Business Combination Agreement between Jerini AG Invalidenstrasse 130, 10115 Berlin, Germany ("Company") and Maia Elfte Vermögensverwaltungs-GmbH (zukünftig: Shire Deutschland Investments GmbH) Mainzer Landstr. 46, 60325 Frankfurt am Main Germany...
EXHIBIT
2.1
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Project
Juno
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Execution
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03
July 2008
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between
Jerini
AG
Xxxxxxxxxxxxxxxx
000, 00000 Xxxxxx, Xxxxxxx
("Company")
and
Maia
Elfte Vermögensverwaltungs-GmbH
(zukünftig:
Shire Deutschland Investments GmbH)
Mainzer
Xxxxxxx. 00, 00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
("Bidder")
(Bidder
and Company each also a "Party",
collectively the "Parties")
Execution
Version
03
July 2008
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2
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Project
Juno
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Execution
Version
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03
July 2008
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Table
of Contents
| Recitals |
5
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1
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Decision
to launch the Offer
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8
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2
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The
Offer
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9
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3
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Recommendation
of the Offer by the Company
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11
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4
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Stock
Options
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14
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5
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Financing
of the Offer
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15
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6
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Merger
Control Proceedings and Regulatory Requirements
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15
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7
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Business
Strategy and Corporate Governance Structure of Combined
Group
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16
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8
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Intentions
of the Bidder regarding possible Structural Measures
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18
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9
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Pipe
Investment
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18
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10
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Term,
Termination
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19
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11
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Miscellaneous
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20
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12
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Guarantor
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3
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Project
Juno
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Execution
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Defined
Terms
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Acceptance
Period
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9
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Issue
Price
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17
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Affiliates
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22
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Jerini
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6
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Announcement
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8
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JPT
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12
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Antitrust
Clearance
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10
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Major
Shareholders
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6
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BaFin
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9
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Major
Shareholders Irrevocable
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7
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Better
Offer
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13
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Management
Board
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5
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Bidder
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1
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Management
Irrevocables
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7
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Business
Combination
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7
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NDA
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7
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5
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New
Company Share
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5
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Business
Days
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23
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New
Company Shares
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5
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Company
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1
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Non-Icatibant
Assets
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16
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Company
Share
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5
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Offer
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7
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Company
Shares
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5
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Offer
Consideration
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9
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Competing
Offer
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13
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Offer
Document
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9
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Completion
of the Offer
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9
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Parties
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1
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Condition
Precedent
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11
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Party
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1
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Conditions
Precedent
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11
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Pipe
Capital Increase
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17
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CSA
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8
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Pipe
New Company Shares
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17
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Guarantor
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1
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Selected
Bidders
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7
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HAE
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6
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Share
Capital
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5
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HealthCap
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6
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Stock
Corporation Act
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13
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Stock
Option Consideration
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14
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Takeover
Act
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8
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Stock
Option Plans
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6
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Total
Offer Consideration
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9
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Stock
Options
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6
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TVM
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6
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Supervisory
Board
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5
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XxXX
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0
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Recitals
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A.
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The
Company is a German stock corporation (Aktiengesellschaft)
with its registered office in Berlin, registered with the commercial
register (Handelsregister) of the
local court (Amtsgericht) of
Charlottenburg, Berlin, Germany under registration number HRB 79648. As of
the date hereof, the registered share capital (Grundkapital) of the
Company amounts to EUR 52,534,705.00 ("Share Capital") and is
divided into 52,534,705 no par value ordinary bearer shares (Stückaktien), each
representing EUR 1.00 of the Share Capital (a notional value of
EUR 1.00) (each a "Company Share",
collectively the "Company
Shares"). The Company Shares are admitted to trading on the
Regulated Market Segment (Regulierter Markt) of
the Frankfurt Stock Exchange and the Prime Standard, a sub-segment of the
Regulated Market Segment with additional post-admission obligations, under
ISIN DE0006787476 (WKN 678747). The total amount of the Share Capital and
the total number of Company Shares may change after the date hereof due to
exercises of stock options, in which case the adjusted amount of the Share
Capital and the adjusted number of the Company Shares shall be the Share
Capital and the Company Shares, respectively, for purposes of this
business combination agreement ("Business Combination
Agreement"). Under the Company's Authorized Capital 2005/II, the
Company's management board (Vorstand) ("Management Board") is
authorized, subject to the Company's supervisory board's (Aufsichtsrat) ("Supervisory Board")
consent, to increase the Share Capital one or more times on or before 13
June 2012 by a nominal amount not exceeding EUR 26,213,135 by issuing
up to 26,213,135 new no par value ordinary bearer shares (Stückaktien) in
exchange for cash or non-cash contributions (each a "New Company Share",
collectively the "New Company Shares"). On 26
June 2008, the annual general meeting of the Company has resolved on the
alteration of the Authorized Capital 2005/II and authorizing the
Management Board, subject to the Supervisory Boards consent, to increase
the Share Capital one or more times on or before 26 June 2013 by a nominal
amount not exceeding EUR 26,267,352 by issuing up to 26,267,352 new
no par value ordinary bearer shares (Stückaktien) in
exchange for cash or non-cash contributions. Such resolution has not yet
been entered into the commercial register. In case of such alteration of
the Authorized Capital 2005/II becoming effective, the adjusted amount of
the New Company Shares shall be the New Company Shares, respectively, for
purposes of this Business Combination
Agreement.
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B.
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The
Company is the holding company of the Jerini group of companies, which
comprises Jerini US, Inc, JPT Peptide Technologies GmbH, JPT Peptide
Technologies Inc., Jerini Ophthalmic Holding GmbH, Jerini Ophthalmic Inc.;
Jerini Beteiligungen GmbH, Jerini
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6
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Project
Juno
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Business
Combination Agreement
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Execution
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03
July 2008
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Holding
Ltd. and Jerini Trading Ltd. ("Jerini"). Jerini is
engaged in drug discovery and development and currently focuses on the
marketing of its main drug icatibant, a drug for treatment of hereditary
angioedema ("HAE"). icatibant is in
the process of receiving European marketing
approval.
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C.
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The
Company has four stock option plans in place (stock option plans
2002/2003, 2005-I, 2005-II and 2006-I, collectively the "Stock Option Plans"),
and has issued certain stock options under the Stock Option Plans ("Stock
Options").
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D.
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According
to notifications and voluntary information submitted to the Company, TVM V
Life Science Ventures GmbH & Co. KG, Munich, registered with the
commercial register (Handelsregister) of the
local court (Amtsgericht) of Munich
under registration number HRA 78109, ("TVM") is holding
7,777,210 Company Shares, corresponding presently to approximately
14.80 % of the Share Capital and of the voting rights.
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E.
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According
to notifications and voluntary information submitted to the Company,
various HealthCap Companies (Company Shares held, controlled and/or
managed by HealthCap IV GP AB, HealthCap IV KB, HealthCap IV LP, HealthCap
IV Bis LP, HealthCap IV GP SA, OFCO Club IV, Odlander Xxxxxxxxxx & Co.
AB) ("HealthCap"
and together with TVM the "Major Shareholders") are
holding a total of 8,586,872 Company Shares, corresponding presently to
approximately 16.35 % of the Share Capital and of the voting
rights.
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F.
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The
Bidder is a limited liability company (Gesellschaft mit beschränkter
Haftung) with its registered office at Xxxxxxx Xxxxxxxxxxx 00,
00000 Xxxxxxxxx xx Xxxx, registered with the commercial register (Handelsregister) of the
local court (Amtsgericht) in
Frankfurt am Main, under registration number HRB 83326. The Bidder was set
up as acquisition vehicle for the purposes of the Offer. It does not have
any business activities prior to the siging of this Business Combination
Agreement. The Bidder is an indirect subsidiary of and the Bidder's shares
are ultimately held by Shire Limited, registered in Jersey, no. 99854, 00
Xxxxxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX with its corporate office in
Xxxxxxxxxxx, Xxxxxxxxx XX00 0XX, Xxxxxx Xxxxxxx ("Shire Limited"). The
Bidder's share capital amounts to Euro 25,000. Its parent companies have
taken all necessary actions and Shire Limited confirms that Bidder will
have sufficient funds and other resources to perform its obligations under
this Business Combination Agreement, in particular to subscribe the Pipe
New Company Shares. References in this document to the Bidder shall be
deemed to include any wholly owned subsidiary of the Bidder which the
Bidder may request to perform its obligations under this Business
Combination Agreement.
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G.
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The
Company has set up a process allowing selected potential bidders to
conduct a due diligence with respect to the Company and to submit their
indications of interest with
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7
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Project
Juno
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Business
Combination Agreement
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Execution
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03
July 2008
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| regard to a possible acquisition of the Company by way of a tender offer (such selected bidders together the "Selected Bidders"). The Bidder is one of the Selected Bidders and signed a confidentiality agreement including a standstill undertaking on 27 May 2008 ("NDA") and was granted access to the electronic data room of the Company in the period from 29 May 2008 to 03 July 2008. | |
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H.
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The
Parties intend to combine their business operations by way of a strategic
business combination ("Business Combination").
The Parties have jointly considered various approaches and transaction
structures to effect the Business Combination and have mutually agreed
that the most desirable transaction structure having regard to the
interests of both the Company and the Bidder and their respective
shareholders is an acquisition of the Company by the Bidder through an
offer by Bidder to the shareholders of the Company to purchase all
outstanding Company Shares against payment of a cash consideration in Euro
("Offer"). This
Business Combination Agreement sets forth the
principal terms and the mutual understanding of the Parties with respect
to the Business Combination, the transaction structure and the future
organisational structure of the combined
group.
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I.
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Prior
to this Business Combination Agreement, the Major Shareholders executed
conditional sale and purchase agreements in respect of all Company Shares
held by them ("Major
Shareholders SPAs"). Prior to this Business Combination Agreement,
at least three of the other shareholders executed conditional sale and
purchase agreements in respect of all Company Shares held by them. It is
acknowledged that upon completion of the Major Shareholders SPAs, the
Bidder will acquire control of the Company within the meaning of Section
35 Takeover Act.
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J.
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Prior
to this Business Combination Agreement, certain members of (i) the
Management Board and (ii) the Supervisory Board have entered into a
conditional sale and purchase agreement with respect to Company Shares
held by the members of the Management Board or the Supervisory Board,
respectively ("Management
SpAs"). The Offer Document may provide that members of the
Management Board or Supervisory Board will be deemed to be a person acting
jointly with the Bidder pursuant to Section 2 para. 5 Takeover Act (as
defined below) and, therefore, such Management Board or Supervisory Board
Members from the date of this Business Combination Agreement, and until
the lapse of one (1) year after the publication pursuant to Section 23
para. 2 sentence 1, 2 Takeover Act, unless otherwise agreed between the
Parties in writing, shall not acquire or agree to acquire, directly or
indirectly, any Company Shares or any rights, including voting rights,
under any Company Shares for a consideration exceeding the Offer
Consideration.
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K.
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The
Bidder is willing to fund the operations of the Company as set out in
Section 9 by subscribing New Company Shares issued to Bidder out of
existing authorized capital by
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8
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Project
Juno
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Business
Combination Agreement
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Execution
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03
July 2008
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| excluding the subscription rights (Bezugsrechtsausschluss) of the outstanding shareholders. | |
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L.
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Affiliates
of the Bidder are willing to assist the Company in the commercialization
of its product icatibant via a commercialization services agreement
substantially in the form set out at Exhibit L
("CSA"). The
purpose of the CSA is to provide the Company with an extra resource in its
commercialization efforts and ensure that to the extent legally permitted
decisions made relating to such commercialization are agreed between the
Company and the Bidder.
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M.
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Prior
to the signing of this Business Combination Agreement and after due
consideration, the Management Board and the Supervisory Board have
determined that the proposed Business Combination and the post-transaction
strategy to be implemented on the terms set out in this Business
Combination Agreement and the CSA are likely to benefit the Company and
are therefore in the best interests of the Company's shareholders,
employees and customers.
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N.
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Each
of the Bidder and the Company has received all necessary internal consents
and approvals to execute this Business Combination
Agreement.
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Therefore,
the Parties hereby agree as follows:
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1
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Decision
to launch the Offer
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1.1
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Immediately
following the signing of this Business Combination Agreement by both
Parties, the Bidder will publish its decision to launch the Offer ("Announcement") in
accordance with Section 10 para. 1 sentence 1, para. 3 of the German
Securities Acquisition and Takeover Act (Wertpapiererwerbs- und
Übernahmegesetz, WPÜG ("Takeover Act")),
including, for the avoidance of doubt, an announcement of the Offer
Consideration (as defined below).
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1.2
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Immediately
following the signing of this Business Combination Agreement and the
publication of the Announcement as set out in Section 1.1 above, the Company and the Bidder or any of
the Bidder's Affiliates shall issue press releases as set forth in Exhibit 1.2 and the
Company shall issue an ad-hoc release in accordance with Section 15 of the
Securities Dealing Act (Wertpapierhandelsgesetz – WpHG
("WpHG"))
to the effect that in the opinion of the Management Board a strategic
business combination between the Company and the Bidder is in the best
interest of the Company, and that therefore the
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Project
Juno
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Business
Combination Agreement
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Execution
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03
July 2008
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| Management Board welcomes the Offer and intends to recommend the acceptance of the Offer by the shareholders within its opinion pursuant to Section 27 Takeover Act. | |
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1.3
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The
wording of publications or announcements, including any publication or
announcement pursuant to Section 1.1 through 1.2 above, and any other
press releases in connection with this Business Combination Agreement or
the Offer shall be, to the extent reasonably practicable, agreed between
the Parties in advance. For the avoidance of doubt, this shall not apply
to notifications or other publications to be made by the Bidder in
accordance with applicable law or
regulations.
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2
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The
Offer
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2.1
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Within
the statutory time period of Section 14 para. 1 Takeover Act, the Bidder
shall (i) prepare an offer document in accordance with the Takeover Act
("Offer
Document"), and (ii) submit the Offer Document to the German
Federal Financial Supervisory Authority (Bundesanstalt für
Finanzdienstleistungsaufsicht, "BaFin").
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2.2
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The
Bidder shall offer the shareholders of the Company a consideration (Gegenleistung) in the
amount of Euro 6.25 (in words: six Euro and twenty-five cents) per Company
Share (subject to increases of such consideration until the Offer will be
completed ("Completion of
the Offer") either on a voluntary basis or pursuant to provisions
of the Takeover Act) ("Offer Consideration").
"Total Offer Consideration"
shall be the Offer Consideration including (i) any voluntary or mandatory
increases by the Bidder, if any, and (ii) claims pursuant to the Takeover
Act, in particular pursuant to Section 31 para. 5 Takeover Act, if
any.
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2.3
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The
Bidder shall prepare and publish the Offer Document in accordance with the
terms of this Business Combination Agreement and the Takeover Act in close
cooperation and consultation with the Company and its advisors. To the
extent reasonably practicable the Bidder and the Company agree to consult
with each other in advance of any meeting with, or making of any filing to
BaFin, and to give the respective other Party the opportunity to attend
those meetings, and to review and comment upon any such filing. In
particular, the Bidder will give the Company and its advisors the
opportunity to review and comment upon the Offer Document (including any
drafts of the Offer Document) prior to submitting the Offer Document (or
its drafts, respectively) to BaFin.
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2.4
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The
Bidder will publish the Offer Document without undue delay (ohne schuldhaftes
Zögern) in accordance with Section 14 para. 2 Takeover Act after
approval of the Offer Document by
BaFin.
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Project
Juno
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Business
Combination Agreement
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Execution
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03
July 2008
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2.5
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The
time period for the acceptance of the Offer (Annahmefrist) pursuant
to Section 16 para. 1 Takeover Act shall, without prejudice to the
provisions of Section 16 para. 3, 21 para. 5 and 22 para. 2
Takeover Act, not exceed 6 weeks ("Acceptance Period") The
further acceptance period (weitere Annahmefrist)
shall be two weeks in accordance with Section 16 para. 2 Takeover
Act.
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2.6
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The
Offer will solely (ausschließlich) be made
subject to the following conditions precedent (aufschiebende
Bedingungen):
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2.6.1
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the
merger control clearances under the applicable merger control rules of
Germany and the United States of America shall have been obtained or shall
be deemed to have been obtained, e.g. because of the lapse of waiting
periods or because of jurisdiction has been declined ("Antitrust
Clearance");
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2.6.2
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the
Company has not breached any of the covenants listed in Section
3.1;
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2.6.3
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from
the date of this Business Combination Agreement until the time of
expiration of the Acceptance Period, no defensive measures within the
scope of Section 33 Takeover Act have been taken by the Company, including
for the avoidance of doubt, the convening of any general meeting of the
Company in connection with the
Offer;
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2.6.4
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confirmation
by the Company's management board, on the second banking day preceding the
day on which the Acceptance Period expires, according to
which
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(a)
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insolvency
or similar proceedings have not been commenced or filed for in respect of
the Company or any of its Affiliates;
and
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(b)
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the
management board is not aware of any such filings by a third party in
respect of the Company or any of its
Affiliates;
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2.6.5
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until
the second banking day preceding the day on which the Acceptance Period
expires, the Company has not published a notice pursuant to Section 15
WpHG or events have occurred which would require, for the avoidance of
doubt ignoring the fact that the Offer is outstanding and influences the
share price and the possibility to make use of the exemption pursuant to
Section 15 para. 3 WpHG the Company to publish such a notice to the effect
that the supply of icatibant by Bachem AG or of pre-filled syringes
by-Xxxxxxxxxx Biotechnologie GmbH is expected to be suspended for more
than six months.
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2.6.6
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(i)
icatibant has received marketing authorization from the European Medicines
Agency (EMEA) Commission consistent in all material respects with
the
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Project
Juno
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Business
Combination Agreement
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Execution
Version
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03
July 2008
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| summary of product characteristics, including for the avoidance of doubt the identical indication set forth in Exhibit 2.6.6, (ii) the approved product label for icatibant has remained consistent in all material respects with the summary of product characteristics set forth in Exhibit 2.6.6 and (iii) the marketing approval for icatibant has not been withdrawn or suspended. |
Section
2.6.1 through 2.6.6 each a "Condition Precedent" and
collectively the "Conditions
Precedent".
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2.7
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The
Offer shall provide for a clause stipulating that the Offer fails if the
Antitrust Clearance has not been obtained pursuant to Section 2.6.1 within
one (1) month after lapse of the Further Acceptance Period or such longer
period required by BaFin.
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2.8
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The
Bidder shall have the right to waive non-compliance with any or all of the
conditions precedent other than the Condition Precedent with respect to
Antitrust Clearance.
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2.9
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2.10
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The
Parties agree that as far as insider information has been disclosed to the
Bidder prior to the signing of this Business Combination Agreement or
prior to publication of the Offer Document, the Company shall publish such
insider information immediately after the signing of this Business
Combination Agreement and prior to the subscription of New Company Shares
in the Pipe Capital Increase or prior to the publication of the Offer
Document if legally required to launch the Offer, as the case may be. The
Company affirms that until the date of signing of this Business
Combination Agreement, the Company presently does not make use of any
exemptions from the obligation to make an ad hoc-announcement
pursuant to section 15 para 3 WpHG, except for (i) any agreements between
the Bidder and the Company or in relation to and including, the Offer,
(ii) negotiations with Selected Bidders regarding a possible transaction,
(iii) the plan to conduct a rights issue and (iv) the plan to obtain a
royalty secured financing, such exemptions will become moot upon
Announcement because the contemplated projects come to an
end.
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3
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Recommendation
of the Offer by the Company
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3.1
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After
execution of this Business Combination Agreement and until the earlier of
(i) the expiration of the extended acceptance period (weitere Annahmefrist)
pursuant to Section 16 para. 2 Takeover Act, if any, or (ii) the
termination or withdrawal of the Offer (Scheitern des
Angebots), the Company shall to the extent permissible by
applicable law
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Project
Juno
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Business
Combination Agreement
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Execution
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July 2008
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| not engage in any actions which are capable of preventing the success of the Offer, in particular the Company shall, to the extent permissible by applicable law, not |
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3.1.1
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solicit
directly or indirectly for competing offers (konkurrierende
Angebote); or
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3.1.2
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provide
third parties, for the avoidance of doubt including Selected Bidders,
which are considering a competing offer (konkurrierendes
Angebot) with confidential information or to grant access to
confidential information including but not limited to the data room of the
Company; or
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3.1.3
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subject
to Section 9 below and with the exception for (i) the issuance of shares
out of conditional capital on grounds of the exercise of stock options,
(ii) the filing with, and registration in, the commercial register (Handelsregister) of the
shareholders' resolutions adopted by the shareholders' meeting on
26 June 2008 and (iii) the domination and profit transfer agreements
(Beherrschungs- und
Gewinnabführungsvertrag) concluded with Jerini Ophthalmic Holding
GmbH and Jerini Beteiligungen GmbH on 09 May 2008 and approved by the
Company's shareholders meeting on 26 June 2008, increase or reduce the
Share Capital (including increases of the conditional capital (bedingtes Kapital)
and/or authorized capital (genehmigtes Kapital),
if any) or repurchase or redeem (einziehen) any of the
Company Shares, issue any bonds (Schuldverschreibungen),
including, without limitation, bonds, providing for conversion rights
(Wandlungsrechte)
or subscription rights (Bezugsrechte) or option
rights (Optionsrechte); enter
into any enterprise agreements (Unternehmensverträge)
involving the Company as the controlled entity;
or
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3.1.4
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enter
into any collaboration, licensing or partnership, joint venture or similar
agreement or arrangement with any third party regarding icatibant or any
other of the Jerini's drug candidates;
or
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3.1.5
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save
as provided in Section 3.2, sell any material assets of the Company or
its subsidiaries, including intellectual property rights;
or
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3.1.6
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enter
into any financing agreements; or
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3.1.7
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take
defensive measures within the scope of Section 33 Takeover Act, including
for the avoidance of doubt, the convening of any general meeting of the
Company in connection with the
Offer.
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3.2
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After
the execution of this Business Combination Agreement the Company shall
operate its business in the ordinary course of business in accordance with
past practice, the approved business plan and budget, unless otherwise
provided for in this Business
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Project
Juno
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Business
Combination Agreement
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Execution
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03
July 2008
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| Combination Agreement. For the avoidance of doubt, nothing in this Business Combination Agreement shall prevent the Company from paying pre-agreed boni, including transaction boni, to employees or promote employees in the ordinary course of business, the current total bonus pool, planned promotions and related salary increases are set forth in Exhibit 3.2. | |
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3.3
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The
Company may sell JPT Peptide Technologies GmbH and its subsidiary ("JPT") provided
that any sale shall be in close cooperation and consultation with the
Bidder and its advisors. To the extent reasonably practicable, the Company
agrees to consult with the Bidder in advance of any meeting with, or
agreeing to any document with a potential buyer of JPT and to give the
Bidder the opportunity to attend those meetings, and to review and comment
upon any such document.
|
|
3.4
|
The
Management Board shall in its statement required pursuant to Section 27
Takeover Act confirm, to the extent permissible under applicable law, that
in its opinion (i) the Offer is in the best interest of the Company, and
(ii) the Offer Consideration is fair and reasonable, and that, therefore,
the Management Board (x) supports the Offer to the extent permissible by
applicable law and (y) recommends the shareholders of the Company to
accept the Offer, each of (i) and (ii) subject to
|
|
|
3.4.1
|
the
Offer being launched on financial terms and with conditions precedent no
less favorable to the Company and to the Company's shareholders than set
out in this Business Combination
Agreement;
|
|
|
3.4.2
|
the
intentions of the Bidder as set forth in the Offer Documents do not
materially deviate from the agreements pursuant to this Business
Combination Agreement;
|
|
|
3.4.3
|
no
Better Offer (as defined in Section 3.5 below) having been launched
;
|
|
|
3.4.4
|
no
other circumstances are existing that would cause the Management Board to
violate its duties under applicable law, in particular, its fiduciary
duties and obligations under German law, including the duty of care and
loyalty pursuant to Section 93 of the German Stock Corporation Act (Aktiengesetz, AktG –
"Stock Corporation
Act") by supporting and recommending the
Offer.
|
|
3.5
|
If a
third party launches a competing offer (konkurrierendes
Angebot) pursuant to Section 22 para. 1 Takeover Act with
respect to the Company ("Competing Offer"), the
Management Board shall not recommend such Competing Offer to the Company's
shareholders, unless the Management Board in its reasonable judgment
determines that such Competing Offer is more favorable to the shareholders
of the Company than the Offer (in particular the Competing Offer may be
judged a more favorable offer if it offers a
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14
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Project
Juno
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Business
Combination Agreement
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|
Execution
Version
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03
July 2008
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| consideration (Gegenleistung) exceeding the Total Offer Consideration but provides for the same or fewer conditions precedent (aufschiebende Bedingungen)) after thorough consideration of all facts and impacts and diligent and comprehensive discussions with the Bidder ("Better Offer"). The Management Board shall without undue delay (ohne schuldhaftes Zögern) inform the Bidder in writing if it has determined a Competing Offer to be a Better Offer. If the Bidder, within seven Business Days after having received such written notice from the Management Board, amends the Offer in accordance with Section 21 Takeover Act in a way that the Management Board, in its reasonable judgment, determines that the Competing Offer is no longer a Better Offer, then the Management Board will re-affirm its recommendation of the Offer by way of public announcement to the extent permissible by applicable law. If the Bidder fails to amend the Offer in accordance with Section 21 Takeover Act, the Management Board may at its sole discretion support and recommend the Better Offer. | |
|
3.6
|
If
one of the Selected Bidders launches a Competing Offer, the Management
Board, to the extent permissible under applicable law, shall not recommend
such Competing Offer to the Company's shareholders; if however, the
Management Board considers a Competing Offer to be a Better Offer, the
provisions in Section 3.5 shall apply
accordingly. The Company shall upon request by the Bidder disclose whether
a Competing Offer has been launched by a Selected
Bidder.
|
|
4
|
Stock
Options
|
The Bidder
herewith undertakes towards the Company, and to the benefit of each holder of
Stock Options (Section 328 para. 1 of the German Civil Code), that,
upon request of the Company (which the Bidder undertakes not to prevent and
undertakes to procure that it not be prevented by Supervisory Board Members
appointed by the Bidder), it shall offer to each holder of Stock Options to pay
a cash compensation for each Stock Option which has not been forfeited or
terminated, irrespective of whether it has vested or the waiting period has
expired, equal to the Total Offer Consideration less the respective
strike price of the Stock Option as determined in accordance with the respective
Stock Option Plan ("Stock
Option Consideration"), subject to the only conditions that (i) the
respective holder of Stock Options waives the Stock Options to the benefit of
the Company (Section 328 para. 1 of the German Civil Code), such
waiver becoming effective upon receipt of the Stock Option Consideration by the
respective holder of Stock Options and (ii) the Completion of the Offer occurs,
it being understood that the holders of Stock Options shall not be obliged to
accept such offer and (iii) the number of Stock Options does not exceed
3,374,169 on the date of this Business Combination Agreement as listed in Exhibit 4 attached hereto.
The Company undertakes not to grant any additional stock options after execution
of this Business Combination Agreement by both Parties.
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15
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Project
Juno
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Business
Combination Agreement
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Execution
Version
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03
July 2008
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5
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Financing
of the Offer
|
Bidder
hereby expressly confirms that he has at his disposal the means necessary to buy
all Company Shares not held by it at the Offer at the time when the Offer
becomes due and payable (fällig) and that a bank will
issue the financing confirmation as required by Section 13 of the Takeover
Act.
|
6
|
Merger
Control Proceedings and Regulatory
Requirements
|
|
6.1
|
The
Bidder shall be responsible for obtaining the Antitrust Clearance and
shall take all reasonable actions necessary to prepare and to make the
filings for the Antitrust Clearance and to furnish all information
reasonably required in connection therewith without undue delay (ohne schuldhaftes
Zögern) after publication of the Offer pursuant to Section 10
Takeover Act. To the extent legally required, the Bidder shall make any
such filings on behalf of all parties involved (except to the extent not
permitted under applicable law). Any such filing shall require the prior
consultation with the Company. The Company undertakes to co-operate with
Bidder in providing all reasonably required information and to assist in
any such filings and the Antitrust Clearance proceedings and the Company
will make all necessary company filings in the United States within the
statutory time frames.
|
|
6.2
|
The
Bidder and the Company shall be obliged to make all filings with BaFin
necessary to consummate the Offer within the statutory periods of
time.
|
|
6.3
|
In
order to obtain all requisite governmental, regulatory or other necessary
clearances or approvals for the Completion of the Offer and the completion
of the transactions contemplated by this Business Combination Agreement,
the Bidder and the Company shall (i) reasonably co-operate in all respects
with each other in preparation of any filing or notification and in
connection with any submission, investigation or inquiry, (ii) supply to
any competent authority without undue delay (ohne schuldhaftes
Zögern) any additional information requested pursuant to any
applicable laws and take all other reasonable procedural actions required
in order to obtain any necessary approval or clearance and to cause any
applicable waiting periods to commence and expire, (iii) provide each
other with copies of any substantial written communication (or keep each
other promptly informed of any substantial oral communication) in
connection with any proceedings without undue delay (ohne schuldhaftes
Zögern), (iv) contact any competent authority only after
consultation with the respective other Party, and (v) inform each other in
advance in writing without undue delay (ohne schuldhaftes
Zögern) of the time and place of any meetings and conferences with
the competent authorities and give each other and their respective
advisors the opportunity to participate in all such meetings or
conferences.
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16
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Project
Juno
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Business
Combination Agreement
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Execution
Version
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03
July 2008
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7
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Business
Strategy and Corporate Governance Structure of Combined
Group
|
|
7.1
|
Corporate
Governance Structure of Jerini after Completion of the
Offer
|
|
|
7.1.1
|
The
Company shall remain in existence as a separate legal entity with its
corporate seat in Berlin and shall continue to exist as an operating
company until a squeeze-out of the remaining
shareholders.
|
|
|
7.1.2
|
The
Company shall use its best reasonable efforts
that
|
|
|
(a)
|
the
Supervisory Board members as identified in Exhibit 7.1.2(a) attached
hereto upon the date the Bidder acquires more than 50% of the Share
Capital and
|
|
|
(b)
|
the
Supervisory Board members as identified in Exhibit 7.1.2(b) attached
hereto upon the date of Completion of the
Offer
|
shall (i)
resign with effect as of the earliest respectively legally possible withdrawal
date, and (ii) the Management Board of the Company shall use its best efforts to
appoint Supervisory Board members as recommended by the Bidder as the new
majority shareholder.
|
|
7.1.3
|
Following
acquisition of more than 50% of the share capital of the Company by the
Bidder the members of the Management Board intend to terminate their
respective service agreements pursuant to Section 3 para 3 of
the respective service agreement with effect as from the next possible
termination date. The Bidder shall procure to the extent legally permitted
that the Company accepts such termination and complies with the terms of
the service agreements on termination, in particular, that the Company
pays the compensation payable pursuant to Section 3 para 4 of the
respective service agreement. The Bidder shall not, and the Bidder shall
procure that neither any of its Affiliates nor the Company, make use of
the right to avoid termination pursuant to Section 3 para. 3
second sentence of the respective service
agreement.
|
|
7.2
|
Business
Strategy for Jerini after Completion of the
Offer
|
To the
extent legally permitted and subject to the rights and duties of their corporate
bodies, following the Completion of the Offer the Bidder and the Company shall
take all steps necessary to implement the following strategy for
Jerini:
|
|
7.2.1
|
icatibant
as treatment for HAE shall be marketed in Europe. The Bidder and its
parent shall support reasonable efforts undertaken by the Company to
achieve
|
|
17
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Project
Juno
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Business
Combination Agreement
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|
Execution
Version
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03
July 2008
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| marketing approval of icatibant as treatment for HAE in the United States and to commercialize icatibant in the United States. | ||
|
|
7.2.2
|
Following
Completion of the Offer, the Bidder and Company shall conduct a review of
the assets and programs of the Company not directly or indirectly related
to icatibant ("Non-Icatibant Assets"). This review will determine first
whether, and if so, how the Non-Icatibant Assets are to be integrated into
the Bidder’s strategy and structure. For those Non-Icatibant Assets deemed
strategic following the review, an appropriate support and integration
plan will be determined. For those Non-Icatibant Assets deemed
non-strategic, the Company will seek to divest, partner or otherwise deal
with such assets. The Company will consider in good faith any reasonable,
fair market offers, including any offers from the Management of the
Company , to acquire, partner or otherwise deal with the non-strategic
Non-Icatibant Assets, or any part of such assets. For purposes of clarity,
nothing in this Business Combination Agreement shall obligate the Company
or the Bidder to sell, dispose, partner or otherwise deal with the
strategic or non-strategic Non-Icatibant Assets, or any part of them, with
the current Management of the Company or any other third party and such
sale, disposal, partnering or other dealing shall, at all times, be at the
sole discretion of the Company.
|
|
7.3
|
Following
Completion of the Offer, and in conjunction with the process of Section
7.2.2, Bidder and Company shall determine a plan for each of the Company's
employees. Employees will be treated fairly and informed of any plans in a
timely manner. To the extent Non-Icatibant Assets are divested or
partnered, Bidder and Company will make reasonable efforts to enable
employees working with those Non-Icatibant Assets to transfer to the
acquiring or partnering entity, while complying with all relevant
legislation. To the extent that Non-Icatibant Assets are discontinued or
it is not possible for employees to transfer as part of any divestment or
partnership, the Company shall provide employees associated with those
programs reasonable notice periods and severance agreements which shall
provide for a severance of one (1) month salary for each year of
employment of the respective employee with the Company, but at least an
amount equal to the salary for six
months.
|
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18
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Project
Juno
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Business
Combination Agreement
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|
Execution
Version
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03
July 2008
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8
|
Intentions
of the Bidder regarding possible Structural
Measures
|
|
8.1
|
If
and when the Bidder holds at least 95% of the Share Capital, the Bidder
will consider, at its sole discretion, a mandatory buy-out of the
remaining shareholders by way of a squeeze-out pursuant to Sections 327a
et seq. of the
Stock Corporation Act or by applying for a court order in accordance with
Sections 39a et
seq. of the Takeover Act (Squeeze
Out).
|
|
8.2
|
The
Bidder will consider at its discretion if and when to enter into a
domination and/or profit and loss transfer agreement (Beherrschungs- und/oder
Ergebnisabführungsvertrag) pursuant to Sections 291 et seq. of the Stock
Corporation Act with the Company as controlled company. The Company shall
support the Bidder in implementing such
agreement.
|
|
8.3
|
The
Parties agree that any of the measures described in this Section 8
will be taken in accordance with the requirements of applicable
law.
|
|
9
|
Pipe
Investment
|
|
9.1
|
On
the date of this Business Combination Agreement the Company shall adopt a
resolution to issue 5,229,747 New Company Shares out of the Authorized
Capital 2005/II without pre-emption rights ("Pipe New Company
Shares") and offer such Pipe New Company Shares for subscription to
the Bidder at a subscription price of EUR 4.00 in cash ("Issue Price"). Bidder
and its Affiliates hereby affirm and guarantee that neither of them holds
title to any shares in the Company at the date of this Business
Combination Agreement. The proceeds from the capital increase shall fund
the operations of the Company until the Completion of the Offer ("Pipe Capital
Increase").
|
|
9.2
|
Immediately
following the adoption of the resolutions necessary to implement the Pipe
Capital Increase, the Bidder shall subscribe the Pipe New Company Shares
at the Issue Price and pay the total Issue Price in cash and in full into
the capital increase account of the Company. This obligation of the Bidder
to subscribe the New Company Shares and the subscription itself shall
lapse if the Pipe Capital Increase has not been registered with the
commercial register by the end of 31 December
2008.
|
|
9.3
|
The
Pipe Capital Increase shall be registered as quickly as practically
possible after subscription of the Pipe New Company Shares and payment of
the total Issue Price by the Bidder. The Pipe New Company Shares shall be
admitted to trading on the Regulated Market Segment of the Frankfurt Stock
Exchange in the Prime Standard
Segment.
|
|
19
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Project
Juno
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Business
Combination Agreement
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|
Execution
Version
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03
July 2008
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9.4
|
The
Pipe Capital Increase shall be published together with the Announcement
pursuant to Section 1.1.
|
|
10
|
Term,
Termination
|
|
10.1
|
This
Business Combination Agreement shall continue to be in full force and
effect for a period of three (3) years commencing upon the execution of
this Business Combination
Agreement.
|
|
10.2
|
This
Business Combination Agreement may only be
terminated
|
|
|
10.2.1
|
by
mutual written consent of the
Parties;
|
|
|
10.2.2
|
by
the Company if
|
|
|
(a)
|
the
Bidder has not published the Offer Document (i) by 22 August 2008 or (ii),
if the Bidder has submitted the Offer Document to BaFin for approval prior
to 08 August 2008, within three Business Days following the approval
by BaFin; or
|
|
|
(b)
|
the
consideration (Gegenleistung) offered
in the Offer is lower than the Offer Consideration stipulated in Section
2.2; or
|
|
|
(c)
|
the
Conditions Precedent as set forth in Section 2.6 above have been changed
or amended (it being understood that editorial changes (redaktionelle
Änderungen) or changes or amendments mutually agreed upon by the
Parties shall be permissible) in the Offer or new condition precedents
have been added, it being understood that this shall not apply if (i)
changes or amendments have been requested or recommended by BaFin or other
public authorities, if any, or (ii) Offer Conditions have been waived;
or
|
|
|
(d)
|
the
intentions of the Bidder as set forth in the Offer Documents materially
deviate from the agreements pursuant to this Business Combination
Agreement; or
|
|
|
(e)
|
a
Better Offer is launched and published pursuant to Section 14.2
para. 2 sentence 1 Takeover Act by a third party and the Bidder fails
to modify the Offer in accordance with Section 3.5 so as to match or
surpass the terms of the Better Offer;
or
|
|
|
(f)
|
the
Bidder has not signed the subscription certificate regarding the Pipe Capital
Increase and/or has not paid the aggregate Issue Price in the capital
|
|
20
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Project
Juno
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|
Business
Combination Agreement
|
|
Execution
Version
|
|
03
July 2008
|
| increase account specified by the Company by 11 July 2008 in accordance with the terms agreed in this Business Combination Agreement, provided that the Company adopted all resolutions and took any action necessary to effect the Pipe Capital Increase. | ||
|
|
(g)
|
the
Bidder has not submitted the offer to holders of Stock Options pursuant to
Section 4 above within one month after Completion of the Offer at the
latest.
|
|
|
10.2.3
|
By
the Bidder, if
|
|
|
(a)
|
a
third party launches a Better Offer;
or
|
|
|
(b)
|
any
of the Conditions Precedent as provided for in Section 2.6 becomes
incapable of being satisfied and the Bidder decides not to waive the
requirement of satisfaction of such
condition.
|
|
|
(c)
|
the
Management Board does not recommend the Offer and breaches thereby its
obligations under Section 3.
|
|
10.3
|
Any
termination must be notified to the other Party in writing and must be
made within five (5) Business Days after the terminating Party becoming
aware of the event giving rise to the termination right. In the event of
termination of this Business Combination Agreement this Business
Combination Agreement, shall have no further effect with the exception of
Sections 11.2, 11.3, 11.4, 11.5, 11.7, 11.8, 11.9, 11.11,
11.12.
|
|
11
|
Miscellaneous
|
|
11.1
|
General
Cooperation
|
|
|
11.1.1
|
Without
prejudicing any of the foregoing the Parties shall exercise reasonable
commercial efforts to complete the transactions contemplated by this
Business Combination Agreement and shall, in particular, to the extent
reasonable necessary to so complete such transactions (i) conclude all
further agreements, and (ii) exchange all
information.
|
|
|
11.1.2
|
The
Company shall inform the Bidder without undue delay (ohne schuldhaftes
Zögern) about any facts, actions and/or intentions which may be
relevant for the Bidder when considering the Offer, including, but not
limited to, information (i) relevant for satisfaction or triggering of,
any of the Conditions Precedent, (ii) about recent developments, (iii)
relevant for the purpose of integration planning, or (iv) about regulatory
or other material business issues of the Company, it being
|
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21
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Project
Juno
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Business
Combination Agreement
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|
Execution
Version
|
|
03
July 2008
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| understood that, for the avoidance of doubt, any breach of Company's obligation under this Section 11.1.2 shall not entitle Bidder to terminate this Business Combination Agreement. |
|
11.2
|
Notices
|
All
notices and other communications hereunder shall be made in writing in the
English language and delivered by hand, by registered mail, courier or by
telefax (provided that the telecopy is promptly confirmed in writing) to the
persons at the addresses set forth below, or such other person or address as may
be designated by the respective Party to the other Party in the future in
writing:
If to the
Bidder, to:
Maia Elfte
Vermögensverwaltungs-GmbH
(zukünftig:
Shire Deutschland Investments GmbH)
Mainzer
Xxxxxxx. 00
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
Fax x00
(0) 0000 000 000
|
22
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Project
Juno
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Business
Combination Agreement
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|
Execution
Version
|
|
03
July 2008
|
with a
copy to:
Shire
Limited
Attn.:
General Counsel
Xxxxxxxxx
Xxxxxxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxxxxx
XX00
0XX
Fax: x00
0000 000000
If to the
Company, to:
Jerini
AG
Attn.:
Xxxxxx X. Xxxxx
Xxxxxxxxxxxxxxx
000
00000
Xxxxxx
Xxxxxxx
Fax: x00
(0) 00 00000-000
with a
copy to:
Hengeler
Xxxxxxx
Attn.: Xx.
Xxxxx Xxxxx
Xxxxxxxxxxxxxx
0-00
X-00000
Xxxxxx
Xxxxxxx
Fax: x00
(0) 00 000000-000
|
11.3
|
Confidentiality;
Public Announcements
|
|
|
11.3.1
|
The
Parties agree to keep the content of this Business Combination Agreement
and any information in connection with the transaction confidential to the
extent and as long as such content has not been made public in connection
with the Offer, e.g. as part of the Announcement or the Offer Document.
|
|
|
11.3.2
|
The
NDA shall remain in full force and effect in accordance with its terms.
Consent of the Company according to Section 13 of the NDA is hereby
granted in relation to any acquisitions (or agreements on acquisitions) of
Company Shares made by (or entered into) by the Bidder and/or any of its
Affiliates.
|
|
|
11.3.3
|
Except
as required by applicable law, court process or by obligations pursuant to
any listing agreement with any national securities exchange, neither Party
will issue a press release or any other public statement with respect to
the transactions
|
|
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Project
Juno
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Business
Combination Agreement
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|
Execution
Version
|
|
03
July 2008
|
| contemplated by this Business Combination Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld. |
|
11.4
|
In
this Business Combination Agreement "Affiliates" shall mean
any individual persons or legal entities who or which are affiliated
(verbundene
Unternehmen) within the meaning of Section 15 Stock Corporation
Act.
|
|
11.5
|
Fees
and Expenses
|
Each Party
shall bear all fees and expenses it incurs in connection with this Business
Combination Agreement and the transactions contemplated herein, whether or not
the transactions contemplated hereunder are consummated. For the avoidance of
doubt, the cost for the preparation and filing of the Offer Document and
obtaining Antitrust Clearance shall be borne by Bidder except for the cost of
the Company's advisors who review these filings.
|
11.6
|
Third
Party Beneficiaries
|
This
Business Combination Agreement shall not grant any rights to, and is not
intended to operate for, the benefit of third parties, unless set forth
otherwise in this Business Combination Agreement.
|
11.7
|
Assignment
|
No Party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Business Combination Agreement without the prior written consent of
the other Party, except that Bidder may assign its rights or claims hereunder to
its Affiliates.
|
11.8
|
Entire
Agreement
|
This
Business Combination Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, among the Parties, with
respect to the subject matter hereof, it being understood that this does not
apply to the NDA as well as written agreements entered into simultaneously with
this Business Combination Agreement.
|
11.9
|
Interpretation,
Amendments and Waivers
|
In this
Business Combination Agreement the headings are inserted for convenience only
and shall not affect the interpretation of this Business Combination Agreement;
where a German term has been inserted in quotation marks and/or italics it alone
(and not the English term to which it relates) shall be authoritative for the
purpose of the interpretation
|
24
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Project
Juno
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|
Business
Combination Agreement
|
|
Execution
Version
|
|
03
July 2008
|
of the
relevant English term in this Business Combination Agreement. The terms
"including" and "in particular" shall always mean "including, without
limitation" and "in particular, with-out limitation", respectively. Any changes
or amendments to any provision of this Business Combination Agreement (including
this Section 11.9) must be made in writing by the Parties or in any other
legally required form, if so required and must explicitly refer to this Business
Combination Agreement.
|
11.10
|
"Business Days" shall be
the banking days (Bankarbeitstage)
prevailing in Berlin, excluding, for the avoidance of doubt,
Saturdays.
|
|
11.11
|
Governing
Law; Jurisdiction
|
This
Business Combination Agreement shall exclusively be governed by, and be
construed in accordance with, the laws of the Federal Republic of Germany
(excluding conflict of laws). Any dispute arising under or in connection with
this Business Combination Agreement (including any disputes in connection with
its validity), shall be exclusively settled in the courts of
Berlin.
|
11.12
|
Severability
|
Should any
provision of this Business Combination Agreement, or any provision incorporated
into this Business Combination Agreement in the future, be or become invalid or
unenforceable, the validity or enforceability of the other provisions of this
Business Combination Agreement shall not be affected thereby. The invalid or
unenforceable provision shall be deemed to be substituted by a suitable and
equitable provision which, to the extent legally permissible, comes as close as
possible to the intent and purpose of the invalid or unenforceable provision.
The same shall apply: (i) if the Parties have, unintentionally, failed to
address a certain matter in this Business Combination Agreement; in this case, a
suitable and equitable provision shall be deemed to have been agreed upon which
comes as close as possible to what the Parties, in the light of the intent and
purpose of this Business Combination Agreement, would have agreed upon if they
had considered the matter; or (ii) if any provision of this Business Combination
Agreement is invalid because of the scope of any time period or performance
stipulated herein; in this case a legally permissible time period or performance
shall be deemed to have been agreed which comes as close as possible to the
stipulated time period or performance.
|
25
|
|
Project
Juno
|
|
Business
Combination Agreement
|
|
Execution
Version
|
|
03
July 2008
|
03 July
2008
for and on
behalf of Jerini AG
|
Prof.
Xx. Xxxx Xxxxxxxxx-Xxxxxxxx
(Vorstandsvorsitzender)
|
Xxxxxx
X. Xxxxx
(Mitglied des
Vorstands)
|
03 July
2008
For and on
behalf of Maia Elfte Vermögensverwaltungs-GmbH
Omitted
Schedules*
|
Exhibit
L
|
Commercialization
Services Agreement
|
|
Exhibit
1.2
|
Press
Releases pursuant to Section 1.2 of the Business Combination
Agreement
|
|
Exhibit
2.2.6
|
Summary
of Icatibant Product Characteristics pursuant to Section 2.2.6 of the
Business Combination Agreement
|
|
Exhibit
3.2
|
Boni
Payments / Employee Promotion pursuant to Section 3.2 of the Business
Combination Agreement
|
|
Exhibit
4
|
Stock
Options pursuant to Section 4 of the Business Combination
Agreement
|
|
Exhibit
7.1.2(a)
|
Supervisory
Board members pursuant to Section 7.1.2(a) of the Business Combination
Agreement
|
|
Exhibit
7.1.2(b)
|
Supervisory
Board members pursuant to Section 7.1.2(b) of the Business Combination
Agreement
|
*Shire
will furnish supplementally a copy of any omitted schedule to the SEC upon
request.
