ITEM 1.01. Entry into a Material Definitive Agreement.
On
The Agreement contains certain representations, warranties and covenants of each of the Company and Buyer, including covenants by the Company relating to the operation of the Business prior to the closing. The representations and warranties of the parties do not survive the closing and the pre-closing covenants of the parties will survive the closing for a period of 9 months. Each of the Company and Buyer has agreed to indemnify the other for certain losses arising out of breaches of covenants and for certain losses arising out of retained liabilities or assumed liabilities (as applicable), subject to customary limitations. The Agreement provides that the Company will retain a portion of certain liabilities arising out of pre-closing antitrust and opioid matters and the Company's Albuterol recall, in each case subject to certain limitations.
The consummation of the Transaction is subject to the satisfaction of certain closing conditions, including the termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the absence of any law or judgment preventing the closing. Each party's obligation to consummate the Transaction is also subject to the accuracy of the other party's representations and warranties contained in the Agreement (subject, with specified exceptions, to materiality standards) and the other party's performance of its covenants and agreements in the Agreement in all material respects. Buyer's obligation to consummate the Transaction is also subject to a condition that, since the date of the Agreement, there has not been a "Business Material Adverse Effect", as defined in the Agreement. The parties have agreed to certain efforts obligations to obtain antitrust approvals required for the Transaction as soon as reasonably possible and prior to the Outside Date (as defined below).
The Company expects to close the Transaction by the end of the third quarter of fiscal year 2021.
The Agreement provides termination rights for the Company and Buyer under
certain circumstances, including, subject to certain conditions, an uncured
material breach by the other party or if the Transaction is not consummated by
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The foregoing description of the Agreement does not propose to be complete and is qualified in its entirety by reference to the full text of the Agreement, a copy of which is attached hereto as Exhibit 10.1, and the terms of which are incorporated herein by reference. The Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of such agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement. The representations, warranties and covenants in the Agreement are also modified in important part by the underlying disclosure schedules which are not filed publicly and which are subject to a contractual standard of materiality different from that generally applicable to stockholders and were used for the purpose of allocating risk among the parties rather than establishing matters as facts. The Company does not believe that these schedules contain information that is material to an investment decision. Investors are not third-party beneficiaries under the Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective affiliates.
Buyer has obtained equity financing and debt financing commitments for the purpose of financing the Transaction, and affiliates of Buyer have agreed to guarantee Buyer's obligation to pay the Reverse Termination Fee, as well as certain collection and reimbursement obligations that may be owed by Buyer pursuant to the Agreement, subject to the terms and conditions set forth in a limited guarantee. The obligations of the equity and debt financing sources under the applicable commitment letters are subject to customary conditions.
In connection with the Transaction, the parties will also enter into a transition services agreement, a distribution agreement and cross-supply agreements at the closing.
ITEM 9.01. Financial Statements and Exhibits.
Exhibit Number Description 10.1 Stock and Asset Purchase Agreement, by and between the Company andVestas Pharma LLC , dated as ofMarch 1, 2021 . 104 Cover Page Interactive Data file (embedded within the Inline XBRL document).
Cautionary Statement Regarding Forward-Looking Statements
Certain statements in this Current Report on Form 8-K may be so-called "forward-looking statements" within the meaning of, and subject to the safe harbor created by, Section 21E of the Securities Exchange Act of 1934, as amended. These statements relate to future events or the Company's future financial performance and involve known and unknown risks, uncertainties and other
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factors that may cause the Company's, or its industry's, actual results, levels
of activity, performance or achievements to be materially different from those
expressed or implied by any forward-looking statements. In particular,
statements about the Company's expectations, beliefs, plans, objectives,
assumptions, future events or future performance contained in this form,
are forward-looking statements. In some cases, forward-looking statements can be
identified by terminology such as "may," "will," "could," "would," "should,"
"expect," "plan," "anticipate," "intend," "believe," "estimate," "forecast,"
"predict," "potential" or the negative of those terms or other comparable
terminology. The Company has based these forward-looking statements on its
current expectations, assumptions, estimates and projections. While the Company
believes these expectations, assumptions, estimates and projections are
reasonable, such forward-looking statements are only predictions and involve
known and unknown risks and uncertainties, many of which are beyond the
Company's control. Risks and uncertainties include risks relating to the
consummation and success of the sale of the Rx business, including the ability
to achieve the expected benefits thereof, the risk that any required regulatory
approvals will not be received or obtained or other closing conditions may not
be satisfied within the expected time frame or at all and potential costs or
liabilities incurred or retained in connection with the proposed transaction
that may exceed the Company's estimates or adversely affect the Company's
business or operations;. These and other important factors, including those
discussed under "Risk Factors" in the Company's Annual Report on Form 10-K for
the year ended
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