OPIANT PHARMACEUTICALS, INC. Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
At the effective time of the Merger (the "Effective Time"), by virtue of the
Merger and without any action on the part of the parties or the holders of any
securities of the parties, each of share common stock, par value
At or prior to the Effective Time, Parent and a rights agent selected by Parent
and the Company will enter into a contingent rights agreement (the "CVR
Agreement"), a form of which is attached to the Merger Agreement, governing the
terms of each CVR. Each CVR entitles the holder thereof to receive four
contingent cash payments with an aggregate maximum amount payable of
•$2.00 per CVR upon achievement of net sales of OPNT003 of
•$2.00 per CVR upon achievement of net sales of OPNT003 of
•$2.00 per CVR upon achievement of net sales of OPNT003 of
•$2.00 per CVR upon achievement of net sales of OPNT003 of
The foregoing description of the CVR Agreement does not purport to be complete and is qualified in its entirety by the full text of the CVR Agreement, a copy of which is included as an exhibit to the Merger Agreement attached hereto as Exhibit 2.1 and incorporated by reference herein.
Effective immediately prior to the Effective Time, by virtue of the Merger, each option to purchase Company Common Stock granted under any Company Equity Plan (as defined in the Merger Agreement) or otherwise (each, a "Company Stock Option"), that is outstanding and unexercised immediately prior to the Effective Time, whether vested or unvested, shall be cancelled and terminated and treated as follows:
•with respect to each Company Stock Option that has a per share exercise price that is less than or equal to the Upfront Consideration (each, an "In the Money Option"), converted into the right of the holder to receive (without interest, and less any applicable withholding taxes) (i) an amount in cash equal to the product of (A) the excess, if any, of the Upfront Consideration over the applicable per share exercise price of such cancelled In the Money Option multiplied by (B) the number of shares of Company Common Stock subject to such In the Money Option immediately prior to the Effective Time; and (ii) a CVR with respect to each share of Company Common Stock subject to such In the Money Option immediately prior to the Effective Time.
•with respect to each Company Stock Option which has a per share exercise price
that is greater than the Upfront Consideration but less than
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of the Money Option as of immediately prior to the Effective Time. If no contingent payment becomes payable with respect to the CVRs under the CVR Agreement that would result in the Per Share Value Paid as of the applicable Milestone Payment Date exceeding the exercise price per share of such Out of the Money Option, then no payment shall be made hereunder in respect of such Out of the Money Option following the Effective Time.
•with respect to each Company Stock Option which has a per share exercise price
that is equal to or greater than
Effective as of immediately prior to the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof:
•each award of restricted stock units that corresponds to Company Common Stock granted under any Company Equity Plan or otherwise that vests solely on the passage of time (each, a "Company RSU Award") that is outstanding immediately prior to the Effective Time shall be automatically cancelled and terminated and converted into the right of the holder thereof to receive (without interest, and less any applicable withholding taxes): (i) an amount in cash equal to the product of (A) the Upfront Consideration multiplied by (B) the number of shares of Company Common Stock subject to such Company RSU Award immediately prior to the Effective Time; and (ii) a CVR with respect to each share of Company Common Stock subject to such Company RSU Award immediately prior to the Effective Time.
•each award of restricted stock units, performance stock units or performance units that corresponds to Company Common Stock granted under any Company Equity Plan or otherwise and that vests based on the achievement of performance goals (each, a "Company PSU Award") that is outstanding immediately prior to the Effective Time shall automatically be cancelled and terminated and converted into the right of the holder thereof to receive (without interest, and less any . . .
Item 1.02 Termination of a Material Definitive Agreement.
Effective
The foregoing description of the SWK Termination Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the SWK Termination Agreement attached to this Form 8-K as Exhibit 10.3 and incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure in Item 1.01 and Exhibit 10.3 of this report are incorporated herein by reference.
Cautionary Statement Regarding Forward-Looking Statements
This document contains "forward-looking statements," within the meaning of Section 27A of the Securities, Section 21E of Exchange Act, and the Private Securities Litigation Reform Act of 1995. Forward-looking statements discuss matters that are not historical facts. Because they discuss future events or conditions, forward-looking statements may include words such as "anticipate," "believe," "estimate," "intend," "could," "should," "would," "may," "seek," "plan," "might," "will," "expect," "predict," "project," "forecast," "potential," "continue", negatives thereof or similar expressions. Forward-looking statements speak only as of the date they are made, are based on various underlying assumptions and current expectations about the future and are not guarantees. Such statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, level of activity, performance or achievement to be materially different from the results of operations or plans expressed or implied by such forward-looking statements.
Opiant cannot predict all of the risks and uncertainties. Accordingly, such information should not be regarded as representations that the results or conditions described in such statements or that Opiant's objectives and plans will be achieved and we do not assume any responsibility for the accuracy or completeness of any of these forward-looking statements. These forward-looking statements are found at various places throughout this document and include information concerning possible or assumed future results of Opiant's operations, the achievement and value of contingent value rights in connection with the proposed merger; business strategies; future cash flows; financing plans; plans and objectives of management, any other statements regarding future cash needs, future operations, business plans and future financial results, and any other statements that are not historical facts. Actual results and outcomes may differ materially from what is contained in such forward-looking statements as a result of various factors, including, without limitation: (1) the inability to consummate the transaction within the anticipated time period, or at all, due to any reason, including the failure to obtain stockholder approval to adopt the Merger Agreement, the failure to obtain required regulatory approvals or the failure to satisfy the other conditions to the consummation of the Merger; (2) the risk that the Merger Agreement may be terminated in circumstances requiring Opiant to pay a termination fee; (3) the risk that the Merger disrupts Opiant's current business and financing plans and operations or diverts management's attention from its ongoing business; (4) the effect of the announcement of the Merger on Opiant's ability to retain and hire key personnel and maintain relationships with its suppliers and others with whom it does business; (5) the effect of the announcement of the Merger on Opiant's operating results and business generally; (6) the amount of costs, fees and expenses related to the Merger; (7) the risk that Opiant's stock price may decline significantly if the Merger is not consummated; (8) the nature, cost and outcome of any litigation and other legal proceedings, including any such proceedings related to the Merger and instituted against Opiant and others; (9) other factors that could affect Opiant's business such as, without limitation, our ability to obtain and maintain regulatory approvals for our products; results of clinical studies; technological breakthroughs in reversing opioid overdoses and treating patients; and delays or unplanned expenditures in product development, clinical testing or manufacturing; and (10) other risks to consummation of the proposed Merger, including the risk that the proposed Merger will not be consummated within the expected time period or at all.
In addition, please refer to the documents that Opiant files with the
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forth in this document. You are cautioned to not place undue reliance on forward-looking statements, which speak only as of the date of this document. Except as required by law, Opiant is not under any duty to update any of the information in this document.
Additional Information about the Acquisition and Where to Find It
This communication is being made in respect of the proposed transaction
involving Opiant, Parent and Merger Sub. A meeting of the stockholders of Opiant
will be announced as promptly as practicable to seek stockholder approval in
connection with the proposed Merger. Opiant expects to file with the
Opiant and certain of its directors, executive officers and other members of
management and employees may be deemed to be participants in soliciting proxies
from its stockholders in connection with the Merger. Information regarding the
persons who may, under the rules of the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
Number Description
Agreement and Plan of Merger, dated as of November 13, 2022, by
2.1 and among Opiant Pharmaceuticals, Inc., Indivior Inc., and Olive
Acquisition Subsidiary, Inc. (Form of CVR Agreement included as
Exhibit B thereto)
Amended and Restated License and Settlement Agreement, dated
10.1 November 13, 2022, by and among Opiant Pharmaceuticals, Inc. and
Emergent Operations Ireland Limited
First Amendment to Note Purchase and Security Agreement, dated
10.2 November 13, 2022, by and among Opiant Pharmaceuticals, Inc. and the
parties named therein
10.3 Termination Agreement, dated November 13, 2022, by and among
Opiant Pharmaceuticals, Inc. and SWK Funding LLC
Form of Voting Agreement, dated November 13, 2022, by and among
10.4 Indivior Inc . and certain stockholders of Opiant
Pharmaceuticals, Inc.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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