Recommended Acquisition of Nightstar Therapeutics plc by Tungsten
Bidco Limited, a Wholly-Owned Subsidiary of Biogen Switzerland
Holdings GmbH; Posting of Scheme Document
On 4 March 2019, the board of Nightstar Therapeutics plc
("
Nightstar") and Biogen Switzerland Holdings GmbH
("
Bidder"), a subsidiary of Biogen, Inc.,
announced that they had 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 ("
Bidco", a newly-incorporated company and
wholly-owned subsidiary of Bidder) (the
"
Acquisition"). The Acquisition is to be effected
by means of a Court-sanctioned scheme of arrangement under Part 26
of the Companies Act 2006 (the "
Scheme") and is
subject to the terms and conditions set out in the scheme document
relating to the Acquisition (the "
Scheme
Document").
Nightstar is pleased to announce that the Scheme
Document is being sent, or made available, to Nightstar
Shareholders today. The Scheme Document contains, amongst other
things, a letter from the Chairman of Nightstar, the full terms and
conditions of the Scheme and the Acquisition, an explanatory
statement pursuant to section 897 of the Companies Act 2006, an
expected timetable of principal events and details of the actions
to be taken by Nightstar Shareholders, together with the Forms of
Proxy for the Court Meeting and the General Meeting. The Scheme
Document is available on Nightstar's website at
www.nightstartx.com.
Award holders in the Nightstar Share Schemes
will be contacted as soon as reasonably practicable regarding the
effect of the Scheme on their Awards and with details of Bidder's
proposals about their rights.
Nightstar Shareholder
Meetings
As described in the Scheme Document, to become
Effective the Scheme will require, among other things, the approval
of the Nightstar Scheme Shareholders at the Court Meeting and the
passing of the Resolutions by the Nightstar Shareholders at the
General Meeting. Both the Court Meeting and the General Meeting
will be held at the offices of Nightstar's solicitor, Skadden,
Arps, Slate, Meagher and Flom (UK) LLP at 40 Bank Street, London,
E14 5DS on 8 May 2019, with the General Meeting to commence at
10.30 a.m. and the Court Meeting to commence at 10.40 a.m. (or, if
later, as soon as the General Meeting has been concluded or
adjourned). Notices of the Court Meeting and the General Meeting
are set out in the Scheme Document.
Completion of the Acquisition also remains
conditional on the satisfaction or waiver of the other Conditions
set out in the Scheme Document and the approval of the Court.
It is important that, for the Court Meeting, as
many votes as possible are cast so that the Court may be satisfied
that there is a fair representation of Nightstar Scheme Shareholder
opinion. You are, therefore, strongly urged to complete, sign and
return your Forms of Proxy, appoint a proxy electronically or
submit a proxy vote via CREST as soon as possible.
Timetable
The Scheme Document contains an expected
timetable of principal events relating to the Scheme, which is also
set out in the Appendix to this announcement. The Acquisition is
expected to become Effective during the middle of 2019.
Information for Nightstar
Shareholders
For information purposes only, the Scheme
Document will also be made available to participants in the
Nightstar Share Schemes and persons with information rights.
A Nightstar Shareholder Helpline is available
for Nightstar Shareholders on +44 370 703 6033. Lines are open from
8.30 a.m. to 5.30 p.m. (London time) Monday to Friday (except UK
public holidays). Calls will be charged at the standard geographic
rate and will vary by provider. International calls will be charged
at the applicable international rate. Different charges may apply
to calls from mobile telephones and calls may be recorded and
randomly monitored for security and training purposes.
ADS Holders may contact the Nightstar
Depositary’s ADS shareholder services at +1 877 248 4237 or
MacKenzie Partners, Inc., the proxy solicitor for the Nightstar
ADSs, toll-free at +1 800 322 2885 or +1 212 929 5500, and by email
at proxy@mackenziepartners.com.
Please note that the Nightstar Shareholder
Helpline operators cannot provide advice on the merits of the
Scheme nor give financial, tax, investment or legal advice.
All references to time in this announcement are
to London time.
Unless otherwise defined herein, capitalised
terms and expressions used in this announcement shall have the
meanings given to them in the Scheme Document.
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 |
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 in accordance with the Scheme
Document, which contains 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, CAREFULLY AND IN
ITS ENTIRETY PRIOR TO MAKING ANY DECISIONS WITH RESPECT TO THE
ACQUISITION BECAUSE IT CONTAINS IMPORTANT INFORMATION ABOUT THE
PROPOSED TRANSACTION. Investors may obtain a free copy of the
Scheme Document at the SEC’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 Inc.("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, is contained in the Scheme
Document and other relevant materials filed with the SEC.
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
the 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 are 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 2006 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 ADS 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 ADS 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 ADS
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.
Nightstar 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 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 10-K for the year ended 31
December 2018, 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.
AppendixEXPECTED
TIMETABLE OF PRINCIPAL EVENTS
Event |
|
Time/date(1) |
Nightstar ADS Voting Record Time |
|
5.00 p.m. (New York time) on 4 April
2019 |
Publication of the Scheme Document |
|
9 April 2019 |
Latest time for receipt of ADS Voting Instruction Cards for
the Nightstar Shareholder Meetings |
|
10.00 a.m. (New York time) on 30 April
2019 |
Latest Time for Nightstar ADS Holders to cancel out of the
Nightstar ADS Programme and receive Nightstar Shares ahead of the
Scheme Voting Record Time |
|
5.00 p.m. (New York time) on 25 April
2019 |
Latest time for lodging Forms of Proxy for use at the
General Meeting (WHITE Form of
Proxy) |
|
10.30 a.m. on 3 May 2019(2) |
Latest time for lodging Forms of Proxy for use at the Court
Meeting (BLUE Form of Proxy) |
|
10.40 a.m. on 3 May
2019(3) |
Scheme Voting Record Time |
|
6.00 p.m. on 3 May 2019 (4) |
General Meeting |
|
10.30 a.m. on 8 May 2019 |
Court Meeting |
|
10.40 a.m. on 8 May 2019(5) |
The expected date of the Court Hearing to sanction the
Scheme and each of the other dates and times set out below will
depend, among other things, on the date on which
the conditions to the Scheme and the Acquisition are satisfied or,
if capable of waiver, waived. They are accordingly presented as
indicative and referable to the date on which those conditions are
satisfied or waived (as the case may be). Further details of the
conditions are set out in Part III (Conditions to and Further Terms
of the Scheme and the Acquisition) of the Scheme Document.
Nightstar will give notice of each of the below dates and
times, when known, by issuing an announcement through GlobeNewswire
or another national news wire service and by making such
announcement available on Nightstar’s website
https://ir.nightstartx.com. Further updates or changes to other
times or dates indicated below shall be notified in the same
manner. |
Latest Time for Nightstar ADS Holders to cancel out of the
Nightstar ADS Programme and receive Nightstar Shares ahead of the
Scheme Record Time |
|
5.00 p.m. (New York time) on D – 4 Business Days |
Last day of trading in Nightstar ADSs on Nasdaq |
|
D(6) |
Court Hearing to sanction the Scheme |
|
D |
Scheme Record Time |
|
6.00 p.m. on D |
Effective Date of the Scheme |
|
D+1 Business Day(7) |
Suspension of trading in Nightstar ADSs on Nasdaq |
|
by 8.00 a.m. (New York time) on D+2 Business Days(7) |
Cancellation of listing of Nightstar ADSs on Nasdaq |
|
D+11 days |
Despatch of cheques and crediting of CREST for Consideration due
under the Scheme |
|
as soon as practicable after the Effective Date and in any event
within 14 days of the Effective Date |
Long Stop Date |
|
4 September 2019(8) |
The General Meeting and
the Court Meeting will each be held at the offices
of Nightstar’s solicitors, Skadden, at 40 Bank Street, London E14
5DS, at 10.30 a.m. and 10.40 a.m., respectively,
on 8 May 2019.
(1) These times and dates are indicative
only and will depend, amongst other things, on the dates upon
which: (i) the Conditions are satisfied or (where applicable)
waived; (ii) the Court sanctions the Scheme; and (iii) a copy of
the Court Order is delivered to the Registrar of Companies.
Nightstar will give notice of any change(s) by issuing an
announcement through GlobeNewswire or other national news wire
service.
(2) White Forms of Proxy for the General
Meeting must be lodged not later than 10.30 a.m. on 3 May 2019 in
order to be valid or, if the General Meeting is adjourned, not
later than 48 hours before the time appointed for the holding
of the adjourned meeting. White Forms of Proxy cannot be handed to
the Chairman of the General Meeting at that meeting.
(3) It is requested that blue Forms of
Proxy for the Court Meeting be lodged not later than 10.40 a.m. on
3 May 2019 or, if the Court Meeting is adjourned, not later than
48 hours before the time appointed for the holding of the
adjourned meeting. However, blue Forms of Proxy not so lodged may
be handed to the Chairman of the Court Meeting before the start of
the Court Meeting.
(4) If either of the Nightstar Shareholder
Meetings is adjourned, the Scheme Voting Record Time for the
relevant adjourned meeting will be 6.00 p.m. on the date 48 hours
(excluding any part of a day that is not a working day) before the
date set for the adjourned meeting.
(5) To commence at 10.40 a.m. or, if later,
immediately after the conclusion or adjournment of the General
Meeting.
(6) A date expected to be mid-year 2019,
and no earlier than 7 June 2019, subject to obtaining
Clearances.
(7) These dates depend, among other things,
on the date upon which the Court sanctions the Scheme and the date
which the Court Order sanctioning the Scheme is delivered to and,
if ordered by the Court, registered by, the Registrar of
Companies.
(8) This date may be extended to such date
as Nightstar, Bidco and Bidder may agree and the Court (if
required) may allow.
All references in this timetable to times are to
times in London (unless otherwise stated).
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