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EX-2.1 - EX-2.1 - CYPRESS BIOSCIENCE INC | a58159exv2w1.htm |
EX-4.1 - EX-4.1 - CYPRESS BIOSCIENCE INC | a58159exv4w1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 14, 2010
CYPRESS BIOSCIENCE, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
001-34888 | 22-2389839 | |
(Commission File Number) | (IRS Employer Identification No.) |
4350 Executive Drive, Suite 325
San Diego, CA 92121
San Diego, CA 92121
(Address of principal executive offices, including Zip Code)
Registrants telephone number, including area code: (858) 452-2323
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. | Entry into a Material Definitive Agreement. |
Agreement and Plan of Merger
On December 14, 2010, Cypress Bioscience, Inc. (Cypress) entered into an Agreement and Plan of
Merger (the Merger Agreement) with Ramius Value and Opportunity Advisors LLC (Ramius), Royalty
Pharma US Partner, LP (RPUS), Royalty Pharma US Partners 2008, LP (RPUS2008), RP Investment
Corp. (RP Corp and together with RPUS and RPUS2008, Royalty Pharma), and Ramius V&O Acquisition
LLC, which is owned by Ramius and Royalty Pharma (Purchaser), pursuant to which, and on the terms
and subject to the conditions thereof, among other things, Purchaser will amend its existing cash
tender offer (the Offer) to acquire all the issued and outstanding shares of common stock of
Cypress it does not already own, including the associated preferred stock purchase rights, issued
in connection with and subject to the Rights Agreement (as defined below), as amended (which
Cypress Rights, together with the shares of common stock of Cypress, are hereinafter collectively
referred to as Shares) at a price of $6.50 per share in cash (the Offer Price). Following the
completion of the tender offer, and, if required, receipt of approval by Cypress stockholders,
Purchaser will merge with and into Cypress, with Cypress becoming owned directly by Ramius and
Royalty Pharma, subject to the terms and conditions contained in the Merger Agreement.
Purchasers obligation to accept for payment and pay for Shares tendered in the Offer is subject to
certain conditions, including, among other things, (i) that sufficient Shares shall have been
validly tendered (and not properly withdrawn) in accordance with the terms of the Offer that when
added to Shares owned by Ramius and Royalty Pharma shall represent at least a majority of the
outstanding Shares on a fully diluted basis (without regard to whether convertible or exchangeable
securities are then vested and exercisable) (the Minimum Condition), (ii) the expiration or
termination of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and the receipt of any other required consents or approvals of any
governmental authority of competent jurisdiction under antitrust laws, and (iii) that the other
conditions set forth in Annex I to the Merger Agreement have been satisfied or waived.
If, at any expiration date of the Offer, all of the conditions to the consummation of the Offer
(including the Minimum Condition) have been satisfied or waived, but the number of Shares validly
tendered in the Offer and not properly withdrawn is less than that number of Shares which, when
added to the number of Shares that may be issued pursuant to the Top-Up Option (as defined below)
in compliance with the Merger Agreement constitutes at least one Share more than 90% of the Shares
then outstanding, purchaser may exercise an option (the Top-Up Option) to purchase at a price per
Share equal to the Offer Price, up to that number of newly issued Shares equal to the lowest number
of Shares that, when added to the number of Shares owned by Purchaser at the time of exercise, will
constitute one Share more than 90% of the Shares, calculated on a fully diluted basis as set forth
in the Merger Agreement; provided, however, that the Top-Up Option will not be exercisable for
Shares in excess of the number of Shares authorized and unissued. The Top-Up Option shall not be
exercisable unless, immediately after such exercise and the issuance of Shares, Purchaser, together
with Ramius and Royalty Pharma, would hold one Share more than 90% of the then outstanding Shares.
Pursuant to the Merger Agreement, after Purchasers acceptance of Shares tendered in the Offer, and
subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement
(including receipt of the requisite approval of Cypress stockholders, if required under applicable
law), Purchaser will merge with and into Cypress (the Merger) and Cypress will become owned
directly by Ramius and Royalty Pharma. At the effective time of the Merger (the Effective Time),
each issued and outstanding Share that is not tendered and accepted pursuant to the Offer (other
than Shares held by Cypress, Ramius, Royalty Pharma or Purchaser or their respective subsidiaries
and Shares held by stockholders who have perfected their statutory rights of appraisal under
Section 262 of the Delaware General Corporation Law) will be automatically canceled and converted
into the right to receive the Offer Price. All outstanding options to purchase Shares (the
Options) will be fully vested immediately prior to the Effective Time and will be cancelled at
the Effective Time in exchange for the right to receive the excess, if any, of the Offer Price over
the exercise price of such Option immediately prior to the Effective Time multiplied by the
number of Shares subject to the Option immediately prior to the Effective Time. All outstanding
restricted stock units will be fully vested immediately prior to the Effective Time and the shares
issued upon vesting will be automatically canceled and converted into the right to receive the
Offer Price.
If immediately following the successful consummation of the Offer, Purchaser holds, together with
all Shares held by Ramius and Royalty Pharma, at least 90% of the then-outstanding Shares in the
Offer, the Merger will be consummated pursuant to the short form merger procedures under Delaware
General Corporation Law without a vote or any further action by the holders of Shares. If
immediately following the successful consummation of the Offer and assuming exercise in full of the
Top-Up Option, Ramius, Royalty Pharma, Purchaser and their respective wholly-owned subsidiaries
would own less than 90% of the Shares then outstanding (after giving effect to the exercise in full
of the Top-Up Option) and Cypress has not permitted Purchaser to waive the Minimum Condition,
Purchaser shall, in order to seek additional Shares and facilitate the consummation of the Merger
using such short form merger procedures, extend the Offer; provided, however, that Purchaser is not
required to extend the offer beyond March 14, 2011.
If immediately following the successful consummation of the Offer, Purchaser holds, together with
all Shares held by Ramius and Royalty Pharma, less than 90% of the then outstanding Shares and
Cypress has not permitted Purchaser to waive the Minimum Condition, Cypress stockholders holding a
majority of the outstanding Shares must approve the adoption of the Merger Agreement prior to
consummating the Merger. In this event, Cypress has agreed to call and convene a stockholder
meeting to obtain this approval.
The Merger Agreement includes customary representations and warranties and covenants of the
parties. Until the earlier of the termination of the Merger Agreement and the acceptance date,
Cypress has agreed to operate its business and the business of its subsidiaries in the ordinary
course and has agreed to certain other negative operating covenants, as set forth more fully in the
Merger Agreement. Cypress has also agreed not to solicit, initiate, knowingly encourage or
knowingly facilitate any third party acquisition proposals for Cypress and will not permit its
representatives to do so, and has agreed to restrictions on its and its representatives ability to
respond to any such proposals. The Merger Agreement also includes termination provisions for both
Cypress and Ramius and provides that, in connection with the termination of the Merger Agreement
under specified circumstances, Cypress will be required to pay to Ramius a termination fee of $5
million.
A copy of the Merger Agreement is attached as Exhibit 2.1 to this report and is incorporated herein
by reference. The foregoing description of the Merger Agreement does not purport to be complete and
is qualified in its entirety by reference to the Merger Agreement.
The Merger Agreement has been included to provide investors and stockholders with information
regarding its terms. It is not intended to provide any other factual information about Cypress,
Ramius, Royalty Pharma, or Purchaser. The representations, warranties and covenants contained in
the Merger Agreement were made only for the purposes of such agreement and as of specified dates,
were solely for the benefit of the parties to the Merger Agreement, and may be subject to
limitations agreed upon by such parties. The representations and warranties may have been made for
the purposes of allocating contractual risk between the parties to the Merger Agreement instead of
establishing these matters as facts, and may be subject to standards of materiality applicable to
the contracting parties that differ from those applicable to investors. Investors are not
third-party beneficiaries under the Merger Agreement. In addition, the assertions embodied in the
representations and warranties of Cypress are qualified by information contained in the
confidential disclosure schedules that Cypress delivered in connection with signing the Merger
Agreement as well as by information contained in Cypress reports publicly filed with the U.S.
Securities and Exchange Commission (SEC). Accordingly, investors and stockholders should not
rely on such representations and warranties as characterizations of the actual state of facts or
circumstances described therein. Moreover, information concerning the subject matter of such
representations and warranties may change after the date of the Merger Agreement, which subsequent
information may or may not be fully reflected in the parties public disclosures.
Amendment to Rights Plan
On December 14, 2010, Cypress entered into an amendment (the Rights Agreement Amendment) to
the Rights Agreement with American Stock Transfer & Trust Company, LLC, as rights agent, dated as
of September 27, 2010 (the Rights Agreement). The Rights Agreement Amendment amends the Rights
Agreement to allow the execution of the Merger Agreement and the performance and consummation of
the transactions contemplated by the Merger Agreement, including the Offer and Merger, without
triggering the separation or exercise of Cypress Rights or any adverse event under the Rights
Agreement. A copy of the Rights Agreement Amendment is attached hereto as Exhibit 4.1 and the
Rights Agreement is attached as Exhibit 4.2 to Cypress current report on Form 8-K filed with the
SEC on September 28, 2010. The foregoing description of the Rights Agreement and Rights Agreement
Amendment does not purport to be complete and is qualified in its entirety by reference to the
Rights Agreement and Rights Agreement Amendment.
Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth under the heading Amendment to Rights Plan under Item 1.01 of this
report is incorporated herein by reference.
Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
2.1 | Agreement and Plan of Merger, dated December 14, 2010, by and among Cypress Bioscience, Inc., Ramius Value and Opportunity Advisors LLC, Royalty Pharma US Partners, LP, Royalty Pharma US Partners 2008, LP, RP Investment Corp. and Ramius V&O Acquisition LLC. |
4.1 | Amendment No. 1 to Rights Agreement, dated December 14, 2010, by and among Cypress Bioscience, Inc. and American Stock Transfer & Trust Company, LLC, as rights agent. |
Additional Information and Where To Find It
The offer to buy shares of Cypress common stock will be made only pursuant to the offer to purchase
and related materials that Ramius and Royalty Pharma have filed with the SEC that will be amended.
Cypress stockholders and other investors should read these materials carefully because they contain
important information, including the terms and conditions of the offer. These materials and any
other documents filed by Ramius, Royalty Pharma or Cypress with the SEC may be obtained free of
charge at the SECs website at www.sec.gov and by contacting Cypress Investor Relations at
858-452-2323. In addition, investors and security holders will be able to obtain free copies of the
documents filed with the SEC on Cypress website at www.cypress.com. Investors and security holders
are urged to read the Schedule TO, as amended, and the Schedule 14D-9, as amended, and the other
relevant materials before making any investment decision with respect to the tender offer.
Safe Harbor for Forward-Looking Statements
Statements in this report that relate to future results and events are forward-looking statements
based on Cypress and Ramius and Royalty Pharmas current expectations regarding tender offer and
transactions contemplated by the Merger Agreement. Actual results and events in future periods may
differ materially from those expressed or implied by these forward-looking statements because of a
number of risks, uncertainties and other factors. There can be no assurances that a transaction
will be consummated. Other risks, uncertainties and assumptions include the possibility that
expected benefits may not materialize as expected; that the transaction may not be timely
completed, if at all; that, prior to the completion of the transaction, if at all, Cypress may not
satisfy one or more closing conditions and other risks that are described in Cypress Annual Report
on Form 10-K for the year ended December 31, 2009 and in its subsequent filings with the SEC.
Cypress does not undertake any obligation to update these forward-looking statements except to the
extent otherwise required by law.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
Cypress Bioscience, Inc. |
||||
Date: December 16, 2010 | /s/ Jay D. Kranzler | |||
Jay D. Kranzler | ||||
Chairman and Chief Executive Officer | ||||
EXHIBIT INDEX
Exhibit No. | Description | |
2.1
|
Agreement and Plan of Merger, dated December 14, 2010, by and among Cypress Bioscience, Inc., Ramius Value and Opportunity Advisors LLC, Royalty Pharma US Partners, LP, Royalty Pharma US Partners 2008, LP, RP Investment Corp. and Ramius V&O Acquisition LLC. | |
4.1
|
Amendment No. 1 to Rights Agreement, dated December 14, 2010, by and among Cypress Bioscience, Inc. and American Stock Transfer & Trust Company, LLC, as rights agent. |