Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On April 12, 2022, Antares Pharma, Inc., a Delaware corporation (the "Company"),
entered into an Agreement and Plan of Merger (the "Merger Agreement") with
Halozyme Therapeutics, Inc., a Delaware corporation ("Halozyme"), and Atlas
Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Halozyme ("Purchaser").
Pursuant to the Merger Agreement, on the terms and subject to the conditions
thereof, Purchaser will commence a cash tender offer (the "Offer") no later than
April 26, 2022 to acquire all of the outstanding shares of common stock of the
Company, $0.01 par value per share (the "Shares"), at a purchase price of $5.60
per Share in cash (the "Offer Price"), without interest and subject to any
withholding of taxes required by applicable legal requirements.
The obligation of Purchaser to purchase Shares tendered in the Offer is subject
to the satisfaction or waiver of the conditions set forth in the Merger
Agreement, including (1) that the number of Shares validly tendered in
accordance with the terms of the Offer and not validly withdrawn, considered
together with all other Shares otherwise beneficially owned by Halozyme or any
of its wholly owned subsidiaries (including Purchaser) (but excluding Shares
tendered pursuant to guaranteed delivery procedures that have not yet been
received, as defined by Section 251(h)(6) of the Delaware General Corporation
Law (the "DGCL")), would represent one more than 50% of the total number of
Shares outstanding at the time of the expiration of the Offer, (2) the
expiration or termination of the applicable waiting period (or any extension
thereof) under the HSR Act (3) and those other conditions set forth in the
Merger Agreement.
The Offer will initially expire at one minute after 11:59 p.m. Eastern Time on
the twentieth business day following the commencement of the Offer, unless
otherwise agreed to in writing by Halozyme and the Company. The expiration date
may be extended: (i) if, as of the then-scheduled expiration date, any Offer
Condition is not satisfied and has not been waived, Purchaser may, in its
discretion (and without the consent of the Company or any third party), extend
the Offer on one or more occasions, for an additional period of up to ten
business days per extension, to permit such Offer Condition to be satisfied;
(ii) Purchaser will extend the Offer from time to time for: (A) any period
required by any applicable securities law, rule, regulation or other legal
requirement, any interpretation or position of the Securities and Exchange
Commission (the "SEC"), the staff thereof or Nasdaq applicable to the Offer; and
(B) periods of up to ten business days per extension, until the Regulatory
Condition (as defined in the Merger Agreement) has been satisfied; and (iii) if,
as of the then-scheduled expiration date, any Offer Condition is not satisfied
and has not been waived, Purchaser will, at the request of the Company, extend
the Offer on one or more occasions for an additional period of up to ten
business days per extension, to permit such Offer Condition to be satisfied. In
no event will Purchaser: (1) be required to extend the Offer beyond the earlier
to occur of (x) the valid termination of the Merger Agreement in accordance with
its terms and (y) the first business day immediately following the "End Date"
which is the date that is six months from the date of entering into the Merger
Agreement, (such earlier occurrence, the "Extension Deadline"); or (2) be
permitted to extend the Offer beyond the Extension Deadline without the prior
written consent of the Company. Purchaser will not terminate the Offer prior to
any scheduled Expiration Date without the prior written consent of the Company,
except in the event that the Merger Agreement is validly terminated in
accordance with its terms.
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 the Company, with the Company continuing as the surviving
corporation and as a wholly owned subsidiary of Halozyme (the "Merger"). The
Company, Halozyme and 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
(1) held by the Company (or in the Company's treasury), Halozyme or any direct
or indirect wholly owned subsidiary of Halozyme (other than Purchaser), or by
stockholders of the Company who have properly exercised and perfected their
statutory rights of appraisal under Delaware law, or (2) irrevocably accepted
for purchase in the Offer) will each be converted into the right to receive an
amount in cash equal to the Offer Price (the "Merger Consideration"), without
interest and subject to any withholding of taxes required by applicable legal
requirements.
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Each of the Company's stock options (the "Company Options") that is outstanding
as of immediately prior to the Effective Time will, to the extent unvested,
accelerate and become fully vested and exercisable effective prior to the
Effective Time. Each Company Option that is outstanding and unexercised as of
immediately prior to the Effective Time will be cancelled and converted into the
right to receive cash in an amount equal to the total number of Shares subject
to the Company Option immediately prior to the Effective Time multiplied by the
excess (if any) of the Merger Consideration over the exercise price payable per
Share under such Company Option. Each restricted stock unit award granted
pursuant to any of the Company equity plans or otherwise ("Company RSUs") and
each performance restricted stock unit award granted pursuant to any of the
Company equity plans or otherwise ("Company PSUs") that is outstanding
immediately prior to the Effective Time will be cancelled at the Effective Time
and converted into the right to receive cash in an amount equal to the number of
Shares issuable in settlement of the Company RSU or Company PSU (in the case of
Company PSUs at the target level of performance) immediately prior to the
Effective Time multiplied by the Merger Consideration for each Share issuable in
settlement of such Company RSU or Company PSU.
Representations, Warranties and Covenants
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, the Company has agreed, subject to certain exceptions, to
conduct its business in all material respects in the ordinary course and has
agreed to certain other operating covenants, as set forth in the Merger
Agreement. The Company has also agreed not to directly or indirectly solicit or
encourage discussions or negotiations with any third party regarding alternative
acquisition proposals.
Termination
The Merger Agreement also contains termination provisions for both the Company
and Halozyme and provides that, upon termination of the Merger Agreement under
specified circumstances, including termination by the Company to accept and
enter into a definitive agreement with respect to an unsolicited superior offer,
the Company will be required to pay a termination fee of $33,000,000 (the
"Termination Fee"). A superior offer includes a bona fide written proposal,
pursuant to which, if consummated, a third party would acquire, directly or
indirectly, more than 50% of the outstanding Shares or 50% of the assets of the
Company, that the board of directors of the Company determines in its good faith
judgment (after consultation with outside legal counsel and its financial
advisors) is reasonably likely to be completed on the terms proposed and, taking
into account relevant factors, including legal, regulatory, financial, financing
aspects (including certainty of the consummation of the transactions), if
consummated, would be more favorable to the Company's stockholders (solely in
their capacity as such) from a financial point of view than the terms of the
Offer and the Merger.
Any termination of the Merger Agreement by the Company in connection with a
superior offer is subject to certain conditions, including the Company's
compliance with certain procedures set forth in the Merger Agreement and a
determination in good faith by the Company's board of directors (after
consultation with outside legal counsel and its financial advisors) that such
termination would be reasonably likely to be inconsistent with their fiduciary
duties to the Company's stockholders under applicable law, payment of the
Termination Fee by the Company and the concurrent execution of a definitive
agreement between the Company and such third party. In addition, either the
Company or Halozyme may terminate the Merger Agreement if the Purchaser has not
accepted the Shares validly tendered pursuant to the Offer for payment on or
prior to 5:00 p.m., Eastern Time, on the End Date.
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Additional Information
The foregoing description of the Merger Agreement is not complete and is
qualified in its entirety by reference to the Merger Agreement which is attached
as Exhibit 2.1 to this Current Report on Form 8-K and incorporated by reference
herein.
The Merger Agreement and the foregoing description have been included to provide
investors and stockholders with information regarding the terms of the Merger
. . .
Item 5.03 Amendments to Articles of Incorporation or By-laws; Change in Fiscal
Year.
On April 12, 2022, the board of directors of the Company adopted an amendment to
the Company's existing Amended and Restated By-laws (the "By-laws") by adding a
new Section 7.1 containing a forum selection provision (the "Amendment").
Generally, the Amendment provides that unless the Company consents in writing to
the selection of an alternative forum (an "Alternative Forum Consent"), the
Court of Chancery of the State of Delaware will be the sole and exclusive forum
for (i) any derivative action or proceeding brought on behalf of the Company,
(ii) any action asserting a claim of breach of a duty (including any fiduciary
duty) owed by any current or former director, officer, stockholder, employee or
agent of the Company to the Company or the Company's stockholders, (iii) any
action asserting a claim against the Company or any current or former director,
officer, stockholder, employee or agent of the Company arising out of or
relating to any provision of the DGCL or the Company's Certificate of
Incorporation or By-laws (each, as in effect from time to time), or (iv) any
action asserting a claim against the Company or any current or former director,
officer, stockholder, employee or agent of the Company's governed by the
internal affairs doctrine of the State of Delaware.
This summary is qualified in its entirety by reference to the Amendment to the
By-laws, dated April 12, 2022, and filed as Exhibit 3.1 hereto and incorporated
by reference herein.
Item 9.01 Financial Statements and Exhibits.
On April 13, 2022, Halozyme and the Company issued a joint press release
announcing the execution of the Merger Agreement. A copy of the press release is
attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated
herein by reference.
Exhibit
Number Description
2.1 Agreement and Plan of Merger, dated as of April 12, 2022, by and among
Halozyme Therapeutics, Inc., Atlas Merger Sub, Inc., and Antares Pharma,
Inc.*
3.1 Amendment to the Company's Amended and Restated By-laws, dated April 12,
2022
99.1 Joint Press Release by Antares Pharma, Inc. and Halozyme Therapeutics,
Inc., dated April 13, 2022
104 Cover Page Interactive Date File (embedded within the Inline XBRL
document)
* Schedules omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company
agrees to furnish supplementally a copy of any omitted schedule to the SEC
upon request.
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ANTARES PHARMA, INC. 