Completion of Acquisition or Disposition of Assets.
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been validly tendered and not properly withdrawn pursuant to the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validly tendered and not properly withdrawn pursuant to the Offer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.
Notice of Delisting or Failure to Satisfy a Continuing Listing Rule
or Standard; Transfer of Listing.
Before the market opened on October 1, 2020, in connection
with the consummation of the Offer and the Merger, Pfenex
(i) notified the New York Stock Exchange American (“NYSE
American”) of the consummation of the Merger and
(ii) requested that NYSE American file with the SEC a
Form 25 Notification of Removal from Listing and/or
Registration to delist and deregister the Shares under
Section 12(b) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). The Shares ceased trading on NYSE
American following the close of trading on September 30, 2020.
Pfenex also intends to file with the SEC a Form 15 requesting that
Pfenex’s reporting obligations under Section 13 and 15(d) of
the Exchange Act be suspended. The information set forth in Item
2.01 of this Current Report on Form 8-K is incorporated by reference into
this Item 3.01.