SPECTRUM PHARMACEUTICALS, INC. Item 1.01. Entry into a Material Definitive Agreement.
Agreement of Merger
On
In the Merger, upon the terms and conditions of the Merger Agreement, each share
of the Company's common stock issued and outstanding immediately prior to the
effective time of the Merger (the "Effective Time") (other than certain excluded
shares as described in the Merger Agreement) will automatically be converted
into the right to receive (a)(i) 0.1783 (the "Exchange Ratio") of a share of the
common stock of Assertio and (ii) cash in lieu of fractional shares (the
"Upfront Consideration"), and (b) a contingent value right ("CVR") to receive up
to an additional
Subject to the terms and conditions set forth in the Merger Agreement, at the Effective Time, (i) all outstanding options to purchase the Company's shares ("Stock Options") and stock appreciation rights ("SARs") that are unvested shall become fully vested and (a) a Stock Option or SAR with an exercise price less than the Upfront Consideration will be converted into (1) shares of Assertio common stock with a value equal to the quotient of (A) the product of (x) the total number of the Company's shares underlying the Stock Option or SAR multiplied by (y) the excess, if any, of the value of the Upfront Consideration over the exercise price of such Company Option or SAR, divided by (B) the average of the daily volume-weighted average price per share of Assertio's common stock calculated based on the ten (10) consecutive trading days ending two trading days prior to the date of the Merger Agreement and (2) a CVR, (b) a Stock Option or SAR with an exercise price equal to or greater than the Upfront Consideration and less than the aggregate merger consideration (treating all CVRs as fully paid) will be entitled to a CVR (reduced by the amount that the exercise price exceeds the Upfront Consideration), and (c) a Stock Option or SAR with an exercise price equal to or greater than the aggregate merger consideration (treating all CVRs as fully paid) will be cancelled for no consideration, and (ii) all vested and unvested Company restricted stock and restricted stock units will be fully accelerated and settled in shares of Assertio common stock at closing for the aggregate merger consideration.
The respective boards of directors of Assertio (the "Assertio Board") and the Company (the "Company Board") have approved the Merger, and the Company Board has agreed to recommend that the Company's stockholders adopt the Merger Agreement. Assertio and the Company each have agreed not to directly or indirectly solicit alternative proposals and to terminate all existing discussions, negotiations and communications with any persons with respect to any alternative proposal. However, the Company Board may, subject to certain conditions, respond to unsolicited proposals from third parties and withdraw its recommendation in favor of adoption of the Merger Agreement or terminate the Merger Agreement, in each case, if, in connection with the receipt of an alternative proposal, the Company Board, as the case may be, determines in good faith, after consultation with its outside counsel and financial advisors, that (A) such alternative proposal constitutes or is reasonably likely to lead to a superior proposal and (B) a failure (1) to furnish information and provide access with respect to such corporation and its subsidiaries and (2) to participate in discussions or negotiations with the person making an alternative proposal would be reasonably be expected to be inconsistent with its fiduciary duties. In addition, the Company Board, as the case may be, may withdraw its recommendation (but not terminate the Merger Agreement) if, in connection with a material event or circumstance occurring after the date of the Merger Agreement that was not known or reasonably foreseeable as of the date of the Merger Agreement, it determines in good faith, after consultation with its outside legal and financial advisor, that a failure to effect such a withdrawal of recommendation would be reasonably be expected to be inconsistent with its fiduciary duties.
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The Company and Assertio each made certain representations and warranties and
agreed to certain covenants in the Merger Agreement, including, among other
things, (i) covenants by Assertio and the Company to use their respective
reasonable best efforts to conduct their businesses in all material respects in
the ordinary course during the period between the execution of the Merger
Agreement and consummation of the Merger, (ii) the efforts of the parties to
cause the Merger to be completed, and (iii) obligations to cooperate with each
other to prepare and file a registration statement on Form S-4 and joint proxy
statement with the
The Merger Agreement provides that, prior to the Effective Time, the Company Board will nominate one member of the Company Board to be appointed to the Assertio Board.
Completion of the Merger is subject to the satisfaction or waiver of customary
closing conditions, including (1) adoption of the Merger Agreement by the
requisite vote of the Company's stockholders, (2) approval of the issuance of
shares of Assertio's common stock to be issued in the Merger by the requisite
vote of Assertio's stockholders, (3) approval for listing on the
The Merger Agreement provides that the Company may be required to pay Assertio a
termination fee equal to
The Merger Agreement provides that Assertio may be required to pay the Company a
termination fee equal to
If the Merger Agreement is terminated by either Assertio or the Company due to
the other party's failure to receive the requisite approval of its stockholders,
as applicable, then the party that failed to obtain such approval will be
required to reimburse the other party for up to
The foregoing description of the Merger and the Merger Agreement is not complete and is qualified in its entirety by the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and the terms of which are incorporated herein by reference.
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The Merger Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about Assertio, the Company or their respective subsidiaries or affiliates. The . . .
Item 8.01. Other Events.
On
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Additional Information about the Merger and Where to Find It
In connection with the proposed transaction, Assertio intends to file with the
Participants in the Solicitation
The Company and Assertio and their respective directors and executive officers
may be deemed to be participants in the solicitation of proxies from their
respective stockholders in respect of the proposed transactions contemplated by
the joint proxy statement/prospectus. Information regarding the persons who are,
under the rules of the
No Offer or Solicitation
This communication is not intended to and shall not constitute an offer to buy
or sell or the solicitation of an offer to buy or sell any securities, or a
solicitation of any vote or approval, nor shall there be any sale of securities
in any jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such
jurisdiction. No offering of securities shall be made, except by means of a
prospectus meeting the requirements of Section 10 of the
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Forward-Looking Statements
This filing contains "forward-looking statements" within the meaning of Section
27A of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. Generally, the words "anticipate," "estimate,"
"expect," "project," "intend," "plan," "contemplate," "predict," "forecast,"
"likely," "believe," "target," "will," "could," "would," "should," "potential,"
"may" and similar expressions or their negative, may, but are not necessary to,
identify forward-looking statements. Such forward-looking statements, including
those regarding the timing, and consummation and anticipated benefits of the
transaction described herein, involve risks and uncertainties. The Company's
experience and results may differ materially from the experience and results
anticipated in such statements. The accuracy of such statements is subject to a
number of risks, uncertainties and assumptions including, but are not limited
to, the following factors: the risk that the conditions to the closing of the
transaction are not satisfied, including the risk that required approvals of the
transaction from the stockholders of Assertio or stockholders of the Company or
from regulators are not obtained; litigation relating to the transaction;
uncertainties as to the timing of the consummation of the transaction and the
ability of each party to consummate the transaction; risks that the proposed
transaction disrupts the current plans or operations of the Company; the ability
of the Company to retain and hire key personnel; competitive responses to the
proposed transaction; unexpected costs, charges or expenses resulting from the
transaction; potential adverse reactions or changes to relationships with
customers, suppliers, distributors and other business partners resulting from
the announcement or completion of the transaction; the combined company's
ability to achieve the synergies expected from the transaction, as well as
delays, challenges and expenses associated with integrating the combined
company's existing businesses; the impact of overall industry and general
economic conditions, including inflation, interest rates and related monetary
policy by governments in response to inflation; geopolitical events, including
the war between
All forward-looking statements made herein are based on information currently available to the Company as of the date of this Report. The Company undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number Description 2.1 Merger Agreement, dated as ofApril 24, 2023 , by and amongSpectrum Pharmaceuticals, Inc. , Assertio Holdings Inc. and Spade Merger Sub 1, Inc. (Form of CVR Agreement included as Exhibit B thereto) (The disclosure letters and exhibits to the Agreement and Plan of Merger have been omitted from this filing pursuant to Item 601(b)(2) of Regulation S-K. Registrant will furnish copies of such disclosure letters and exhibits to theU.S. Securities and Exchange Commission upon request by the Commission). 99.1 Press Release, jointly issued bySpectrum Pharmaceuticals, Inc. and Assertio Holdings Inc. datedApril 25, 2023 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document) 5
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