AKCEA THERAPEUTICS, INC. Item 1.01 Entry into a Material Definitive Agreement.
On
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions thereof, Purchaser will commence a tender offer (the "Offer") to
acquire all of the issued and outstanding shares (the "Shares") of common stock,
par value
The obligation of Parent and Purchaser to consummate the Offer is subject to
certain customary conditions, including that there be validly tendered and not
validly withdrawn a number of Shares that, excluding the Shares beneficially
owned by Parent, its affiliates, their respective directors and executive
officers, and
At the time of the acceptance for payment of all Shares tendered (and not
validly withdrawn) pursuant to the Offer (the "Offer Acceptance Time"), each
Share (other than any Shares held (i) immediately prior to the Offer Acceptance
Time by the Company (or held in the Company's treasury), (ii) by Parent,
Purchaser, or any other direct or indirect wholly owned subsidiary of Parent and
(iii) by stockholders who have properly exercised and perfected their demands
for appraisal of such Shares in accordance with the General Corporation Law of
the
Following the Offer Acceptance Time, subject to the satisfaction or waiver of certain conditions, Parent will acquire any remaining Shares by a merger of Purchaser with and into the Company with the separate existence of Purchaser ceasing and the Company continuing as the surviving corporation (the "Merger"). The Merger Agreement contemplates that the Merger will be effected pursuant to Section 251(h) of the DGCL, which permits completion of the Merger without a stockholder vote as soon as practicable following consummation of the Offer.
In addition, at the effective time of the Merger, each option to purchase Akcea common stock with an exercise price lower than the Offer Price and each Akcea restricted stock unit, in each case whether or not vested, will be cancelled, and the holder thereof will be entitled to receive the Offer Price (less any applicable exercise price in the case of options) for each share subject to such award, pursuant to the terms set forth in the Merger Agreement. Each option to purchase Akcea common stock with an exercise price greater than or equal to the Offer Price will be cancelled with no consideration payable.
The board of directors of the Company (the "Company Board") delegated to its Affiliate Transactions Committee (the "Special Committee") the responsibility and authority to consider, negotiate and approve or decline to approve the proposal received by the Company from Parent with respect to the transactions contemplated by the Merger Agreement. The Special Committee approved and recommended to the Company Board the execution, delivery and performance by the Company of the Merger Agreement. The Company Board, acting on the recommendation of the Special Committee, approved the execution, delivery and performance by the Company of the Merger Agreement and the acquisition of the Company by Parent on the terms and subject to the conditions set forth in the Merger Agreement and resolved to recommend that the stockholders of the Company (other than Parent and its affiliates) tender their Shares to Purchaser pursuant to the Offer.
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The Merger Agreement includes customary representations, warranties and covenants of the Company, Parent and Purchaser. The Company has agreed to use reasonable best efforts to operate its business in the ordinary course of business consistent in all material respects with past practice until the earlier of the time the Merger becomes effective (the "Effective Time") or the termination of the Merger Agreement. The Company has also agreed not to solicit or initiate discussions with third parties regarding other proposals for a strategic transaction involving the Company.
The Merger Agreement also includes customary termination provisions for both the
Company and Parent, subject, in certain circumstances, to the payment by the
Company of a termination fee of
The foregoing summary of the principal terms of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full copy of the Merger Agreement filed as Exhibit 2.1 hereto and incorporated herein by reference. The summary and the copy of the Merger Agreement are intended to provide information regarding the terms of the Merger Agreement and are not intended to modify or supplement any factual disclosures about the Company in . . .
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On
The foregoing description is qualified in its entirety by reference to the marked copy of the Bylaws, which are filed herewith as Exhibit 3.1 and incorporated herein by reference.
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Item 8.01 Other Events.
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Additional Information and Where to Find It
Parent has not commenced the tender offer for the Shares described in this
communication. Upon commencement of the tender offer, Parent will file with the
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K includes forward-looking statements that are
subject to risks, uncertainties and other factors that could cause actual
results to differ materially from those implied by the forward-looking
statements. All statements other than statements of historical fact are
statements that could be deemed forward-looking statements, including all
statements regarding the intent, belief or current expectation of Akcea and
members of its senior management team and can typically be identified by words
such as "believe," "expect," "estimate," "predict," "target," "potential,"
"likely," "continue," "ongoing," "could," "should," "intend," "may," "might,"
"plan," "seek," "anticipate," "project" and similar expressions, as well as
variations or negatives of these words. Forward-looking statements include,
without limitation, statements regarding the Offer and the Merger, prospective
performance, future plans, events, expectations, performance, objectives and
opportunities and the outlook for Akcea's business; the commercial success of
Akcea's products; the anticipated timing of clinical data; the possibility of
unfavorable results from clinical trials; filings and approvals relating to the
transaction; the expected timing of the completion of the transaction; the
ability to complete the transaction considering the various closing conditions;
and the accuracy of any assumptions underlying any of the foregoing. Investors
are cautioned that any such forward-looking statements are not guarantees of
future performance and involve risks and uncertainties and are cautioned not to
place undue reliance on these forward-looking statements. Actual results may
differ materially from those currently anticipated due to a number of risks and
uncertainties. Risks and uncertainties that could cause the actual results to
differ from expectations contemplated by forward-looking statements include: the
possibility that various closing conditions for the Offer or the Merger may not
be satisfied or waived, including that a governmental entity may prohibit, delay
or refuse to grant approval for the consummation of the Offer or the Merger ;
the occurrence of any event, change or other circumstance that could give rise
to the termination of the Merger Agreement; the effects of the Offer or the
Merger (or the announcement thereof) on relationships with associates,
customers, other business partners or governmental entities; transaction costs;
the risk that the Merger will divert management's attention from Akcea's ongoing
business operations; changes in Akcea's businesses during the period between now
and the Offer Acceptance Time; risks associated with litigation; and other risks
and uncertainties detailed from time to time in documents filed with the
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. 2.1 Agreement and Plan of Merger, dated as ofAugust 30, 2020 , among the Company,Ionis Pharmaceuticals, Inc. andAvalanche Merger Sub, Inc. (Schedules to the Agreement and Plan of Merger have been omitted pursuant to Item 601(b)(2) of Regulation S-K.The Company will supplementally furnish to theSEC upon request any such omitted schedule). 3.1 Amended and Restated Bylaws of the Company (marked) 99.1 Joint Press Release, datedAugust 31, 2020 , issued by the Company andIonis Pharmaceuticals, Inc. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
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