ALBIREO PHARMA, INC. Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
Pursuant to the Merger Agreement, on the terms and subject to the conditions
thereof, Merger Sub will commence a cash tender offer (the "Offer") to acquire
all of the outstanding shares of common stock of the Company,
The obligation of Merger Sub to purchase Shares tendered in the Offer is subject to 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including (1) that the number of Shares validly tendered in accordance with the terms of the Offer and not validly withdrawn, considered together with all other Shares (if any) otherwise beneficially owned by Parent or any of its wholly owned subsidiaries (including Merger Sub) (but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 absence of any judgment, injunction or other order issued by a court of competent jurisdiction or law preventing the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Offer or the Merger or of any legal requirement or order which directly or indirectly prohibits, or makes illegal, the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Merger, (3) the expiration or termination of the applicable waiting period (or any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act and the receipt of consents of, or filings with, any governmental body or pursuant to certain foreign antitrust laws and the expiration of any applicable waiting period, (4) the accuracy of the Company's representations and warranties, subject to certain materiality standards set forth in the Merger Agreement, (5) compliance by the Company in all material respects with its obligations under the Merger Agreement and (6) other customary conditions.
Following the completion of the Offer and upon the terms and subject to the
satisfaction or waiver of certain conditions set forth in the Merger Agreement,
Merger Sub will merge with and into the Company, with the Company continuing as
the surviving corporation and as a wholly owned subsidiary of Parent (the
"Merger"). The Company, Parent and Merger Sub 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) or by
any subsidiary of the Company, Parent, Merger Sub or any direct or indirect
wholly owned subsidiary of Parent, or by stockholders of the Company who have
properly exercised and perfected their statutory rights of appraisal under
Generally each of the Company's stock options (the "Company Options") that is outstanding at the Effective Time will be cancelled and converted into the right to receive, for each share underlying such Company Option, cash in an amount equal to the excess, if any, of the Closing Amount over the exercise price of the applicable Company Option, plus one CVR. Any Company Option with an exercise price between the Closing Amount and the Offer Price will be converted into the right to receive, for each share underlying such Company Option, if and when the CVR is paid, the excess, if any, of the Offer Price over the exercise price of the applicable Company Option. Company Options granted after the date of the Merger Agreement, or Company Options with exercise prices higher than the Offer Price, will be cancelled. Generally each of the restricted stock unit awards granted prior to the date of the Merger Agreement ("Company RSUs") that is outstanding at the Effective Time will be cancelled and converted into the right to receive, for each share underlying such Company RSU, cash in an amount equal to the Closing Amount, plus one CVR. With respect to RSUs granted after the date of the Merger Agreement, a portion will be cancelled and replaced with a retention bonus payable on a specified schedule following the closing of the Merger, subject to earlier payment upon certain terminations of employment.
2
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. Notwithstanding these restrictions, the Company may under certain circumstances furnish, pursuant to an acceptable confidentiality agreement, information to and engage in or otherwise participate in discussions or negotiations with third parties with respect to a written alternative acquisition proposal if the board of directors of the Company has determined in good faith, after consultation with its financial advisors and outside legal counsel, that such alternative acquisition proposal constitutes or could reasonably be expected to lead to a "Superior Offer" (as defined in the Merger Agreement) and that the failure to take any such action could reasonably be expected to be inconsistent with its fiduciary duties under applicable law. Concurrently with the execution of the Merger Agreement, Guarantor has irrevocably and unconditionally guaranteed the full and timely performance and satisfaction of Parent's obligations under the Merger Agreement.
Termination
The Merger Agreement includes a remedy of specific performance for the Company,
Parent, Merger Sub and Guarantor. The Merger Agreement also includes customary
termination provisions for both the Company and Parent and provides that, in
connection with the termination of the Merger Agreement under specified
circumstances, including termination by the Company in order to accept and enter
into a definitive agreement with respect to a Superior Offer, the Company will
be required to pay a termination fee of a cash amount equal to
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 and incorporated herein by
reference. The Merger Agreement and the foregoing description of such agreement
have been included to provide investors and stockholders with information
regarding the terms of such agreement. The assertions embodied in the
representations and warranties contained in the Merger Agreement are qualified
by information in confidential disclosure schedules delivered by the Company to
Parent in connection with the signing of the Merger Agreement. Moreover, certain
representations and warranties in the Merger Agreement were made as of a
specified date, may be subject to a contractual standard of materiality
different from what might be viewed as material to stockholders, or may have
been used for the purpose of allocating risk between the parties to the Merger
Agreement. Accordingly, the representations and warranties in the Merger
Agreement should not be relied on by any persons as characterizations of the
actual state of facts and circumstances of the Company at the time they were
made and investors should consider the information in the Merger Agreement in
conjunction with the entirety of the factual disclosure about the Company in the
Company's public reports filed with the
Item 7.01 Regulation FD Disclosure.
On
The information contained in this Item 7.01 and in Exhibit 99.1 of this current report 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 the liabilities of that section, nor shall it be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing.
Item 9.01 Financial Statements and Exhibits.
Exhibit Number Description 2.1 Agreement and Plan of Merger, dated as ofJanuary 8, 2023 , by and amongIpsen Biopharmaceuticals, Inc. ,Anemone Acquisition Corp. ,Albireo Pharma, Inc. and, solely for the limited purposes set forth therein, Ipsen Pharma SAS* 99.1 Joint Press Release of Ipsen S.A. andAlbireo Pharma, Inc. , datedJanuary 9, 2023 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules omitted pursuant to Item 601(a)(5) of Regulation S-K.
agrees to furnish supplementally a copy of any omitted schedule to the
request.
4
Forward-Looking Statements
Statements contained in or incorporated by reference into this current report
regarding management's future expectations, beliefs, intentions, goals,
strategies, plans or prospects, the Offer, Merger and related transactions are
forward-looking statements. Forward-looking statements are statements that are
not historical facts and may include projections and estimates and their
underlying assumptions, statements regarding plans, objectives, intentions and
expectations with respect to future financial results, events, operations,
services, product development and potential, and statements regarding future
performance. Forward-looking statements are generally identified by words such
as "anticipates," "believes," "plans," "expects," "projects," "future,"
"intends," "may," "will," "should," "could," "estimates," "predicts,"
"potential," "planned," "continue," "guidance," or the negative of these terms
or other similar expressions. Forward-looking statements may include statements,
other than statements of historical fact, regarding, among other things: the
Company's commercialization plans; the plans for, or progress, scope, cost,
initiation, duration, enrollment, results or timing for availability of results
of, development of Bylvay, A3907, A2342 or any other Albireo product candidate
or program; the target indication(s) for development or approval; potential
regulatory approval and plans for potential commercialization of Bylvay in
biliary atresia or ALGS or in additional countries, or the Company's other
product candidates; the timing for initiation or completion of or availability
or reporting of results from any clinical trial; the potential benefits or
competitive position of the Company or any other Albireo product candidate or
program or the commercial opportunity in any target indication; the Company's
plans, expectations or future operations, financial position, revenues, costs or
expenses; statements regarding the expected timing of the completion of the
transactions contemplated by the Merger Agreement; statements regarding the
ability to complete the transactions contemplated by the Merger Agreement
considering the various closing conditions; the projected financial information;
and any statements regarding assumptions underlying any of the foregoing.
Although the Company's management believes that the expectations reflected in
such forward-looking statements are reasonable, investors are cautioned that
forward-looking information and statements are subject to various risks and
uncertainties, many of which are difficult to predict and generally beyond the
control of the Company, that could cause actual results and developments to
differ materially from those expressed in, or implied or projected by, the
forward-looking information and statements. These risks and uncertainties
include among other things, (i) uncertainties as to the timing of the
transactions contemplated by the Merger Agreement? (ii) the risk that the
transactions contemplated by the Merger Agreement may not be completed in a
timely manner or at all? (iii) uncertainties as to the percentage of the
Company's stockholders tendering their Shares in the Offer? (iv) the possibility
that competing offers for the Company may be made? (v) the possibility that any
or all of the various conditions to the consummation of the transactions
contemplated by the Merger Agreement may not be satisfied or waived, including
the failure to receive any required regulatory approvals (or any conditions,
limitations or restrictions placed on such approvals)? (vi) the occurrence of
any event, change or other circumstance that could give rise to the termination
of the Merger Agreement, including in circumstances which would require the
Company to pay a termination fee? (vii) the risk that the milestone specified in
the CVR Agreement is not achieved? (viii) the effect of the announcement or
pendency of the transactions contemplated by the Merger Agreement on the
Company's ability to retain and hire key personnel, its ability to maintain
relationships with its customers, suppliers and others with whom it does
business, or its business generally? (ix) risks related to diverting
management's attention from the Company's ongoing business operations? (x) the
risk that stockholder litigation in connection with the transactions
contemplated by the Merger Agreement may result in significant costs of defense,
indemnification and liability? as well as (xi) risks and uncertainties
pertaining to the Company's business, including those detailed under "Risk
Factors" and "Cautionary Note Regarding Forward-Looking Statements" in the
Company's annual report on Form 10-K for the year ended
5
About the Offer
The tender offer for the outstanding shares of Albireo common stock referenced
in this current report has not yet commenced. This current report is for
informational purposes only and is not a recommendation, an offer to purchase or
a solicitation of an offer to sell securities, nor is it a substitute for the
tender offer materials that Parent and its acquisition subsidiary will file with
the
THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 WILL CONTAIN IMPORTANT INFORMATION. THE COMPANY'S STOCKHOLDERS 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 ALBIREO'S SECURITIES SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SECURITIES.
Additional copies of the tender offer materials and the
Solicitation/Recommendation Statement (when available) may be obtained for free
by contacting Parent or the Company. Copies of the documents filed with the
Additional Information
In addition to the Offer to Purchase, the related Letter of Transmittal and
certain other tender offer documents, as well as the Solicitation/Recommendation
Statement, the Company files annual, quarterly and current reports and other
information with the
6
© Edgar Online, source
