Item 1.02 Termination of Material Definitive Agreement.
Effective as of August 22, 2022, and immediately following the effective time of
the Merger (the "Effective Time"), the Company terminated the Company's Amended
and Restated 2013 Equity Incentive Plan and the Company's 2018 Employee Stock
Purchase Plan.
Item 2.01 Completion of Acquisition or Disposition of Assets.
As previously disclosed, pursuant to the Merger Agreement, Purchaser conducted a
tender offer to acquire all of the issued and outstanding shares of the
Company's common stock, par value $0.0001 per share (the "Shares"), other than
any Parent-Owned Shares and Company-Owned Shares (each as defined below), at a
purchase price of $6.23 per Share in cash (the "Offer Price"), without interest
and subject to any applicable withholding taxes (the "Merger Consideration"),
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated July 25, 2022 (as amended or supplemented from time to time, the "Offer to
Purchase"), and the related Letter of Transmittal (the "Letter of Transmittal"
and, together with the Offer to Purchase and other related materials, as each as
amended or supplemented from time to time, the "Offer").
The Offer expired one minute after 11:59 P.M., New York City time, on August 19,
2022 as scheduled and was not extended. According to American Stock Transfer and
Trust Company, LLC, the depositary for the Offer, 21,703,224 Shares were validly
tendered and not withdrawn pursuant to the Offer, which Shares represented
approximately 87% of the outstanding Shares, satisfying the minimum tender
condition to the Offer. Each other condition to the Offer was satisfied or
waived, and Purchaser irrevocably accepted for payment all Shares that were
validly tendered and not validly withdrawn.
On August 22, 2022, following consummation of the Offer, Purchaser merged with
and into the Company (the "Merger"), with the Company surviving as a
wholly-owned subsidiary of the Parent. The Merger was completed pursuant to
Section 251(h) of the General Corporation Law of the State of Delaware (the
"DGCL"), with no vote of the Company stockholders required to consummate the
Merger. At the effective time of the Merger (the "Effective Time"), each issued
and outstanding Share (other than (i) Shares owned at the commencement of the
Offer and immediately prior to the Effective Time by Parent, Purchaser or any
other direct or indirect wholly-owned subsidiary of Parent (the "Parent-Owned
Shares"), (ii) Shares owned immediately prior to the Effective Time by the
Company (or held in the Company's treasury) (the "Company-Owned Shares") and
(iii) Shares held by stockholders who are entitled to, and who have properly
exercised and perfected their respective demands for, appraisal of such Shares
in the time and manner provided in Section 262 of the DGCL and, as of the
Effective Time, have neither effectively withdrawn their respective demand nor
otherwise lost their respective rights to appraisal pursuant to Section 262 of
the DGCL), was converted into the right to receive an amount in cash equal to
the Merger Consideration, without interest and subject to any applicable
withholding of taxes. Additionally, each issued and outstanding share the
Company's Series C-12 Convertible Preferred Stock, par value $0.0001 per share
(each, a "Preferred Share") (other than (i) Preferred Shares owned at the
commencement of the Offer and immediately prior to the Effective Time by Parent,
Purchaser or any other direct or indirect wholly-owned subsidiary of Parent,
(ii) Preferred Shares owned immediately prior to the Effective Time by Parent
(or held in La Jolla's treasury) and (iii) Preferred Shares held by stockholders
who are entitled to, and who have properly exercised and perfected their
respective demands for, appraisal of such Shares in the time and manner provided
in Section 262 of the DGCL and, as of the Effective Time, have neither
effectively withdrawn their respective demand nor otherwise lost their
respective rights to appraisal pursuant to Section 262 of the DGCL), was
converted into the right to receive an amount in cash equal to 1,724.04 times
the Merger Consideration (the "Preferred Share Consideration"), without interest
and subject to any applicable withholding of taxes.
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. . .
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
On August 22, 2022, the Company (a) notified the Nasdaq Capital Market
("Nasdaq") of the consummation of the Merger and (b) requested that Nasdaq:
(i) halt trading of the Common Stock for August 22, 2022 and suspend trading of
the Common Stock effective August 22, 2022; and (ii) file with the Securities
and Exchange Commission ("SEC") a Form 25 Notification of Removal from Listing
and/or Registration to delist and deregister the Common Stock under
Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). The Company intends to file a certification on Form 15 with the SEC
requesting the deregistration of the Common Stock and the suspension of the
Company's reporting obligations under Sections 13 and 15(d) of the Exchange Act.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Item 2.01, Item 3.01 and Item 5.03 of this Current
Report on Form 8-K is incorporated herein by reference.
Item 5.01 Changes in Control of Registrant.
The information set forth in Item 2.01, Item 3.01 and Item 5.03 of this Current
Report on Form 8-K is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
In accordance with the terms of the Merger Agreement: (i) each of Kevin Tang,
Larry Edwards, Craig Johnson, Laura Johnson, David Ramsay and Robert Rosen
resigned from his or her respective position as a member of the Company's Board
of Directors, and any committee thereof, effective at the Effective Time (as
defined in the Merger Agreement); and (ii) Kevin Tang, resigned from his
position as Chairman of the Company's Board of Directors.
Effective as of the Effective Time: (i) Pavel Raifeld, CFA, and Marianne Zhen,
CPA, became members of the Company's Board of Directors; (ii) Larry Edwards will
remain Chief Executive Officer and President, and "principal executive officer,"
as such term is defined under the Exchange Act, of the Company; and
(iii) Michael Hearne will remain Chief Financial Officer, and "principal
financial officer" and "principal accounting officer," as such terms are defined
under the Exchange Act, of the Company. Information about Mr. Raifeld and
Ms. Zhen is contained in the Parent's and Purchaser's Offer to Purchase, dated
July 25, 2022, which information is incorporated herein by reference.
Information about Messrs. Edwards and Hearne is contained in the Company's
Annual Report on Form 10-K, which information is incorporated herein by
reference.
Item 5.03 Amendment to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Pursuant to the terms of the Merger Agreement, the certificate of incorporation
and bylaws of the Company were amended and restated in their entirety, effective
as of the Effective Time. Copies of the Company's amended and restated
certificate of incorporation and amended and restated bylaws are included as
Exhibits 3.1 and 3.2 hereto, respectively, each of which is incorporated by
reference herein.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No. Description
2.1 Agreement and Plan of Merger by and among the Parent, the Purchaser
and the Company, dated as of July 10, 2022 (incorporated herein by
reference to Exhibit 2.1 to the Current Report on Form 8-K filed with
the SEC by the Company on July 11, 2022)
3.1 Amended and Restated Certificate of Incorporation of La Jolla
Pharmaceutical Company
3.2 Amended and Restated Bylaws of La Jolla Pharmaceutical Company
104 Cover Page Interactive Date File (embedded within the Inline XBRL
document)
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