offer or Solicitation
This Current Report on Form 8-K is not intended to and does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy or an invitation to purchase or subscribe for any securities or the solicitation of any vote in any jurisdiction pursuant to the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act. Subject to certain exceptions to be approved by the relevant regulators or certain facts to be ascertained, the public offer will not be made directly or indirectly, in or into any jurisdiction where to do so would constitute a violation of the laws of such jurisdiction, or by use of the mails or by any means or instrumentality (including without limitation, facsimile transmission, telephone and the internet) of interstate or foreign commerce, or any facility of a national securities exchange, of any such jurisdiction.
Important Additional Information Will be Filed with the
In connection with the proposed transaction between Millendo and Tempest,
Millendo intends to file relevant materials with the
Participants in the Solicitation
Millendo and its directors and executive officers may be deemed to be
participants in the solicitation of proxies in connection with the proposed
transaction. Information about Millendo's directors and executive officers is
included in Millendo's most recent Annual Report on Form 10-K, including any
information incorporated therein by reference, as filed with the
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