Item 1.01. Entry into a Material Definitive Agreement.
As previously announced,
Under the terms of the Merger Agreement, Purchaser's obligation to accept and pay for Shares that are tendered in the Offer is subject to customary conditions, including: (i) the condition that, prior to the expiration of the Offer, there have been validly tendered and not validly withdrawn a number of Shares that, together with Shares then owned by Alexion and its affiliates, would represent at least a majority of the then-outstanding Shares; (ii) the expiration or termination of the applicable mandatory waiting period (and any extensions thereof) applicable to the Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iii) the receipt of approvals, consents or authorizations under certain other specified antitrust laws; (iv) the accuracy of Portola's representations and warranties in the Merger Agreement, subject to customary materiality qualifications; (v) compliance by Portola with its covenants in the Merger Agreement in all material respects, subject to a specified exception; (vi) the absence of a Company Material Adverse Effect (as defined in the Merger Agreement) of which the existence or consequences are continuing and (vii) the absence of legal restraints or applicable law making illegal or otherwise prohibiting the consummation of the transactions.
The Merger Agreement provides that at the Effective Time: (i) all vested, in-the-money options will be canceled for the right to receive the Per Share Amount for each Share covered by such options, less the applicable exercise price, (ii) all unvested, in-the-money options held by non-employee directors and certain employees of Portola who have timely delivered and not revoked executed restrictive covenant and release agreements (collectively, "Qualified Holders") will become fully vested (at target for performance-based options) and will be canceled for the right to receive the Per Share Amount for each Share covered by such options, less the applicable exercise price, (iii) all unvested, in-the-money options held by non-Qualified Holders will be converted into options to acquire Alexion common stock (at target for performance-based options) in accordance with the formula set forth in the Merger Agreement; (iv) all out-of-the money options, whether vested or unvested, will be canceled without payment of consideration; (v) all restricted stock units held by non-employee directors will become fully vested and will be canceled for the right to receive the Per Share Amount for each Share covered by such restricted stock units; (vi) all restricted stock units held by persons who are not non-employee directors will be converted into restricted stock units relating to Alexion common stock in accordance with the formula set forth in the Merger Agreement and (vii) all performance stock units will be converted at target into corresponding restricted stock units relating to Alexion common stock (but excluding any performance conditions) in accordance with the formula set forth in the Merger Agreement.
The Merger Agreement contains representations, warranties and covenants for both Portola and Alexion that are customary for a transaction of this nature, including among others, the covenant regarding Portola's obligation to conduct its business and the business of its subsidiaries in the ordinary course, consistent with past practice in all material respects during the pendency of the transactions, and both Portola's and Alexion's covenants regarding public disclosures and the use of reasonable best efforts to cause the conditions to the Offer and the Merger to be satisfied. In addition, Portola has agreed to certain non-solicitation obligations related to alternative acquisitions proposals.
The Merger Agreement provides certain termination rights for both Portola and
Alexion and further provides that a termination fee of
The foregoing description of the Merger Agreement and the transactions
contemplated thereby does not purport to be complete and is qualified in its
entirety by the full text of the Merger Agreement, a copy of which is filed as
Exhibit 2.1 hereto and is incorporated by reference herein. The Merger Agreement
has been attached to provide investors with information regarding its terms. It
is not intended to provide any other factual information about Alexion,
Purchaser or Portola. In particular, the representations, warranties and
covenants of each party set forth in the Merger Agreement have been made only
for the purposes of, and were and are solely for the benefit of the parties to,
the Merger Agreement, may be subject to limitations agreed upon by the
contracting parties, including being qualified by confidential disclosure
letters made for the purposes of allocating contractual risk between the parties
to the Merger Agreement instead of establishing these matters as facts, and may
be subject to standards of materiality applicable to the contracting parties
that differ from those applicable to investors. These confidential disclosure
letters contain information that modifies, qualifies and creates exceptions to
the representations and warranties and certain covenants set forth in the Merger
Agreement. Accordingly, the representations and warranties should not be relied
on by any investor as characterizations of the actual state of facts and
circumstances about Portola, Alexion or Purchaser at the date they were made or
at any other time, and information in the Merger Agreement should be considered
in conjunction with the entirety of the factual disclosure about Alexion and
Portola in their public reports filed with the
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On and effective
The foregoing summary is qualified in its entirety by reference to the Bylaws, as amended by the Bylaw Amendment, a copy of which is filed as Exhibit 3.1 hereto and is incorporated by reference herein.
Additional Information about the Transaction and Where to Find It
The tender offer for the outstanding common stock of Portola has not been
commenced. This communication does not constitute a recommendation, an offer to
purchase or a solicitation of an offer to sell Portola securities. The
solicitation and offer to buy shares of Portola common stock will only be made
pursuant to an Offer to Purchase and related materials. At the time the tender
offer is commenced, Alexion and Purchaser, will file a Tender Offer Statement on
Schedule TO with the
Cautionary Note Regarding Forward-Looking Statements
To the extent that statements contained in this communication are not
descriptions of historical facts, they are forward-looking statements reflecting
the current beliefs, certain assumptions and current expectations of management
and may be identified by words such as "believes," "plans," "anticipates,"
"projects," "estimates," "expects," "intends," "strategy," "future,"
"opportunity," "may," "will," "should," "could," "potential," or similar
expressions. Such forward-looking statements are based on management's current
expectations, beliefs, estimates, projections and assumptions. As such,
forward-looking statements are not guarantees of future performance and involve
inherent risks and uncertainties that are difficult to predict. As a result, a
number of important factors could cause actual results to differ materially from
those indicated by such forward-looking statements, including: the risk that the
proposed acquisition of Portola by Alexion may not be completed; the possibility
that competing offers or acquisition proposals for Portola will be made; the
delay or failure of the tender offer conditions to be satisfied (or waived),
including insufficient shares of Portola common stock being tendered in the
tender offer; the failure (or delay) to receive the required regulatory
approvals of the proposed acquisition; the possibility that prior to the
completion of the transactions contemplated by the acquisition agreement,
Alexion's or Portola's business may experience significant disruptions due to
transaction-related uncertainty; the effects of disruption from the transactions
of Portola's business and the fact that the announcement and pendency of the
transactions may make it more difficult to establish or maintain relationships
with employees, manufactures, suppliers, vendors, business partners and
distribution channels to patients; the occurrence of any event, change or other
circumstance that could give rise to the termination of the acquisition
agreement; the risk that stockholder litigation in connection with the proposed
transaction may result in significant costs of defense, indemnification and
liability; the failure of the closing conditions set forth in the acquisition
agreement to be satisfied (or waived); the anticipated benefits of Portola's
therapy (Andexxa) not being realized (including expansion of the number of
patients using the therapy); the phase 4 study regarding Andexxa does not meet
its designated endpoints and/or is not deemed safe and effective by the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit Number Exhibit Description 2.1 Agreement and Plan of Merger, dated as ofMay 5, 2020 , by and amongPortola Pharmaceuticals, Inc. , Alexion Pharmaceuticals, Inc. andOdyssey Merger Sub Inc. 3.1 Amended and Restated Bylaws ofPortola Pharmaceuticals, Inc. , effective as ofMay 4, 2020 .
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