Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
Pursuant to the Merger Agreement, and on the terms and subject to the conditions
thereof, Purchaser will commence a tender offer (the "Offer") to acquire all of
the Company's issued and outstanding shares of common stock (the "Company
Shares") at a purchase price of
The Offer will initially remain open for 20 business days from the date of commencement of the Offer. Under certain circumstances as set forth in the Merger Agreement, Purchaser may be required to extend, or may elect to extend, the Offer on one or more occasions.
Purchaser's obligation to purchase the Company Shares validly tendered pursuant
to the Offer is subject to the satisfaction or waiver of certain conditions set
forth in the Merger Agreement, including, among others: (i) that, immediately
prior to the expiration of the Offer, there be validly tendered and not
withdrawn in accordance with the terms of the Offer a number of Company Shares
that, together with the Company Shares then-owned by Parent, Purchaser, and
their respective affiliates (if any), represents at least a majority of all
then-outstanding Company Shares on a fully diluted basis; (ii) the expiration or
termination of any waiting period (and extensions thereof) applicable to the
transactions contemplated by the Merger Agreement under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, or under any other antitrust law
of a governmental authority of competent and applicable jurisdiction in
Following the consummation of the Offer and subject to the satisfaction or
waiver of certain conditions set forth in the Merger Agreement, Purchaser will
merge with and into the Company, with the Company surviving as a wholly owned
subsidiary of Parent, pursuant to Section 251(h) of the General Corporation Law
of the
In addition, effective as of immediately prior to the Effective Time, (i) each outstanding Company stock option will be automatically canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (A) the number of Company Shares underlying such option immediately prior to the Effective Time multiplied by (B) the amount, if any, by which the Offer Price exceeds the exercise price per share of such option, and (ii) each outstanding Company restricted stock unit ("RSU") will become fully vested (to the extent unvested) and will be automatically converted into the right to receive an amount in cash equal to the product of (A) the number of Company Shares underlying such RSU immediately prior to the Effective Time multiplied by (B) the Offer Price, without interest and subject to any deduction for any withholding taxes.
The Merger Agreement contains customary representations, warranties, and covenants, including with respect to, among other things, the operation of the business of the Company and its subsidiaries prior to the closing and, subject to certain customary exceptions, recommending that the Company's stockholders accept the Offer and tender their Company Shares. The Merger Agreement includes a remedy of specific performance and is not subject to a financing condition. In addition, the Company has agreed to customary "no shop" restrictions on its ability to solicit alternative acquisition proposals from third parties and engage in discussions or negotiations with third parties regarding alternative acquisition proposals. Notwithstanding the foregoing, the Company may take certain actions to participate in discussions and negotiations and furnish information with respect to a written bona fide alternative acquisition proposal that the Company's board of directors (the "Board") determines constitutes or is reasonably likely to lead to a Superior Proposal (as defined in the Merger Agreement) if failing to do so would be inconsistent with the Board's fiduciary duties under applicable law.
The Merger Agreement also provides that, in connection with a termination of the Merger Agreement under specified circumstances, including due to the entry by the Company into a definitive agreement with respect to a Superior Proposal, or certain other triggering events, the Company may be required to pay Parent a . . .
Item 3.03 Material Modification to Rights of Security Holders.
The disclosure set forth under "Item 1.01 Entry into a Material Definitive Agreement -Amendment to Rights Agreement" is hereby incorporated by reference in this Item 3.03.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On
With respect to the executive officers of the Company, the Board approved
Transactional Bonus amounts of (i)
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In addition, the Board approved a Transaction Bonus of
The Transactional Bonus amount will be automatically reduced on an individual basis, to the extent necessary, so that the payment thereof does not result in any such individual receiving any excess parachute payments under Section 280G of the Code.
Item 8.01 Other Events.
On
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofOctober 19, 2020 , by and amongBioSpecifics Technologies Corp. , Endo International plc, andBeta Acquisition Corp. 4.1 Amendment No. 1 to Rights Agreement, dated as ofOctober 19, 2020 , to the Rights Agreement, dated as ofApril 10, 2020 , by and betweenBioSpecifics Technologies Corp. andWorldwide Stock Transfer, LLC , as Rights Agent. 99.1 Press Release, datedOctober 19, 2020 . 104 Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document.
* Certain exhibits and schedules have been omitted pursuant to Item 601(a)(5) of
Regulation S-K.
any of the omitted exhibits and schedules upon request by the
however, that the Company may request confidential treatment pursuant to Rule
24b-2 of the Exchange Act for any exhibits or schedules so furnished.
Additional Information and Where to Find It
The Offer described above has not yet commenced. This communication is not an
offer to buy nor a solicitation of an offer to sell any securities of the
Company nor is it a substitute for any tender offer materials that Endo,
Purchaser, or the Company will file with the
The offer to purchase, the related letter of transmittal and the
solicitation/recommendation statement will be made available free of charge at
the
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Forward-Looking Statements
The statements included above that are not a description of historical facts are
forward-looking statements. Words or phrases such as "believe," "may," "could,"
"will," "estimate," "continue," "anticipate," "intend," "seek," "plan,"
"expect," "should," "would," or similar expressions are intended to identify
forward-looking statements. These forward-looking statements include without
limitation statements regarding the planned completion of the transactions
contemplated by the Merger Agreement. Risks and uncertainties that could cause
results to differ from expectations include: (i) uncertainties as to the timing
of the Offer and the subsequent Merger; (ii) the risk that the Offer or the
subsequent Merger 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 or
acquisition proposals for the Company will be made; (v) the possibility that any
or all of the various conditions to the consummation of the Offer or the
subsequent Merger may not be satisfied or waived, including the failure to
receive any required regulatory approvals from any applicable governmental
entities (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; (vii) 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 whom it does business, or its operating results
and business generally; (viii) risks related to diverting management's attention
from the Company's ongoing business operations; (ix) 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; and (x) risks and uncertainties pertaining to the Company's business,
including, without limitation, the risks and uncertainties detailed in the
Company's Annual Report on Form 10-K for the year ended
You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement and the Company undertakes no obligation to revise or update these statements to reflect events or circumstances after the date hereof, except as required by law.
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