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") by Prevail Therapeutics Inc. (the
"Company") on December 15, 2020, the Company entered into an Agreement and Plan
of Merger (the "Merger Agreement") with Eli Lilly and Company, an Indiana
corporation ("Parent"), and Parent's wholly-owned subsidiary, Tyto Acquisition
Corporation, a Delaware corporation ("Purchaser").
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions thereof, on December 22, 2020, Purchaser commenced a tender offer
(the "Offer") to purchase all of the Company's outstanding shares of common
stock, par value $0.0001 per share (the "Shares"), pursuant to the Merger
Agreement, in exchange for (i) $22.50 per Share, net to the seller in cash,
without interest and less any applicable tax withholding, plus (ii) one
non-tradeable contingent value right, which represents the contractual right to
receive a contingent payment of up to $4.00 per Share, net to the seller in
cash, without interest and less any applicable tax withholding, which amount (or
such lesser amount as determined in accordance with the terms and conditions of
the contingent value rights agreement to be entered into with a rights agent
mutually agreeable to Parent and the Company) will become payable, if at all, if
a specified milestone is achieved prior to December 1, 2028 (the "Offer Price").
The Offer expired at one minute after 11:59 p.m. (12:00 midnight) Eastern time,
on Thursday, January 21, 2021. According to Computershare Trust Company, N.A.,
the depositary for the Offer, 27,374,689 Shares were validly tendered in
accordance with the terms of the Offer and "received" (as defined in
Section 251(h)(6)(f) of the General Corporation Law of the State of Delaware
(the "DGCL")) and not validly withdrawn, representing approximately 79.8% of the
aggregate number of then issued and outstanding Shares. The number of Shares
tendered satisfied the Minimum Tender Condition (as defined in the Merger
Agreement). All conditions to the Offer having been satisfied or waived,
Purchaser accepted for payment all Shares validly tendered (and not validly
withdrawn) prior to the expiration of the Offer and made payment for such Shares
on January 22, 2021.
On January 22, 2021, as a result of its acceptance of, and payment for, the
Shares tendered in the Offer, Purchaser acquired a sufficient number of Shares
to complete the merger of Purchaser with and into the Company (the "Merger"),
without a vote of the stockholders of the Company pursuant to Section 251(h) of
the DGCL. Accordingly, following the consummation of the Offer, Parent and
Purchaser effected the Merger pursuant to Section 251(h). At the effective time
of the Merger, each outstanding Share (other than (1) Shares owned by the
Company (or held in the Company's treasury) immediately prior to the Effective
Time, (2) Shares owned by Parent, Purchaser or any direct or indirect
wholly-owned subsidiary of Parent immediately prior to the Effective Time and
(3) Shares held by any stockholder who was entitled to demand and properly
demanded appraisal of such Shares pursuant to, and who complied in all respects
with, Section 262 of the DGCL and who, as of the Effective Time, had neither
effectively withdrawn nor lost its rights to such appraisal and payment under
the DGCL with respect to such Share) was converted into the right to receive the
Offer Price from Purchaser. At the effective time of the Merger, the Company
became a wholly-owned subsidiary of Parent. As a result, a change of control of
the Company occurred.
The foregoing description of the Merger Agreement and the transactions
contemplated thereby does not purport to be complete and is qualified in its
entirety by reference to the Merger Agreement, a copy of which is filed as
Exhibit 2.1 to this Current Report on Form 8-K and is incorporated by reference
herein.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing
In connection with the consummation of the Offer and the Merger, the Company
notified The Nasdaq Stock Market LLC ("Nasdaq") of the consummation of the
Merger and requested that Nasdaq file with the SEC a notification of removal
from listing and/or registration on Form 25 to effect the delisting of all
Shares from Nasdaq and the deregistration of such Shares under Section 12(b) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Nasdaq
filed the Form 25 with the SEC on January 22, 2021 and trading of Shares is
expected to be suspended effective prior to the open of trading on January 22,
2021. In addition, the Company intends to file a certification and notice of
termination of registration on Form 15 with the SEC requesting the termination
of registration of the Shares under Section 12(g) of the Exchange Act and the
suspension of reporting obligations under Section 13 and 15(d) of the Exchange
Act with respect to the Shares.
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Item 3.03 Material Modification to Rights of Security Holders
The information set forth under Items 2.01, 3.01, 5.01, and 5.03 of this Current
Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.01 Changes in Control of Registrant
The information set forth under Items 2.01, 5.02, and 5.03 of this Current
Report on Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02 Departure of Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers
In accordance with the Merger Agreement, at the effective time of the Merger,
each of Timothy Adams, William H. Carson, Carl Gordon, Francois Nader, Ran
Nussbaum, Morgan Sheng, Peter Thompson and Asa Abeliovich resigned from the
board of directors of the Company (the "Company Board"). These resignations were
tendered in connection with the Merger and not as a result of any disagreements
between the Company and the resigning individuals on any matters related to the
Company's operations, policies, or practices.
Following the Merger and pursuant to the Merger Agreement, as of the Effective
Time, the directors and officers of Purchaser immediately prior to the Effective
Time became the directors and officers of the Surviving Corporation. The
directors of Purchaser immediately prior to the Effective Time were Travis A.
Coy, Kenneth L. Custer and Philip L. Johnson. The officers of Purchaser
immediately prior to the Effective Time were Kenneth L. Custer as President,
Philip L. Johnson as Vice President and Treasurer, Erin Conway as Secretary, and
Katie Lodato as Vice President, Corporate Tax and Assistant Treasurer.
Information regarding the new directors and executive officers has been
previously disclosed in Schedule 1 of the Offer to Purchase as filed with the
Tender Offer Statement on Schedule TO, originally filed by Parent and Purchaser
on December 22, 2020.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
Pursuant to the terms of the Merger Agreement, on January 22, 2021, the
Company's certificate of incorporation and bylaws were each amended and restated
in their entirety. Copies of the amended and restated certificate of
incorporation and amended and restated bylaws are attached as Exhibits 3.1 and
3.2, respectively, to this Current Report on Form 8-K and are incorporated
herein by reference.
Item 9.01 Exhibits.
(d) Exhibits.
Exhibit No. Description of Exhibit
2.1 Agreement and Plan of Merger, dated as of December 14, 2020,
by and among Parent, Purchaser and the Company (incorporated by
reference to Exhibit 2.1 of the Current Report on Form 8-K, as
amended, filed by the Company on December 15, 2020 (File
No. 001-38939)).
3.1 Amended and Restated Certificate of Incorporation of Prevail
Therapeutics Inc.
3.2 Amended and Restated Bylaws of Prevail Therapeutics Inc.
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PREVAIL THERAPEUTICS INC. 
