Item 8.01. Other Events.
Shareholder Litigation
As previously disclosed in Menlo's Registration Statement on Form S-4, on
December 11, 2019 and December 18, 2019, purported shareholders of Foamix filed
putative class action lawsuits against the members of Foamix's board of
directors (the "Foamix Board"), Foamix, Menlo and Merger Sub in the United
States District Court for the District of Delaware and in the United States
District Court for the District of New Jersey, respectively, and on December 12,
2019, December 17, 2019 and December 20, 2019, purported shareholders of Foamix
filed individual lawsuits against the members of the Foamix Board and Foamix in
the United States District Court for the District of New Jersey, the United
States District Court for the Southern District of New York and the United
States District Court for the Southern District of New York, respectively.
On January 7, 2020, a purported shareholder of Foamix filed a lawsuit against
Foamix and the members of the Foamix Board in the United States District Court
for the District of New Jersey, alleging that the joint proxy
statement/prospectus issued in connection with the merger omitted material
information in violation of Section 14(a) and Section 20(a) of the Securities
Exchange Act of 1934 and Rule 14a-9 promulgated thereunder (the "Exchange Act").
The action, captioned Bushansky v. Foamix Pharmaceuticals Ltd., et al., Case
No. 3:20-cv-00256 (D.N.J.), purports to be brought on behalf of the named
plaintiff only and seeks, among other things, injunctive or other equitable
relief, including to enjoin consummation of the merger, or alternatively
rescission or rescissory damages, a declaration that the defendants violated
Sections 14(a) and/or 20(a) of the Exchange Act, and an award of costs,
including attorneys' and experts' fees and expenses. The defendants believe the
lawsuit is without merit and intend to defend vigorously against it.
Additional Information and Where to Find It
On January 6, 2020, Menlo filed a Registration Statement on Form S-4 containing
a joint proxy statement/prospectus of Menlo and Foamix and other documents
concerning the proposed merger with the SEC. The registration statement has been
declared effective by the SEC. BEFORE MAKING ANY VOTING DECISION, MENLO'S AND
FOAMIX'S RESPECTIVE STOCKHOLDERS ARE URGED TO READ THE DEFINITIVE JOINT PROXY
STATEMENT/PROSPECTUS IN ITS ENTIRETY AND ANY OTHER DOCUMENTS FILED BY EACH OF
MENLO AND FOAMIX WITH THE SEC IN CONNECTION WITH THE PROPOSED MERGER OR
INCORPORATED BY REFERENCE THEREIN BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED MERGER AND THE PARTIES TO THE PROPOSED MERGER.
Security holders may obtain a free copy of the Form S-4, including the joint
proxy statement/prospectus, and other documents filed by Menlo and Foamix with
the SEC at the SEC's website at www.sec.gov. Investors and stockholders will be
able to obtain a free copy of the Form S-4, including the joint proxy
statement/prospectus, and other documents containing important information about
Menlo and Foamix through the website maintained by the SEC at www.sec.gov. Menlo
and Foamix make available free of charge
at http://ir.menlotherapeutics.com/financials/sec-filings and
https://www.foamix.com/investors/sec-filings, respectively, copies of materials
they file with, or furnish to, the SEC.
Participants in the Solicitation
This communication does not constitute a solicitation of proxy, an offer to
purchase or a solicitation of an offer to sell any securities. Menlo, Foamix and
their respective directors, executive officers and certain employees may be
deemed to be participants in the solicitation of proxies from the stockholders
of Menlo and Foamix in connection with the proposed merger. Security holders may
obtain information regarding the names, affiliations and interests of Menlo's
directors and officers in Menlo's Annual Report on Form 10-K for the fiscal year
ended December 31, 2018, which was filed with the SEC on February 28, 2019, and
its definitive proxy statement for the 2019 annual meeting of stockholders,
which was filed with the SEC on May 10, 2019. Security holders may obtain
information regarding the names, affiliations and interests of Foamix's
directors and officers in Foamix's Annual Report on Form 10-K for the fiscal
year ended December 31, 2018, which was filed with the SEC on February 28, 2019,
and its definitive proxy statement for the 2019 annual meeting of stockholders,
which was filed with the SEC on March 11, 2019. To the extent the holdings of
Menlo securities by Menlo's directors and executive officers or the holdings of
Foamix securities by Foamix's directors and executive officers have changed
since the amounts set forth in Menlo's or Foamix's respective proxy statement
for its 2019 annual meeting of stockholders, such changes have been or will be
reflected on Statements of Change in Ownership on Form 4 filed with the SEC.
Additional information regarding the interests of such individuals in the
proposed merger is contained in the joint proxy statement/prospectus relating to
the proposed merger filed, and may be contained in other relevant materials that
may in the future be filed, with the SEC regarding the proposed merger. These
documents may be obtained free of charge from the SEC's website at www.sec.gov,
Menlo's website at http://ir.menlotherapeutics.com/financials/sec-filingsand
Foamix's website at https://www.foamix.com/investors/sec-filings.
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Forward-Looking Statements
This communication contains forward-looking statements within the meaning of the
federal securities law that are subject to various risks and uncertainties that
could cause our actual results to differ materially from those expressed or
implied in such statements. Words such as "anticipate," "expect," "project,"
"intend," "believe," and words and terms of similar substance used in connection
with any discussion of future plans, actions or events identify forward-looking
statements. Such factors include, but are not limited to: (i) Menlo or Foamix
may be unable to obtain stockholder approval as required for the merger;
(ii) other conditions to the closing of the merger may not be satisfied;
(iii) the merger may involve unexpected costs, liabilities or delays; (iv) the
effect of the announcement of the merger on the ability of Menlo or Foamix to
retain and hire key personnel and maintain relationships with customers,
suppliers and others with whom Menlo or Foamix does business, or on Menlo's or
Foamix's operating results and business generally; (v) Menlo's or Foamix's
respective businesses may suffer as a result of uncertainty surrounding the
merger and disruption of management's attention due to the merger; (vi) the
outcome of any legal proceedings related to the merger; (vii) Menlo or Foamix
may be adversely affected by other economic, business, and/or competitive
factors; (viii) the occurrence of any event, change or other circumstances that
could give rise to the termination of the merger agreement; (ix) risks that the
merger disrupts current plans and operations and the potential difficulties in
employee retention as a result of the merger; (x) the risk that Menlo or Foamix
may be unable to obtain governmental and regulatory approvals required for the
transaction, or that required governmental and regulatory approvals may delay
the transaction or result in the imposition of conditions that could reduce the
anticipated benefits from the proposed transaction or cause the parties to
abandon the proposed transaction; and (xi) other risks to consummation of the
merger, including the risk that the merger will not be consummated within the
expected time period or at all. Additional factors that may affect the future
results of Menlo and Foamix are set forth in their respective filings with the
SEC, including each of Menlo's or Foamix's most recently filed Annual Report on
Form 10-K, subsequent Quarterly Reports on Form 10-Q, Current Reports on Form
8-K and other filings with the SEC, which are available on the SEC's website at
www.sec.gov. See in particular Item 1A of Part II of Menlo's Quarterly Report on
Form 10-Q for the quarter ended September 30, 2019 under the heading "Risk
Factors" and Item 1A of Part II of Foamix's Quarterly Report on Form 10-Q for
the quarter ended June 30, 2019 under the heading "Risk Factors." The risks and
uncertainties described above and in Menlo's most recent Quarterly Report on
Form 10-Q and Foamix's most recent Quarterly Report on Form 10-Q are not
exclusive and further information concerning Menlo and Foamix and their
respective businesses, including factors that potentially could materially
affect its business, financial condition or operating results, may emerge from
time to time. Readers are urged to consider these factors carefully in
evaluating these forward-looking statements. Readers should also carefully
review the risk factors described in other documents that Menlo and Foamix file
from time to time with the SEC. The forward-looking statements in this press
release speak only as of the date of this press release. Except as required by
law, Menlo and Foamix assume no obligation to update or revise these
forward-looking statements for any reason, even if new information becomes
available in the future.
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