PACIRA BIOSCIENCES, INC. Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
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Pursuant to the Merger Agreement, upon the terms and subject to the conditions
thereof, as promptly as practicable (but in no event more than 10 business days
after the date of the Merger Agreement), Purchaser will commence a cash tender
offer (the "Offer"), to acquire all of the outstanding shares of common stock of
Flexion,
The obligation of Purchaser to purchase Shares tendered in the Offer is subject to the conditions set forth in the Merger Agreement, including, but not limited to, that the (i) number of Shares validly tendered in accordance with the terms of the Offer and not validly withdrawn (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not been "received", as defined by Section 251(h)(6)(f) of the Delaware General Corporation Law (the "DGCL")), when considered together with all other Shares owned by Purchaser and its affiliates, would represent at least one Share more than 50% of the total number of Shares at the time of the expiration of the Offer and (ii) waiting period (or any extension thereof) applicable to the Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder having expired or been terminated.
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 Flexion, with Flexion surviving as a wholly owned subsidiary of Pacira (the "Merger"). Purchaser 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 held (i) by Flexion or its subsidiaries (including Shares held in Flexion's treasury), (ii) by Pacira, Purchaser, any other direct or indirect wholly owned subsidiary of Pacira, or (iii) by stockholders of Flexion who have properly exercised and perfected their statutory rights of appraisal under the DGCL) will each be converted into the right to receive the Offer Price.
The Merger Agreement provides that each option to purchase shares of common stock of Flexion (a "Flexion Option") that is outstanding as of immediately prior to the Effective Time shall automatically accelerate and become fully vested and exercisable effective immediately prior to, and contingent upon, the Effective Time. As of the Effective Time:
(i) Each Flexion Option with an exercise price less than the Cash Amount (an
"In-the-Money Option") that is then outstanding and unexercised shall be
cancelled and converted into the right to receive (a) cash in an amount equal
to the product of (x) the total number of Shares subject to such In-the-Money
Option multiplied by (y) the excess, if any, of the Cash Amount over the
exercise price payable per Share under such In-the-Money Option, and (b) one
CVR for each Share subject to such In-the-Money Option, net of applicable
withholding taxes.
(ii) Each Flexion Option with an exercise price equal to, or greater than,
and less than the closing price per Share on the Nasdaq Global Market on the
trading day immediately prior to the Effective Time (the "Option Reference
Price") (an "Out-of-the-Money Option") that is then outstanding and
unexercised shall be cancelled and converted into the right to receive from
time to time upon the occurrence of any Milestone Payment Date (as defined
in the CVR Agreement), a cash payment, if any, equal to (A) the product of
(1) the total number of Shares subject to such Out-of-the-Money Option
multiplied by (2) the amount, if any, by which (x) the Cash Amount plus the
applicable Milestone Payment plus any Milestone Payments previously earned
exceeds (y) the exercise price payable per Share under such Out-of-the-Money
Option minus (B) the gross amount previously paid with respect to such
Out-of-the-Money Option, net of applicable withholding taxes.
(iii) Each Flexion Option (including any Out-of-the-Money Option) with an
exercise price equal to, or greater than, the Option Reference Price that
is then outstanding and unexercised shall be cancelled at the Effective
Time without any consideration payable in respect of such cancelled Flexion
Option.
The Merger Agreement also provides that each restricted stock unit award issued by Flexion (a "Flexion RSU") that is outstanding as of immediately prior to the Effective Time shall automatically accelerate and become fully vested immediately prior to, and contingent upon, the Effective Time. As of the Effective Time, each Flexion RSU that is then outstanding shall be cancelled and converted into the right to receive (a) cash in an amount equal to the product of (x) the total number of Shares issuable in settlement of such Flexion RSU multiplied by (y) the Cash Amount, and (b) one CVR for each Share issuable in settlement of such Flexion RSU.
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, Flexion has agreed, subject to certain exceptions, to conduct in all material respects its business and operations in the ordinary course and has agreed to certain other customary operating covenants, as set forth more fully in the Merger Agreement. Flexion has also agreed not to (i) directly or indirectly solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (as defined in the Merger Agreement), (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any information in connection with, or for the purpose of knowingly encouraging, or facilitating, an Acquisition Proposal, or (iii) adopt, approve or enter into any letter of intent, acquisition agreement, . . .
Item 2.02 Results of Operations and Financial Condition.
In the Press Release (as defined below), Pacira announced its preliminary
unaudited revenue for the month and quarter ended
Item 7.01 Regulation FD Disclosure.
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Forward-Looking Statements
Any statements in this communication about Pacira's or Flexion's future
expectations, plans, trends, outlook, projections and prospects, and other
statements containing the words "believes," "anticipates," "plans," "estimates,"
"expects," "intends," "may," "will," "would," "could," "can" and similar
expressions, constitute forward-looking statements within the meaning of The
Private Securities Litigation Reform Act of 1995. These forward-looking
statements include, without limitation, statements related to the anticipated
consummation of the acquisition of Flexion and the timing and benefits thereof,
Pacira's strategy, plans, objectives, expectations (financial or otherwise) and
intentions, future financial results and growth potential, anticipated product
portfolio, development programs, patent terms and other statements that are not
historical facts. Actual results may differ materially from those indicated by
such forward-looking statements as a result of various important factors,
including risks relating to, among others: risks related to Pacira's ability to
complete the transaction on the proposed terms and schedule or at all; whether
the tender offer conditions will be satisfied; whether sufficient stockholders
of Flexion tender their shares in the transaction; the outcome of legal
proceedings that may be instituted against Flexion and/or others relating to the
transaction; the failure (or delay) to receive the required regulatory approvals
relating to the transaction; the possibility that competing offers will be made;
risks associated with acquisitions, 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
transaction will not occur; risks related to future opportunities and plans for
Flexion and its products, including uncertainty of the expected financial
performance of Flexion and its products, including whether the Milestones will
ever be achieved; disruption from the proposed transaction, making it more
difficult to conduct business as usual or maintain relationships with customers,
employees or suppliers; and the occurrence of any event, change or other
circumstance that could give rise to the termination of the acquisition
agreement; the possibility that if Pacira does not achieve the perceived
benefits of the proposed transaction as rapidly or to the extent anticipated by
financial analysts or investors, the market price of Pacira's shares could
decline; the impact of the worldwide COVID-19 (Coronavirus) pandemic and related
global economic conditions on Pacira's and/or Flexion's business and results of
operations; the success of Pacira's sales and manufacturing efforts in support
of the commercialization of EXPAREL and iovera°; the rate and degree of market
acceptance of EXPAREL and iovera°; the size and growth of the potential markets
for EXPAREL and iovera° and Pacira's ability to serve those markets; Pacira's
plans to expand the use of EXPAREL and iovera° to additional indications and
opportunities, and the timing and success of any related clinical trials for
EXPAREL and iovera°; the ability to successfully integrate any future
acquisitions into Pacira's existing business, including Flexion; and the
recoverability of Pacira's deferred tax assets and other factors discussed in
the "Risk Factors" of each of Pacira's and Flexion's most recent Annual Report
on Form 10-K and in other filings that Pacira and Flexion periodically make with
the
Additional Information about the Transaction and Where to Find It
The Offer described in this communication has not yet commenced, and this
communication is neither a recommendation, nor an offer to purchase nor a
solicitation of an offer to sell any shares of the common stock of Flexion or
any other securities. On the commencement date of the Offer, a tender offer
statement on Schedule TO, including an offer to purchase, a letter of
transmittal and related documents, will be filed with the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit Number Exhibit Description 2.1* Agreement and Plan of Merger, dated as ofOctober 11, 2021 , by and among Flexion Therapeutics, Inc.,Pacira BioSciences, Inc. andOyster Acquisition Company Inc. 10.1 Form of Tender and Support Agreement, dated as ofOctober 11, 2021 . 99.1 Joint Press Release ofPacira BioSciences, Inc. and Flexion Therapeutics, Inc., dated as ofOctober 11, 2021 . 99.2 Investor Presentation ofPacira BioSciences, Inc. , dated as ofOctober 11, 2021 . 99.3 Transcript of Conference Call ofPacira BioSciences, Inc. , held onOctober 11, 2021 . 99.4 Email to Partners, first sent onOctober 11, 2021 . 104 Cover Page Interactive Data File (Formatted as Inline XBRL). * Certain exhibits and schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Pacira agrees to furnish supplementally to theSEC a copy of any omitted exhibits or schedules upon request; provided that Pacira may request confidential treatment pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
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