RADIUS HEALTH, INC. Item 1.01 Entry into a Material Definitive Agreement
Agreement and Plan of Merger
On
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions thereof, Purchaser will commence a tender offer (the "Offer") to
purchase each issued and outstanding share (the "Shares") of common stock, par
value
At the effective time of the Merger (the "Effective Time"), each:
1) Share issued and outstanding immediately prior to the Effective Time
(other than (i) each Share held in the treasury of the Company or owned
by the Company or any direct or indirect wholly owned subsidiary of the
Company and each Share owned by Parent, Purchaser or any direct or
indirect wholly owned subsidiary of Parent or Purchaser immediately prior
to the Effective Time or (ii) Shares outstanding immediately prior to the
Effective Time and held by stockholders who are entitled to demand, and
properly demand, appraisal for such Shares in accordance with Section 262
of the DGCL) will be converted into the right to receive the Offer Price,
without interest (the "Merger Consideration");
2) (i) Company stock option ("Company Stock Option"), Company restricted
stock unit ("Company RSU") and Company performance stock unit ("Company
PSU" and, together with the Company RSUs, the "Company Equity Awards")
that is outstanding and unvested immediately prior to the Effective Time
that vests solely based on the holder's continued employment or service,
will vest in full, and (ii) Company Stock Option and Company Equity Award
that does not vest solely based on the holder's continued employment or
service, will vest (in part or in full) based on achievement of the
specified performance in accordance with the terms and conditions of the
Company Stock Option or Company Equity Award, as applicable, and the
terms of the Merger Agreement and the unvested portion of each such award
will be cancelled for no consideration;
3) (i) Company Stock Option that has an exercise price per Share that is
less than the Offer Price (an "In-the-Money Option") that is outstanding
will be cancelled, and, in exchange therefor, the holder of such
cancelled Company Stock Option will be entitled to receive (without
interest), (A) an amount in cash (less applicable tax withholdings) equal
to the product of (x) the total number of Shares subject to such Company
Stock Option immediately prior to the Effective Time multiplied by
(y) the excess, if any, of the Cash Consideration over the applicable
exercise price per Share under such Company Stock Option, and (B) one CVR
for each Share subject thereto (the "Option Consideration"), and
(ii) each Company Stock Option that is not an In-
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the-Money Option will be cancelled for no consideration. As of the
Effective Time, all holders of Company Stock Options will cease to have
any rights with respect thereto, except the right to receive the Option
Consideration in accordance with the Merger Agreement; and
4) Company Equity Award that is outstanding will be cancelled, and the
holder of such cancelled Company Equity Award will be entitled, in
exchange therefor, to receive (without interest) (A) an amount in cash
(less applicable tax withholdings) equal to the product of (x) the total
number of Shares subject to (or deliverable under) such Company Equity
Award immediately prior to the Effective Time multiplied by (y) the Cash
Consideration, and (B) one CVR for each Share subject thereto.
Consummation of the Offer is subject to certain conditions, including: (i) immediately prior to the expiration of the Offer (as extended in accordance with the Merger Agreement) the number of Shares validly tendered, and not validly withdrawn, is at least one more than 50% of the total number of Shares outstanding at the time of the expiration of the Offer (the "Minimum Condition"); (ii) immediately prior to the expiration of the Offer (as extended in accordance with the Merger Agreement), any waiting period (and any extensions thereof) and any approvals or clearances applicable to the consummation of the transactions contemplated by the Merger Agreement in accordance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 have expired or been terminated or obtained, as applicable; and (iii) none of the following events shall have occurred and be continuing: (a) there is pending any suit, action or proceeding by a governmental body (i) seeking to prohibit or impose any material limitations on Parent's or Purchaser's ownership or operation of all or any material portion of their or the Company's businesses or assets, taken as a whole, or to compel Parent or Purchaser to dispose of or hold separate any material portion of the business or assets of the Company or Parent, (ii) seeking to prohibit or make illegal the making or consummation of the Offer or the Merger, (iii) seeking to impose material limitations on the ability of Purchaser, or render Purchaser unable, to accept for payment, pay for or purchase Shares in accordance with the Offer or the Merger such that the Minimum Condition would fail to be satisfied or (iv) seeking to impose material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares; (b) there is any statute, rule, regulation, judgment, order or injunction enforced, by or on behalf of a governmental body, to the Offer, the Merger or any other transaction contemplated by the Merger Agreement, or any other action will be taken by any governmental body, that is reasonably expected to result, directly or indirectly, in any of the consequences referenced in clauses (i) through (iv) of (a) above; (c) subject to certain qualifications, the accuracy of representations and warranties of the Company under the Merger Agreement, (d) the performance and compliance in all material respects by the Company of its obligations under the Merger Agreement; (e) the absence of any Company Material Adverse Effect (as defined in the Merger Agreement); (f) the delivery by the Company to Parent of a certificate signed by an authorized officer of the Company certifying as to the satisfaction of certain closing conditions by Company. The Minimum Condition may not be waived by Parent or Purchaser without the prior written consent of the Company.
Consummation of the Merger is subject to certain conditions, including: (i) no order, injunction or decree issued by any court or other governmental body, and no statute, rule, regulation, order, injunction, or decree will have been enacted, entered, promulgated, or enforced (and continue to be in effect) by any governmental body that prohibits, enjoins, restricts, prevents or makes illegal the consummation of the transactions contemplated by the Merger Agreement; and (ii) Purchaser has irrevocably accepted for purchase the Shares validly tendered (and not validly withdrawn) pursuant to the Offer.
The Company has made customary representations and warranties in the Merger Agreement and has agreed to customary covenants regarding the operation of the business of the Company and its subsidiaries to the Effective Time.
The Merger Agreement also includes covenants requiring the Company not to (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiry with respect to, or the making, submission or announcement of any alternative acquisition proposal, (ii) enter into, continue or engage in negotiations with any person (other than Parent or Purchaser, or any of their designees) with respect to any alternative acquisition proposal or any inquiry or proposal that could reasonably be expected to lead to an alternative acquisition proposal, (iii) provide any non-public information or access to any person (other than Parent or Purchaser, or any of their designees) in connection with any alternative acquisition proposal or any inquiry or proposal that could reasonably be expected to lead to an alternative acquisition proposal, (iv) approve, endorse or recommend any alternative acquisition proposal, or any person becoming an "interested stockholder" of the Company as defined in Section 203 of the DGCL, (v) enter into any letter of intent or agreement in principle or any agreement providing for any alternative acquisition proposal (except for confidentiality agreements permitted under the Merger Agreement) or (vi) to resolve to do or agree or publicly announce an intention to do any of the foregoing.
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Notwithstanding these restrictions, the Company may under certain circumstances provide information to and engage in discussions or negotiations with third parties with respect to a bona fide acquisition proposal that Company's Board of Directors (the "Company Board") determines in good faith, after consultation with the Company's financial advisors and outside legal counsel, constitutes a Superior Proposal (as defined in the Merger Agreement). In addition, the Company Board is permitted, subject to the terms and conditions set forth in the Merger Agreement, to make a Change of Board Recommendation (as defined in the Merger Agreement) following (i) receipt of a Superior Proposal that did not result from a material breach of the non-solicitation covenants in the Merger Agreement, or (ii) in response to an Intervening Event (as defined in the Merger Agreement), in each case, if the Company Board concludes in good faith, after consultation with outside counsel and its financial advisors, that failure to take such action would reasonably be likely to be inconsistent with the directors' fiduciary duties under applicable law and subject to certain matching rights in favor of Parent.
The Merger Agreement contains certain termination rights for each of the Company
and Parent. Upon termination of the Merger Agreement by the Company in
accordance with its terms, under certain circumstances, the Company will be
required to pay Parent a termination fee in an amount equal to
Concurrently with the execution of the Merger Agreement, each of
Concurrently with the execution of the Merger Agreement, each of the Guarantors
entered into an equity commitment letter (together, the "Equity Commitment
Letters") with Parent, pursuant to which the Guarantors agreed to provide equity
commitments to Parent in an aggregate amount of
Concurrently with the execution of the Merger Agreement, Parent entered into a
debt commitment letter dated
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit Number Exhibit Description 2.1* Agreement and Plan of Merger, dated as ofJune 23, 2022 , by and among the Company,Ginger Acquisition, Inc. andGinger Merger Sub, Inc. 10.1 Form of Contingent Value Rights Agreement to be entered into betweenGinger Acquisition, Inc. and a Rights Agent
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99.1 Press Release, dated as ofJune 23, 2022 104 The cover page of this Current Report on Form 8-K formatted as Inline XBRL
* Certain exhibits and schedules have been omitted pursuant to Item 601(b)(2) of
Regulation S-K.
of any omitted exhibits or schedules upon request.
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