CONSTELLATION PHARMACEUTICALS, 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
purchase all of the outstanding shares (the "Shares") of common stock, par value
The Offer will initially remain open for a minimum of 20 business days from the date of commencement of the Offer. If at the scheduled expiration date of the Offer the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act") has not expired or otherwise been terminated, Purchaser must extend the Offer to permit the satisfaction of such condition. If at the scheduled expiration date of the Offer any of the conditions to the Offer have not been satisfied (unless such condition is waivable by Purchaser or MorphoSys and has been waived), (i) Purchaser may extend the Offer to permit the satisfaction of all Offer conditions, and (ii) upon request by Constellation, Purchaser will, and MorphoSys will cause the Purchaser to, extend the Offer to permit the satisfaction of all Offer conditions.
The obligation of Purchaser to consummate the Offer is subject to the
satisfaction or waiver of a number of customary conditions, including: (i) there
being validly tendered and not validly withdrawn prior to the expiration of the
Offer a number of Shares that, considered together with all other Shares (if
any) beneficially owned by MorphoSys and its affiliates, represent one more
Share than 50% of the total number of Shares outstanding at the expiration of
the Offer; (ii) the absence of any injunction or order in any jurisdiction in
which either party has material business operations prohibiting consummation of
the Offer or the Merger (as defined below); (iii) the expiration or early
termination of the applicable waiting period under the HSR Act, and receipt of
any required approval or clearance under the antitrust and foreign investment
laws of
Following the consummation of the Offer and subject to the terms and conditions
of the Merger Agreement, Purchaser will merge with and into Constellation
pursuant to Section 251(h) of the General Corporation Law of the
Representations and Warranties; Covenants
The Merger Agreement contains customary representations and warranties given by Constellation, MorphoSys, and Purchaser. The Merger Agreement also contains customary pre-closing covenants, including covenants by Constellation relating to conduct of its business prior to the closing of the Merger. The parties have agreed to use their respective reasonable best efforts to take actions to complete the Offer and the Merger (the "Transactions") as soon as reasonably practicable, including in obtaining each regulatory approval necessary to complete the Transactions and have agreed to (i) negotiate, commit to, or effect any divestiture and (ii) take any such other remedial action, except such action that would have a material adverse effect on the business of MorphoSys and Constellation on a combined basis. The Merger Agreement also provides that, during the period from the date of the Merger Agreement
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until the Effective Time, Constellation is subject to certain restrictions on its ability to solicit alternative acquisition proposals from third parties, to provide information to third parties and to engage in discussions or negotiations with third parties regarding alternative acquisition proposals. Notwithstanding these restrictions, Constellation may under certain circumstances provide information to and engage in discussions or negotiations with third parties with respect to a unsolicited written alternative acquisition proposal that Constellation's board of directors has determined constitutes or would reasonably be expected to lead to a Superior Offer (as defined in the Merger Agreement).
Treatment of Stock Options
Under the Merger Agreement, (1) immediately prior to the Effective Time, each outstanding Constellation stock option will accelerate and become fully vested and exercisable; and (2) at the Effective Time, each unexercised outstanding Constellation stock option will be cancelled in exchange for the right to receive a cash payment equal to the product of (i) the excess, if any, of the merger consideration, over the per share exercise price, and (ii) the number of shares of Constellation common stock subject to such stock option.
Termination and Termination Fees
Either Constellation or MorphoSys may terminate the Merger Agreement in certain
circumstances, including if (1) the Merger is not completed by
Under the Merger Agreement, Constellation will be required to make a payment to
MorphoSys equal to
Additional Information
The foregoing description of the Transactions and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K, and is incorporated herein by reference. A copy of the Merger Agreement has been included to provide investors with information regarding its terms and is not intended to provide any factual information about Constellation or MorphoSys.
The Merger Agreement contains representations, warranties, covenants and agreements, which were made only for purposes of such agreement and as of specified dates. The representations and warranties in the Merger Agreement reflect negotiations between the parties to the Merger Agreement and are not intended as statements of fact to be relied upon by Constellation's stockholders. In particular, the representations, warranties, covenants and agreements in the Merger Agreement may be subject to limitations agreed by the parties, including having been modified or qualified by certain confidential disclosures that were made between the parties in connection with the negotiation of the Merger Agreement, and having been made for purposes of allocating risk among the parties rather than establishing matters of fact. In addition, the parties may apply standards of materiality in a way that is different from what may be viewed as material by investors. As such, the representations and warranties in the Merger Agreement may not describe the actual state of affairs at the date they were made or at any other time and you . . .
Item 8.01 Other Events.
On
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description of Exhibit 2.1 Agreement and Plan of Merger, dated as ofJune 2, 2021 , by and amongConstellation Pharmaceuticals, Inc. , MorphoSys AG, andMorphoSys Development Inc. * 99.1 Joint Press Release, issuedJune 2, 2021 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
Constellation hereby undertakes to furnish supplemental copies of any of the
omitted schedules upon request by the
provided, that Constellation may request confidential treatment pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any
schedules so furnished.
* * *
Forward Looking Statements
This Current Report on Form 8-K contains forward-looking statements, within the meaning of the Private Securities Litigation Reform Act of 1995, related to MorphoSys, Constellation, and the Offer, the Merger and the long-term strategic partnership and financing collaboration with Royalty Pharma plc that are subject to risks, uncertainties and other factors. 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 the companies' and members of their senior management team. Forward-looking statements include, without limitation, statements regarding the Transactions and related matters, prospective performance and opportunities, post-closing operations and the outlook for the companies' businesses, including, without limitation, the ability of MorphoSys to advance Constellation's product pipeline, including pelabresib (CPI-0610) and CPI-0209, FSI-174 and FSI-189; regulatory approval of pelabresib (CPI-0610) and CPI-0209 on a timely basis; the anticipated timing of clinical data; the possibility of unfavorable results from clinical trials; filings and approvals relating to the Transactions; the expected timing of the completion of the Transactions; the expected plans for financing the Transactions, the ability to complete the Transactions considering the various closing conditions; difficulties or unanticipated expenses in connection with integrating the companies; and 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: uncertainties as to the timing of the Offer and the Merger; uncertainties as to how many of Constellation's stockholders will tender their stock in the Offer; the possibility that competing offers will be made; the possibility that various closing conditions for the Transactions may not be satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of any of the Transactions; the effects of the Transactions on relationships with employees, other business partners or governmental entities; the difficulty of predicting the timing or outcome of FDA approvals or actions, if any; the impact of competitive products and pricing; other business effects, including the effects of industry, economic or political conditions outside of the companies' control; transaction costs; actual or contingent liabilities; and other risks and uncertainties detailed from time to time in the parties' periodic reports filed
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with the
Additional Information and Where to Find It
The tender offer described in this Current Report on Form 8-K has not yet
commenced. This Current Report on Form 8-K is for informational purposes only
and is neither an offer to purchase nor a solicitation of an offer to sell
shares of Constellation, nor is it a substitute for any tender offer materials
that MorphoSys or Constellation will file with the
In addition to the Offer to Purchase, the related Letter of Transmittal and
certain other tender offer documents, as well as the Solicitation/Recommendation
Statement, MorphoSys and Constellation file periodic reports and other
information with the
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