Nightstar Therapeutics plc reaches agreement to be acquired by
Biogen
Nightstar Therapeutics plc ("
Nightstar") (NASDAQ:
NITE), a clinical-stage gene therapy company developing treatments
for rare inherited retinal diseases and Biogen Inc.
("
Biogen") are pleased to announce that they have
reached agreement on the terms of a recommended acquisition whereby
the entire issued and to be issued share capital of Nightstar will
be acquired by Tungsten Bidco Limited (a newly-incorporated company
and wholly-owned subsidiary of Biogen Switzerland Holdings GmhH
(“
Bidder”)). It is intended that the Acquisition
will be implemented by means of a U.K. Court-sanctioned scheme of
arrangement under Part 26 of the U.K. Companies Act 2006.
Under the terms of the Acquisition, Nightstar
Shareholders will be entitled to receive USD 25.50 in cash for each
Nightstar Share. The terms of the Acquisition values Nightstar’s
entire issued and to be issued share capital at approximately USD
877 million and the terms of the Acquisition represent a premium of
approximately 70 per cent. to the 30 trading day volume-weighted
average price per Nightstar ADR of USD 15.02 for the period from 17
January 2019 to 1 March 2019 (being the last practicable date prior
to the date of this Announcement).
Commenting on the Acquisition, David Fellows,
Chief Executive Officer of Nightstar, said:
"Our agreement with Biogen will give us the
platform and resources to expand our mission to maintain and
restore sight in patients with inherited retinal diseases. This
transaction accelerates treatment to patients through Nightstar’s
key retinal gene therapy programs that modify or halt progression
of blindness. Together, with Biogen’s expertise in rare diseases,
worldwide reach and extensive resources, we will dramatically
improve the lives of patients around the world who currently have
no treatment options. We are proud of what Nightstar has
accomplished, and we thank our team for their tireless work to
improve the lives of our patients and their families."
Commenting on the Acquisition, Chris Hollowood,
Chairman of Nightstar, said:
"Over the last six years since foundation in
2013, Nightstar has established itself as one of the global leaders
in retinal gene therapies. I am proud of Nightstar's achievements,
delivering two proof-of-concept programs and building a world class
organisation. We look forward to seeing the next chapter of
Nightstar's journey under Biogen's ownership, as it works to
achieve its ultimate ambition of delivering transformational
treatments to patients."
Acquisition details
It is intended that the Acquisition will be
implemented by means of a U.K. Court-sanctioned scheme of
arrangement under Part 26 of the Companies Act (or, if Biogen
elects, subject to the consent of Nightstar and subject to the
terms of the Implementation Agreement, an Offer). The Acquisition
is conditional on, among other things: (i) the approval of
Nightstar Shareholders at the Court Meeting and the passing of the
resolutions by Nightstar Shareholders at the General Meeting; and
(ii) the sanction of the Scheme by the U.K. Court; and (iii)
approval from competition authorities in the U.S and Germany. The
Acquisition does not require the approval of Biogen
Shareholders.
The Acquisition is expected to become Effective
by mid-year 2019, subject to the satisfaction (or, where
applicable, waiver) of the Conditions set out in Appendix I to
this Announcement.
Further details of the Acquisition will be
contained in the Scheme Document which is intended to be posted to
Nightstar Shareholders along with notices of the Court Meeting and
General Meeting and the Forms of Proxy within 15 Business Days
following the date Nightstar has cleared comments received from the
U.S. Securities and Exchange Committee ("SEC"), if
any, on such document, unless Nightstar and Bidder otherwise agree
to a later date.
Centerview Partners is acting as lead financial
advisor to Nightstar. Jefferies LLC is also acting as financial
advisor to Nightstar. Skadden, Arps, Slate, Meagher & Flom LLP
is acting as legal counsel to Nightstar.
About Nightstar
Nightstar is a leading clinical-stage gene
therapy company focused on developing and commercializing novel
one-time treatments for patients suffering from rare inherited
retinal diseases that would otherwise progress to blindness.
Nightstar’s lead product candidate, NSR-REP1, is currently in Phase
3 development for the treatment of patients with choroideremia, a
rare, degenerative, genetic retinal disorder that has no treatments
currently available and affects approximately one in every 50,000
people. Positive results from a Phase 1/2 trial of NSR-REP1 were
published in Nature Medicine in 2018, in The New England Journal of
Medicine in 2016, and in The Lancet in 2014. Nightstar’s second
product candidate, NSR-RPGR, is currently being evaluated in a
clinical trial known as the XIRIUS trial for the treatment of
patients with X-linked retinitis pigmentosa, an inherited X-linked
recessive retinal disease that affects approximately one in every
40,000 people. In September 2018, Nightstar announced positive
preliminary safety and efficacy data from the XIRIUS trial for the
first five cohorts (combined n=15) of the dose escalation study at
the EURETINA medical meeting.
For more information about Nightstar or its
clinical trials, please visit www.nightstartx.com.
This summary should be read in
conjunction with, and is subject to, the full text of this
Announcement (including its Appendices).
The Acquisition will be subject to the
Conditions and further terms that are set out
in Appendix I, and to
the full terms and conditions which will be set out in the Scheme
Document. Appendix II
contains the bases and sources of certain information used
in this Announcement. Appendix III
contains details of the irrevocable undertakings received
in relation to the Acquisition that are referred to in this
Announcement. Appendix IV
contains definitions of terms used in this
Announcement.
Enquiries:
Nightstar
Investor
Information
investors@nightstartx.com
Media
Enquiries
media@nightstartx.com
Information
info@nightstartx.com
Centerview Partners (Financial adviser
to Nightstar)
Alan
Hartman
+1 212 380 2665
Andrew
Rymer
+1 212 429 2349
James
Hartop
+44 (0)20 7409 9730
Finsbury (PR adviser to
Nightstar)
Kal
Goldberg
+1 646 805 2005
Chris
Ryall
+1 646 306 0747
Nicholas
Leasure
+1 646 805 2814
Skadden (Legal adviser to
Nightstar)
Scott
Hopkins
+44 (0)20 7519 7187
Graham
Robinson
+1 617 573 4850
Sonia
Nijjar
+1 650 470 4592
Important notices relating to financial
advisers
Centerview Partners UK LLP ("Centerview
Partners"), which is authorised and regulated by the FCA, is acting
exclusively for Nightstar and no one else in connection with the
matters referred to in this document. Centerview Partners is not
and will not be responsible to anyone other than Nightstar for
providing the protections afforded to its clients or for providing
advice in connection with the contents of this document or any
matter referred to in this Announcement.
The City Code on Takeovers and
Mergers
The City Code on Takeovers and Mergers does not
apply to the Acquisition.
Further information
This Announcement is for information purposes
only and is not intended to and does not constitute, or form any
part of, an offer to sell or an invitation to purchase or subscribe
for any securities or the solicitation of any vote or approval in
any jurisdiction pursuant to the Acquisition or otherwise. The
Acquisition will be made solely by the Scheme Document, which will
contain the full terms and conditions of the Acquisition, including
details of how to vote in respect of the Scheme. INVESTORS ARE
ADVISED TO READ THE SCHEME DOCUMENT, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, WHEN IT BECOMES AVAILABLE CAREFULLY
AND IN ITS ENTIRETY PRIOR TO MAKING ANY DECISIONS WITH RESPECT TO
THE ACQUISITION BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION ABOUT
THE PROPOSED TRANSACTION. Investors may obtain a free copy of the
Scheme Document (when available) at the Securities and Exchange
Commission’s website at www.sec.gov, or free of charge from
Nightstar at https://www.nightstartx.com or by directing a request
to Nightstar at investors@nightstartx.com. Any voting decision or
response in relation to the Acquisition should be made solely on
the basis of the Scheme Document.
This Announcement does not constitute a
prospectus or a prospectus equivalent document.
Biogen and Nightstar, and their respective
directors and executive officers, may be deemed to be participants
in the solicitation of proxies in respect of the transactions
contemplated by the implementation agreement. Information regarding
Nightstar’s directors and executive officers is contained in
Nightstar’s Form 20-F for the year ended 31 December 2017, which is
filed with the SEC. Information regarding Biogen’s directors and
executive officers is contained in Biogen’s Form 10-K for the year
ended 31 December 2018 and its proxy statement dated 27 April 2018.
Additional information regarding the participants in the
solicitation of proxies in respect of the transactions contemplated
by the implementation agreement and a description of their direct
and indirect interests, by security holdings or otherwise, will be
contained in the Scheme Document and other relevant materials to be
filed with the SEC when they become available.
Overseas shareholders
The release, publication or distribution of this
Announcement in jurisdictions other than the United Kingdom and the
United States may be restricted by law and therefore any persons
who are subject to the laws of any jurisdiction other than the
United Kingdom or the United States (including Restricted
Jurisdictions) should inform themselves about, and observe, any
applicable legal or regulatory requirements. In particular, the
ability of persons who are not resident in the United Kingdom or
United States or who are subject to the laws of another
jurisdiction to vote their Nightstar Shares in respect of the
Scheme at the Court Meeting, or to execute and deliver Forms of
Proxy appointing another to vote at the Court Meeting on their
behalf, may be affected by the laws of the relevant jurisdictions
in which they are located or to which they are subject. Any failure
to comply with applicable legal or regulatory requirements of any
jurisdiction may constitute a violation of securities laws in that
jurisdiction. This Announcement has been prepared for the purpose
of complying with English law and the information disclosed may not
be the same as that which would have been disclosed if this
Announcement had been prepared in accordance with the laws of
jurisdictions outside England.
Copies of this Announcement and any formal
documentation relating to the Acquisition are not being, and must
not be, directly or indirectly, mailed or otherwise forwarded,
distributed or sent in or into or from any Restricted Jurisdiction
or any jurisdiction where to do so would constitute a violation of
the laws of such jurisdiction and persons receiving such documents
(including custodians, nominees and trustees) must not mail or
otherwise forward, distribute or send them in or into or from any
Restricted Jurisdiction. Doing so may render invalid any related
purported vote in respect of acceptance of the Acquisition.
If the Acquisition is implemented by way of an
Offer, the Offer may not (unless otherwise permitted by applicable
law and regulation) be made, directly or indirectly, in or into or
by use of the mails or any other means or instrumentality
(including, without limitation, facsimile, e-mail or other
electronic transmission, telex or telephone) of interstate or
foreign commerce of, or any facility of a national, state or other
securities exchange of any Restricted Jurisdiction and the
Acquisition will not be capable of acceptance by any such use,
means, instrumentality or facilities or from within any Restricted
Jurisdiction.
Further details in relation to Nightstar
Shareholders in overseas jurisdictions will be contained in the
Scheme Document.
Notice to U.S. investors in
Nightstar
The Acquisition relates to the shares of a U.K.
company and is being made by means of a scheme of arrangement
provided for under Part 26 of the Companies Act and subject to the
proxy solicitation rules under the U.S. Exchange Act. The
Acquisition, implemented by way of a scheme of arrangement, is not
subject to the tender offer rules under the U.S. Exchange Act. If,
in the future, Bidder exercises its right to implement the
Acquisition by way of an Offer, subject to the terms of the
Implementation Agreement, the Acquisition will be made in
compliance with applicable U.S. laws and regulations.
It may be difficult for U.S. Nightstar
Shareholders and Nightstar ADR Holders to enforce their rights and
any claim arising out of the U.S. federal securities laws, because
Nightstar is located in a non-U.S. country, and some or all of its
officers and directors are residents of a non-U.S. country. U.S.
Nightstar Shareholders and Nightstar ADR Holders may not be able to
sue a non-U.S. company or its officers or directors in a non-U.S.
court for violations of the U.S. securities laws. Further, it may
be difficult to compel a non-U.S. company and its affiliates to
subject themselves to a U.S. court’s judgment.
U.S. Nightstar Shareholders and Nightstar ADR
Holders are urged to consult with legal, tax and financial advisers
in connection with making a decision regarding the Acquisition.
Warning Concerning Forward-Looking
Statements
All statements included in this Announcement,
other than statements or characterizations of historical fact, are
forward-looking statements within the meaning of the federal
securities laws, including Section 21E of the U.S. Exchange Act,
and other securities laws. Whenever Nightstar uses words such as
“believe”, “expect”, “anticipate”, “intend”, “plan”, “estimate”,
“will”, “may”, “predict”, “could”, “seek”, “forecast” and negatives
or derivatives of these or similar expressions, they are making
forward-looking statements. Examples of such forward-looking
statements include, but are not limited to, references to the
anticipated benefits of the Acquisition and the expected time of
effectiveness of the Acquisition. These forward-looking statements
are based upon Nightstar’s present intent, beliefs or expectations,
but forward-looking statements are not guaranteed to occur and may
not occur.
Shareholders are cautioned that any
forward-looking statements are not guarantees of future performance
and may involve significant risks and uncertainties, and that
actual results may vary materially from those in the
forward-looking statements. Important risk factors that may cause
Nightstar’s actual results to differ materially from their
forward-looking statements include, but are not limited to: (1) the
Acquisition is subject to the satisfaction or waiver of certain
conditions, including the receipt of requisite approvals by
Nightstar’s shareholders, the sanction of the Scheme by the High
Court of Justice in England and Wales, and the expiration or
termination of any applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
which conditions may not be satisfied or waived; (2) uncertainties
as to the timing of the consummation of the Acquisition and the
ability of each party to consummate the Acquisition; (3) the risk
that the Acquisition disrupts the parties’ current operations or
affects their ability to retain or recruit key employees; (4) the
possible diversion of management time on Acquisition-related
issues; (5) litigation relating to the Acquisition; (6) unexpected
costs, charges or expenses resulting from the Acquisition; and (7)
potential adverse reactions or changes to business relationships
resulting from the announcement or completion of the
Acquisition.
The information contained in Nightstar’s filings
with SEC, including in Nightstar’s Form 20-F for the year ended 31
December 2017 identifies other important factors that could cause
actual results to differ materially from those stated in or implied
by the forward-looking statements in this Announcement. Nightstar’s
filings with the SEC are available on the SEC’s website at
www.sec.gov. You should not place undue reliance upon
forward-looking statements. Except as required by law, Nightstar
does not intend to update or change any forward-looking statements
as a result of new information, future events or otherwise.
Right to switch to an Offer
Each of Bidder and Bidco reserves the right to
elect, subject to the consent of Nightstar and subject to the terms
of the Implementation Agreement, to implement the Acquisition by
way of an Offer for the entire issued and to be issued share
capital of Nightstar as an alternative to the Scheme. In such an
event, the Offer will be implemented on the same terms (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Scheme and subject to the amendment referred to in
Appendix I to this Announcement.
RECOMMENDED ACQUISITION
OF NIGHTSTAR THERAPEUTICS PLC
("NIGHTSTAR") BY TUNGSTEN BIDCO
LIMITED ("BIDCO") a wholly-owned
subsidiary of BIOGEN SWITZERLAND HOLDINGS GMBH
("BIDDER") (to be implemented by way of a scheme
of arrangement under Part 26 of the Companies Act
2006)
1. Introduction
The boards of directors of Bidder and Nightstar
are pleased to announce that they have reached agreement on the
terms of a recommended acquisition whereby the entire issued and to
be issued share capital of Nightstar will be acquired by Bidco (a
newly-incorporated company and wholly-owned subsidiary of Bidder).
It is intended that the Acquisition will be implemented by means of
a Court-sanctioned scheme of arrangement under Part 26 of the
Companies Act.
2. The Acquisition
The Acquisition, which will be on the terms and
subject to the Conditions set out below and in Appendix I, and
to be set out in the Scheme Document, will be made on the following
basis:
for each Nightstar
Share USD 25.50 in
cash
- the terms of the Acquisition values Nightstar’s entire issued
and to be issued share capital at approximately 877 million;
and
- the terms of the Acquisition represent a premium of
approximately:
- 68.2 per cent. to the Closing Price per Nightstar Share of USD
15.16 on 1 March 2019 (being the last practicable date prior to the
date of this Announcement); and
- 69.8 per cent. to the 30 trading day volume weighted average
price per Nightstar Share of USD 15.02 for the period from 17
January 2019 to 1 March 2019 (being the last practicable date prior
to the date of this Announcement).
3. Background to
and reasons for the Acquisition
Biogen discovers, develops, and delivers
worldwide innovative therapies for people living with serious
neurological and neurodegenerative diseases. Nightstar is a gene
therapy company focused on developing novel treatments for patients
suffering from rare inherited retinal diseases that would otherwise
lead to blindness.
Nightstar’s lead asset is NSR-REP1 for the
treatment of choroideremia (CHM), a rare, degenerative, X-linked
inherited retinal disorder, which leads to blindness and has no
approved treatments. CHM primarily affects males and is caused by
loss of function in the CHM gene which encodes the Rab escort
protein-1 (REP-1). The REP-1 protein plays a role in intracellular
protein trafficking, and loss of function in the CHM gene leads to
abnormal intracellular protein trafficking and impaired elimination
of waste products from the retinal pigment epithelium and
photoreceptors. Initially, patients with CHM experience poor night
vision, and over time progressive visual loss ultimately leads to
complete blindness.
NSR-REP1 is comprised of an AAV vector
administered by subretinal injection which provides a functioning
CHM gene and expression of the REP-1 protein to restore membrane
trafficking and thereby slow, stop, or potentially reverse the
decline in vision. Data from the Phase 1/2 trial of NSR-REP1
demonstrated potentially meaningful slowing of decline in visual
acuity as compared to natural history as well as signs of improved
visual acuity in some patients. NSR-REP1 is currently being
evaluated in the ongoing Phase 3 STAR trial with data expected in
the second half of 2020.
Nightstar’s second clinical program is NSR-RPGR
for the treatment of X-linked retinitis pigmentosa (XLRP), which is
also a rare inherited retinal disease primarily affecting males
with no approved treatments. XLRP is characterized by mutations in
the retinitis pigmentosa GTPase regulator (RPGR) gene leading to a
lack of active protein transport in photoreceptors. This
abnormality leads to loss of the photoreceptor cells, resulting in
retinal dysfunction by adolescence and early adulthood, progressing
to legal blindness when patients are in their 40s.
NSR-RPGR is comprised of an AAV vector
administered by subretinal injection which provides a functioning
RPGR gene and thus expression of the RPGR protein, which is
critical for protein transport in photoreceptors. The restoration
of photoreceptor function is intended to slow, stop, or potentially
reverse the decline in vision. Phase 1/2 data from the dose
escalation portion of the XIRIUS trial for NSR-RPGR demonstrated an
increase in central retinal sensitivity. The Phase 2/3 dose
expansion portion of the XIRIUS trial is currently ongoing.
Nightstar’s preclinical pipeline includes
NSR-ABCA4 for Stargardt disease and potential programs targeting
Best vitelliform macular dystrophy (Best disease) and other genetic
forms of retinitis pigmentosa.
The proposed acquisition of Nightstar will
bolster Biogen’s pipeline and further execute on the Company’s
strategy to develop and expand a multi-franchise neuroscience
pipeline across multiple complementary modalities. Ophthalmology is
an emerging growth area for Biogen, and Nightstar would accelerate
Biogen’s entry into ophthalmology by adding two mid- to late-stage
gene therapy assets to Biogen’s pipeline, with the potential to
create long-term shareholder value.
4. Recommendation
The Nightstar Directors, who have been so
advised by Centerview Partners as to the financial terms of the
Acquisition, consider the terms of the Acquisition to be fair and
reasonable. In providing its advice to the Nightstar Directors,
Centerview Partners has taken into account the commercial
assessments of the Nightstar Directors.
Accordingly, the Nightstar Directors intend to
recommend unanimously that Nightstar Shareholders vote in favour of
the resolutions relating to the Acquisition at the Meetings (or in
the event that the Acquisition is implemented by way of an Offer,
to accept or procure acceptance of such Offer), as they have
irrevocably committed to do in respect of their entire beneficial
holdings of 20,638,209 Nightstar Shares, representing approximately
61.6 per cent. of Nightstar’s issued share capital as at 28
February 2019, being the last practicable date prior to the date of
this Announcement.
5. Background to and reasons for the
recommendation
Nightstar was founded with the goal of
developing and commercializing retinal gene therapies for patients
suffering from rare inherited retinal diseases that would otherwise
progress to blindness, and for which there are no currently
approved treatments. Since its founding, Nightstar has become a
leading clinical-stage gene therapy company focused on helping
patients maintain and restore sight. Nightstar has always
considered it paramount that its product candidates become
available as quickly as possible to patients worldwide.
The Nightstar Directors believe that the
acquisition of Nightstar by Biogen will provide the Nightstar team
with access to expanded capabilities and resources to accelerate
research and development and create a platform for future growth in
product development. Nightstar's pipeline currently contains
two late stage clinical product candidates, including NSR-REP1 and
NSR-RPGR, which are the leading candidates in choroideremia and
XLRP, respectively, and a number of earlier stage candidates at
various stages of preclinical development. The transaction will
allow the Nightstar team access to Biogen's powerful research and
development footprint and reputation as a global leader in
neuroscience and rare diseases, furthering the development and
commercialization of NSR-REP1 and other proprietary retinal gene
therapies.
The terms of the Acquisition also represent a
substantial premium in cash to Nightstar’s closing share price
prior to the date of this Announcement and the Nightstar Directors
consider the terms of the Acquisition to be a fair reflection of
the value of Nightstar’s portfolio of programs. The final terms of
the Acquisition represent a premium of 68.2 per cent. to the
Closing Price per Nightstar Share of USD 15.16 on 1 March 2019
(being the last practicable date prior to the date of this
Announcement).
The Nightstar Directors believe that the
Acquisition represents an excellent opportunity for all Nightstar
Shareholders to crystallise value at an attractive premium. The
terms of the Acquisition provide Nightstar Shareholders with
attractive and certain value in cash that reflects value that would
have otherwise been unlocked over time. Accordingly, the Nightstar
Directors unanimously recommend that Nightstar Shareholders vote in
favour of the Scheme.
6. Irrevocable undertakings
Bidco has received irrevocable undertakings to
vote or procure votes in favour of the resolutions relating to the
Scheme at the Meetings (or in the event that the Acquisition is
implemented by way of an Offer, to accept or procure acceptance of
such Offer) from the Nightstar Directors, in respect of their
entire beneficial holdings, amounting to 20,638,209 Nightstar
Shares, in aggregate, representing approximately 61.6 per cent. of
the issued share capital of Nightstar as at 28 February 2019, being
the last practicable date prior to this Announcement.
Bidco has also received irrevocable undertakings
from Syncona Portfolio Limited and New Enterprise Associates, each
Nightstar Shareholders, to vote or procure votes in favour of
the resolutions relating to the Scheme at the Meetings (or in the
event that the Acquisition is implemented by way of an Offer, to
accept or procure acceptance of such Offer) in respect of their
entire beneficial holdings, amounting to 19,866,454 Nightstar
Shares, in aggregate, representing approximately 59.3 per cent. of
the issued share capital of Nightstar as at 28 February 2019, being
the last practicable date prior to this Announcement.
The Irrevocable Undertakings given by the
Nightstar Directors will cease to be binding if:
- the Scheme Document or offer Document, as the case may be, is
not posted within 15 Business Days following the date Nightstar has
cleared comments received from the SEC, if any, on such document;
or
- if the Scheme or Offer (as applicable) does not become
effective, lapses or is withdrawn without becoming or being
declared unconditional in accordance with its terms; or
- Bidder announces, with the consent of any Governmental
Authority (if required) and before the Scheme Document or offer
document is posted, that it does not intend to proceed with the
Acquisition; or
- the Scheme or Offer lapses or is withdrawn or otherwise becomes
incapable of becoming effective or has not become effective on or
before the Long Stop Date, and will remain binding if a higher
competing offer is made for Nightstar.
The Irrevocable Undertakings given by Syncona
Portfolio Limited and New Enterprise Associates will cease to be
binding if:
- the Scheme lapses or is withdrawn in accordance with its terms
and Bidder or Bidco publicly confirms that it does not intend to
proceed with the Acquisition or to implement the Acquisition by way
of an Offer or otherwise;
- Bidder announces, with the consent of any relevant authority
(if required) and before the Scheme Document or offer document is
posted, that it does not intend to proceed with the Acquisition and
no new, revised or replacement Scheme or Offer is announced by
Bidder at the same time or within 28 days thereafter;
- the Scheme or Offer does not become effective by the Long Stop
Date; or
- if the Implementation Agreement is terminated in accordance
with its terms, and will remain binding if a higher competing offer
is made for Nightstar.
Further details of these Irrevocable
Undertakings are set out in Appendix III.
7. Information on Biogen and Bidco
Biogen
Biogen discovers, develops, and delivers
worldwide innovative therapies for people living with serious
neurological and neurodegenerative diseases. One of the world’s
first global biotechnology companies, Biogen was founded in 1978 by
Charles Weissmann, Heinz Schaller, Kenneth Murray, and Nobel Prize
winners Walter Gilbert and Phillip Sharp, and today has the leading
portfolio of medicines to treat multiple sclerosis, has introduced
the first and only approved treatment for spinal muscular atrophy,
and is focused on advancing neuroscience research programs in
Alzheimer’s disease and dementia, multiple sclerosis and
neuroimmunology, movement disorders, neuromuscular disorders, acute
neurology, neurocognitive disorders, pain, and ophthalmology.
Biogen also manufactures and commercializes biosimilars of advanced
biologics.
Bidco
Bidco is a newly incorporated English private
limited company, and a direct subsidiary of Bidder. Bidco has been
formed at the direction of Bidder for the purposes of implementing
the Acquisition. Bidco has not traded since its date of
incorporation, nor has it entered into any obligations other than
in connection with the Acquisition.
8. Information on Nightstar
Nightstar is a leading clinical-stage gene
therapy company focused on developing and commercializing novel
one-time treatments for patients suffering from rare inherited
retinal diseases that would otherwise progress to blindness.
Nightstar’s lead product candidate, NSR-REP1, is currently in Phase
3 development for the treatment of patients with choroideremia, a
rare, degenerative, genetic retinal disorder that has no treatments
currently available and affects approximately one in every 50,000
people. Positive results from a Phase 1/2 trial of NSR-REP1 were
published in Nature Medicine in 2018, in The New England Journal of
Medicine in 2016, and in The Lancet in 2014. Nightstar’s second
product candidate, NSR-RPGR, is currently being evaluated in a
clinical trial known as the XIRIUS trial for the treatment of
patients with X-linked retinitis pigmentosa, an inherited X-linked
recessive retinal disease that affects approximately one in every
40,000 people. In September 2018, Nightstar announced positive
preliminary safety and efficacy data from the XIRIUS trial for the
first five cohorts (combined n=15) of the dose escalation study at
the EURETINA medical meeting.
For more information about Nightstar or its
clinical trials, please visit www.nightstartx.com.
9. Nightstar Share Schemes
Upon the Effective Date, all outstanding stock
options, restricted shares and restricted stock units awarded
pursuant to the Nightstar's 2017 Equity Incentive Plan will be
cancelled and cease to be outstanding, and the holder will be
entitled to receive the cash consideration payable by Bidco to
Scheme Shareholders less any applicable exercise or purchase
price.
All outstanding restricted shares issued prior
to the Nightstar's 2017 initial public offering and converted in
connection with the initial public offering (which we refer to as
"Pre-IPO Equity Awards") will be acquired in the
Scheme and constitute Scheme Shares. Any Pre-IPO Equity Awards that
were deferred upon the termination of the holder’s employment will
not receive the cash consideration payable by Bidco to Scheme
Shareholders and are expected to be repurchased by the Company for
a total payment of £0.01 to the holder of such deferred shares,
pursuant to the terms of the applicable conversion agreement.
Further detail is set out in the Implementation
Agreement.
Appropriate proposals will be made in due course
to participants in the Nightstar Share Schemes.
10. Financing
Bidder and Bidco intend to finance the cash
consideration payable by Bidco to Scheme Shareholders with existing
cash resources.
11. Acquisition related arrangements
Confidentiality Agreement
Nightstar Therapeutics plc and Biogen entered
into a mutual non-disclosure agreement on 21 December 2018 (the
"Confidentiality Agreement"), pursuant to which
each party has undertaken to keep confidential information relating
to the other and to the Acquisition and not to disclosure it to
third parties (with certain exceptions). These confidentiality
obligations will remain in force until the seventh anniversary
after the date of the Confidentiality Agreement.
Implementation AgreementBidder,
Bidco and Nightstar entered into the Implementation Agreement dated
4 March 2019, pursuant to which, among other things, the parties
have agreed to co-operate for the purposes of obtaining all
regulatory clearances required in connection with the Acquisition
and in connection with the preparation of the Scheme Document.
The Implementation Agreement is terminable:
(a) upon agreement in writing between Bidder and
Nightstar at any time prior to the Effective Date;
(b) by Nightstar, in the event it receives a
bona fide written Acquisition Proposal (as such term is defined in
the Implementation Agreement), which did not result from a material
breach of Clause 10.2 of the Implementation Agreement from any
person that has not been withdrawn and after consultation with
Centerview Partners and outside legal counsel Nightstar Board shall
have determined, in good faith, that such Acquisition Proposal is a
Superior Proposal (as such term is defined in the Implementation
Agreement);
(c) by either Bidder or Nightstar, by written
notice to the other if: (i) this Announcement is not released by 12
p.m. (London time) on the next Business Day immediately following
execution of the Implementation Agreement or such later time or
date as Bidder and Nightstar may agree in writing; (ii) the Scheme
Document is not distributed to Nightstar Shareholders in accordance
with the terms of the Implementation Agreement or such later time
or date as Bidder and Nightstar may agree in writing; (iii) an
injunction shall have been entered permanently restraining,
enjoining or otherwise prohibiting the consummation of the
Acquisition and such injunction shall have become final and
non-appealable; or (iv) any Condition for the benefit of the
terminating party which has not been waived (or is incapable of
waiver) is (or has become) incapable of satisfaction by the Long
Stop Date;
(d) by Bidder, by written notice to Nightstar,
if: (i) the Nightstar Board notifies Bidder or publicly states that
it no longer recommends (or intends to recommend) that Nightstar
Shareholders vote in favour of, the Acquisition; (ii) an
intentional or material breach of Clause 10.2 of the Implementation
Agreement occurs that results in an Acquisition Proposal; (iii)
following the Court Meeting or the General Meeting, the Nightstar
Board notifies Bidder in writing or publicly states that Nightstar
will not seek the sanctioning of the Scheme by the Court; (iv) (a)
the Nightstar Board effects a Company Adverse Change Recommendation
(as such term is defined in the Implementation Agreement), (b) the
Nightstar Board shall have failed to include the Company Board
Recommendation (as such term is defined in the Implementation
Agreement) in the Scheme Document when mailed, or (c) the Nightstar
Board shall have failed to reaffirm the Company Board
Recommendation within 10 days after Bidder so requests in writing
or, if earlier, three days prior to the General Meeting (it being
understood Nightstar will have no obligation to make such
reaffirmation on more than three occasions); or (v) Nightstar
breaches any of its representations and warranties set out in
Clause 11 of the Implementation Agreement or fails to perform any
covenant or obligation in the Implementation Agreement on the part
of Nightstar such that Condition (d) (Accuracy of representation
and warranties) would not be satisfied and cannot be cured by
Nightstar by the Long Stop Date, or if capable of being cured in
such time period, shall not have been cured within 30 days of the
date Bidder gives Nightstar written notice of such breach or
failure to perform; provided, however, that Bidder shall not have
the right to terminate this Agreement pursuant to this paragraph
(d) if either Bidder or Bidco is then in material breach of any
representation, warranty, covenant or obligation hereunder; (each
of (i), (ii), (iii) and (iv), (v) being a "Relevant
Withdrawal Event"); provided that for the purposes hereof,
none of the following shall itself constitute a Relevant Withdrawal
Event: (a) any the Nightstar Director(s) not joining (or not
continuing to participate) in any recommendation or intended
recommendation so long as such recommendation or intended
recommendation is concurrently maintained and reconfirmed by at
least a majority of the entire the Nightstar Board; and (b) any
holding statement(s) issued by the Nightstar Board to the Nightstar
Shareholders following a change of circumstances so long as any
such holding statement contains an express statement that such
recommendation is not withdrawn and does not contain a statement
that the Nightstar Board intends to withdraw such
recommendation;
(e) by Nightstar, by written notice to Bidder,
if Bidder or Bidco breaches any of its representations and
warranties set out in Clause 11 of the Implementation Agreement or
fails to perform any covenant or obligation in the Implementation
Agreement on the part of Bidder or Bidco, in each case, if such
breach or failure would reasonably be expected to prevent Bidder or
Bidco from consummating the transactions contemplated by the
Implementation Agreement and such breach or failure cannot be cured
by Bidder or Bidco, as applicable, by the Long Stop Date, or if
capable of being cured in such time period, shall not have been
cured within 30 days of the date Bidder gives Nightstar written
notice of such breach or failure to perform; provided, however,
that Nightstar shall not have the right to terminate this Agreement
pursuant to this paragraph if Nightstar is then in material breach
of any representation, warranty, covenant or obligation under the
terms of the Implementation Agreement; or
(f) by either Bidder or Nightstar, by written
notice to the other, if the Effective Date has not occurred by the
Long Stop Date; provided that, notwithstanding any other provision
of the Implementation Agreement, the right to terminate pursuant to
this paragraph shall not be available to any party whose material
breach of this Agreement has caused the failure of the Effective
Date to have occurred by the Long Stop Date.
Where Bidder is responsible for any Clearances
(as such term is defined in the Implementation Agreement), Bidder
has agreed it shall use reasonable endeavours, and take any and all
steps necessary, to obtain such Clearances as soon as practicable
and in any event, prior to the date of the Court Hearing as set out
in the Indicative Timetable (as such term is defined in the
Implementation Agreement), or such later date as may otherwise be
agreed between the parties in writing. For purposes of the
foregoing, "reasonable endeavours" shall require Bidder to propose,
negotiate, agree to or effect, by undertaking, consent agreement,
hold separate agreement or otherwise: (i) the sale, divestiture,
licensing or disposition of all or any part of the businesses or
assets of Nightstar, Bidder and/or Bidco; (ii) the termination of
any existing contractual rights, relationships and obligations, or
entry into or amendment of any licensing arrangements; (iii) the
taking of any action that, after consummation of the Acquisition,
would limit the freedom of action of, or impose any other
requirement on, Bidder with respect to the operation of the
business, or the assets, of Nightstar, Bidder and/or Bidco; (iv)
defending through litigation on the merits, including appeals, any
claim asserted in any court or other proceeding by any party,
including any Governmental Authority, in order to avoid entry of,
or to have vacated or terminated, any decree, injunction, order or
judgment that seeks to or could prevent or otherwise make it less
likely that the Acquisition will occur by the Long Stop Date; and
(v) any other remedial action whatsoever that may be necessary so
as to permit the Acquisition to occur by the Long Stop Date.
Nightstar shall not be entitled to state or suggest that Bidder is
prepared to provide or agree to particular undertakings or
requirements without the prior consent of Bidder. Notwithstanding
anything to the contrary in this Agreement, Bidder shall not be
required to sell, divest, hold separate, license or agree to any
other structural or conduct remedy with respect to, any operations,
divisions, businesses, product lines, customers, assets or
relationships of: (a) Bidder in any circumstance; or (b) Nightstar,
which would require the sale, divestiture, holding separate or
license of the Product Candidates to any third party or materially
impair the benefits expected by Bidder as of the date of this
Agreement to be derived by Bidder from the acquisition of the
Product Candidates.
The Implementation Agreement records Bidder’s
and Nightstar’s intention to implement the Acquisition by way of a
Scheme, subject to the ability of Bidder and Nightstar to implement
the Acquisition by way of an Offer, with the consent of Nightstar,
in the circumstances described in the Implementation Agreement
(which have been summarised in this Announcement).
The Implementation Agreement contains
information on the impact of the Scheme on employees’ options and
awards under the Nightstar Share Schemes and Bidco’s proposals for
dealing with the options and awards.
The detail of the proposals for Nightstar Share
Schemes will be provided in separate communications to participants
in due course. Employees will be provided with background to and
information on the treatment of other aspects of remuneration
arrangements at the appropriate time.
Bidder has represented, warranted and undertaken
that sufficient resources are, and will remain until such time as
Bidder procures payment of the cash consideration payable by Bidco
to Scheme Shareholders to the receiving agent in accordance with
the terms of the Implementation Agreement, available to Bidco to
satisfy, in full, the cash consideration requirements under and in
connection with the Acquisition
Nightstar has made representations and
warranties to Bidder in Clause 11 of the Implementation Agreement,
these are in respect of: (i) corporate existence and power; (ii)
subsidiaries; (iii) organisational documents; (iv) corporate
authorisation; (v) binding obligations; (vi) governmental
authorisation; (vii) non-contravention; (viii) capitalisation;
indebtedness; (ix)SEC filings; financial statements; (x) absence of
certain changes; (xi) real property; (xii) compliance with laws;
permits; (xiii) regulatory matters; (xiv) certain business
practices; (xv) litigation; (xvi) intellectual property; (xvii)
taxes; (xviii) material contracts; (xix) environmental matters;
(xx) insurance; (xxi) opinion of financial advisor; (xxii) finders'
fee; (xxiii) employees and benefits plans; (xxiv) privacy and data
security; and (xxv) no other representations or warranties.
The Implementation Agreement contains customary
representations and warranties by Bidder and Bicdo. The
Implementation Agreement also contains customary pre-closing
covenants, including obligations on Nightstar to conduct its
business in the ordinary course of business and to refrain from
taking specified actions without the consent of the Bidder.
12. Structure of the Acquisition
Scheme
It is intended that the Acquisition will be effected by a
Court-sanctioned scheme of arrangement between Nightstar and the
Scheme Shareholders under Part 26 of the Companies Act. The purpose
of the Scheme is to provide for Bidder and Bidco to become the
owners of the whole of the issued and to be issued share capital of
Nightstar. Under the Scheme, the Acquisition is to be principally
achieved by the:
(a) transfer of the Scheme Shares held by Scheme
Shareholders to Bidco in consideration for which the Scheme
Shareholders will receive cash consideration;
(b) passing of the resolutions at the General
Meeting; and
(c) Nightstar Shareholders receiving a
Court-approved circular notifying the convening of the Court
Meeting and the General Meeting and setting out the details of the
Scheme.
Approval by Court Meeting and General
Meeting
In order to become Effective, the Scheme
requires the:
(a) satisfaction (or, where applicable, waiver)
of the Conditions;
(b) approval of a majority in number of the
Scheme Shareholders who vote, representing not less than 75 per
cent. in value of the Scheme Shares held by those Scheme
Shareholders, present and voting, either in person or by proxy, at
the Court Meeting; and
(c) approval of not less than 75 per cent. of
the votes cast, either in person or by proxy, of the resolutions
necessary in order to implement the Scheme at the General Meeting
(to be held directly after the Court Meeting).
Application to Court to sanction the
Scheme
Once the approvals of the Nightstar Shareholders
have been obtained at the Court Meeting and the General Meeting,
and the other Conditions have been satisfied or (where applicable)
waived, the Scheme must be sanctioned by the Court at the Court
Hearing.
The Scheme will become effective in accordance
with its terms on delivery of the Court Order to the Registrar.
Upon the Scheme becoming Effective, it will be binding on all
Scheme Shareholders, irrespective of whether or not they attended
or voted at the Court Meeting or General Meeting, or whether they
voted in favour of or against the Scheme.
Full details of the Scheme to be set out
in the Scheme Document
The Scheme will be subject to the satisfaction
(or, where applicable, waiver) of the Conditions and the full terms
and conditions to be set out in the Scheme Document. Further
details of the Scheme will be set out in the Scheme Document,
including the expected timetable and the action to be taken by
Scheme Shareholders.
The Scheme will be governed by the laws of
England and Wales.
It is expected that the Scheme Document will be
dispatched to Nightstar Shareholders and, for information only, to
participants in the Nightstar Share Schemes, within 15 Business
Days following the date Nightstar has cleared comments received
from the SEC, if any, on such document, unless Nightstar and Bidder
otherwise agree to a later date.
Conditions to the
Acquisition
The Acquisition will be subject to the
Conditions and further terms set out in full in Appendix I to
this Announcement and to be set out in the Scheme Document.
Amongst others, the Conditions include
competition law clearances by regulatory approvals in the United
States and Germany.
The Scheme will also be conditional, amongst
other things, upon the:
(a) Scheme becoming Effective by the Long Stop
Date, failing which the Scheme will lapse;
(b) approval of the Scheme by a majority in
number of the Scheme Shareholders, representing not less than 75
per cent. in value of the Scheme Shares held by those Scheme
Shareholders, present and voting, either in person or by proxy, at
the Court Meeting or at any adjournment thereof on or before the
22nd day after the expected date of the Court Meeting to be set out
in the Scheme Document in due course (or such later date as may be
agreed between Bidder, Biogen and Nightstar);
(c) passing of the resolutions by the requisite
majority at the General Meeting to be held on or before the 22nd
day after the expected date of the Court Meeting to be set out in
the Scheme Document in due course (or such later date as may be
agreed between Bidder and Nightstar); and
(d) sanction of the Scheme on or before the 22nd
day after the expected date of the Court Hearing to be set out in
the Scheme Document in due course (or such later date as may be
agreed between Bidder and Nightstar) and the delivery of an office
copy of the Court Order to the Registrar.
Scheme timetable/further
information
A full anticipated timetable will be set out in
the Scheme Document which is intended to be posted to Nightstar
Shareholders along with notices of the Court Meeting and General
Meeting and the Forms of Proxy within 15 Business Days following
the date Nightstar has cleared comments received from the SEC, if
any, on such document, unless Nightstar and Bidder otherwise agree
to a later date. Subject to certain restrictions relating to
persons resident in Restricted Jurisdictions, the Scheme Document
will also be made available on Nightstar’s website at
https://www.nightstartx.com/.
At this stage, subject to the approval and
availability of the Court (which is subject to change), and subject
to the satisfaction (or, where applicable, waiver) of the
Conditions, Biogen expects the Acquisition will become Effective by
mid-year 2019.
Right to switch to an Offer
Each of Bidder and Bidco reserves the right to
elect, subject to the consent of Nightstar and subject to the terms
of the Implementation Agreement, to implement the Acquisition by
way of an Offer for the entire issued and to be issued share
capital of Nightstar as an alternative to the Scheme. In such an
event, the Offer will be implemented on the same terms (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Scheme and subject to the amendment referred to in
Part C of Appendix I to this Announcement.
13. De-listing and re-registration
Prior to the Scheme becoming Effective, a
request will be made by Nightstar to Nasdaq to suspend trading of,
and de-list, the Nightstar ADRs on Nasdaq, to take effect on, or
shortly after, the Effective Date.
As soon as practicable after the Effective Date
and after the cancellation of the listing and admission to trading
of the Nightstar ADRs on the Nasdaq Global Select Market, it is
intended that Nightstar will be re-registered as a private limited
company under the relevant provisions of the Companies Act.
14. Nightstar ADRs
Holders of Nightstar ADRs will not be entitled
to vote directly on the Acquisition. Instead, Nightstar will
request that the Depositary delivers to holders of Nightstar ADRs a
notice of (or notices for) the Court Meeting and the General
Meeting, and holders of Nightstar ADRs will have the right to
instruct the Depositary how to vote the Nightstar Shares underlying
the Nightstar ADRs with respect to the Acquisition, subject to and
in accordance with the terms of the depositary agreement with the
Depositary, a copy of which is available free of charge at the
SEC’s website at www.sec.gov or by directing a request to
Nightstar’s contact for enquiries identified above.
15. Overseas shareholders
The availability of the Acquisition and the
distribution of this Announcement to persons resident in, or
citizens of, or otherwise subject to, jurisdictions outside the
United Kingdom and the United States may be affected by the laws of
the relevant jurisdictions. Such persons should inform themselves
of, and observe, any applicable legal or regulatory requirements of
their jurisdiction. Nightstar Shareholders who are in any doubt
regarding such matters should consult an appropriate independent
professional adviser in the relevant jurisdiction without
delay.
This Announcement is not intended to and does
not constitute or form part of any offer to sell or to subscribe
for, or any invitation to purchase or subscribe for, or the
solicitation of any offer to purchase or otherwise subscribe for,
any securities. Nightstar Shareholders are advised to read
carefully the Scheme Document and the Forms of Proxy once these
have been dispatched.
16. General
The Acquisition will be subject to the
Conditions and other terms set out in this Announcement and to the
full terms and conditions which will be set out in the Scheme
Document. It is expected that the Scheme Document will be
dispatched to Nightstar Shareholders as soon as practicable and, in
any event, (unless otherwise agreed by Bidder and Nightstar) within
15 Business Days following the date Nightstar has cleared comments
received from the SEC, if any, on such document.
In deciding whether or not to vote or procure
votes in favour of the resolutions relating to the Scheme at the
Meetings in respect of their Nightstar Shares, Nightstar
Shareholders should rely on the information contained, and follow
the procedures described, in the Scheme Document.
Details of the effect of the Acquisition on
Nightstar ADR Holders will be set out in the Scheme Document in due
course.
Centerview Partners has given and not withdrawn
their consent to the publication of this Announcement with the
inclusion herein of the references to their names in the form and
context in which they appear.
The Scheme Document will not be reviewed by any
federal state securities commission or regulatory authority in the
United States, nor will any commission or authority pass upon the
accuracy or adequacy of the Scheme Document. Any representation to
the contrary is unlawful and may be a criminal offence.
The Acquisition will be subject to the
Conditions and further terms that are set out in Appendix I,
and to the full terms and conditions which will be set out in the
Scheme Document. Appendix II contains the bases and sources of
certain information used in this Announcement. Appendix III
contains details of the Irrevocable Undertakings received in
relation to the Acquisition that are referred to in this
Announcement. Appendix IV contains definitions of terms used
in this Announcement. The Appendices form part of, and should be
read in conjunction with, this Announcement.
17. Documents on display
Subject to certain restrictions relating to
persons resident in Restricted Jurisdictions, copies of the
following documents will, by no later than the Business Day
following the date of this Announcement, be made available on
Nightstar’s website at https://www.nightstartx.com/ (as applicable)
until the Effective Date:
(a) this Announcement;
(b) the Confidentiality Agreement;
(c) the Implementation Agreement;
(d) the Irrevocable Undertakings.
Neither the contents of Nightstar’s website, nor
the content of any other website accessible from hyperlinks on
either such website, is incorporated into or forms part of, this
Announcement.
Enquiries:
Centerview Partners (Financial adviser
to Nightstar)
Alan
Hartman
+1 212 380 2665
Andrew
Rymer
+1 212 429 2349
James
Hartop
+44 (0)20 7409 9730
Finsbury (PR adviser to
Nightstar)
Kal
Goldberg
+1 646 805 2005
Chris
Ryall
+1 646 306 0747
Nicholas
Leasure
+1 646 805 2814
Skadden (Legal adviser to
Nightstar)
Scott
Hopkins
+44 (0)20 7519 7187
Graham
Robinson
+1 617 573 4850
Sonia
Nijjar
+1 650 470 4592
Important notices relating to financial
advisers
Centerview Partners UK LLP ("Centerview
Partners"), which is authorised and regulated by the FCA, is acting
exclusively for Nightstar and no one else in connection with the
matters referred to in this document. Centerview Partners is not
and will not be responsible to anyone other than Nightstar for
providing the protections afforded to its clients or for providing
advice in connection with the contents of this document or any
matter referred to in this Announcement.
The City Code on Takeovers and
Mergers
The City Code on Takeovers and Mergers does not
apply to the Acquisition.
Further information
This Announcement is for information purposes
only and is not intended to and does not constitute, or form any
part of, an offer to sell or an invitation to purchase or subscribe
for any securities or the solicitation of any vote or approval in
any jurisdiction pursuant to the Acquisition or otherwise. The
Acquisition will be made solely by the Scheme Document, which will
contain the full terms and conditions of the Acquisition, including
details of how to vote in respect of the Scheme. INVESTORS ARE
ADVISED TO READ THE SCHEME DOCUMENT, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, WHEN IT BECOMES AVAILABLE CAREFULLY
AND IN ITS ENTIRETY PRIOR TO MAKING ANY DECISIONS WITH RESPECT TO
THE ACQUISITION BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION ABOUT
THE PROPOSED TRANSACTION. Investors may obtain a free copy of the
Scheme Document (when available) at the Securities and Exchange
Commission’s website at www.sec.gov, or free of charge from
Nightstar at https://www.nightstartx.com or by directing a request
to Nightstar at investors@nightstartx.com. Any voting decision or
response in relation to the Acquisition should be made solely on
the basis of the Scheme Document.
This Announcement does not constitute a
prospectus or a prospectus equivalent document.
Biogen and Nightstar, and their respective
directors and executive officers, may be deemed to be participants
in the solicitation of proxies in respect of the transactions
contemplated by the implementation agreement. Information regarding
Nightstar’s directors and executive officers is contained in
Nightstar’s Form 20-F for the year ended 31 December 2017, which is
filed with the SEC. Information regarding Biogen's directors and
executive officers is contained in Biogen’s Form 10-K for the year
ended 31 December 2018 and its proxy statement dated 27 April 2018.
Additional information regarding the participants in the
solicitation of proxies in respect of the transactions contemplated
by the implementation agreement and a description of their direct
and indirect interests, by security holdings or otherwise, will be
contained in the Scheme Document and other relevant materials to be
filed with the SEC when they become available.
Overseas shareholders
The release, publication or distribution of this
Announcement in jurisdictions other than the United Kingdom and the
United States may be restricted by law and therefore any persons
who are subject to the laws of any jurisdiction other than the
United Kingdom or the United States (including Restricted
Jurisdictions) should inform themselves about, and observe, any
applicable legal or regulatory requirements. In particular, the
ability of persons who are not resident in the United Kingdom or
United States or who are subject to the laws of another
jurisdiction to vote their Nightstar Shares in respect of the
Scheme at the Court Meeting, or to execute and deliver Forms of
Proxy appointing another to vote at the Court Meeting on their
behalf, may be affected by the laws of the relevant jurisdictions
in which they are located or to which they are subject. Any failure
to comply with applicable legal or regulatory requirements of any
jurisdiction may constitute a violation of securities laws in that
jurisdiction. This Announcement has been prepared for the purpose
of complying with English law and the information disclosed may not
be the same as that which would have been disclosed if this
Announcement had been prepared in accordance with the laws of
jurisdictions outside England.
Copies of this Announcement and any formal
documentation relating to the Acquisition are not being, and must
not be, directly or indirectly, mailed or otherwise forwarded,
distributed or sent in or into or from any Restricted Jurisdiction
or any jurisdiction where to do so would constitute a violation of
the laws of such jurisdiction and persons receiving such documents
(including custodians, nominees and trustees) must not mail or
otherwise forward, distribute or send them in or into or from any
Restricted Jurisdiction. Doing so may render invalid any related
purported vote in respect of acceptance of the Acquisition.
If the Acquisition is implemented by way of an
Offer, the Offer may not (unless otherwise permitted by applicable
law and regulation) be made, directly or indirectly, in or into or
by use of the mails or any other means or instrumentality
(including, without limitation, facsimile, e-mail or other
electronic transmission, telex or telephone) of interstate or
foreign commerce of, or any facility of a national, state or other
securities exchange of any Restricted Jurisdiction and the
Acquisition will not be capable of acceptance by any such use,
means, instrumentality or facilities or from within any Restricted
Jurisdiction.
Further details in relation to Nightstar
Shareholders in overseas jurisdictions will be contained in the
Scheme Document.
Notice to U.S. investors in
Nightstar
The Acquisition relates to the shares of a U.K.
company and is being made by means of a scheme of arrangement
provided for under Part 26 of the Companies Act and subject to the
proxy solicitation rules under the U.S. Exchange Act. The
Acquisition, implemented by way of a scheme of arrangement, is not
subject to the tender offer rules under the U.S. Exchange Act. If,
in the future, Bidder exercises its right to implement the
Acquisition by way of an Offer, subject to the terms of the
Implementation Agreement, the Acquisition will be made in
compliance with applicable U.S. laws and regulations.
It may be difficult for U.S. Nightstar
Shareholders and Nightstar ADR Holders to enforce their rights and
any claim arising out of the U.S. federal securities laws, because
Nightstar is located in a non-U.S. country, and some or all of its
officers and directors are residents of a non-U.S. country. U.S.
Nightstar Shareholders and Nightstar ADR Holders may not be able to
sue a non-U.S. company or its officers or directors in a non-U.S.
court for violations of the U.S. securities laws. Further, it may
be difficult to compel a non-U.S. company and its affiliates to
subject themselves to a U.S. court’s judgment.
U.S. Nightstar Shareholders and Nightstar ADR
Holders are urged to consult with legal, tax and financial advisers
in connection with making a decision regarding the Acquisition.
Warning Concerning Forward-Looking
Statements
All statements included in this Announcement,
other than statements or characterizations of historical fact, are
forward-looking statements within the meaning of the federal
securities laws, including Section 21E of the Exchange Act, and
other securities laws. Whenever Nightstar uses words such as
“believe”, “expect”, “anticipate”, “intend”, “plan”, “estimate”,
“will”, “may”, “predict”, “could”, “seek”, “forecast” and negatives
or derivatives of these or similar expressions, they are making
forward-looking statements. Examples of such forward-looking
statements include, but are not limited to, references to the
anticipated benefits of the Acquisition and the expected time of
effectiveness of the Acquisition. These forward-looking statements
are based upon Nightstar’s present intent, beliefs or expectations,
but forward-looking statements are not guaranteed to occur and may
not occur.
Shareholders are cautioned that any
forward-looking statements are not guarantees of future performance
and may involve significant risks and uncertainties, and that
actual results may vary materially from those in the
forward-looking statements. Important risk factors that may cause
Nightstar’s actual results to differ materially from their
forward-looking statements include, but are not limited to: (1) the
Acquisition is subject to the satisfaction or waiver of certain
conditions, including the receipt of requisite approvals by
Nightstar’s shareholders, the sanction of the Scheme by the High
Court of Justice in England and Wales, and the expiration or
termination of any applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and applicable German antitrust laws, which conditions may not be
satisfied or waived; (2) uncertainties as to the timing of the
consummation of the Acquisition and the ability of each party to
consummate the Acquisition; (3) the risk that the Acquisition
disrupts the parties’ current operations or affects their ability
to retain or recruit key employees; (4) the possible diversion of
management time on Acquisition-related issues; (5) litigation
relating to the Acquisition; (6) unexpected costs, charges or
expenses resulting from the Acquisition; and (7) potential adverse
reactions or changes to business relationships resulting from the
announcement or completion of the Acquisition.
The information contained in Nightstar’s filings
with SEC, including in Nightstar’s Form 20-F for the year ended 31
December 2017 identifies other important factors that could cause
actual results to differ materially from those stated in or implied
by the forward-looking statements in this Announcement. Nightstar’s
filings with the SEC are available on the SEC’s website at
www.sec.gov. You should not place undue reliance upon
forward-looking statements. Except as required by law, Nightstar
does not intend to update or change any forward-looking statements
as a result of new information, future events or otherwise.
Right to switch to an Offer
Each of Bidder and Bidco reserves the right to
elect, subject to the consent of Nightstar and subject to the terms
of the Implementation Agreement, to implement the Acquisition by
way of an Offer for the entire issued and to be issued share
capital of Nightstar as an alternative to the Scheme. In such an
event, the Offer will be implemented on the same terms (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Scheme and subject to the amendment referred to in
Appendix I to this Announcement.
APPENDIX I
CONDITIONS AND FURTHER TERMS OF THE
ACQUISITION
PART A
Conditions to the
Acquisition
The Acquisition will be conditional upon the
Scheme becoming unconditional and becoming Effective, by no later
than 11.59 p.m. (London time) on the Long Stop Date.
Scheme approval
(a) The Scheme will be conditional upon:
(i) |
|
|
(A) |
|
its approval by a majority in
number representing not less than 75 per cent. in value of the
Nightstar Shareholders (or the relevant class or classes thereof,
if applicable) in each case present, entitled to vote and voting,
either in person or by proxy, at the Court Meeting and at any
separate class meeting which may be required by the Court or at any
adjournment of any such meeting; and |
(B) |
|
the Court Meeting and any
separate class meeting which may be required by the Court or any
adjournment of any such meeting being held on or before the 22nd
day after the expected date of the Court Meeting to be set out in
the Scheme Document in due course (or such later date, if any, as
Bidder and Nightstar may agree and the Court may allow); |
(ii) |
|
|
(A) |
|
all resolutions necessary to
approve and implement the Scheme being duly passed by the requisite
majority or majorities at the General Meeting or at any adjournment
of that meeting; and |
(B) |
|
the General Meeting or any
adjournment of that meeting being held on or before the 22nd day
after the expected date of the General Meeting to be set out in the
Scheme Document in due course (or such later date, if any, as
Bidder and Nightstar may agree and the Court may allow); and |
(iii) |
|
|
(A) |
|
the sanction of the Scheme by the
Court with or without modification (but subject to any such
modification being acceptable to Bidder and Nightstar) and the
delivery of a copy of the Court Order to the Registrar; and |
(B) |
|
the Court Hearing being held on
or before the date immediately preceding the Long Stop Date (or
such later date, if any, as Bidder and Nightstar may agree and the
Court may allow). |
If any Condition referred to in paragraphs (a)(i) to (iii) above
is not capable of being satisfied by the date specified therein,
Bidder shall make an announcement through GlobeNewswire or another
national news wire service as soon as practicable and, in any
event, by not later than 7.00 a.m. (New York time) on the Business
Day following the date so specified, stating whether Bidder has
invoked that Condition or, with the agreement of Nightstar,
specified a new date by which that Condition must be satisfied.
In addition, Bidder and Nightstar have agreed
that the Acquisition will be conditional upon the following
Conditions and, accordingly, the necessary actions to make the
Scheme Effective will not be taken unless the following Conditions
have been satisfied or, where relevant, waived:
No restraints
(b) no Law shall have been enacted, issued,
enforced or entered into, and no preliminary or permanent
injunction, judgment or ruling shall have been issued by any
Governmental Authority that is, in either case, in effect and
enjoins, restrains, prevents or prohibits or otherwise makes
illegal the Acquisition;
Competition law and regulatory
approvals
(c) the waiting period (and any extension
thereof) applicable to the consummation of the Acquisition under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, shall have expired or been terminated and the anti-trust
notifications and approvals set forth in Paragraph 4.5 of Schedule
V to the Implementation Agreement shall have been obtained.
Accuracy of representation and
warranties
(d) except as Disclosed, (i) the representations
and warranties set forth in Clause 11.1.1 (Corporate Existence and
Power), Clause 11.1.2 (Subsidiaries), Clause 11.1.3 (Organisational
Documents), Clause 11.1.4 (Corporate Authorization), Clause 11.1.5
(Binding Obligations), Clause 11.1.8(c) – (f) (Capitalization;
Indebtedness), Clause 11.1.21 (Opinion of Financial Advisor) and
Clause 11.1.22 (Finders' Fees) of the Implementation Agreement
shall be true and correct in all respects (in the case of any
representation or warranty qualified by materiality or Company
Material Adverse Effect) or in all material respects (in the case
of any representation or warranty not qualified by materiality or
Company Material Adverse Effect) as of the date of the
Implementation Agreement and as at 11.59 p.m. (London time) on the
date immediately preceding the date of the Court Hearing, as though
made as at 11.59 p.m. (London time) on the date immediately
preceding the date of the Court Hearing (except to the extent such
representations and warranties are made as of an earlier date, in
which case as of such earlier date), (ii) the representations and
warranties set forth in Clause 11.1.8(a) and (b) (Capitalization)
of the Implementation Agreement shall be true and correct in all
respects other than de minimis inaccuracies as of the date of the
Implementation Agreement and as at 11.59 p.m. (London time) on the
date immediately preceding the date of the Court Hearing, as though
made as at 11.59 p.m. (London time) on the date immediately
preceding the date of the Court Hearing (except to the extent such
representations and warranties are made as of an earlier date, in
which case as of such earlier date) and (iii) each of the other
representations and warranties of Nightstar contained in the
Implementation Agreement shall be true and correct as of the date
of the Implementation Agreement and as at 11.59 p.m. (London time)
on the date immediately preceding the date of the Court Hearing, as
though made as at 11.59 p.m. (London time) on the date immediately
preceding the date of the Court Hearing (except to the extent such
representations and warranties are made as of an earlier date, in
which case as of such earlier date), except in the case of clause
(iii) where such failure(s) to be true and correct (without giving
effect to any materiality or Company Material Adverse Effect
qualifications set forth therein) have not had and would not
reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect;
Compliance with terms of the
Implementation Agreement
(e)
Nightstar shall have performed or complied in all material respects
with all obligations, agreements and covenants required by the
Implementation Agreement to be performed or complied with by it at
or prior to 9 a.m. (London time) on the date of the Court
Hearing;
No Company Material Adverse
Effect
(f)
since the date of the Implementation Agreement, no Company Material
Adverse Effect shall have occurred and be continuing; and
Delivery of officer's
certificate
(g)
Nightstar shall have delivered to Bidder a certificate, effective
as of 9 a.m. (London time) on the date of the Court Hearing and
signed by an authorised officer of Nightstar, certifying that the
conditions in paragraphs (d) to (f) above have been satisfied.
PART B
Waiver and Invocation of the
Conditions
Each of Bidder and Bidco reserves the right to
waive, in whole or in part, all or any of the Conditions in
Part A above, except for Conditions (a)(i)(A), (a)(ii)(A) and
(a)(iii)(A) (Scheme Approval), which cannot be waived.
The Acquisition will be subject to the
satisfaction (or waiver, if permitted) of the Conditions in Part A
above, and to certain further terms set out in Part D below, and to
the full terms and conditions which will be set out in the Scheme
Document.
Conditions (a)(i)(A), (a)(ii)(A) and (b) to (g)
(inclusive) must be fulfilled, determined by Bidder to be or to
remain satisfied or (if capable of waiver) waived, by no later than
9 a.m. (London time) on the date of the Court Hearing, failing
which the Acquisition will lapse. Bidder and Bidco shall be under
no obligation to waive or treat as satisfied any of Conditions (b)
to (g) (inclusive) by a date earlier than the latest date specified
above for the fulfilment or waiver thereof, notwithstanding that
the other Conditions to the Acquisition may at such earlier date
have been waived or fulfilled and that there are at such earlier
date no circumstances indicating that any of such Conditions may
not be capable of fulfilment.
PART C
Implementation by way of an
Offer
Subject to the terms of the Implementation
Agreement, each of Bidder and Bidco reserves the right to elect to
implement the Acquisition by way of an Offer as an alternative to
the Scheme if Nightstar provides its written consent.
In such event, such Offer will be implemented on
the same terms and conditions, so far as applicable, as those which
would apply to the Scheme subject to appropriate amendments to
reflect the change in method of effecting the Offer, including
(without limitation) the inclusion of an acceptance condition set
at 90 per cent. of the Nightstar Shares to which the Offer relates
or such lesser percentage as Bidder or Bidco, decides with
Nightstar’s written consent, being in any case more than 50 per
cent. of the Nightstar Shares to which the Offer relates.
PART D
Certain further terms of the
Acquisition
The Acquisition will lapse if the Scheme does
not become effective by 11.59 p.m. (London time) on the Long Stop
Date.
The availability of the Acquisition to persons
not resident in the U.K. or U.S. may be affected by the Laws of the
relevant jurisdictions. Persons who are not resident in the U.K. or
U.S. should inform themselves about, and observe, any applicable
requirements. Nightstar Shareholders who are in any doubt about
such matters should consult an appropriate independent professional
adviser in the relevant jurisdiction without delay and observe any
applicable requirements.
This Acquisition will be governed by English law
and be subject to the jurisdiction of the English courts and to the
Conditions set out in the Scheme Document.
Each of the Conditions shall be regarded as a
separate Condition and shall not be limited by reference to any
other Condition.
The Nightstar Shares will be acquired by Bidder
and Bidco (or their nominee) with full title guarantee, fully paid
and free from all liens, equitable interests, charges,
encumbrances, rights of pre-emption and any other third party
rights or interests whatsoever and together with all rights
existing at the date of this Announcement or thereafter attaching
thereto, including (without limitation) the right to receive and
retain, in full, all dividends and other distributions (if any)
declared, made or paid or any other return of capital (whether by
way of reduction of share capital or share premium account or
otherwise) made on or after the Effective Date in respect of the
Nightstar Shares.
APPENDIX II
SOURCES OF INFORMATION AND BASES OF
CALCULATION
Unless otherwise stated in this
announcement:
- Nightstar's issued ordinary share capital refers to the
33,483,821 Nightstar Shares in issue (excluding 49,893 Deferred
Shares (as defined in the Implementation Agreement)) as at 28
February 2019
- The fully diluted share capital of Nightstar (being 34,407,274
shares) is calculated on the basis of:
- The number of issued Nightstar Shares in item 1 above; and
- 2,253,121 outstanding share options that have been granted by
Nightstar under the Nightstar Share Schemes with a weighted average
exercise price of $15.16 as at 28 February 2019, resulting in the
issuance of 913,453 shares at the offer price using the treasury
stock method; and
- 10,000 outstanding share awards that have been granted under
the Nightstar Share Schemes that may vest or become exercisable at
no cost subject (where applicable) to certain conditions as at 28
February 2019
- The aggregate consideration of approximately $877 million is
calculated by multiplying the offered amount of $25.50 in cash per
Nightstar Share by Nightstar’s fully diluted share capital (as
referred to in item 2 above)
- The premium calculations to the price per Nightstar Share have
been calculated by reference to:
- The Closing Price of a Nightstar Share of $15.16 as of 1 March
2019 (being the last Business Date prior to this announcement)
- The 30 trading day volume weighted average price of a Nightstar
Share of $15.02 from 17 January 2019 to 1 March 2019
- Closing price quoted for Nightstar Shares refers to NASDAQ
closing price
- The 30 trading day volume weighted average price of a Nightstar
Share is derived from data provided by Bloomberg
- References to shareholder and director ownership for the
purpose of irrevocables are based on current issued Nightstar
Shares (per item 1 above)
- Certain figures included in this announcement have been subject
to rounding adjustments
APPENDIX III
IRREVOCABLE UNDERTAKINGS
Bidco has received irrevocable commitments from
the Nightstar Directors, as listed below, in respect of their own
beneficial holdings of Nightstar Shares and (to the extent
relevant) the beneficial holdings of each Nightstar Director’s
spouse, civil partner, de facto partner, or similarly-related
person, representing in aggregate approximately 61.6 per cent. of
the existing issued ordinary share capital of Nightstar. These
commitments require each Nightstar Director to vote or procure that
the registered holder votes in favour of the resolutions relating
to the Acquisition at the Meetings (or, in the event the
Acquisition is implemented by means of an Offer, to accept, or
procure acceptance of, the Offer).
Name of Nightstar Director |
Number of Nightstar Shares |
% of Nightstar issued share capital |
Chris Hollowood / Syncona Portfolio Limited |
13,203,922 |
39.4 |
David Fellows (Chief Executive Officer) |
630,826 |
1.9 |
Paula Cobb |
– |
0.0 |
David Lubner |
29,124 |
0.1 |
James McArthur |
37,237 |
0.1 |
David Mott / New Enterprise Associates |
6,662,532 |
19.9 |
Scott Whitcup |
74,568 |
0.2 |
TOTAL |
20,638,209 |
61.6 |
These Irrevocable Undertakings will continue to
be binding in the event that a higher competing offer is made for
Nightstar.
Bidco has also received irrevocable undertakings
from Syncona Portfolio Limited and New Enterprise Associates, each
Nightstar Shareholders, to vote or procure votes in favour of the
resolutions relating to the Scheme at the Meetings (or in the event
that the Acquisition is implemented by way of an Offer, to accept
or procure acceptance of such Offer) in respect of their entire
beneficial holdings, amounting to 19,866,454 Nightstar Shares, in
aggregate, representing approximately 59.3 per cent. of the issued
share capital of Nightstar as at 28 February 2019, being the last
practicable date prior to this Announcement.
The Irrevocable Undertakings given by the
Nightstar Directors will cease to be binding if:
- the Scheme Document or offer Document, as the case may be, is
not posted within 15 Business Days following the date Nightstar has
cleared comments received from the SEC, if any, on such document;
or
- if the Scheme or Offer (as applicable) does not become
effective, lapses or is withdrawn without becoming or being
declared unconditional in accordance with its terms; or
- Bidder announces, with the consent of any Governmental
Authority (if required) and before the Scheme Document or offer
document is posted, that it does not intend to proceed with the
Acquisition; or
- the Scheme or Offer lapses or is withdrawn or otherwise becomes
incapable of becoming effective or has not become effective on or
before the Long Stop Date, and will remain binding if a higher
competing offer is made for Nightstar.
The Irrevocable Undertakings given by Syncona
Portfolio Limited and New Enterprise Associates will cease to be
binding if:
- the Scheme lapses or is withdrawn in accordance with its terms
and Bidder or Bidco publicly confirms that it does not intend to
proceed with the Acquisition or to implement the Acquisition by way
of an Offer or otherwise;
- Bidder announces, with the consent of any relevant authority
(if required) and before the Scheme Document or offer document is
posted, that it does not intend to proceed with the Acquisition and
no new, revised or replacement Scheme or Offer is announced by
Bidder at the same time or within 28 days thereafter;
- the Scheme or Offer does not become effective by the Long Stop
Date; or
- if the Implementation Agreement is terminated in accordance
with its terms, and will remain binding if a higher competing offer
is made for Nightstar.
APPENDIX IV
DEFINITIONS
The following definitions apply throughout this
Announcement, unless the context otherwise requires:
2017 Equity Incentive Plan |
the equity incentive plan approved by the Company in September 2017
whereby the Company was initially authorised to issue a total of
1,500,000 ordinary shares as incentives to the Company's employees,
directors and other service providers, including pursuant to
sub-plans thereunder; |
Acquisition |
means the proposed acquisition by Bidder and Bidco (or its
nominee(s)) of the entire issued and to be issued share capital of
Nightstar, to be implemented by means of the Scheme as described in
this Announcement (or, should Bidder or Bidco so elect, by an Offer
subject to the consent of Nightstar and subject to the terms of the
Implementation Agreement) |
Announcement |
means this announcement |
Bidco |
means Tungsten Bidco Limited, a newly-incorporated English company
with registered number 11852085 and with its registered address 70
Norden Road, Maidenhead, United Kingdom, SL6 4AY |
Bidder |
means Bidder Switzerland Holdings GmbH, a company incorporated in
Switzerland with registered number CHE-334.372.642 and whose
registered office is at Neuhofstrasse 30, 6340 Baar,
Switzerland |
Bidder Group |
means Biogen and its subsidiary undertakings and associated
undertakings |
Bidder Shareholders |
means the holders of Biogen Shares |
Bidder Shares |
means the shares of Class A common stock of par value $0.01 each in
the capital of Biogen |
Biogen |
means Biogen Inc., a Delaware corporation |
Business Day |
means a day (other than a Saturday, Sunday, public or bank holiday)
on which banks are generally open for business in London and New
York |
Centerview Partners |
Centerview Partners LLC |
Citibank or Depositary |
Citibank, N.A., as depositary bank of the Nightstar ADRs |
Closing Price |
means the NASDAQ closing price for a share |
Companies Act |
means the Companies Act 2006 |
Company Material Adverse Effect |
has the meaning given to such term in the Implementation
Agreement |
Conditions |
means the conditions to the Acquisition set out in Part A of
Appendix I and to be set out in the Scheme Document |
Confidentiality Agreement |
means the confidentiality agreement entered into between Biogen and
Nightstar dated 21 December 2018, as described in paragraph 11 of
this Announcement |
Court |
means the High Court of Justice in England and Wales |
Court Hearing |
means the hearing of the Court at which Nightstar will seek an
order sanctioning the Scheme pursuant to Part 26 of the Companies
Act (including any adjournment, postponement or reconvention
thereof) |
Court Meeting |
means the meeting or meetings of the Nightstar Shareholders to be
convened by order of the Court pursuant to Part 26 of the Companies
Act for the purpose of considering and, if thought fit, approving
the Scheme (with or without amendment approved or imposed by the
Court and agreed to by Bidder, Bidco and Nightstar) including any
adjournment, postponement or reconvention of any such meeting,
notice of which shall be contained in the Scheme Document |
Court Order |
means the order of the Court sanctioning the Scheme under section
899 of the Companies Act |
Disclosed |
means the information which has been fairly disclosed: (i) in the
Disclosure Schedules to the Implementation Agreement, (ii) in
Nightstar’s published annual or half year report and accounts for
the relevant financial period or periods referred to in the
relevant Condition and published prior to the date of this
Announcement or (iii) in the Company SEC Documents (as defined in
the Implementation Agreement) publicly available prior to the date
of this Announcement (but excluding any forward-looking disclosures
set forth in any “risk factors” section, any disclosures in any
“forward-looking statements” section and any other disclosures
included therein to the extent they are predictive or
forward-looking in nature, it being understood that any factual
information contained within such sections shall not be
excluded). |
Effective |
means: (i) if the Acquisition is implemented by way of the Scheme,
the Scheme having become effective in accordance with its terms; or
(ii) if the Acquisition is implemented by way of an Offer, the
Offer having been declared or become unconditional |
Effective Date |
means the date on which the Acquisition becomes Effective |
Forms of Proxy |
means the forms of proxy in connection with each of the Court
Meeting and the General Meeting, which shall accompany the Scheme
Document |
General Meeting |
means the general meeting of Nightstar Shareholders (including any
adjournment thereof) to be convened for the purpose of considering
and, if thought fit, approving the shareholder resolutions
necessary to enable Nightstar to implement the Acquisition, notice
of which shall be contained in the Scheme Document |
Governmental Authority |
any (i) nation, state, commonwealth, province, territory, county,
municipality, district or other jurisdiction of any nature; (ii)
federal, state, local, municipal, foreign or other government; or
(iii) governmental or quasi-governmental authority of any nature
including any governmental division, department, agency,
commission, instrumentality, official, ministry, fund, foundation,
centre, organisation, unit or body and any court, arbitrator or
other tribunal |
Implementation Agreement |
means the co-operation agreement entered into on 4 March 2019
between Bidder, Bidco and Nightstar and, relating to, amongst other
things, the implementation of the Acquisition |
Irrevocable Undertakings |
means the irrevocable undertakings given by the Nightstar Directors
and Syncona Portfolio Limited and New Enterprise Associates to vote
or procure votes in favour of the Scheme at the Court Meeting and
the resolutions to be passed at the General Meeting (or in the
event that the Acquisition is implemented by way of an Offer, to
accept or procure acceptance of the Offer), as detailed in
paragraph 6 of this Announcement |
Law |
any federal, state, local, municipal, foreign or other law,
statute, constitution, resolution, ordinance, common law, code,
edict, decree, rule, regulation, ruling or requirement issued,
enacted, adopted, promulgated, implemented or otherwise put into
effect by or under the authority of any Governmental Authority |
Long Stop Date |
means 4 September 2019, or such later date (if any) as Bidder,
Bidco and Nightstar may agree, and the Court may allow |
Meetings |
means the Court Meeting and the General Meeting |
Nasdaq |
means the Nasdaq Global Select Market |
Nightstar |
means Nightstar Therapeutics Plc, a public limited company
incorporated in England and Wales with registered number
10852952 |
Nightstar ADR Holders |
means holders of Nightstar ADRs |
Nightstar ADRs |
means sponsored American Depositary Receipts of Nightstar for which
Citibank is the Depositary |
Nightstar Board |
means the board of directors of Nightstar |
Nightstar Directors |
means the directors of Nightstar as at the date of this
Announcement or, where the context so requires, the directors of
Nightstar from time to time |
Nightstar Share Schemes |
has the meaning given to the term "Company Share Schemes" in the
Implementation Agreement |
Nightstar Shareholders |
means the holders of Nightstar Shares from time to time |
Nightstar Shares |
means the ordinary shares of £0.01 each in the capital of
Nightstar |
Offer |
means, if the Acquisition is implemented by way of a takeover offer
(as that term is defined in section 974 of the Companies Act), the
offer to be made by or on behalf of Bidder, or an associated
undertaking thereof (including Bidco), to acquire the entire issued
and to be issued ordinary share capital of Nightstar including,
where the context admits, any subsequent revision, variation,
extension or renewal of such offer |
Product Candidates |
the Company's NSR-REP1 and NSR-RPGR clinical programs |
Registrar |
means the Registrar of Companies in England and Wales |
Restricted Jurisdiction |
means any jurisdiction where local laws or regulations may result
in a significant risk of civil, regulatory or criminal exposure if
information concerning the Acquisition is sent or made available to
Nightstar Shareholders in that jurisdiction |
Scheme |
means the proposed scheme of arrangement under Part 26 of the
Companies Act between Nightstar and Scheme Shareholders to
implement the Acquisition to be set out in the Scheme Document,
with or subject to any modification, addition or condition approved
or imposed by the Court and agreed to by Bidder, Bidco and
Nightstar |
Scheme Document |
means the document to be dispatched to Nightstar Shareholders
including the particulars required by section 897 of the Companies
Act |
Scheme Record Time |
means the time and date to be specified as such in the Scheme
Document, expected to be 6.00 p.m. (London time) on the Business
Day immediately preceding the Effective Date, or such other time as
Bidder, Bidco and Nightstar may agree |
Scheme Shareholders |
means holders of Scheme Shares |
Scheme Shares |
means together: (a) the Nightstar Shares in issue at the date
of the Scheme Document and which remain in issue at the Scheme
Record Time; (b) any Nightstar Shares issued after the date
of the Scheme Document and prior to the Voting Record Time which
remain in issue at the Scheme Record Time; and (c) any
Nightstar Shares issued at or after the Voting Record Time and
prior to the Scheme Record Time in respect of which the original or
any subsequent holder thereof is bound by the Scheme, or shall by
such time have agreed in writing to be bound by the Scheme and, in
each case, which remain in issue at the Scheme Record Time,
excluding, in any case, any Nightstar Shares held by or on behalf
of Bidder or the Bidder Group at the Scheme Record Time |
SEC |
means the U.S. Securities and Exchange Commission |
significant interest |
means a direct or indirect interest in 20 per cent. or more of the
total voting rights conferred by the equity share capital (as
defined in section 548 of the Companies Act) |
Skadden |
Skadden, Arps, Slate, Meagher & Flom LLP, together with its
affiliate, Skadden, Arps, Slate, Meagher & Flom (UK) LLP |
U.K. or United Kingdom |
means the United Kingdom of Great Britain and Northern Ireland |
U.S. or United States |
means the United States of America, its territories and
possessions, any state of the United States of America and the
District of Columbia |
U.S. Exchange Act |
means the U.S. Securities Exchange Act of 1934 |
U.S. Securities Act |
means the U.S. Securities Act of 1933 |
Voting Record Time |
means the time and date to be specified in the Scheme Document by
reference to which entitlement to vote at the Court Meeting will be
determined, expected to be 6.00 p.m. (London time) on the day two
days prior to the Court Meeting or any adjournment thereof (as the
case may be) |
All references to GBP, pence, Sterling, Pounds,
Pounds Sterling, p or £ are to the lawful currency of the United
Kingdom. All references to USD, $, US$, U.S. dollars, United States
dollars and cents are to the lawful currency of the United States
of America.
All references to statutory provision or law or
to any order or regulation shall be construed as a reference to
that provision, law, order or regulation as extended, modified,
amended, replaced or re-enacted from time to time and all statutory
instruments, regulations and orders from time to time made
thereunder or deriving validity therefrom.
All the times referred to in this Announcement
are New York times unless otherwise stated. References to the
singular include the plural and vice versa.
All references to "subsidiary", "subsidiary
undertaking", "undertaking" and "associated undertaking" have the
respective meanings given to them in the Companies Act.
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