AVEO PHARMACEUTICALS, INC. Item 1.01. Entry into a Material Definitive Agreement
On
Subject to the terms and conditions set forth in the Merger Agreement, at the
effective time of the Merger (the "Effective Time"), each share of common stock,
par value
Immediately prior to the Effective Time, each Company stock option outstanding immediately prior to the Effective Time shall vest in full and be cancelled and converted into the right to receive an amount in cash equal to the product of the excess, if any, of the Merger Consideration over the exercise price of such stock option and the number of Shares underlying such option, less any applicable withholding taxes.
The board of directors of the Company (the "Board") has unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to, and in the best interests of, the Company and the Company's stockholders, (ii) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated thereby and (iii) resolved to recommend that the Company's stockholders adopt the Merger Agreement.
Conditions to the Merger
The consummation of the Merger is subject to certain customary closing
conditions set forth in the Merger Agreement, including (i) adoption of the
Merger Agreement by the affirmative vote of the holders of a majority of the
outstanding Shares entitled to vote thereon (the "Company Stockholder
Approval"), (ii) the absence of any temporary, preliminary or permanent
injunction or other order by any governmental authority of competent
jurisdiction that prohibits or makes illegal the consummation of the Merger
(iii) the expiration or early termination of the waiting period (and any
extension thereof) applicable to the consummation of the Merger under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the
expiration or termination of any commitment to a governmental authority to delay
consummation of the Merger and (iv) clearance by the
Representations and Warranties; Covenants
The Merger Agreement contains customary representations and warranties with respect to each party. The Merger Agreement also contains customary covenants, including, among others, covenants requiring the Company to use commercially reasonable efforts to conduct in all material respects its business in the ordinary course consistent with past practice during the period between execution of the Merger Agreement and the earlier of the Effective Time or the termination of the Merger Agreement.
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Under the Merger Agreement, each of LG Chem and the Company has agreed to use its respective reasonable best efforts to take all actions necessary to consummate and make effective the transactions contemplated by the Merger Agreement as promptly as reasonably practicable, subject to certain limitations and conditions. The parties have also agreed to use reasonable best efforts to obtain required governmental approvals, subject to the limitations that (1) LG Chem is not obligated to take certain specified actions unless such actions concern only the Company and would not reasonably be expected to materially diminish the benefits expected to be realized by LG Chem from the Merger and (2) LG Chem is not obligated to divest any business or assets or to contest or resist any decree, judgement, injunction or other order preventing or prohibit the consummation of the transactions under the Merger Agreement.
The Merger Agreement also includes covenants requiring the Company (i) not to solicit, or enter into discussions with third parties relating to, alternative acquisition proposals during the period between the execution of the Merger Agreement and the Effective Time, subject to certain exceptions, and (ii) to call and hold a special meeting of the Company's stockholders to adopt the Merger Agreement and, subject to certain exceptions, not to fail to make, withdraw, qualify or modify in a manner adverse to LG Chem the recommendation of the Board that the Company's stockholders adopt the Merger Agreement.
Termination and Termination Fees
The Merger Agreement may be terminated by LG Chem and the Company by mutual
agreement in writing. In addition, either party may terminate the Merger
Agreement if (a) there has been a breach of any representation, warranty,
covenant or agreement made by the other party in the Merger Agreement such that
an applicable closing condition would not be satisfied (subject to cure rights),
(b) the Merger does not occur by
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On
• provides that, unless the Company consents in writing to the selection of
an alternative forum, the Court of Chancery of the State of Delaware (or,
if the Court of Chancery does not have jurisdiction, another state court
located within the State of Delaware or, if no court located within the
State of Delaware has jurisdiction, the federal district court for the
District of Delaware ), to the fullest extent permitted by law, shall 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 fiduciary duty owed by any current or former director, officer,
or other employee of the Company to the Company or the Company's
stockholders; (iii) any action asserting a claim arising pursuant to any
provision of the General Corporation Law of the State of Delaware or as
to which the General Corporation Law of the State of Delaware confers
jurisdiction on the Court of Chancery of the State of Delaware , or
(iv) any action asserting a claim arising pursuant to any provision of
the Company's certificate of incorporation or its bylaws or governed by
the internal affairs doctrine.
• provides that, unless the Company consents in writing to the selection of
an alternative forum, the exclusive forum for legal actions arising under
the Securities Act of 1933 will be federal district court;
• provides that if any action that is the subject of the forum provision in
Section 5.9 of the Bylaws is filed in a court other than the courts in
the State of Delaware , the stockholder filing the suit will be deemed to
have consented to the personal jurisdiction of state and federal courts
in the State of Delaware in connection with any action brought to enforce
the forum provision; and
• confirms that the forum provision in Section 5.9(a) of the Bylaws will
not apply to suits brought to enforce any liability or duty created by
the Securities Act of 1933 or the Securities Exchange Act of 1934 or any
other claim for which the federal courts have exclusive jurisdiction.
The foregoing description of the Amendment is not complete and is qualified in
its entirety by reference to the text of the Amendment, marked to show the
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Item 8.01. Other Events.
On
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
2.1 Agreement and Plan of Merger, datedOctober 18, 2022 , by and amongAVEO Pharmaceuticals, Inc. , LG Chem, Ltd. andAcacia Acquisition Sub, Inc. * 3.1 Second Amended and Restated Bylaws ofAVEO Pharmaceuticals, Inc. , as amended 99.1 Joint Press Release datedOctober 18, 2022 issued byAVEO Pharmaceuticals, Inc. and LG Chem, Ltd. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of
Regulation S-K.
exhibit to the
Additional Information
This report may be deemed solicitation material in respect of the proposed
acquisition of the Company by LG Chem. The Company expects to file with the
Participants in the Solicitation
The Company and its directors, executive officers and certain other members of
management and employees may be deemed to be participants in soliciting proxies
from the Company's stockholders in connection with the proposed Merger.
Information regarding the persons who may, under the rules of the
Cautionary Note Regarding Forward-Looking Statements
This communication contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that involve substantial risks and uncertainties. These forward-looking statements generally include statements that are predictive in nature and depend on or refer to future events or conditions, and include words such as "expect," "anticipate," "outlook," "could," "target," "project," "intend," "plan," "believe," "seek," "estimate," "should," "may," "assume" and "continue" as well as variations of such words and similar expressions. By their nature, forward-looking statements involve risks and uncertainty because they relate to events and depend on circumstances that will occur in the future, and there are many factors that could cause actual results and developments to differ materially from those expressed or implied by these forward-looking statements. Forward-looking statements include, among other things, statements about the potential benefits of the proposed acquisition
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of the Company by LG Chem (the "proposed transaction"); the prospective performance and outlook of the Company's business, performance and opportunities; any potential strategic benefits, synergies or opportunities expected as a result of the proposed transaction; the ability of the parties to complete the proposed transaction and the expected timing of completion of the proposed transaction; as well as any assumptions underlying any of the foregoing.
These statements are not guarantees of future performance and they involve
certain risks, uncertainties and assumptions that are difficult to predict. We
caution you that actual outcomes and results may differ materially from what is
expressed, implied or forecasted by our forward-looking statements. There can be
no guarantee that the proposed transaction will be completed, or that it will be
completed as currently proposed, or at any particular time. Neither can there be
any guarantee that the Company will achieve any particular future financial
results. In particular, our expectations could be affected by, among other
things: the risk that the proposed transaction may not be completed in a timely
manner or at all; the possibility that competing offers or acquisition proposals
for the Company will be made; the possibility that required regulatory,
stockholder or other approvals or other conditions to the consummation of
proposed transaction may not be satisfied on a timely basis or at all (and the
risk that such approvals may result in the imposition of conditions that could
adversely affect LG Chem or the Company or the expected benefits of the proposed
transaction); regulatory actions or delays or government regulation generally,
including potential regulatory actions or delays relating to the completion of
the potential transaction; the occurrence of any event, change or other
circumstance that could give rise to the right of LG Chem or the Company to
terminate the definitive merger agreement governing the terms and conditions of
the proposed transaction; effects of the announcement, pendency or consummation
of the proposed transaction on the Company's ability to retain and hire key
personnel, its ability to maintain relationships with its customers, suppliers
and others with whom it does business, its business generally or its stock
price; risks related to the diversion of management's attention from ongoing
business operations and opportunities; the risk that stockholder litigation in
connection with the proposed transaction may result in significant costs of
defense, indemnification and liability; the possibility that the proposed
transaction may be more expensive to complete than anticipated, including as a
result of unexpected factors or events; and other risks and factors referred to
from time to time in the Company's filings with the
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