Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On April 12, 2022, Antares Pharma, Inc., a Delaware corporation (the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”)
with Halozyme Therapeutics, Inc., a Delaware corporation (“Halozyme”), and Atlas Merger Sub, Inc., a Delaware corporation and
a wholly owned subsidiary of Halozyme (“Purchaser”).
Pursuant to the Merger Agreement, on the terms and subject to the conditions thereof, Purchaser will commence a cash tender offer (the “Offer”) no later than April 26, 2022 to acquire all of the outstanding shares of common stock of the Company, $0.01 par value per
share (the “Shares”), at a purchase price of $5.60 per Share in cash (the “Offer Price”), without interest and subject to any withholding of taxes required by applicable legal requirements.
The obligation of Purchaser to purchase Shares tendered in the Offer is subject to the satisfaction or waiver of the conditions set forth in the Merger
Agreement, including (1) that the number of Shares validly tendered in accordance with the terms of the Offer and not validly withdrawn, considered together with all other Shares otherwise beneficially owned by Halozyme or any of its wholly owned
subsidiaries (including Purchaser) (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been received, as defined by Section 251(h)(6) of the Delaware General Corporation Law (the “DGCL”)), would represent one more than 50% of the total number of Shares outstanding at the time of the expiration of the Offer, (2) the expiration
or termination of the applicable waiting period (or any extension thereof) under the HSR Act (3) and those other conditions set forth in the Merger Agreement.
The Offer will initially expire at one minute after 11:59 p.m.
Eastern Time on the twentieth business day following the commencement of the Offer, unless otherwise agreed to in writing by Halozyme and the Company. The expiration date may be extended: (i) if, as of the then-scheduled expiration date, any
Offer Condition is not satisfied and has not been waived, Purchaser may, in its discretion (and without the consent of the Company or any third party), extend the Offer on one or more occasions, for an additional period of up to ten business days
per extension, to permit such Offer Condition to be satisfied; (ii) Purchaser will extend the Offer from time to time for: (A) any period required by any applicable securities law, rule, regulation or other legal requirement, any interpretation
or position of the Securities and Exchange Commission (the “SEC”), the staff thereof or Nasdaq applicable to the Offer; and (B) periods of up to ten business days per extension, until the Regulatory Condition (as defined in the Merger Agreement) has been satisfied;
and (iii) if, as of the then-scheduled expiration date, any Offer Condition is not satisfied and has not been waived, Purchaser will, at the request of the Company, extend the Offer on one or more occasions for an additional period of up to ten
business days per extension, to permit such Offer Condition to be satisfied. In no event will Purchaser: (1) be required to extend the Offer beyond the earlier to occur of (x) the valid termination of the Merger Agreement in accordance with its
terms and (y) the first business day immediately following the “End Date” which is the date that is six months from the date of entering into the Merger Agreement, (such earlier occurrence, the “Extension Deadline”); or (2) be permitted to extend the Offer beyond the Extension Deadline
without the prior written consent of the Company. Purchaser will not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except in the event that the Merger Agreement is validly terminated
in accordance with its terms.
Following the completion of the Offer and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, Purchaser will
merge with and into the Company, with the Company continuing as the surviving corporation and as a wholly owned subsidiary of Halozyme (the “Merger”). The Company, Halozyme and Purchaser will effect the Merger after consummation of the Offer pursuant to Section 251(h) of the DGCL. At the effective time of the Merger (the “Effective Time”), the Shares then outstanding (other than Shares (1) held by the Company (or in the Company’s treasury), Halozyme or any direct or indirect wholly
owned subsidiary of Halozyme (other than Purchaser), or by stockholders of the Company who have properly exercised and perfected their statutory rights of appraisal under Delaware law, or (2) irrevocably accepted for purchase in the Offer) will
each be converted into the right to receive an amount in cash equal to the Offer Price (the “Merger Consideration”), without
interest and subject to any withholding of taxes required by applicable legal requirements.
Each of the Company’s stock options (the “Company Options”) that is outstanding as of immediately prior to the Effective Time will, to the extent unvested, accelerate and become fully vested and exercisable effective prior to the Effective Time. Each Company Option that
is outstanding and unexercised as of immediately prior to the Effective Time will be cancelled and converted into the right to receive cash in an amount equal to the total number of Shares subject to the Company Option immediately prior to the
Effective Time multiplied by the excess (if any) of the Merger Consideration over the exercise price payable per Share under such Company
Option. Each restricted stock unit award granted pursuant to any of the Company equity plans or otherwise (“Company RSUs”)
and each performance restricted stock unit award granted pursuant to any of the Company equity plans or otherwise (“Company PSUs”)
that is outstanding immediately prior to the Effective Time will be cancelled at the Effective Time and converted into the right to receive cash in an amount equal to the number of Shares issuable in settlement of the Company RSU or Company PSU (in
the case of Company PSUs at the target level of performance) immediately prior to the Effective Time multiplied by the Merger Consideration for
each Share issuable in settlement of such Company RSU or Company PSU.
Representations, Warranties and Covenants
The Merger Agreement includes representations, warranties and covenants of the parties customary for a transaction of this nature. From the date of the
Merger Agreement until the earlier of the Effective Time and the termination of the Merger Agreement, the Company has agreed, subject to certain exceptions, to conduct its business in all material respects in the ordinary course and has agreed to
certain other operating covenants, as set forth in the Merger Agreement. The Company has also agreed not to directly or indirectly solicit or encourage discussions or negotiations with any third party regarding alternative acquisition proposals.
Termination
The Merger Agreement also contains termination provisions for
both the Company and Halozyme and provides that, upon termination of the Merger Agreement under specified circumstances, including termination by the Company to accept and enter into a definitive agreement with respect to an unsolicited
superior offer, the Company will be required to pay a termination fee of $33,000,000 (the “Termination Fee”). A superior offer includes a bona fide written proposal, pursuant to which, if consummated, a third party would acquire, directly or indirectly, more than
50% of the outstanding Shares or 50% of the assets of the Company, that the board of directors of the Company determines in its good faith judgment (after consultation with outside legal counsel and its financial advisors) is reasonably likely
to be completed on the terms proposed and, taking into account relevant factors, including legal, regulatory, financial, financing aspects (including certainty of the consummation of the transactions), if consummated, would be more favorable to
the Company’s stockholders (solely in their capacity as such) from a financial point of view than the terms of the Offer and the Merger.
Any termination of the Merger Agreement by the Company in connection with a superior offer is subject to certain conditions, including the
Company’s compliance with certain procedures set forth in the Merger Agreement and a determination in good faith by the Company’s board of directors (after consultation with outside legal counsel and its financial advisors) that such termination
would be reasonably likely to be inconsistent with their fiduciary duties to the Company’s stockholders under applicable law, payment of the Termination Fee by the Company and the concurrent execution of a definitive agreement between the Company
and such third party. In addition, either the Company or Halozyme may terminate the Merger Agreement if the Purchaser has not accepted the Shares validly tendered pursuant to the Offer for payment on or prior to 5:00 p.m., Eastern Time, on the
End Date.
Additional Information
The foregoing description of the Merger Agreement is not
complete and is qualified in its entirety by reference to the Merger Agreement which is attached as Exhibit 2.1 to this Current Report on Form 8-K and incorporated by reference herein.
The Merger Agreement and the foregoing description have been included to provide investors and stockholders with information regarding the
terms of the Merger Agreement. They are not intended to provide any other factual information about the Company. The representations, warranties and covenants contained in the Merger Agreement (which are qualified by information in confidential
disclosure schedules delivered by the Company to Halozyme in connection with the signing) were or will be made only as of specified dates for the purposes of the Merger Agreement, were (except as expressly set forth therein) solely for the
benefit of the parties to the Merger Agreement, and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and
discussed in the foregoing description, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk between the parties, rather than establishing matters as
facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC. Investors and stockholders
should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants
may change after the date of the agreements, which subsequent information may or may not be fully reflected in the applicable parties’ public disclosures.
Notice to Investors and Security Holders
The tender offer referred to in this Current Report on Form 8-K has not yet commenced. The description contained in this Current Report on Form 8-K is
neither an offer to purchase nor a solicitation of an offer to sell any securities, nor is it a substitute for the tender offer materials that Halozyme and its acquisition subsidiary will file with the SEC. The solicitation and offer to buy Shares
of the Company will only be made pursuant to an offer to purchase and related tender offer materials. At the time the tender offer is commenced, Halozyme and its acquisition subsidiary will file a tender offer statement on Schedule TO and
thereafter the Company will file a solicitation/recommendation statement on Schedule 14D-9 with the SEC with respect to the Offer. THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER OFFER
DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 WILL CONTAIN IMPORTANT INFORMATION. ANY HOLDERS OF SHARES ARE URGED TO READ THESE DOCUMENTS CAREFULLY WHEN THEY BECOME AVAILABLE (AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM
TIME TO TIME) BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT HOLDERS OF SHARES SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SHARES. The offer to purchase, the related letter of transmittal, the
solicitation/recommendation statement and certain other tender offer documents will be made available for free at the SEC’s website at www.sec.gov. Additional copies may be obtained for free by contacting Halozyme or the Company. Copies of the
documents filed with the SEC by the Company will be available free of charge on the Company’s internet website at https://www.antarespharma.com/investors/sec-filings or by contacting the Company’s investor relations contact at +1 609-359-3016.
Copies of the documents filed with the SEC by Halozyme will be available free of charge on Halozyme’s internet website at https://ir.halozyme.com or by contacting Halozyme’s Investor Relations Department at ir@halozyme.com.
In addition to the offer to purchase, the related letter of transmittal and certain other tender offer documents to be filed by Halozyme, as well as the
solicitation/recommendation statement to be filed by the Company, the Company will also file annual, quarterly and current reports with the SEC. The Company’s filings with the SEC are available to the public from commercial document-retrieval
services and at the website maintained by the SEC at www.sec.gov.
Forward Looking Statements
The information contained in this Current Report on Form 8-K
is as of April 13, 2022. The Company assumes no obligation to update forward-looking statements contained in this Current Report on Form 8-K as the result of new information or future events or developments, except as may be required by law.
This Current Report on Form 8-K contains
forward-looking information related to the Company and the proposed acquisition of the Company that involves substantial risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such
statements. Forward-looking statements in this Current Report on Form 8-K include, among other things, statements about the potential benefits of the proposed acquisition; the parties’ ability to satisfy the conditions to the consummation of the
tender offer and the other conditions to the consummation of the acquisition; statements about the expected timetable for completing the transaction; the Company’s plans, objectives, expectations and intentions, the financial condition, results of
operations and business of the Company, the Company’s products and partnered products and the anticipated timing of closing of the proposed acquisition.
Risks and uncertainties include, among other things, risks related to the satisfaction or waiver of the conditions to closing the proposed acquisition
(including the failure to obtain necessary regulatory clearance) in the anticipated timeframe or at all; uncertainties as to how many of the Company’s stockholders will tender their shares of the Company’s common stock in the tender offer and the
possibility that the acquisition does not close; the possibility that competing offers may be made; risks related to the timing (including possible delays) and receipt of clearance or expiration or termination of the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; disruption from the transaction making it more difficult to maintain business and operational relationships; significant transaction costs; the uncertainty regarding the ongoing
COVID-19 pandemic, including new strains of the virus, and the mitigation measures and other restrictions implemented in response to the same and the impact on demand for the Company’s products, new patients and prescriptions, future revenue,
product supply, clinical trials, and the Company’s overall business; risks related to the commercial launch, market acceptance, payor coverage and future prescriptions and revenue for TLANDO™; actions by the FDA and other regulatory agencies with
respect to the Company’s or its partners’ products or product candidates; uncertainties related to the timing and results of the Company’s or its partners’ research projects or clinical trials of product candidates in development; uncertainties as
to the commercial success of the Company’s products or partner products and growth in product, development, licensing and royalty revenue and uncertainties as to the Company’s ability to obtain financial and other resources for its research,
development, clinical, and commercial activities.
Further descriptions of risks and uncertainties relating to the Company can be found in the Company’s Registration Statement on Form S-1, as amended, Annual
Report on Form 10-K for the year ended December 31, 2021, and subsequent Current Reports on Form 8-K, all of which are filed with the SEC and available at www.sec.gov and www.antarespharma.com/investors/sec-filing.
These forward-looking statements are based on numerous assumptions and assessments made by the Company in light of its experience and perception of
historical trends, current conditions, business strategies, operating environment, future developments and other factors it believes are appropriate. By their nature, forward-looking statements involve known and unknown risks and uncertainties
because they relate to events and depend on circumstances that will occur in the future. Although it is believed that the expectations reflected in the forward-looking statements in this Current Report on Form 8-K are reasonable, no assurance can
be given that such expectations will prove to have been correct and persons reading this Current Report on Form 8-K are therefore cautioned not to place undue reliance on these forward-looking statements which speak only as at the date of this
Current Report on Form 8-K.