Item 1.01 Entry into a Material Definitive Agreement.
On January 22, 2020, Elanco Animal Health Incorporated ("Elanco") entered into
an underwriting agreement (the "Common Stock Underwriting Agreement") by and
among Elanco and Goldman Sachs & Co. LLC, Citigroup Global Markets Inc. and J.P.
Morgan Securities LLC, as representatives (the "Common Stock Representatives")
of the several underwriters named in Schedule I thereto (the "Common Stock
Underwriters"), pursuant to which Elanco agreed to sell 22,694,732 shares of its
common stock, no par value (the "Common Stock") at a public offering price of
$32.00 per share (the "Common Stock Offering"). In connection with the Common
Stock Offering, Elanco granted the Common Stock Underwriters an option to
purchase up to an additional 2,269,473 shares of Common Stock (the "Optional
Shares"). On January 23, 2020, the Representatives notified Elanco, on behalf of
the Common Stock Underwriters, that the Common Stock Underwriters had elected to
exercise their option to purchase the Optional Shares in full. As a result,
Elanco issued and sold a total of 24,964,205 shares of its Common Stock,
including 2,269,473 shares for which the option had been exercised in full.
In addition, on January 22, 2020, Elanco entered into an underwriting agreement
(the "Units Underwriting Agreement" and, together with the Common Stock
Underwriting Agreement, the "Underwriting Agreements") by and among Elanco and
Goldman Sachs & Co. LLC, Citigroup Global Markets Inc. and J.P. Morgan
Securities LLC, as representatives (the "Units Representatives") of the several
underwriters named in Schedule I thereto (the "Units Underwriters" and, together
with the Common Stock Underwriters, the "Underwriters"), pursuant to which
Elanco agreed to sell 11,000,000 of its 5.00% tangible equity units ("Units") at
a public offering price of $50.00 per Unit (the "Units Offering" and, together
with the Common Stock Offering, the "Offerings"). The Offerings closed on
January 27, 2020.
The sale of Common Stock and Units was made pursuant to Elanco's registration
statement on Form S-3ASR (File No. 333-235991), including the prospectus
supplements, each dated January 22, 2020, to the prospectus contained therein,
dated January 21, 2020, filed by Elanco with the Securities and Exchange
Commission (the "SEC"), pursuant to Rule 424(b)(5) under the Securities Act of
1933, as amended.
Units
Elanco issued the Units and Purchase Contracts (as defined below) under a
purchase contract agreement (the "Purchase Contract Agreement"), dated as of
January 27, 2020, between Elanco and Deutsche Bank Trust Company Americas, as
purchase contract agent, as attorney-in-fact for holders of Purchase Contracts
and as trustee under the indenture referred to below. Elanco issued the
Amortizing Notes (as defined below) under an indenture dated as of August 28,
2018 (the "Base Indenture"), as supplemented by a second supplemental indenture,
dated as of January 27, 2020 (the "Supplemental Indenture" and, together with
the Base Indenture, the "Indenture"), each between Elanco and Deutsche Bank
Trust Company Americas, as trustee.
Each Unit offered is composed of (i) a prepaid stock purchase contract issued by
Elanco (each, a "Purchase Contract") pursuant to which Elanco will deliver to
the holder, not later than February 1, 2023 (subject to postponement in certain
limited circumstances, the "mandatory settlement date"), unless earlier settled,
a number of shares of Common Stock per Purchase Contract equal to the settlement
rate described below, and (ii) a senior amortizing note issued by Elanco (each,
an "Amortizing Note") with an initial principal amount of $7.2007 that pays
equal quarterly installments of $0.6250 per Amortizing Note (except for the May
1, 2020 installment payment, which will be $0.6528 per Amortizing Note), which
cash payment in the aggregate will be equivalent to 5.00% per year with respect
to each $50 stated amount per Unit.
Purchase Contracts
Unless previously settled at the holder's or Elanco's option, for each Purchase
Contract Elanco will deliver to holders on the mandatory settlement date a
number of shares of Common Stock. The number of shares of Common Stock issuable
upon settlement of each Purchase Contract (the "settlement rate") will be
determined as follows:
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· if the Applicable Market Value (as defined below) of the Common Stock is
greater than the threshold appreciation price, which is initially approximately
equal to $38.40, then the holder will receive 1.3021 shares of Common Stock for
each Purchase Contract (the "minimum settlement rate");
· if the Applicable Market Value of the Common Stock is less than or equal to the
threshold appreciation price but greater than or equal to the reference price,
which is initially approximately equal to $32.00, then the holder will receive
a number of shares of Common Stock for each Purchase Contract equal to $50.00,
divided by the Applicable Market Value; and
· if the Applicable Market Value of the Common Stock is less than the reference
price, then the holder will receive 1.5625 shares of Common Stock for each
Purchase Contract (the "maximum settlement rate").
The "Applicable Market Value" means the arithmetic average of the VWAPs (as
defined in the Purchase Contract Agreement) per share of the Common Stock on
each of the 20 consecutive trading days beginning on, and including, the 21st
scheduled trading day immediately preceding February 1, 2023. The minimum
settlement rate and the maximum settlement rate are each subject to adjustment
as provided in the Purchase Contract Agreement.
At any time prior to 5:00 p.m., New York City time, on the second scheduled
trading day immediately preceding February 1, 2023, a holder of Purchase
Contracts may settle any or all of its Purchase Contracts early, in which case
Elanco will deliver a number of shares of Common Stock per Purchase Contract
equal to the minimum settlement rate. In addition, at any time prior to the
second scheduled trading day immediately preceding February 1, 2023, if a
"Fundamental Change" (as defined in the Purchase Contract Agreement) occurs,
holders may settle any or all of their Purchase Contracts early. If a holder
elects to settle its Purchase Contracts early in connection with such
Fundamental Change, it will receive a number of shares of Common Stock (and any
cash payable for fractional shares) per Purchase Contract based on the
"Fundamental Change Early Settlement Rate" as defined in, and in accordance
with, the Purchase Contract Agreement. In either case, upon early settlement at
a holder's election of a Purchase Contract that is a component of a Unit, the
corresponding Amortizing Note will remain outstanding and be beneficially owned
by or registered in the name of, as the case may be, the holder who elected to
settle the related Purchase Contract early.
On or after November 1, 2020, Elanco may elect to settle all, but not less than
all, outstanding Purchase Contracts at the "early mandatory settlement rate."
The "early mandatory settlement rate" will be the maximum settlement rate as of
the relevant notice date. If Elanco elects to settle all the Purchase Contracts
early, holders will have the right to require Elanco to repurchase their
Amortizing Notes on the terms set forth in the Supplemental Indenture.
Amortizing Notes
Each Amortizing Note will have an initial principal amount of $7.2007, will bear
interest at a rate of 2.75% per annum and will have a final installment payment
date of February 1, 2023. On each February 1, May 1, August 1 and November 1,
commencing on May 1, 2020, Elanco will pay equal quarterly cash installments of
$0.6250 per Amortizing Note (except for the May 1, 2020 installment payment,
which will be $0.6528 per Amortizing Note), which will constitute a payment of
interest and a partial repayment of principal, and which cash payment in the
aggregate per year will be equivalent to 5.00% per year with respect to the $50
stated amount per Unit. The Amortizing Notes will be the direct, unsecured and
unsubordinated obligations of Elanco and will rank equally with all of the
existing and future other unsecured and unsubordinated indebtedness of Elanco.
If Elanco elects to settle the Purchase Contracts early, holders of Amortizing
Notes will have the right to require Elanco to repurchase their Amortizing Notes
for cash at the repurchase price set forth in the Supplemental Indenture.
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The Indenture contains customary terms and covenants, including that upon
certain events of default occurring and continuing, either the trustee or the
holders of not less than 25% in aggregate principal amount of the Amortizing
Notes then outstanding may declare the unpaid principal of the Amortizing Notes
and any accrued and unpaid interest thereon immediately due and payable. In the
case of certain events of bankruptcy, insolvency or reorganization relating to
Elanco, the principal amount of the Amortizing Notes together with any accrued
and unpaid interest thereon will automatically become due and payable.
General
Each Unit may be separated into its constituent Purchase Contract and Amortizing
Note after the initial issuance date of the Units, and the separate components
may be transferred independently and combined to create a Unit, in each case in
accordance with the terms of the Purchase Contract Agreement.
The New York Stock Exchange has approved Elanco's application to list the Units
under the symbol "ELAT," and Elanco expects trading on the New York Stock
. . .
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 is incorporated by reference herein.
Cautionary Note Regarding Forward Looking Statements
Statements in this report that are not strictly historical, including statements
regarding the Acquisition, the listing of the Units and any other statements
regarding events or developments that we believe or anticipate will or may occur
in the future, may be "forward-looking" statements within the meaning of the
Private Securities Litigation Reform Act of 1995, and involve a number of risks
and uncertainties. There are a number of important factors that could cause
actual events to differ materially from those suggested or indicated by such
forward-looking statements and you should not place undue reliance on any such
forward-looking statements. These factors include risks and uncertainties
related to, among other things: (1) the inability to consummate the Acquisition
in a timely manner; (2) the failure of the Acquisition to close for any other
reason; (3) the possibility that the integration of the Business and its
operations with those of Elanco may be more difficult and/or take longer than
anticipated, may be more costly than anticipated and may have unanticipated
adverse results relating to the Business's or Elanco's existing businesses; (4)
the effect of the announcement of the Acquisition on Elanco's or Bayer AG's
respective business relationships, operating results and business generally; (5)
diversion of Elanco and Bayer AG management's attention from ongoing business
concerns; (6) the ability to obtain or consummate debt or equity financing or
refinancing related to the Acquisition upon acceptable terms or at all; (7)
risks associated with third party contracts containing consent and/or other
provisions that may be triggered by the Acquisition; (8) negative effects of the
announcement or the consummation of the Acquisition on the market price of the
Elanco Common Stock, including as it impacts the Elanco Common Stock
consideration due to Bayer AG upon completion of the Acquisition; (9) the
ability of Elanco to retain and hire key personnel; (10) management's response
to any of the aforementioned factors; and (11) other factors that may affect
future results of Elanco described in the section entitled "Risk Factors" in
Elanco's prospectus supplements, filed with the SEC on January 24, 2020, and
Elanco's other filings with the SEC. The forward-looking statements made herein
speak only as of the date hereof and Elanco does not assume any obligation to
update or revise any forward-looking statement, whether as a result of new
information, future events and developments or otherwise, except as required by
law.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
1.1 Underwriting Agreement, dated January 22, 2020, among Elanco Animal
Health Incorporated and Goldman Sachs & Co. LLC, Citigroup Global Markets
Inc. and J.P. Morgan Securities LLC, as representatives of the several
underwriters named in Schedule I thereto, relating to the Common Stock.
1.2 Underwriting Agreement, dated January 22, 2020, among Elanco Animal
Health Incorporated and Goldman Sachs & Co. LLC, Citigroup Global Markets
Inc. and J.P. Morgan Securities LLC, as representatives of the several
underwriters named in Schedule I thereto, relating to the Units.
4.1 Purchase Contract Agreement, dated as of January 27, 2020, between
Elanco Animal Health Incorporated and Deutsche Bank Trust Company
Americas, as purchase contract agent, as attorney-in-fact for holders of
the purchase contracts referred to therein and as trustee under the
indenture referred to therein.
4.2 Form of Unit (included in Exhibit 4.1).
4.3 Form of Purchase Contract (included in Exhibit 4.1).
4.4 Second Supplemental Indenture, dated as of January 27, 2020, between
Elanco Animal Health Incorporated and Deutsche Bank Trust Company
Americas, as trustee.
4.5 Form of Amortizing Note (included in Exhibit 4.4).
5.1 Opinion of Barnes & Thornburg LLP.
5.2 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP.
23.1 Consent of Barnes & Thornburg LLP (included in Exhibit 5.1).
23.2 Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP (included in
Exhibit 5.2).
104.1 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
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