Item 1.01 Entry into a Material Definitive Agreement.
On
Pursuant to the terms and subject to the conditions of the Merger Agreement,
Parent has agreed to cause Purchaser to commence a cash tender offer (the
"Offer") to acquire all of the outstanding shares of common stock of the Company
for (i)
Following the consummation of the Offer and subject to the terms and conditions
of the Merger Agreement, Purchaser will be merged with and into the Company (the
"Merger" and, together with the Offer, the "Transactions") pursuant to
Section 251(h) of the General Corporation Law of the
At or prior to the time at which Purchaser accepts the Shares tendered in the Offer for purchase, Parent and a rights agent mutually agreeable to Parent and the Company shall enter into a contingent value right agreement (the "CVR Agreement") to allow for the Milestone Payments.
The Offer will remain open until one (1) minute following
The obligation of Purchaser to accept for payment, and pay for, Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to satisfaction or waiver, to the extent permitted under applicable legal requirements, of customary conditions, including (i) there being validly tendered and not validly withdrawn Shares
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that, considered together with all other Shares (if any) beneficially owned by Purchaser and its affiliates, represent one more Share than 50% of the total number of the then-issued and outstanding Shares at the expiration of the Offer (the "Minimum Condition"), (ii) the accuracy of the Company's representations and warranties (subject to customary materiality and "material adverse effect" thresholds), (iii) the Company's compliance or performance in all material respects of the obligations, covenants and agreements it is required to comply with or perform at or prior to the expiration of the Offer, (iv) the absence, since the date of the Merger Agreement, of a Material Adverse Effect (as defined in the Merger Agreement) that is continuing as of the time Purchaser accepts Shares for purchase pursuant to the Offer, (v) the expiration or termination of the waiting period (or any extension thereof) applicable to the Transactions under the HSR Act, (vi) Parent and Purchaser receiving a customary certificate executed by either its respective Chief Executive Officer or Chief Financial Officer confirming that certain conditions have been duly satisfied; (vii) the absence of any injunction, judgment or other order imposing a Burdensome Condition (as defined in the Merger Agreement) and the absence of any pending lawsuit brought by any governmental body of competent jurisdiction seeking an injunction, judgment or other order prohibiting, or making illegal, the consummation of the Offer or the Merger or seeking to impose a Burdensome Condition; (viii) the absence of any law or order issued by any governmental body which directly or indirectly prohibits, or makes illegal, the consummation of the Offer or the Merger, and (ix) the Merger Agreement not having been terminated in accordance with its terms. If the conditions to the Offer are satisfied or waived (other than conditions that by their nature are to be satisfied or waived at the expiration of the Offer), then Purchaser must (i) irrevocably accept for payment all of the Shares tendered pursuant to the Offer and (ii) pay the Offer Price in respect of each such Share.
The Merger Agreement includes certain representations, warranties and covenants of the Company, Parent and Purchaser, including certain customary restrictions with respect to the Company's business between the date of the Merger Agreement and the consummation of the Merger. Parent and the Company also agreed to use their respective reasonable best efforts to take all actions, to file all documents and to do all things reasonably necessary, proper or advisable under applicable antitrust laws and to take all actions and steps required by any governmental body as a condition to granting and any permit, authorization, waiver, clearance or approval to consummate and make effective the Offer and the Merger as soon as reasonably practicable. However, notwithstanding the foregoing, in no event will Viatris be required to, nor will the Company without Viatris' consent, agree to any Burdensome Condition. If Parent and the Company disagree with respect to strategy, Parent shall have the right to direct and control all strategy in connection with obtaining any applicable consents, permits, authorizations, waivers, clearances, approvals or expiration or termination of the waiting period under the HSR Act or other antitrust law, including in any legal proceeding initiated by any governmental body seeking to prevent or delay or delaying the Offer or the Merger, but neither Parent nor the Company may commit to extend the waiting period, or to pull and refile, under the HSR Act or to delay consummation of the offer or the merger without the other party's consent.
The Company has agreed to customary "no-shop" restrictions on its ability to
solicit alternative transaction proposals from third parties and engage in
discussions or negotiations with third parties regarding transaction proposals.
In the event the Company receives any inquiries, proposals or offers with
respect to, or that would reasonably be expected to lead to, an acquisition
proposal, or any request for information concerning the Company from any person
or group that has made, or would reasonably be expected to make an acquisition
proposal, then the Company is required to provide promptly (and in any event
with 24 hours after receipt thereof) certain information concerning such
inquiry, proposal or offer with Parent. Notwithstanding these restrictions, the
Company may under certain circumstances provide information to and engage in or
otherwise participate in discussions or negotiations with third parties with
respect to an unsolicited bona fide written alternative acquisition proposal
that did not result from or arise out of a breach of the "no-shop" restrictions
that the board of directors of the Company (the "Board") has determined in good
faith, after consultation with the Company's financial advisor and outside legal
counsel, constitutes or would reasonably be expected to lead to a Superior
Proposal (as defined in the Merger Agreement), and the Company provides Parent
with written notice of this determination. Pursuant to the Merger Agreement, the
Company has agreed that the Board will (x) recommend that the stockholders of
the Company accept the Offer and tender their Shares to Purchaser pursuant to
the Offer (the "Board Recommendation") and (y) include the Board Recommendation
in the Company's Tender Offer Solicitation/Recommendation Statement on Schedule
14D-9 (the "Schedule 14D-9") when filed with the
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declare advisable, enter into or allow the Company to execute or enter into any contract with respect to any acquisition proposal (other than a customary confidentiality agreement). Notwithstanding these restrictions, the Board is permitted, subject to the terms and conditions set forth in the Merger Agreement, to make a Company Adverse Change Recommendation (as defined in the Merger Agreement) to accept a Superior Proposal or in response to a Change in Circumstance (as defined in the Merger Agreement), subject in each case to certain notice and matching rights in favor of Parent.
The Merger Agreement contains certain termination rights for both the Company
and Parent, including, (i) if the consummation of the Transactions has not
occurred on or before midnight, Eastern Time, on
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Description 2.1* Agreement and Plan of Merger, dated as ofNovember 7, 2022 , by and among Viatris Inc.,Iris Purchaser Inc. andOyster Point Pharma, Inc. 104 Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document).
* Schedules omitted pursuant to Item 601 of Regulation S-K.
furnish supplementally a copy of any omitted schedule to the
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