Item 2.01 Completion of Acquisition or Disposition of Assets.
On October 1, 2020, Ligand Pharmaceuticals Incorporated, a Delaware corporation
("Ligand"), completed the previously announced acquisition of Pfenex Inc., a
Delaware corporation ("Pfenex"), pursuant to the Agreement and Plan of Merger
(the "Merger Agreement"), dated as of August 10, 2020, by and among Ligand,
Pfenex and Pelican Acquisition Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of Ligand ("Acquisition Sub").
As previously disclosed, pursuant to the Merger Agreement, on August 31, 2020,
Acquisition Sub commenced an exchange offer (the "Offer") to purchase all of the
issued and outstanding shares of common stock, par value $0.001 per share, of
Pfenex (the "Shares"), for a purchase price of (i) $12.00 per share, in cash
(the "Cash Portion"), and (ii) a non-transferrable contractual right (a "CVR")
pursuant to the Contingent Value Rights Agreement (as it may be amended from
time to time, the "CVR Agreement"), to receive a contingent payment upon the
achievement of a certain milestone as set forth in the CVR Agreement, without
interest (the together with the Cash Portion, the "Offer Price"), subject to any
required tax withholding and upon the other terms and subject to the conditions
set forth in the Offer to Purchase, dated August 31, 2020 and the related Letter
of Transmittal.
The Offer expired at midnight (New York City time) at the end of the day on
Tuesday, September 29, 2020. The depositary for the Offer advised Ligand and
Pfenex that, as of the expiration of the Offer, a total of 24,744,327 Shares
(excluding Shares with respect to which Notices of Guaranteed Delivery were
delivered) had been validly tendered and not properly withdrawn pursuant to the
Offer, representing approximately 72% of Pfenex's then outstanding Shares
(determined in accordance with the Merger Agreement). In addition, Notices of
Guaranteed Delivery were delivered with respect to approximately
2,847,227 Shares that have not yet been tendered, representing approximately
8.3% of Pfenex's then outstanding Shares. The Minimum Condition (as defined in
the Merger Agreement) for the Offer was satisfied because the number of Shares
validly tendered and not properly withdrawn pursuant to the Offer represented at
least a majority of the Shares then outstanding (determined in accordance with
the Merger Agreement and excluding from the number of tendered Shares, but not
from the number of outstanding Shares, Shares tendered pursuant to guaranteed
delivery procedures that have not yet been delivered in settlement or
satisfaction of such guarantee). All other conditions to the Offer having also
been satisfied or waived, immediately after the expiration of the Offer,
Purchaser accepted all of the Shares for payment, and will promptly pay for such
Shares in accordance with the terms of the Offer.
On October 1, 2020, pursuant to the terms of the Merger Agreement and in
accordance with Section 251(h) of the General Corporation Law of the State of
Delaware, Acquisition Sub merged with and into Pfenex (the "Merger"), with
Pfenex continuing as the surviving corporation and a wholly owned subsidiary of
Ligand. In the Merger, each Share that was issued and outstanding immediately
prior to the effective time of the Merger (the "Effective Time") (other than any
shares that were excluded pursuant to the terms of the Merger Agreement) was, at
the Effective Time, converted into the right to receive the Offer Price.
The foregoing descriptions of the Offer, the Merger and the Merger Agreement in
this Item 2.01 do not purport to be complete and are qualified in their entirety
. . .
Item 3.01 Notice of Delisting or Failure to Satisfy a Continuing Listing Rule or
Standard; Transfer of Listing.
Before the market opened on October 1, 2020, in connection with the consummation
of the Offer and the Merger, Pfenex (i) notified the New York Stock Exchange
American ("NYSE American") of the consummation of the Merger and (ii) requested
that NYSE American file with the SEC a Form 25 Notification of Removal from
Listing and/or Registration to delist and deregister the Shares under
Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). The Shares ceased trading on NYSE American following the close of trading
on September 30, 2020. Pfenex also intends to file with the SEC a Form 15
requesting that Pfenex's reporting obligations under Section 13 and 15(d) of the
Exchange Act be suspended. The information set forth in Item 2.01 of this
Current Report on Form 8-K is incorporated by reference into this Item 3.01.
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Item 3.03. Material Modification to Rights of Security Holders.
As a result of the Merger, each Share that was issued and outstanding
immediately prior to the Effective Time (other than any Shares that were
excluded pursuant to the terms of the Merger Agreement) was converted into the
right to receive the Offer Price at the Effective Time. Accordingly, at the
Effective Time, Pfenex's stockholders immediately before the Effective Time
ceased to have any rights in Pfenex as stockholders, other than their right to
receive the Offer Price. The information set forth in Item 2.01 of this Current
Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.01 Change in Control of Registrant.
At the Effective Time, Acquisition Sub merged with and into Pfenex, with Pfenex
continuing as the surviving corporation and a wholly owned subsidiary of Ligand.
As a result, a change of control of Pfenex occurred. The information contained
in Item 2.01 of this Current Report on Form 8-K is incorporated by reference
into this Item 5.01.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
In connection with the Merger and as contemplated by the Merger Agreement, upon
the consummation of the Merger, the directors of Acquisition Sub, John L.
Higgins, Charles S. Berkman, Matthew W. Foehr and Matthew Korenberg, became the
only directors of Pfenex. In connection therewith, each of Evert
Schimmelpennink, Martin Brenner, Robin Campbell, Jason Grenfell-Gardner, Patrick
Lucy, Magda Marquet, Lorianne Masuoka, Phillip Schneider, Shawn Scranton, and
John Taylor tendered their respective resignations as officers and/or directors
from the board of directors of Pfenex and from all committees of the board of
directors of Pfenex on which such directors served, effective as of the
Effective Time. The information set forth in Item 2.01 of this Current Report on
Form 8-K is incorporated by reference into this Item 5.02.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
In connection with the consummation of the Merger, the certificate of
incorporation and bylaws of Acquisition Sub became the certificate of
incorporation and bylaws, respectively, of Pfenex. The information set forth in
Item 2.01 of this Current Report on Form 8-K is incorporated by reference into
this Item 5.03
Item 7.01 Regulation FD Disclosure.
On September 30, 2020, Ligand issued a press release announcing the consummation
of the Offer. A copy of this press release is attached as Exhibit 99.1 and is
hereby incorporated by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
On October 1, 2020, Ligand issued a press release announcing the consummation of
the Offer. A copy of this press release is attached as Exhibit 99.2 and is
hereby incorporated by reference.
Exhibit
No. Description
2.1 Agreement and Plan of Merger, dated as of August 10, 2020, by and
among Pfenex Inc., Ligand Pharmaceuticals Incorporated and Pelican
Acquisition Sub, Inc. (incorporated by reference to Exhibit 2.1 to
Form 8-K filed with the SEC on August 11, 2020)*
3.1 Amended and Restated Certificate of Incorporation of Pfenex Inc.,
dated as of October 1, 2020
3.2 Amended and Restated Bylaw of Pfenex Inc., dated as of October 1,
2020
99.1 Press Release, dated September 30, 2020 (incorporated by reference
to Exhibit (a)(5)(xi) to Amendment No. 3 to Schedule TO filed with the
SEC on September 30, 2020 by Pelican Acquisition Sub, Inc. and Ligand
Incorporated)
99.2 Press Release, dated October 1, 2020
104 Cover Page Interactive Data File (formatted as inline XBRL contained
in Exhibit 101)
* Certain schedules and annexes have been omitted in accordance with Item
601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or annex will
be furnished as a supplement to the U.S. Securities and Exchange Commission
upon request.
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