Item 1.02 Termination of a Material Definitive Agreement
On January 3, 2023 and in connection with the consummation of the Offer (as
defined below) and the Merger (as defined below), Oyster Point Pharma, Inc.
("Oyster Point") prepaid in full all of its outstanding obligations in respect
of principal, interest, expenses, fees and other charges under the Credit
Agreement and Guaranty, dated as of August 5, 2021, by and among the Company,
the subsidiary guarantors party thereto, the lenders party thereto and OrbiMed
Royalty & Credit Opportunities III, LP (as amended from time to time, the
"OrbiMed Credit Agreement"). The aggregate payoff amount was approximately
$298.8 million (the "Payoff Amount") and, upon payment of the Payoff Amount, the
obligations of Oyster Point to the lenders thereunder were satisfied in full,
the OrbiMed Credit Agreement and all related loan documents were terminated and
all liens and security interests granted thereunder were released and
terminated.
Item 2.01 Completion of Acquisition or Disposition of Assets.
As previously disclosed in the Current Report on Form 8-K filed with the
Securities and Exchange Commission (the "SEC") on November 8, 2022 by Oyster
Point, Oyster Point entered into an Agreement and Plan of Merger, dated as of
November 7, 2022 (the "Merger Agreement"), with Viatris Inc., a Delaware
corporation ("Parent"), and Iris Purchaser Inc., a Delaware corporation and a
wholly owned subsidiary of Parent ("Purchaser"). The Merger Agreement provides,
among other things, that as soon as practicable following the consummation of
the Offer (as defined below) and subject to the satisfaction or waiver of
specified conditions, Purchaser will be merged with and into Oyster Point (the
"Merger") in accordance with Section 251(h) of the DGCL without a vote on the
adoption of the Merger Agreement by Oyster Point stockholders, with Oyster Point
continuing as the surviving corporation. Pursuant to the terms and subject to
the conditions of the Merger Agreement, Purchaser commenced a cash tender offer
(the "Offer") to acquire all of the outstanding shares of common stock of Oyster
Point, par value $0.001 per share (the shares thereof being referred to as the
"Shares") for (i) $11.00 per share in cash (the "Cash Amount") plus (ii) the
right to receive one contingent value right payment ("CVR)" per share, which
represents the right to receive a Milestone Payment (as defined in the Offer),
defined as $1.00 per share in cash if Milestone One (as defined below) is
achieved or $2.00 per share in cash if Milestone Two (as defined below) is
achieved, net of applicable withholding taxes and without interest (the Cash
Amount plus one CVR, collectively, or any higher amount per Share paid pursuant
to the Offer, the "Offer Price"). Milestone One will be met if Oyster Point both
(i) recognizes at least $21.6 million net revenue from sales of TYRVAYA®
(varenicline solution) Nasal Spray for the twelve months ended December 31,
2022; and (ii) achieves at least 131,822 total TYRVAYA Nasal Spray prescriptions
in the United States for the twelve months ended December 31, 2022 ("Milestone
One"). Milestone Two will be met if Oyster Point both (i) recognizes at least
$24.0 million net revenue from sales of TYRVAYA Nasal Spray for the twelve
months ended December 31, 2022; and (ii) achieves at least 146,469 total TYRVAYA
Nasal Spray prescriptions in the United States for the twelve months ended
December 31, 2022 ("Milestone Two"). If Milestone One is achieved and Milestone
Two is not achieved, the stockholders who had shares of Oyster Point's common
stock acquired by Parent in connection with the Offer shall receive a Milestone
Payment of $1.00 per share in cash. If Milestones One and Two are achieved, the
stockholders who had shares of Oyster Point's common stock acquired by Parent in
connection with the Offer shall receive a Milestone Payment of $2.00 per share
in cash. If Milestone One is not achieved, no Milestone Payment will become
payable and stockholders who had shares of Oyster Point's common stock acquired
by Parent in connection with the Offer shall not receive additional
consideration.
The Offer and related withdrawal rights expired at 12:00 midnight, Eastern Time,
on December 31, 2022 (one minute following 11:59 p.m., Eastern Time, on
December 30, 2022) (the "Offer Expiration Time"). American Stock Transfer &
Trust Company, LLC, the depositary for the Offer, has advised Purchaser that a
total of 23,175,135 Shares (together with any Shares then owned by Purchaser and
its "affiliates" (as such term is defined in Section 251(h)(6)(a) of the General
Corporation Law of the State of Delaware (the "DGCL"))) had been validly
tendered (and not properly withdrawn) pursuant to the Offer prior to the Offer
Expiration Time, representing approximately 85.3% of the outstanding Shares as
of the Offer Expiration Time. Accordingly, the Minimum Condition (as defined in
the Offer) has been satisfied.
. . .
Item 3.01 Notice of Delisting or Failure to Satisfy a Continuing Listing Rule or
Standard; Transfer of Listing.
On January 3, 2023, Oyster Point notified The Nasdaq Global Select Market
("Nasdaq") of the consummation of the Merger, requested that Nasdaq suspend
trading of the Shares effective as of the close of business on January 3, 2023,
and requested that Nasdaq file with the SEC a Form 25 Notification of Removal
from Listing and/or Registration to delist and deregister the Shares, which were
previously traded under the symbol "OYST", under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Oyster Point intends to
file with the SEC a certification on Form 15 under the Exchange Act, requesting
the suspension of Oyster Point's reporting obligations under Sections 13 and
15(d) of the Exchange Act with respect to the Shares.
The information set forth in Item 2.01 is incorporated by reference into this
Item 3.01.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Items 2.01, 3.01, 5.01 and Item 5.03 is
incorporated by reference into this Item 3.03.
Item 5.01. Changes in Control of Registrant.
The information set forth in Item 2.01 is incorporated by reference into this
Item 5.01.
As a result of the consummation of the Offer and the Merger, there was a change
in control of Oyster Point, and Parent, as the parent entity of Purchaser,
acquired control of Oyster Point.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
In connection with the Merger, each of Jeffrey Nau, Donald Santel, Michael G.
Atieh, Ali Behbahani, Mark Murray, Clare Ozawa, Benjamin Tsai, Aimee Weisner,
and George Eliades resigned as a member of the board of directors of Oyster
Point (the "Board") and from all committees of the Board on which such director
served, effective as of the Effective Time. Such resignations were not in
connection with any disagreement between any of the directors and Oyster Point.
From and after the Effective Time, until their respective successors are duly
elected or appointed and qualified in accordance with applicable law, the
directors of Purchaser as of immediately prior to the Effective Time will be the
directors of Oyster Point pursuant to the terms of the Merger Agreement.
In addition, in connection with the Merger, the officers of the surviving
corporation shall be the respective individuals who served as the officers of
Oyster Point as of immediately prior to the Effective Time, until their
respective successors are duly appointed and qualified, or their earlier death,
resignation or removal.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
At the Effective Time, in connection with the consummation of the Merger, the
then in effect amended and restated certificate of incorporation and amended and
restated bylaws of Oyster Point were amended and restated in their entirety. The
second amended and restated certificate of incorporation of Oyster Point is
attached hereto as Exhibit 3.1. The second amended and restated bylaws of Oyster
Point are attached hereto as Exhibit 3.2.
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The foregoing description of the second amended and restated certificate of
incorporation and second amended and restated bylaws of Oyster Point does not
purport to be complete and is qualified in its entirety by reference to Exhibits
3.1 and 3.2 hereto, which are incorporated by reference into this Item 5.03.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit Description
2.1 † Agreement and Plan of Merger, dated as of November 7, 2022, by and
among Oyster Point Pharma, Inc., Viatris Inc., and Iris Purchaser Inc.
incorporated by reference to Exhibit 2.1 to the Current Report on Form
8- K filed by Oyster Point with the SEC on November 8, 2022.
3.1* Second Amended and Restated Certificate of Incorporation of Oyster
Point Pharma, Inc., dated as of January 3, 2023.
3.2* Second Amended and Restated Bylaws of Oyster Point Pharma, Inc.,
dated as of January 3, 2023.
104 Cover Page Interactive Data File (the cover page XBRL tags are embedded
within the Inline XBRL document).
* Filed herewith
† Schedules omitted pursuant to Item 601 of Regulation S-K. Oyster Point agrees
to furnish supplementally a copy of any omitted schedule to the SEC upon
request
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