UNITED STATES
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
Date of Report (Date of earliest event reported): February 16, 2017
ARIAD Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36172 | 22-3106987 | ||
| (State or other jurisdiction of incorporation) |
(Commission File No.) |
(IRS Employer Identification No.) |
125 Binney Street
Cambridge, Massachusetts 02142
(Address of principal executive offices and zip code)
Registrant’s telephone number, including area code: (617) 494-0400
(Former name or former address, if changed since last report)
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:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Introductory Note.
As previously disclosed in the Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on January 10, 2017 by ARIAD Pharmaceuticals, Inc., a Delaware corporation (the “Company”), the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated January 8, 2017 with Takeda Pharmaceutical Company Limited (“Parent”), a corporation organized under the laws of Japan, and Kiku Merger Co., Inc., (“Purchaser”), a Delaware corporation and an indirect wholly-owned subsidiary of Parent.
Pursuant to the Merger Agreement, on January 19, 2017, Purchaser commenced a tender offer (the “Offer”) to acquire all of the outstanding shares of common stock, par value $0.001 per share, of the Company (“Shares”) for $24.00 per Share (the “Offer Price”) in cash, net of applicable withholding taxes and without interest, upon the terms and subject to conditions set forth in the offer to purchase and the related letter of transmittal, each dated January 19, 2017 and as amended or supplemented.
The Offer expired at 11:59 p.m. Eastern Time on Wednesday, February 15, 2017 (the “Expiration Time”), all conditions were satisfied and the Offer was not extended. Computershare Trust Company, N.A., in its capacity as the depositary for the Offer (the “Depositary”), has advised the Company and Purchaser that, as of the Expiration Time, 158,558,628 Shares (excluding Shares with respect to which notices of guaranteed delivery were delivered but which Shares were not yet delivered) had been validly tendered and not properly withdrawn pursuant to the Offer, which represented approximately 81.4% of the outstanding Shares as of the Expiration Time. The number of Shares (excluding Shares with respect to which notices of guaranteed delivery were delivered but which Shares were not yet delivered) tendered satisfied the Minimum Tender Condition (as defined in the Merger Agreement). As the Minimum Tender Condition and each of the other conditions of the Offer have been satisfied or waived, on February 16, 2017, Purchaser accepted for payment all such Shares validly tendered and not properly withdrawn pursuant to the Offer on or prior to the Expiration Time and will promptly pay for such Shares in accordance with the terms of the Offer.
On February 16, 2017, as a result of its acceptance of the Shares tendered in the Offer, Purchaser acquired a sufficient number of Shares to complete the merger of Purchaser with and into the Company (the “Merger”) without a vote of the stockholders of the Company pursuant to Section 251(h) of the Delaware General Corporation Law (the “DGCL”). Accordingly, following the consummation of the Offer, Parent and Purchaser effected the Merger pursuant to Section 251(h) of the DGCL, with the Company continuing as the surviving corporation in the Merger and becoming an indirect wholly-owned subsidiary of Parent. In the Merger, each Share (other than Shares (i) owned by Parent, Purchaser or any other direct or indirect wholly-owned subsidiary of Parent immediately prior to the Effective Time, (ii) owned by the Company or any direct or indirect wholly-owned subsidiary of the Company or held in the Company’s treasury or (iii) held by a holder who is entitled to appraisal and who has properly exercised appraisal rights for such Shares in accordance with Section 262 of the DGCL) that was issued and outstanding immediately prior to the consummation of the Merger was converted into the right to receive the Offer Price, upon the consummation of the Merger (the “Effective Time”).
Pursuant to the Merger Agreement, each Company stock option, Share that was subject to lapsing rights of repurchase, Company restricted stock unit issued under the Company’s 2006 Long-Term Incentive Plan and the Company’s 2014 Long-Term Incentive Plan (“RSU”) and Company performance stock unit issued under the Company’s 2006 Long-Term Incentive Plan and the Company’s 2014 Long-Term Incentive Plan (“PSU”, and collectively, the “Company Equity Awards”) that was outstanding as of immediately prior to the consummation of the Offer became fully vested (except that, in the case of a PSU, such awards vested at the greater of (i) the target level of vesting for such PSU and (ii) the vesting level determined based on the achievement of the performance metrics applicable to such PSU in accordance with its terms, as determined by the Compensation Committee of the Company’s Board of Directors as of immediately prior to the Expiration Time) as of immediately prior to, and contingent upon, the consummation of the Offer (subject to certain exceptions with respect to vesting acceleration) and was canceled and converted into the right to receive the Offer Price (less the applicable exercise price in the case of Company stock options) in cash (net of applicable withholding taxes and without interest) payable in respect of each Share subject to such Company Equity Award.
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The foregoing description of the Merger is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached to this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference.
Item 1.01 Entry into a Material Definitive Agreement.
Supplemental Indenture
In connection with the closing of the Merger, the Company and Wells Fargo Bank, N.A., as trustee (the “Trustee”) entered into a Supplemental Indenture, dated as of February 16, 2017 (the “Supplemental Indenture”), to the Indenture, dated as of June 17, 2014 (the “Indenture”), between the Company and the Trustee, relating to the Company’s outstanding 3.625% Convertible Senior Notes due 2019 (the “Convertible Notes”).
The Supplemental Indenture amends the Indenture to provide that, upon consummation of the Merger, the right to convert the Convertible Notes into Shares was changed to a right to convert the Convertible Notes (pursuant to, and subject to the conditions of, the Indenture) solely into the “Reference Property” equal to $2,580.228 (without interest) per $1,000 principal amount of Convertible Notes. However, if a conversion occurs on or after the date the Company gives notice of the occurrence of the effective date of the Merger, and on or prior to 5:00 p.m. New York City time on the business day immediately prior to the Fundamental Change Repurchase Date (as such term is defined in the Indenture) applicable to the Merger, pursuant to Section 15.03 of the Indenture noteholders shall be entitled to receive, upon conversion, $2592.0216 (without interest) per $1,000 principal amount of Notes.
The foregoing description of the Supplemental Indenture does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Supplemental Indenture, which is included as Exhibit 4.1 hereto and incorporated by reference herein.
Item 2.01 Completion of Acquisition or Disposition of Assets.
As described in the Introductory Note above, on February 16, 2017, Purchaser accepted for payment all Shares validly tendered and not properly withdrawn pursuant to the Offer on or prior to the Expiration Time and will promptly pay for such Shares in accordance with the terms of the Offer. Shortly thereafter, the Merger was completed pursuant to Section 251(h) of the DGCL, with no Company stockholder vote required to consummate the Merger. At the Effective Time, the Company became a wholly-owned subsidiary of Parent. As a result, a change of control of the Company occurred.
The information contained in the Introductory Note of this Current Report on Form 8-K is incorporated by reference into this Item 2.01. The foregoing description of the Merger is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached to this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continuing Listing Rule or Standard; Transfer of Listing.
On February 16, 2017, in connection with the consummation of the Offer and the Merger, the Company (i) notified the NASDAQ Stock Market (“NASDAQ”) of the consummation of the Merger and (ii) requested that NASDAQ (x) suspend trading of the Shares effective before the opening of trading on February 16, 2017, and (y) file with the SEC a Form 25 Notification of Removal from Listing and/or Registration to delist and deregister the Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Shares, which previously traded under the symbol “ARIA”, ceased to be traded on NASDAQ prior to the opening of trading on February 16, 2017. The Company intends to file with the SEC a Form 15 requesting that the Shares be deregistered and that the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act be terminated.
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The information contained in the Introductory Note of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
Item 3.03 Material Modification to Rights of Security Holders.
The information contained in the Introductory Note and Items 2.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.01 Change in Control of Registrant.
The information contained in the Introductory Note and Items 2.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection with the consummation of the Merger, each of the positions of George W. Bickerstaff, III, Alexander J. Denner, Ph.D., Jules Haimovitz, Paris Panayiotopoulos, Anna Protopapas, Norbert G. Riedel, Ph.D., and Sarah J. Schlesinger, M.D. as directors from the Board of Directors of the Company and as members of Committees of the Board of Directors were terminated as of the Effective Time.
From and after the Effective Time, in connection with the Merger and in accordance with the terms of the Merger Agreement, the director of Purchaser immediately prior to the Effective Time, Christophe Bianchi was appointed as the sole director of the Company.
In connection with the consummation of the Merger, immediately following the Effective Time, the Company’s sole director removed all of the existing officers of the Company, other than Paris Panayiotopoulos and Manmeet Soni as officers of the Company. Effective as of the close of business on February 16, 2017, the Company’s sole director removed Paris Panayiotopoulos and Manmeet Soni as officers of the Company. Each such former officer remains an employee of the Company.
On February 16, 2017, immediately following the Effective Time, the Company’s sole director appointed Christophe Bianchi as President, Fabien Dubois as Treasurer, Patrick Butler as Assistant Treasurer, Kenneth D. Greisman as Secretary and Paul Sundberg as Assistant Secretary.
Except for Kenneth D. Greisman, whose information is provided below, information regarding the new director and officers has been previously disclosed in Schedule I of the Offer to Purchase as filed with the Tender Offer Statement on Schedule TO, originally filed by Takeda and Purchaser on January 18, 2017.
Kenneth D. Greisman, 57, currently serves as senior vice president, general counsel and secretary for Takeda Pharmaceuticals U.S.A., Inc. He has been general counsel of Takeda Pharmaceuticals U.S.A., Inc. since 2008.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
In connection with the consummation of the Merger, the Company’s certificate of incorporation, as amended and restated, and its bylaws, as amended and restated, were each amended and restated in their entirety, effective as of the Effective Time. Copies of the certificate of incorporation and bylaws of the Company are filed as Exhibits 3.1 and 3.2 hereto and are incorporated by reference into this Item 5.03.
Item 8.01 Other Events
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On February 16, 2017, the Company issued a notice to provide holders of its Convertible Notes notice of a Make-Whole Fundamental Change (as defined in the Indenture) as a result of the consummation of the Merger. A copy of the notice is attached hereto as Exhibit 99.1.
Item 9.01 Exhibits.
(d) Exhibits
| Exhibit No. | Description | |||
| 2.1 | Agreement and Plan of Merger, dated January 8, 2017, among ARIAD Pharmaceuticals, Inc., Takeda Pharmaceutical Company Limited and Kiku Merger Co., Inc. (incorporated by reference to Exhibit 2.1 to ARIAD Pharmaceuticals, Inc.’s Current Report on Form 8-K filed with the SEC on January 10, 2017). | |||
| 3.1 | Amended and Restated Certificate of Incorporation of ARIAD Pharmaceuticals, Inc. | |||
| 3.2 | Second Amended and Restated By-Laws of ARIAD Pharmaceuticals, Inc. | |||
| 4.1 | Supplemental Indenture, dated as of February 16, 2017, entered into between ARIAD Pharmaceuticals, Inc. and Wells Fargo Bank, N.A., as trustee. | |||
| 99.1 | Notice of Make-Whole Fundamental Change to Holders of 3.625% Convertible Senior Notes due 2019, issued by ARIAD Pharmaceuticals, Inc., dated February 16, 2017. | |||
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Form 8-K is true, complete and correct.
| ARIAD PHARMACEUTICALS, INC. | ||
| By: | /s/ Christophe Bianchi | |
| Name: | Christophe Bianchi | |
| Title: |
President | |
Dated: February 16, 2017
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EXHIBIT INDEX
| Exhibit No. | Description | |||
| 2.1 | Agreement and Plan of Merger, dated January 8, 2017, among ARIAD Pharmaceuticals, Inc., Takeda Pharmaceutical Company Limited and Kiku Merger Co., Inc. (incorporated by reference to Exhibit 2.1 to ARIAD Pharmaceuticals, Inc.’s Current Report on Form 8-K filed with the SEC on January 10, 2017). | |||
| 3.1 | Amended and Restated Certificate of Incorporation of ARIAD Pharmaceuticals, Inc. | |||
| 3.2 | Second Amended and Restated By-Laws of ARIAD Pharmaceuticals, Inc. | |||
| 4.1 | Supplemental Indenture, dated as of February 16, 2017, entered into between ARIAD Pharmaceuticals, Inc. and Wells Fargo Bank, N.A., as trustee. | |||
| 99.1 | Notice of Make-Whole Fundamental Change to Holders of 3.625% Convertible Senior Notes due 2019, issued by ARIAD Pharmaceuticals, Inc., dated February 16, 2017. | |||
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ARIAD PHARMACEUTICALS, INC.
FIRST: The name of the corporation is ARIAD Pharmaceuticals, Inc. (the “Corporation”).
SECOND: The address of the Corporation’s registered office in the State of Delaware is The Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County. The name of the Corporation’s registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware (the “DGCL”).
FOURTH: The total number of shares of all classes of capital stock which the Corporation shall have the authority to issue is 100 shares of common stock with a par value of $0.01 per share.
FIFTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the By-laws of the Corporation, subject to any specific limitation on such power contained in any By-laws adopted by the stockholders. Elections of directors need not be by written ballot unless the By-laws of the Corporation so provide.
SIXTH: A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. Any repeal or modification of this Article Sixth by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
SEVENTH: The Corporation shall, to the extent not prohibited by law, indemnify any person who is or was made, or threatened to be made, a party to any threatened, pending or completed, action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Corporation to procure a judgment in its favor (hereinafter a “Proceeding”), by reason of the fact that such person, or a person of whom such person is the legal representative, is or was a director or officer of the Corporation, or is or was serving in any capacity at the request of the Corporation for any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys’ fees and disbursements). Persons who are not directors or officers of the Corporation may be similarly indemnified in respect of service to the Corporation or to another such entity at the request of the Corporation to the extent the Board of Directors at any time denominates such persons entitled to the benefits of this Article Seventh.
The Corporation shall, from time to time, reimburse or advance to any director or officer or other person entitled to indemnification hereunder the funds necessary for payment of expenses, including attorneys’ fees and disbursements, incurred in connection with any Proceeding, in advance of the final disposition of such Proceeding, provided, however, that, if required by the DGCL, such expenses incurred by or on behalf of any director of officer or other person may be paid in advance of the final disposition of a Proceeding only upon receipt by the Corporation of an undertaking, by or on behalf of such director
or officer (or other person indemnified hereunder), to repay any such amount so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that such director, officer or other person is not entitled to be indemnified for such expenses.
The right to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article Seventh shall not be deemed exclusive of any other rights to which those seeking indemnification or reimbursement or advancement of expenses may have or hereafter be entitled under any law, by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.
The right to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article Seventh shall continue as to a person who has ceased to be a director or officer (or other person indemnified hereunder) and shall inure to the benefit of the heirs, executors and administrators of such person.
The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article Seventh, the By-laws of the Corporation or under Section 145 of the DGCL or any other provision of law.
The provisions of this Article Seventh shall be a contract between the Corporation, on the one hand, and each director and officer who serves in such capacity at any time while this Article Seventh is in effect and any other person indemnified hereunder, on the other hand, pursuant to which the Corporation and each such director, officer, or other person intend to be legally bound. No repeal or modification of this Article Seventh shall affect any rights or obligations then existing or thereafter arising with respect to any state of facts then or theretofore existing or thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
The right to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article Seventh shall be enforceable by any person entitled to such indemnification or reimbursement or advancement of expenses in any court of competent jurisdiction. The burden of proving that such indemnification or reimbursement or advancement of expenses are not appropriate shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that such person is not entitled to such indemnification or reimbursement or advancement of expenses, shall constitute a defense to the action or create a presumption that such person is not so entitled. Such a person shall also be indemnified for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement of expenses, in whole or in part, in any such proceeding.
Any person entitled to be indemnified or to the reimbursement or advancement of expenses as a matter of right pursuant to this Article Seventh may elect to have the right to indemnification or reimbursement or advancement of expenses interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time such indemnification or
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reimbursement or advancement of expenses is sought. Such election shall be made, by a notice in writing to the Corporation, at the time indemnification or reimbursement or advancement of expenses is sought; provided that if no such notice is given, the right to indemnification or reimbursement or advancement of expenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought.
EIGHTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this reservation.
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Exhibit 3.2
SECOND AMENDED AND RESTATED BY-LAWS OF
ARIAD PHARMACEUTICALS, INC.
ARTICLE I
Stockholders Meetings
Section 1.1. Annual Meetings. An annual meeting of stockholders shall be held for the election of directors at such date, time and place as may be fixed by resolution of the Board of Directors from time to time.
Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time only by the Chairman of the Board, if any, the President, the Board of Directors or by a committee of the Board of Directors authorized to call such meetings and shall be called by the Chairman of the Board, if any, or the President or the Secretary, upon the written request of the stockholders holding a majority of the outstanding stock entitled to vote, and by no other person. The business transacted at a special meeting of stockholders shall be limited to the purpose or purposes for which such meeting is called, except as otherwise determined by the Board of Directors or the chairman of the meeting.
Section 1.3. Notice of Meetings. A written notice of each annual or special meeting of stockholders shall be given stating the place, date and time of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the Certificate of Incorporation or these By-laws, such notice of meeting shall be given not less than ten nor more than 60 days before the date of the meeting to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation.
Section 1.4. Adjournments. Any annual or special meeting of stockholders may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the date, time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting in accordance with Section 1.3.
Section 1.5. Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the presence in person or by proxy of the holders of stock having a majority of the votes which could be cast by the holders of all outstanding stock entitled to vote at the meeting shall constitute a quorum at each meeting of stockholders. In the absence of a quorum, the stockholders so present may, by the affirmative vote of the holders of stock having a majority of the votes which could be cast by all such holders, adjourn the meeting from time to time in the manner provided in Section 1.4 of these By-laws until a quorum is present. If a quorum is present when a meeting is convened, the subsequent withdrawal of stockholders, even though less than a quorum remains, shall not affect the ability of the remaining stockholders lawfully to transact business.
Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or if there is none or in his or her absence, by the President, or in his or her absence, by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 1.7. Voting. (a) Each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power on the matter in question.
(b) Directors shall be elected by a plurality of the votes cast in the election of directors. Each other question shall, unless otherwise provided by law, the Certificate of Incorporation or these By-laws, be decided by the vote of the holders of stock having a majority of the votes which could be cast by the holders of all stock entitled to vote on such question which are present in person or by proxy at the meeting.
(c) Stock of the Corporation standing in the name of another corporation and entitled to vote may be voted by such officer, agent or proxy as the by-laws or other internal regulations of such other corporation may prescribe or, in the absence of such provision, as the board of directors or comparable body of such other corporation may determine.
Section 1.8. Proxies. (a) Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy filed with the Secretary before or at the time of the meeting. No such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing with the Secretary an instrument in writing revoking the proxy or another duly executed proxy bearing a later date.
(b) A stockholder may authorize another person or persons to act for such stockholder as proxy by executing a writing authorizing such person or persons to act as such, which execution may be accomplished by such stockholder or such stockholder’s authorized officer, director, partner, employee or agent signing such writing or causing his or her signature to be affixed to such writing by any reasonable means, including, but not limited to, facsimile signature.
Section 1.9. Action By Consent of Stockholders. Any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on such action were present and voted.
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ARTICLE II
Board of Directors
Section 2.1. Number. The Board of Directors shall consist of one or more directors, the number thereof to be determined from time to time by resolution of the Board of Directors.
Section 2.2. Election; Resignation; Vacancies. (a) At each annual meeting of stockholders the stockholders shall elect directors each of whom shall hold office until the next annual meeting of stockholders and the election and qualification of his or her successor, or until his or her earlier death, resignation or removal.
(b) Any director may resign at any time by giving written notice to the Chairman of the Board, if any, the President or the Secretary. Unless otherwise stated in a notice of resignation, it shall take effect when received by the officer to whom it is directed, without any need for its acceptance.
(c) Any newly created directorship or any vacancy occurring in the Board of Directors for any reason may be filled by a majority of the remaining directors, although less than a quorum, or by a plurality of the votes cast in the election of directors at a meeting of stockholders or by written consent. Each director elected to replace a former director shall hold office until the expiration of the term of office of the director whom he or she has replaced and the election and qualification of his or her successor, or until his or her earlier death, resignation or removal. A director elected to fill a newly created directorship shall serve until the next annual meeting of stockholders and the election and qualification of his or her successor, or until his or her earlier death, resignation or removal.
Section 2.3. Regular Meetings. A regular annual meeting of the Board of Directors shall be held, without call or notice, immediately after and at the same place as the annual meeting of stockholders, for the purpose of organizing the Board of Directors, electing officers and transacting any other business that may properly come before such meeting. If the stockholders shall elect the directors by written consent of stockholders as permitted by Section 1.9 of these By-laws, a special meeting of the Board of Directors shall be called as soon as practicable after such election for the purposes described in the preceding sentence. Additional regular meetings of the Board of Directors may be held without call or notice at such times as shall be fixed by resolution of the Board of Directors.
Section 2.4. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, if any, the President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting. The purpose or purposes of a special meeting need not be stated in the call or notice.
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Section 2.5. Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or if there is none or in his or her absence, by the President, or in his or her absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairman of the meeting may appoint any person to act as secretary of the meeting. A majority of the directors present at a meeting, whether or not they constitute a quorum, may adjourn such meeting to any other date, time or place without notice other than announcement at the meeting.
Section 2.6. Quorum: Vote Required for Action. At all meetings of the Board of Directors a majority of the whole Board of Directors shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
Section 2.7. Committees. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members present at any meeting and not disqualified from voting, whether or not a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and provided in the resolution of the Board of Directors designating such committee, or an amendment to such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it.
Section 2.8. Telephonic Meetings. Directors, or any committee of directors designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 2.8 shall constitute presence in person at such meeting.
Section 2.9. Informal Action by Directors. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing (which may be in counterparts), and the written consent or consents are filed with the minutes of proceedings of the Board of Directors or such committee.
Section 2.10 Reliance upon Records. Every director, and every member of any committee of the Board of Directors, shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors, or by any other person as to matters the director or member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, including, but not limited to, such records, information, opinions, reports or statements as to the value and
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amount of the assets, liabilities and/or net profits of the Corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid, or with which the Corporation’s capital stock might properly be purchased or redeemed.
Section 2.11 Presumption of Assent. Unless otherwise provided by the laws of the State of Delaware, a director who is present at a meeting of the Board of Directors or a committee thereof at which action is taken on any matter shall be presumed to have assented to the action taken unless his or her dissent shall be entered in the minutes of such meeting or unless he or she shall file his or her written dissent to such action with the person acting as secretary of such meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary immediately after the adjournment of such meeting. Such right to dissent shall not apply to a director who voted in favor of such action.
ARTICLE III
Officers
Section 3.1. Executive Officers; Election; Qualification; Term of Office. The Board of Directors shall elect a President and may, if it so determines, a Chairman of the Board from among its members. The Board of Directors shall also elect a Secretary and may elect one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers. Any number of offices may be held by the same person. Each officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier death, resignation or removal.
Section 3.2. Resignation; Removal; Vacancies. Any officer may resign at any time by giving written notice to the Chairman of the Board, if any, the President or the Secretary. Unless otherwise stated in a notice of resignation, it shall take effect when received by the officer to whom it is directed, without any need for its acceptance. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation. A vacancy occurring in any office of the Corporation may be filled for the unexpired portion of the term thereof by the Board of Directors at any regular or special meeting.
Section 3.3. Powers and Duties of Executive Officers. The officers of the Corporation shall have such powers and duties in the management of the Corporation as may be prescribed by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.
Section 3.4. Chief Executive Officer. Unless the Board of Directors elects a Chairman of the Board who is designated as such, the President shall be the Chief Executive Officer of the Corporation and shall in general supervise and control all of the business affairs of the Corporation, subject to the direction of the Board of Directors. The President may execute,
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in the name and on behalf of the Corporation, any deeds, mortgages, bonds, contracts or other instruments which the Board of Directors or a committee thereof has authorized to be executed, except in cases where the execution shall have been expressly delegated by the Board of Directors or a committee thereof to some other officer or agent of the corporation.
Section 3.5. Secretary. In addition to such other duties, if any, as may be assigned to the Secretary by the Board of Directors, the Chairman of the Board, if any, or the President, the Secretary shall (i) keep the minutes of proceedings of the stockholders, the Board of Directors and any committee of the Board of Directors in one or more books provided for that purpose; (ii) see that all notices are duly given in accordance with the provisions of these By-laws or as required by law; (iii) be the custodian of the records and seal of the Corporation; (iv) affix or cause to be affixed the seal of the Corporation or a facsimile thereof, and attest the seal by his or her signature, to all certificates for shares of stock of the Corporation and to all other documents the execution of which under seal is authorized by the Board of Directors; and (v) unless such duties have been delegated by the Board of Directors to a transfer agent of the Corporation, keep or cause to be kept a register of the name and address of each stockholder, as the same shall be furnished to the Secretary by such stockholder, and have general charge of the stock transfer records of the Corporation.
ARTICLE IV
Stock Certificates and Transfers
Section 4.1. Certificate. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman of the Board, if any, or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Corporation, certifying the number of shares owned by such stockholder in the Corporation. Any of or all the signatures on the certificate may be facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such officer, transfer agent, or registrar continued to be such at the date of issue.
Section 4.2. Lost, Stolen or Destroyed Certificates; Issuance of New Certificates. The Corporation may issue a new certificate for stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such stockholder’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.
Section 4.3 Transfers of Stock. Upon surrender to the Corporation of a certificate for stock of the Corporation duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer or, if the relevant stock certificate is claimed to have been lost, stolen or destroyed, upon compliance with the provisions of Section 4.2 of these By-laws, and upon payment of applicable taxes with respect to such transfer, and in compliance with any restrictions on transfer applicable to such stock certificate or the shares represented
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thereby of which the Corporation shall have notice and subject to such rules and regulations as the Board of Directors may from time to time deem advisable concerning the transfer and registration of stock certificates, the Corporation shall issue a new certificate or certificates for such stock to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Transfers of stock shall be made only on the books of the Corporation by the registered holder thereof or by such holder’s attorney or successor duly authorized as evidenced by documents filed with the Secretary or transfer agent of the Corporation. Whenever any transfer of stock shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of transfer if, when the certificate or certificates representing such stock are presented to the Corporation for transfer, both the transferor and transferee request the Corporation to do so.
Section 4.4 Stockholders of Record. The Corporation shall be entitled to treat the holder of record of any stock of the Corporation as the holder thereof and shall not be bound to recognize any equitable or other claim to or interest in such stock on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by the laws of the State of Delaware.
ARTICLE V
Notices
Section 5.1. Manner of Notice. Whenever notice is required to be given to any stockholder, director or member of any committee of the Board of Directors, such notice may be given by personal delivery or by depositing it, in a sealed envelope, in the United States mails, first class, postage prepaid, addressed, or by transmitting it via telecopier, to such stockholder, director or member, either at the address of such stockholder, director or member as it appears on the records of the Corporation or, in the case of such a director or member, at his or her business address; and such notice shall be deemed to be given at the time when it is thus personally delivered, deposited or transmitted, as the case may be. Such requirement for notice shall also be deemed satisfied, except in the case of stockholder meetings, if actual notice is received orally or by other writing by the person entitled thereto as far in advance of the event with respect to which notice is being given as the minimum notice period required by law or these By-laws.
Section 5.2. Waivers of Notice. Any written waiver of notice, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of any regular special meeting of the stockholders, directors, or members of a committee or directors need be specified in any written waiver of notice.
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ARTICLE VI
Indemnification
Section 6.1. Indemnity Undertaking. To the extent not prohibited by law, the Corporation shall indemnify any person who is or was made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (a “Proceeding”), whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Corporation to procure a judgment in its favor, by reason of the fact that such person, or a person of whom such person is the legal representative, is or was a director or officer of the Corporation, or is or was serving in any capacity at the request of the Corporation for any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise (an “Other Entity”), against judgments, fines, penalties, excise taxes, amounts paid in settlement, and costs, charges and expenses (including attorneys’ fees and disbursements). Persons who are not directors or officers of the Corporation may be similarly indemnified in respect of service to the Corporation or to an Other Entity at the request of the Corporation to the extent the Board of Directors at any time specifies that such persons are entitled to the benefits of this Article VI. Except as otherwise provided in Section 6.3 hereof, the Corporation shall be required to indemnify a person in connection with a proceeding (or part thereof) commenced by such person only if the commencement of such proceeding (or part thereof) by the person was authorized by the Board of Directors.
Section 6.2 Advancement of Expenses. The Corporation shall, from time to time, reimburse or advance to any director or officer or other person entitled to indemnification hereunder the funds necessary for payment of expenses, including attorneys’ fees and disbursements, incurred in connection with any Proceeding, in advance of the final disposition of such Proceeding; provided that, if required by the General Corporation Law of the State of Delaware (the “DGCL”), such expenses incurred by or on behalf of any director or officer or other person may be paid in advance of the final disposition of a Proceeding only upon receipt by the Corporation of an undertaking, by or on behalf of such director or officer (or other person indemnified hereunder), to repay any such amount so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that such director, officer or other person is not entitled to be indemnified for such expenses. Except as otherwise provided in Section 6.3 hereof, the Corporation shall be required to reimburse or advance expenses incurred by a person in connection with a Proceeding (or part thereof) commenced by such person only if the commencement of such Proceeding (or part thereof) by the person was authorized by the Board of Directors.
6.3 Claims. If a claim for indemnification or advancement of expenses under this Article VI is not paid in full within thirty (30) days after a written claim therefor by the person seeking indemnification or reimbursement or advancement of expenses has been received by the Corporation, the person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the person seeking indemnification or reimbursement or advancement of expenses is not entitled to the requested indemnification, reimbursement or advancement of expenses under applicable law.
6.4 Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any person entitled to indemnification under Section 6.1 in respect of any act or omission occurring prior to the time of such repeal or modification.
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6.5 Rights Not Exclusive. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article VI shall not be deemed exclusive of any other rights to which a person seeking indemnification or reimbursement or advancement of expenses may have or hereafter be entitled under any statute, the Certificate of Incorporation, these By-laws, any agreement, any vote of stockholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.
6.6 Continuation of Benefits. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article VI shall continue as to a person who has ceased to be a director or officer (or other person indemnified hereunder) and shall inure to the benefit of the executors, administrators, legatees and distributees of such person.
6.7 Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of an Other Entity, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article VI, the Certificate of Incorporation or under Section 145 of the DGCL or any other provision of law.
6.8 Binding Effect. The provisions of this Article VI shall be a contract between the Corporation, on the one hand, and each director and officer who serves in such capacity at any time while this Article VI is in effect and any other person indemnified hereunder, on the other hand, pursuant to which the Corporation and each such director, officer or other person intend to be legally bound. No repeal or modification of this Article VI shall affect any rights or obligations with respect to any state of facts then or theretofore existing or thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
6.9 Procedural Rights. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article VI shall be enforceable by any person entitled to such indemnification or reimbursement or advancement of expenses in any court of competent jurisdiction. The burden of proving that such indemnification or reimbursement or advancement of expenses is not proper in the circumstances because the director or officer has not met the applicable standard of conduct set forth in Section 145 of the DGCL shall be on the Corporation. Neither the failure of the Corporation (including Board of Directors, its independent legal counsel and its Stockholders) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances because the director or officer has met such applicable standard, nor an actual determination by the Corporation (including its Board of Directors, its independent legal counsel and its Stockholders) that such director or officer is not entitled to such indemnification or reimbursement or advancement of expenses, shall constitute a defense to the action or create a
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presumption that such person is not so entitled. Such a person shall also be indemnified for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement of expenses, in whole or in part, in any such proceeding.
6.10 Service Deemed at Corporation’s Request. Any director or officer of the Corporation serving in any capacity (a) another corporation of which a majority of the shares entitled to vote in the election of its directors is held, directly or indirectly, by the Corporation or (b) any employee benefit plan of the Corporation or any corporation referred to in clause (a) shall be deemed to be doing so at the request of the Corporation.
6.11 Election of Applicable Law. Any person entitled to be indemnified or to reimbursement or advancement of expenses as a matter of right pursuant to this Article VI may elect to have the right to indemnification or reimbursement or advancement of expenses interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time such indemnification or reimbursement or advancement of expenses is sought. Such election shall be made, by a notice in writing to the Corporation, at the time indemnification or reimbursement or advancement of expenses is sought; provided, however, that if no such notice is given, the right to indemnification or reimbursement or advancement of expenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought.
ARTICLE VII
General
Section 7.1. Fiscal year. The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.
Section 7.2. Seal. The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.
Section 7.3. Execution of Instruments. Deeds, transfers, assignments, contracts, obligations, certificates and other instruments may be executed in the name of and on behalf of the Corporation by any officer of the Corporation or any designee of such officer. In addition, the Board of Directors may from time to time direct the manner in which and by whom any particular instrument or class of instruments may or shall be executed. Any signing officer may affix the corporate seal to any instrument requiring the same.
Section 7.4. Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other information storage device, provided that the records so kept can be converted into clearly legible form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.
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Section 7.5. Amendment of By-Laws. These By-laws may be altered or repealed, and new By-laws made, by the Board of Directors, but the stockholders may make additional By-laws and may alter and repeal any By-laws whether adopted by them or otherwise.
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Exhibit 4.1
EXECUTION VERSION
SUPPLEMENTAL INDENTURE, dated as of February 16, 2017, between ARIAD Pharmaceuticals, Inc., a Delaware corporation, as issuer (the “Company”), and Wells Fargo Bank, National Association, a national banking association, as trustee (the “Trustee”), to the Indenture, dated as of June 17, 2014 between such parties (the “Indenture”). All references to the “Indenture” shall be to the Indenture and, as applicable, this Supplemental Indenture. All capitalized terms used but not defined herein shall have the meanings specified in the Indenture.
RECITALS
WHEREAS, the Company, the issuer of the Notes under the Indenture, and the Trustee have heretofore executed and delivered the Indenture;
WHEREAS, through a merger (the “Merger”) contemplated by a merger agreement, dated as of January 8, 2017 (as amended, the “Merger Agreement”), among the Company, Takeda Pharmaceutical Company Limited (the “Parent”), a corporation organized under the laws of Japan, and Kiku Merger Co., Inc., (the “Purchaser”), a Delaware corporation and an indirect, wholly-owned subsidiary of Parent, Purchaser has merged with and into the Company, with the Company continuing as the surviving corporation in the Merger and becoming an indirect, wholly-owned subsidiary of Parent effective as of February 16, 2016 (the “Effective Date”);
WHEREAS, the consummation of the Merger as contemplated by the Merger Agreement constitutes a Merger Event under the terms of the Indenture;
WHEREAS, under Section 15.06(b) of the Indenture, at and after the effective time of a Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed to a right to convert such Notes into cash, the kind and amount of shares of stock, securities or other property or assets that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such transaction would have owned or been entitled to receive (the “Reference Property”);
WHEREAS, under the terms of the Merger Agreement, as a result of the Merger, the Company’s Common Stock was converted into a right to receive an amount in cash, without interest, equal to $24.00 per share of Common Stock;
WHEREAS, Section 15.06(a) of the Indenture provides that, in connection with a Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture providing for the conversion and settlement of the Notes as set forth in the Indenture and for adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for in Article 15 of the Indenture;
WHEREAS, the Company has concluded that the phrase “Section 11.01(b)” in Section 15.06 of the Indenture is defective and inconsistent with the other provisions of the Indenture and the intent of the Issuer and the Trustee in negotiating the Indenture and should be deleted and replaced with the phrase “Section 11.01(b) and/or Section 11.01(i), as applicable,”;
WHEREAS, this Supplemental Indenture has not resulted in a material modification of the Notes for Foreign Account Tax Compliance Act (FATCA) purposes;
WHEREAS, all requirements necessary to make this Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms have been done and performed, and the execution and delivery of this Supplemental Indenture has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the premises hereof, the parties have executed and delivered this Supplemental Indenture, and the Company and the Trustee agree for the benefit of each other and for the equal and ratable benefit of the Noteholders, as follows:
AGREEMENT
SECTION 1. Capitalized Terms.
Any capitalized term used and not otherwise defined herein shall have the meaning assigned to such term in the Indenture.
SECTION 2. Correction of a Defect.
The phrase “Section 11.01(b)” in Section 15.06 of the Indenture is deleted and replaced with the phrase “Section 11.01(b) and/or Section 11.01(i), as applicable,”.
SECTION 3. Settlement upon Conversion.
From and after the Effective Date, Noteholders shall have the right to convert the Notes (pursuant to, and subject to the conditions of, the Indenture) solely into the Reference Property. For the avoidance of doubt, the “Reference Property” shall be equal to $2,580.228 (without interest) per $1,000 principal amount of Notes. However, if a conversion occurs on or after the date the Company gives notice of the occurrence of the Effective Date applicable to the Merger, and on or prior to 5:00 p.m. New York City time on the Business Day immediately prior to the Fundamental Change Repurchase Date applicable to the Merger, pursuant to Section 15.03 of the Indenture Noteholders shall be entitled to receive, upon conversion, $2,592.0216 (without interest) per $1,000 principal amount of Notes. For the avoidance of doubt, the Company shall pay the Reference Property due in respect of each Conversion Obligation on the third Trading Day immediately following the relevant Conversion Date.
SECTION 4. Notes.
Each Note, with effect on and from the Effective Date, shall be deemed supplemented, modified and amended in such manner as necessary to make the terms of such Notes consistent with the terms of the Indenture, as amended by this Supplemental Indenture.
SECTION 5. Ratification and Effect.
Except as hereby expressly amended, the Indenture is in all respects ratified and confirmed and all the terms, provisions and conditions thereof shall be and remain in full force and effect. Upon and after the execution of this Supplemental Indenture, the Indenture shall be supplemented in accordance herewith, this Supplemental Indenture shall form a part of the Indenture for all purposes and each reference in the Indenture to the Indenture shall mean and be a reference to the Indenture as modified hereby.
SECTION 6. Responsibility of the Trustee
The recitals in the Supplemental Indenture shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee shall not be responsible or accountable in any manner whatsoever for or with respect to the validity or sufficiency of this Supplemental Indenture. The Trustee shall be under no duty whatsoever to make any determination whether any execution, modification, amendment, supplement or confirmation to any document is necessary to implement such amendments and waivers, including those contained herein, and shall be entitled to conclusively rely on the documentation required to be provided under the terms of the Indenture in a form reasonably satisfactory to the Trustee.
SECTION 7. Governing Law.
This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 8. Conflicts.
To the extent of any inconsistency between the terms of the Indenture or the Notes and this Supplemental Indenture, the terms of this Supplemental Indenture will control.
SECTION 9. Miscellaneous.
This Supplemental Indenture constitutes the entire agreement of the parties hereto with respect to the amendments to the Indenture set forth herein. All covenants and agreements in this Supplemental Indenture given by the parties hereto shall bind their successors. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof or of the Indenture shall not in any way be affected or impaired thereby. The section headings are for convenience only and shall not affect the construction hereof. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement, binding on the parties hereto.
Signatures follow.
| ISSUER: | ||
| ARIAD PHARMACEUTICALS, INC. | ||
| By: | /s/ Manmeet S. Soni | |
| Name: | Manmeet S. Soni | |
| Title: | Executive Vice President, Chief Financial Officer and Treasurer | |
| TRUSTEE: | ||
| WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Stefan Victory | |
| Name: | Stefan Victory | |
| Title: | Vice President | |
Exhibit 99.1
EXECUTION VERSION
ARIAD Pharmaceuticals, Inc.
125 Binney Street
Cambridge, Massachusetts 02142
February 16, 2017
To: Wells Fargo Bank, National Association
150 E. 42nd St., 40th Floor,
New York, NY 10017,
Attention: Corporate Trust Services – Administrator for ARIAD Pharmaceuticals, Inc.
To: Holders of 3.625% Convertible Senior Notes due 2019 (the “Notes”) issued by ARIAD Pharmaceuticals, Inc.; CUSIP: 04033AAA8.
Notice of Increased Conversion Rate and Supplemental Indenture
Reference is made to the Indenture, dated as of June 17, 2014, between ARIAD Pharmaceuticals, Inc. (the “Company” or “we”) and Wells Fargo Bank, National Association, as Trustee (the “Indenture”). Capitalized terms used but not otherwise defined herein shall have their respective meanings set forth in the Indenture.
The Company previously notified you that, on January 8, 2017, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Takeda Pharmaceutical Company Limited (“Parent”), a corporation organized under the laws of Japan, and Kiku Merger Co., Inc. (“Merger Sub”), a Delaware corporation and an indirect wholly-owned subsidiary of Parent. Pursuant to the Merger Agreement, Merger Sub commenced a tender offer (the “Offer”) on January 19, 2017, to acquire all of the outstanding shares of common stock of the Company, $0.001 par value per share (the “Common Stock”), at a purchase price of $24 per share (the “Offer Price”) in cash, net of applicable withholding taxes and without interest. The Company hereby notifies you that the Offer expired on February 15, 2017 and Merger Sub accepted a majority of the outstanding shares of Common Stock on February 16, 2017. Additionally, on February 16, 2017, following the acquisition of the Common Stock, Merger Sub merged with and into the Company (the “Merger”), with the Company surviving the Merger as an indirect wholly-owned subsidiary of Parent.
As a result of the Merger, each share of Common Stock (other than shares of Common Stock (i) owned by Parent, Merger Sub or any other direct or indirect wholly-owned subsidiary of Parent immediately prior to the closing of the Merger, (ii) owned by the Company or any direct or indirect wholly-owned subsidiary of the Company or held in the Company’s treasury or (iii) held by a holder who is entitled to appraisal and who has properly exercised appraisal rights for such shares in accordance with Section 262 of the General Corporation Law of the State of Delaware, or as otherwise provided with respect to the Company equity awards) converted automatically into the right to receive the Offer Price in cash, net of applicable withholding taxes and without interest.
Under Section 15.06 of the Indenture, because the Merger constituted a Merger Event, the right to convert your Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock was changed to the right to convert your Notes into the cash amount that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to the Merger would have been entitled to receive. In accordance with Section 15.06, the Company entered into a supplemental indenture, dated as of February 16, 2017, with Wells Fargo Bank, National Association, as Trustee, to the Indenture (the “Supplemental Indenture”) to effect such change.
In addition, the acquisition of the shares of Common Stock in the Offer constituted a Make-Whole Fundamental Change. Pursuant to Section 15.03 of the Indenture, the Conversion Rate of the Notes has temporarily increased from 107.5095 shares of Common Stock per $1,000 principal amount of Notes to 108.0009 shares (which is equal to a Conversion Price of approximately $9.26 per share of Common
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Stock). As a result, the temporary increase in the Conversion Rate enables you to temporarily convert the Notes into $2,592.0216 in cash (without interest) per $1,000 principal amount of Notes. The temporarily increased Conversion Rate of the Notes will only be available if the Notes are surrendered for conversion on or before 5:00 pm New York city time on the Business Day immediately prior to the Fundamental Change Repurchase Date described below.
Finally, the acquisition of the shares of Common Stock in the Offer constituted a Fundamental Change. Pursuant to Section 19.02 of the Indenture, the Company is required to offer to repurchase the Notes of each Noteholder for cash at a repurchase price equal to 100% of the principal amount of such Notes, together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date specified in such offer (which is required to be no later than 35 Business Days following the date the Company makes its offer to repurchase the Notes). This notice is not an offer to repurchase the Notes, which will be made by the Company within 20 days after the Fundamental Change. Thereafter, you are entitled to convert your Notes into $2,580.228 in cash (without interest) per $1,000 principal amount of Notes
If you have any questions, please contact Fabien Dubois of the Company, at Fabien.Dubois2@takeda.com or +1 (617) 679-7000.
| Sincerely, |
| /s/ Manmeet S. Soni |
| Manmeet S. Soni Executive Vice President, Chief Financial Officer and Treasurer |
cc: Raymond Delli Colli
Wells Fargo Bank, National Association
Cautionary Statement Regarding Forward-Looking Statements
This notice contains forward-looking information related to the Company. These forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “believes,” “plans,” “anticipates,” “projects,” “estimates,” “expects,” “intends,” “strategy,” “future,” “opportunity,” “may,” “will,” “should,” “could,” “potential,” or similar expressions. Many of the factors that may cause actual results to differ materially include those set forth in the reports that the Company files from time to time with the SEC, including its annual report on Form 10-K for the fiscal year ended December 31, 2015 and quarterly and current reports on Form 10-Q and 8-K, as well as the Tender Offer Statement on Schedule TO and other tender offer documents filed by Parent and Merger Sub. Many of these factors are beyond the Company’s control. Unless otherwise required by applicable law, the Company disclaims any intention or obligation to update forward-looking statements contained in this document as the result of new information or future events or developments.