AUDENTES THERAPEUTICS, INC. Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
Consummation of the Offer is subject to various conditions set forth in the Merger Agreement, including (i) that the number of Shares validly tendered and not validly withdrawn, together with any Shares then owned by Parent and its controlled affiliates, is one share more than one half of all Shares then outstanding; (ii) the termination or expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (iii) the absence of any judgment, order or injunction by any governmental authority of competent jurisdiction preventing the consummation of the Offer or the Merger (as defined below) or any law that makes the consummation of the Offer or Merger illegal; (iv) the accuracy of the Company's representations and warranties contained in the Merger Agreement, except, in most cases, for inaccuracies that have not had a Company Material Adverse Effect; (v) the Company's performance in all material respects of its obligations under the Merger Agreement; (vi) the absence of a Company Material Adverse Effect (as defined in the Merger Agreement) and (vii) the other conditions set forth in Annex I to the Merger Agreement.
The Offer will remain open until midnight,
In the Merger, each outstanding Share (other than (i) the Shares held in the treasury of the Company or owned by Parent or Merger Sub immediately prior to the effective time of the Merger (the "Effective Time") and (ii) Shares as to which appraisal rights have been perfected in accordance with the DGCL) will be canceled and converted into the right to receive an amount in cash equal to the Offer Price, without interest (the "Merger Consideration"). Immediately prior to the Effective Time, all unvested stock options and unvested restricted stock units will become fully vested, and at the Effective Time, each stock option and restricted stock unit will be canceled and converted into the right to receive an amount in cash equal to the Merger Consideration (or, in the case of stock options, the difference between the Merger Consideration and the applicable per share exercise price), less any applicable tax withholding.
The board of directors of the Company (the "Board") has unanimously (i) determined that the Offer, the Merger, Merger Agreement and the other transactions contemplated by the Merger Agreement are advisable and in the best interests of the stockholders of the Company, (ii) approved and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement and (iii) resolved, subject to the terms and conditions of the Merger Agreement, to recommend acceptance of the Offer by the stockholders of the Company.
The Merger Agreement contains customary representations and warranties by Parent, Merger Sub, and the Company. The Merger Agreement also contains customary covenants, including a covenant of the Company not to solicit, initiate, propose or knowingly encourage any inquiries or submission of any alternative acquisition proposal, or to furnish non-public information to, or participate in any discussions or negotiations with, any third party with respect to any such proposal, subject to customary exceptions for the Company to respond to unsolicited proposals to the extent the Board determines in good faith that the failure to do so would be inconsistent with the fiduciary duties of the Board and other requirements contained in the Merger Agreement.
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The Merger Agreement contains customary termination provisions, including the
right of the Company in certain circumstances to terminate the Merger Agreement
and accept a Superior Proposal (as defined in the Merger Agreement). Upon the
termination of the Merger Agreement under specified circumstances, including if
the Company terminates the Merger Agreement to accept a Superior Proposal, the
Company will be required to pay Parent a termination fee of
A copy of the Merger Agreement is attached hereto as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement. The Merger Agreement has been attached to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company, Merger Sub, or Parent. In particular, the assertions embodied in the representations and warranties contained in the Merger Agreement were made only for purposes of the Merger Agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement and are qualified by information in confidential disclosures provided by the parties thereto in connection with the signing of the Merger Agreement. These disclosures include information that modifies, qualifies, and creates exceptions to the representations, warranties, and covenants set forth in the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were used for the purpose of allocating risk between the Company, Merger Sub, and Parent, rather than establishing matters of fact and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Accordingly, the representations, warranties and covenants in the Merger Agreement may not constitute the actual state of facts about the Company, Merger Sub, or Parent and investors should not rely on such representations, warranties and covenants as actual facts. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public . . .
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
On
Under
Under
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employment agreement) or as a result of her resignation for Good Reason (as
amended pursuant to her Retention Agreement, as described below), or due to her
death or disability, she will be eligible to receive any unpaid portion of her
cash retention award, subject to her execution of a release of claims in the
event of a termination without Cause or a resignation for Good Reason. In
addition, in the event of a termination without Cause or a resignation for Good
Reason,
Under
Under the Retention Agreements with
Under the Retention Agreement with
Item 8.01 Other Events.
On
Additional Information about the Acquisition and Where to Find It
The tender offer for the outstanding shares of common stock of Audentes has not
yet commenced. This communication is for informational purposes only and is
neither an offer to purchase nor a solicitation of an offer to sell shares of
Audentes common stock, nor is it a substitute for the tender offer materials
that Astellas and its acquisition subsidiary will file with the
AUDENTES' STOCKHOLDERS ARE ADVISED TO READ THE SCHEDULE TO AND THE SCHEDULE 14D-9 CAREFULLY, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE TENDER OFFER, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO, AS WELL AS IMPORTANT INFORMATION THAT HOLDERS OF SHARES OF AUDENTES' COMMON STOCK SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SHARES.
Cautionary Notice Regarding Forward-Looking Statements
This Form 8-K contains "forward-looking statements" relating to the acquisition of Audentes by Astellas. Such forward-looking statements include, but are not limited to, the ability of Audentes and Astellas to complete the transactions contemplated by the Merger Agreement, including the parties' ability to satisfy the conditions to the consummation of the Offer contemplated thereby and the other conditions set forth in the Merger Agreement, statements about the expected timetable for completing the transaction, Astellas' and Audentes' beliefs and expectations and statements about the benefits sought to be achieved in Astellas' proposed acquisition of Audentes, the potential effects of the acquisition on both Astellas and Audentes, and the possibility of any termination of the Merger Agreement. In some cases, forward-looking statements may be identified by terminology such as "believe," "may," "will," "should", "predict", "goal", "strategy", "potentially," "estimate," "continue," "anticipate," "intend," "could," "would," "project," "plan," "expect," "seek" and similar expressions and variations thereof. These words are intended to identify forward-looking statements. Audentes has based these forward-looking statements on current expectations and projections about future events and trends that it believes may affect the financial condition, results of operations, business strategy, short-term and long-term business operations and objectives and financial needs of Audentes, but there can be no guarantee that such expectations and projections will prove accurate in the future.
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All statements other than statements of historical fact are statements that
could be deemed forward-looking statements. Actual results may differ materially
from current expectations because of risks associated with uncertainties as to
the timing of the Offer and the subsequent Merger; uncertainties as to how many
of Audentes' stockholders will tender their shares in the Offer; the risk that
competing offers or acquisition proposals will be made; the possibility that
various conditions to the consummation of the Merger and the Offer contemplated
thereby may not be satisfied or waived; the effects of disruption from the
transactions contemplated by the Merger Agreement on Audentes' business and the
fact that the announcement and pendency of the transactions may make it more
difficult to establish or maintain relationships with employees, suppliers and
other business partners; and the risk that stockholder litigation in connection
with the Offer or the Merger may result in significant costs of defense,
indemnification and liability. Moreover, Audentes operates in very competitive
and rapidly changing environment, and new risks emerge from time to time.
Although Audentes believes that the expectations reflected in such
forward-looking statements are reasonable, it cannot guarantee future events,
results, actions, levels of activity, performance or achievements, business and
market conditions, the timing and results of biotechnology development and
potential regulatory approval and whether the conditions to the closing of the
proposed transaction are satisfied on the expected timetable or at all.
Forward-looking statements are also subject to risks and uncertainties
pertaining to the business of Audentes, including those set forth in the "Risk
Factors" and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" sections of Audentes' Annual Report on Form 10-K for the
year ended
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No.
2.1 Agreement and Plan of Merger, dated as of December 2, 2019 , by and
among Astellas Pharma Inc., Asilomar Acquisition Corp. , and Audentes
Therapeutics, Inc. *
10.1 Retention Agreement between the Company and Matthew Patterson ,
dated November 30, 2019
10.2 Retention Agreement between the Company and Natalie Holles , dated
November 30, 2019
10.3 Retention Agreement between the Company and Thomas Soloway , dated
November 30, 2019
99.1 Joint Press Release issued by Astellas Pharma Inc. and Audentes
Therapeutics, Inc. , dated December 2, 2019
104 Cover Page Interactive Data File (the cover page XBRL tags are
embedded within the inline XBRL document).
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A
copy of any omitted schedule will be furnished supplementally to the
request.
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