The Merger Agreement provides that the Merger will be governed by Section 251(h) of the Delaware
General Corporation Law (the DGCL) and shall be effected by Merger Sub and the Company as soon as practicable following the consummation of the Offer without a stockholders meeting pursuant to the DGCL.
The Merger Agreement contains customary representations and warranties by Parent, Merger Sub and the Company. The Merger Agreement also contains customary
covenants and agreements, including with respect to the operations of the business of the Company between signing and closing, governmental filings and approvals and other matters.
The Merger Agreement contains customary
non-solicitation
restrictions prohibiting the Companys solicitation of
proposals relating to alternative business combination transactions and restricts the Companys ability to furnish
non-public
information to, or participate in any discussions or negotiations with, any
third party with respect to any such transaction, subject to customary exceptions in the event of an acquisition proposal that was not solicited in violation of these restrictions and that the Companys board of directors determines constitutes
or could reasonably be expected to lead to a Superior Company Proposal (as defined in the Merger Agreement).
The Merger Agreement contains termination
rights for each of Parent, Merger Sub and the Company including by either Parent or the Company if the Offer Closing Time (as defined in the Merger Agreement) shall not have occurred on or before July 5, 2019, or by the Company to enter into an
alternative transaction that constitutes a Superior Company Proposal (as defined in the Merger Agreement), and further provides that upon termination of the Merger Agreement under specified circumstances the Company may be required to pay Parent a
termination fee of $265 million.
Tender and Support Agreement
On January 5, 2019, in connection with the Merger Agreement, Aisling Capital III, LP (Aisling Capital) in its capacity as a stockholder of the
Company and who beneficially owns approximately 6.6% of the outstanding Shares, entered into a Tender and Support Agreement (the Tender and Support Agreement) with Parent and Merger Sub. The Tender and Support Agreement provides, among
other things, that Aisling Capital will tender all of the Shares held by it in the Offer.
Item 7.01.
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Regulation FD Disclosure
.
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On January 7, 2019, the Company and Parent issued a joint press release regarding the matters described in Item 1.01 of this Current Report on Form
8-K,
a copy of which is filed as Exhibit 99.1 and is incorporated herein by reference.
Attached as Exhibit 99.2 and
incorporated by reference herein is an investor presentation dated January 2019, that will be used by Parent with respect to the matters described in Item 1.01 of this Current Report on Form
8-K.
The information in this Item 7.01, including Exhibits 99.1 and 99.2, is furnished and shall not be deemed filed for purposes of Section 18 of
the Securities Exchange Act of 1934, as amended (the Exchange Act), or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act
of 1933 or the Exchange Act, regardless of any general incorporation language in such filings.
Item 9.01.
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Financial Statements and Exhibits
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3