Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On
Pursuant to the Merger Agreement, upon the closing of the Merger (the
"Closing"), each outstanding share of Company common stock, other than shares
owned by the Company, AbbVie or Merger Sub (which will be cancelled) and shares
with respect to which appraisal rights are properly exercised and not withdrawn
under
Each stock option outstanding and unexercised immediately prior to the effective time of the Merger (the "Effective Time") will be converted into the right to receive a cash payment, without interest, in an amount equal to the excess of the Merger Consideration over the per share exercise price that would be due in cash upon exercise of such stock option. Each restricted stock unit award outstanding immediately prior to the Effective Time will be converted into the right to receive a cash payment, without interest, in an amount equal to the Merger Consideration. Each warrant to purchase Company common stock outstanding and unexercised immediately prior to the Effective Time will be converted into the right to receive a cash payment, without interest, in an amount equal to the excess of (i) the number of shares of common stock subject to the warrant, multiplied by the Merger Consideration over (ii) the number of shares of common stock subject to the warrant, multiplied by the per share exercise price of such warrant.
The consummation of the Merger is subject to certain customary closing conditions, including (i) the adoption of the Merger Agreement by the holders of a majority of the outstanding shares of the Company's common stock (the "Stockholder Approval"), (ii) the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and (iii) that no judgment or law is in effect that enjoins, makes illegal or otherwise prohibits the consummation of the Merger. Moreover, each party's obligations to consummate the Merger are subject to certain other conditions, including (a) the accuracy of the other party's representations and warranties (subject to certain materiality exceptions), (b) the other party's compliance in all material respects with its obligations under the Merger Agreement, and (c) in the case of AbbVie and Merger Sub only, (i) the absence of any pending claim, proceeding or other action by a governmental authority that seeks to prevent, prohibit or make illegal the consummation of the Merger or materially limit AbbVie's ability to own, control, direct, manage or operate the Company and (ii) the absence of any effect, change, event, development or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect (as defined in the Merger Agreement) that is continuing. Subject to the satisfaction of the closing conditions, the parties anticipate that the Merger will be consummated in the second half of this year.
The Merger Agreement contains representations and warranties and covenants of the parties customary for a transaction of this nature. Until the earlier of the termination of the Merger Agreement and the Effective Time, the Company has agreed to operate its business in the ordinary course of business in all material respects and has agreed to certain other operating covenants and to not take certain specified actions prior to the consummation of the Merger, as set forth more fully in the Merger Agreement. The Company has also agreed to convene and hold a meeting of its stockholders for the purpose of obtaining the Stockholder Approval. In addition, the Merger Agreement requires that, subject to certain exceptions, the Board recommend that the Company's stockholders approve the Merger Agreement.
In addition, the Company has agreed not to initiate, solicit or knowingly encourage takeover proposals from third parties. The Company has also agreed not to provide non-public information to, or, subject to certain exceptions, engage in discussions or negotiations with, third parties regarding takeover proposals. Notwithstanding these restrictions, prior to the receipt of the Stockholder Approval, the Company may under certain circumstances provide non-public information to and participate in discussions or negotiations with third parties with respect to takeover proposals.
Prior to obtaining the Stockholder Approval, the Board may, among other things, change its recommendation that the stockholders approve the Merger Agreement in connection with a Superior Proposal or an Intervening Event (in each case, as defined in the Merger Agreement), or terminate the Merger Agreement to enter into an agreement providing for a Superior Proposal, subject, in each case, to complying with notice and other specified conditions, including giving AbbVie the opportunity to propose revisions to the terms of the Merger Agreement during a period following notice.
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The Merger Agreement contains certain termination rights for the Company and
AbbVie, including, among others, the right of (1) the Company to terminate the
Merger Agreement in order to enter into an agreement providing for a Superior
Proposal (subject to the Company's compliance with certain obligations under the
Merger Agreement related to such Superior Proposal and such termination) and
(2) AbbVie to terminate the Merger Agreement if the Board changes its
recommendation with respect to the Merger Agreement. The Merger Agreement also
provides that under specified circumstances, including in the event of
termination as described in (1) or (2) above, the Company will be required to
pay AbbVie a termination fee of
In connection with a termination of the Merger Agreement under specified
circumstances involving failure to obtain clearance under the HSR Act to
consummate the Merger (or failure to remove certain legal restraints, or to
resolve certain pending claims or proceedings, arising under antitrust laws with
respect to the Merger) within six months from the date of the Merger Agreement,
subject to two extensions of three months each (provided other closing
conditions are satisfied), or involving a non-appealable legal restraint of the
Merger arising under antitrust laws, AbbVie may be required to pay the Company a
reverse termination fee of up to
The foregoing description of the Merger Agreement and the transactions contemplated thereby is not complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 . . .
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Amendment to Brad Hauser Employment Agreement
In connection with the execution of the Merger Agreement, on
Non-Competition and Non-Solicitation Agreement with
On
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The foregoing descriptions of the Employment Agreement Amendment and the Non-Competition Agreement are not complete and are qualified in their entirety by reference to the Employment Agreement Amendment and the Non-Competition Agreement, copies of which are filed as Exhibits 10.1 and 10.2 hereto, respectively, and the terms of which are incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
• provides for the ability of the Company (including the chairperson of any annual meeting or special meeting of stockholders) to postpone, reschedule or cancel any annual meeting or special meeting of stockholders; • permits the Board to determine that a meeting of stockholders will be held solely by means of remote communication in accordance with Section 211(a)(2) of the Delaware General Corporation Law (the "DGCL"); • confirms the obligation of the Company to provide certain advancement rights to the officers of the Company; • adds a new Article XII to the Bylaws that provides that, unless the Company consents in writing to the selection of an alternative forum, (i) the sole and exclusive forum for certain state law legal actions involving the Company will be theCourt of Chancery of the State of Delaware and (ii) the exclusive forum for legal actions arising under the Securities Act of 1933 will be federal court; and • makes certain changes to the Bylaws to comply with the requirements of the DGCL.
The foregoing description of the Amendment and Restatement is not complete and
is qualified in its entirety by reference to the text of the Amendment and
Restatement, marked to show the
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Item 8.01. Other Events.
The Company and AbbVie issued a joint press release on
Forward-Looking Statements
This communication, and any documents to which the Company refers in this
communication, contain not only historical information, but also forward-looking
statements made pursuant to the safe-harbor provisions of the Private Securities
Litigation Reform Act of 1995. Forward-looking statements often include the
words "forecast," "expect," "believe," "will," "intend," "plan," and words of
similar substance. Such forward-looking statements include the expected
completion and timing of the proposed transaction and other information relating
to the proposed transaction. Such forward-looking statements are subject to
risks and uncertainties that could cause actual results or performance to differ
materially from those expressed in or contemplated by the forward-looking
statements, including the following: (i) the risk that the proposed transaction
may not be completed in a timely manner or at all, which may adversely affect
the Company's business and the price of the Company's common stock, (ii) the
failure to satisfy any of the conditions to the consummation of the proposed
transaction, including the receipt of certain governmental and regulatory
approvals, (iii) the occurrence of any event, change or other circumstance that
could give rise to the termination of the Merger Agreement, (iv) the outcome of
any legal proceedings that have been or may be instituted against the Company
related to the Merger Agreement or the proposed transaction and (v) other risks
described in the Company's filings with the
Additional Information about the Proposed Transaction and Where to Find It
In connection with the proposed transaction, the Company will be filing
documents with the
Participants in the Solicitation
The Company and its directors and executive officers may be deemed participants
in the solicitation of proxies from the stockholders of the Company in
connection with the proposed transaction. Information regarding the Company's
directors and executive officers can be found in the Company's definitive proxy
statement filed with the
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Item 9.01. Exhibits. (d) Exhibits Exhibit No. Description 2.1 Agreement and Plan of Merger, dated as ofMay 8, 2021 , among AbbVie Inc.,Scout Merger Sub, Inc. andSoliton, Inc. 3.1 Second Amended and Restated Bylaws ofSoliton, Inc. 4.1 Form of Amendment to Common Stock Purchase Warrant 10.1 Amendment to Employment Agreement by and betweenSoliton, Inc. andBrad Hauser , effectiveMay 8, 2021 10.2 Non-Competition and Non-Solicitation Agreement, dated as ofMay 8, 2021 , betweenSoliton, Inc. andBrad Hauser 10.3Soliton, Inc. Employee Severance Plan, effective as ofMay 8, 2021 99.1 Support Agreement, dated as ofMay 8, 2021 , by and among AbbVie Inc.,Scout Merger Sub, Inc. andRemeditex Ventures LLC 99.2 Form of Officer Support Agreement 99.3 Joint Press Release issued bySoliton, Inc. and AbbVie Inc. onMay 10, 2021
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