Item 2.01
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Completion of Acquisition or Disposition of Assets.
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On October 1, 2020, Ligand Pharmaceuticals Incorporated, a Delaware corporation (“Ligand”), completed the previously announced acquisition of Pfenex Inc., a Delaware corporation (“Pfenex”), pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of August 10, 2020, by and among Ligand, Pfenex and Pelican Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Ligand (“Acquisition Sub”).
As previously disclosed, pursuant to the Merger Agreement, on August 31, 2020, Acquisition Sub commenced an exchange offer (the “Offer”) to purchase all of the issued and outstanding shares of common stock, par value $0.001 per share, of Pfenex (the “Shares”), for a purchase price of (i) $12.00 per share, in cash (the “Cash Portion”), and (ii) a non-transferrable contractual right (a “CVR”) pursuant to the Contingent Value Rights Agreement (as it may be amended from time to time, the “CVR Agreement”), to receive a contingent payment upon the achievement of a certain milestone as set forth in the CVR Agreement, without interest (the together with the Cash Portion, the “Offer Price”), subject to any required tax withholding and upon the other terms and subject to the conditions set forth in the Offer to Purchase, dated August 31, 2020 and the related Letter of Transmittal.
The Offer expired at midnight (New York City time) at the end of the day on Tuesday, September 29, 2020. The depositary for the Offer advised Ligand and Pfenex that, as of the expiration of the Offer, a total of 24,744,327 Shares (excluding Shares with respect to which Notices of Guaranteed Delivery were delivered) had been validly tendered and not properly withdrawn pursuant to the Offer, representing approximately 72% of Pfenex’s then outstanding Shares (determined in accordance with the Merger Agreement). In addition, Notices of Guaranteed Delivery were delivered with respect to approximately 2,847,227 Shares that have not yet been tendered, representing approximately 8.3% of Pfenex’s then outstanding Shares. The Minimum Condition (as defined in the Merger Agreement) for the Offer was satisfied because the number of Shares validly tendered and not properly withdrawn pursuant to the Offer represented at least a majority of the Shares then outstanding (determined in accordance with the Merger Agreement and excluding from the number of tendered Shares, but not from the number of outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee). All other conditions to the Offer having also been satisfied or waived, immediately after the expiration of the Offer, Purchaser accepted all of the Shares for payment, and will promptly pay for such Shares in accordance with the terms of the Offer.
On October 1, 2020, pursuant to the terms of the Merger Agreement and in accordance with Section 251(h) of the General Corporation Law of the State of Delaware, Acquisition Sub merged with and into Pfenex (the “Merger”), with Pfenex continuing as the surviving corporation and a wholly owned subsidiary of Ligand. In the Merger, each Share that was issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”) (other than any shares that were excluded pursuant to the terms of the Merger Agreement) was, at the Effective Time, converted into the right to receive the Offer Price.
The foregoing descriptions of the Offer, the Merger and the Merger Agreement in this Item 2.01 do not purport to be complete and are qualified in their entirety by reference to the full text of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to Pfenex’s Current Report on Form 8-K, filed with the Securities and Exchange Commission (the “SEC”) on August 11, 2020, and is incorporated herein by reference.
The information set forth in Items 3.03, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.