| Date: January 23, 2023 | | |
ASTRAZENECA PLC
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/s/ Adrian Kemp
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Name:
Adrian Kemp
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Title:
Company Secretary
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| | | | ASTRAZENECA FINANCE AND HOLDINGS INC. | |
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/s/ David White
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Name:
David White
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Title:
Treasurer
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| | | | CINNAMON ACQUISITION, INC. | |
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/s/ David White
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Name:
David White
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Title:
Treasurer
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
EASTERN TIME, ON FEBRUARY 23, 2023, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
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Page
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Introduction | | | | | 11 | | |
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Securities Sought
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| | Subject to certain conditions, as described in Section 15 — “Conditions of the Offer”, including the satisfaction of the Minimum Condition, all of the outstanding shares of common stock, par value $0.00001 per share (the “Shares”), of CinCor. | |
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Price Offered Per Share
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| | $26.00 per Share in cash (the “Closing Amount”), plus one contingent value right (each, a “CVR”) per Share representing the right to receive a contingent payment of $10.00 in cash if a specified milestone is achieved, subject to and in accordance with the terms of the Contingent Value Rights Agreement (the “CVR Agreement”), on or prior to December 31, 2033 (the Closing Amount plus one CVR, collectively, or any higher amount per Share that may be paid pursuant to the Offer, the “Offer Price”), in each case, without interest, subject to any applicable withholding taxes. | |
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Scheduled Expiration of Offer
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| | One minute after 11:59 p.m., Eastern Time, on February 23, 2023, unless the Offer is otherwise extended or earlier terminated (“Expiration Time”). | |
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Purchaser
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| | Cinnamon Acquisition, Inc., a Delaware corporation (“Purchaser”) and a direct wholly owned subsidiary of AstraZeneca Finance and Holdings Inc., a Delaware corporation (“Parent”). | |
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High
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Low
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Fiscal Year Ending December 31, 2023 | | | | | | | | | | | | | |
First Quarter (through January 20, 2023)
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| | | $ | 29.44 | | | | | $ | 11.49 | | |
Fiscal Year Ending December 31, 2022 | | | | | | | | | | | | | |
Fourth Quarter
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| | | $ | 37.77 | | | | | $ | 10.53 | | |
Third Quarter
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| | | $ | 43.15 | | | | | $ | 18.56 | | |
Second Quarter
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| | | $ | 26.78 | | | | | $ | 13.00 | | |
First Quarter (beginning on January 7, 2022)
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| | | $ | 30.66 | | | | | $ | 13.01 | | |
Name
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Citizenship
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Principal Occupation or Employment and 5-Year Employment History
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Leif Johansson* | | | Sweden | | | Leif Johansson has served as Non-Executive Chairman of the Board of AstraZeneca from 2012 to present and Chairman of LM Ericsson from 2011 to 2018. | |
Pascal Soriot* | | | France and Australia | | | Pascal Soriot has served as Executive Director and Chief Executive Officer of AstraZeneca from 2012 to present. | |
Aradhana Sarin* | | | United States | | | Aradhana Sarin has served as Executive Director and Chief Financial Officer of AstraZeneca from 2021 to present and previously served as Alexion Pharmaceuticals, Inc.’s Chief Financial Officer from 2019 to 2021 and Chief Strategy and Business Officer from 2017 to 2019. | |
Philip Broadley* | | | United Kingdom | | | Philip Broadley has served as Senior Independent Non-Executive Director of AstraZeneca from 2021 to present, and Director of AstraZeneca from 2017 to 2021. He has also served as Chairman of Governors of Eastbourne College from 2017 to present, and until 2019 was a member of the Oxford University Audit Committee. | |
Euan Ashley* | | | United States | | | Euan Ashley has served as Non-Executive Director of AstraZeneca from 2020 to present and is the Associate Dean, Professor of Biomedical Data Science and Professor of Cardiovascular Medicine and Genetics at Stanford University, 300 Pasteur Dr., Stanford, CA 94305, where he has worked since 2010 in various roles. | |
Michel Demaré* | | | United Kingdom and Switzerland | | | Michel Demaré has served as Non-Executive Director of AstraZeneca from 2019 to present. He is also a Non-Executive Director of Vodafone Group Plc and Louis Dreyfus Int’l Holdings BV, Chairman of IMD Business School and Chairman of Nomoko AG, and previously served as Vice-Chairman of UBS Group AG from 2010 to 2019. | |
Deborah DiSanzo*
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| | United States | | | Deborah DiSanzo has served as Non-Executive Director of AstraZeneca from 2017 to present and has been President of Best Buy Health for Best Buy Co. Inc., 7601 Penn Ave S., Richfield, MN 55423, from 2020 to present. Prior to that, she was the General Manager of IBM Watson Health from 2015 to 2018. | |
Diana Layfield* | | | United Kingdom | | | Diana Layfield has served as Non-Executive Director of AstraZeneca from 2020 to present and also serves as General Manager, International Search at Google, 1-13 St Giles High St, London WC2H 8AG, United Kingdom, from 2022 to present, following other roles at Google prior to that, including Vice President, Next Billion Users at Google from 2016 to 2022. | |
Sheri McCoy* | | | United States | | | Sheri McCoy has served as Non-Executive Director of | |
Name
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Citizenship
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Principal Occupation or Employment and 5-Year Employment History
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| | | | | | AstraZeneca from 2017 to present and previously served as Chief Executive Officer and Director of Avon Products, Inc. from 2012 to 2018. | |
Tony Mok* | | | Canada | | | Tony Mok has served as Non-Executive Director of AstraZeneca from 2019 to present and is the Li Shu Fan Medical Foundation endowed Professor and Chairman of the Department of Clinical Oncology at the Chinese University of Hong Kong, Central Ave, Hong Kong, which he joined in 1996. | |
Nazneen Rahman*
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| | United Kingdom | | | Nazneen Rahman has served as Non-Executive Director of AstraZeneca from 2017 to present, previously served as Head of Cancer Genetics at the Royal Marsden NHS Foundation Trust until 2018 and is the founder and Chief Executive Officer of YewMaker, Unit 3, Upp Hall Farm, Salmons Lane, Coggeshall, Colchester, United Kingdom, CO6 1RY, since 2020. | |
Andreas Rummelt*
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| | Switzerland | | | Andreas Rummelt has served as Non-Executive Director of AstraZeneca from 2021 to present, and has been the Chairman and Managing Partner of InterPharmaLink AG, Münchensteinerstrasse 41, 4052 Basel, Switzerland from 2011 to present. | |
Marcus Wallenberg* | | | Sweden | | | Marcus Wallenberg has served as Non-Executive Director of AstraZeneca from 1999 to present and is Chair of Skandinaviska Enskilda Banken AB, Kungsträdgårdsgatan 8, 106 40 Stockholm, Sweden, Saab AB and FAM AB. | |
Pam Cheng | | | United States | | | Pam Cheng has served as Executive Vice-President, Operations & Information Technology of AstraZeneca from 2015 to present. | |
Ruud Dobber | | | United Kingdom | | | Ruud Dobber has served as Executive Vice-President, BioPharmaceuticals Business Unit of AstraZeneca from 2021 to present. Prior to that, he was Executive Vice-President, North America of AstraZeneca from 2016 to 2021. | |
Marc Dunoyer | | | France | | | Marc Dunoyer served as Chief Executive Officer of Alexion Pharmaceuticals Inc., AstraZeneca’s Rare Disease group, from 2021 to present and previously served as an Executive Director and AstraZeneca’s Chief Financial Officer from 2013 to 2021. | |
David Fredrickson
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| | United States | | | David Fredrickson has served as Executive Vice-President, Oncology Business Unit of AstraZeneca since 2017. | |
Susan Galbraith | | | United Kingdom | | | Susan Galbraith has served as Executive Vice-President, Oncology R&D of AstraZeneca since 2021, previously serving in other roles at AstraZeneca after joining in 2010, including as Senior Vice-President and Head of Research and Early Development, Oncology R&D from 2018 to 2020. | |
Menelas Pangalos | | | United Kingdom | | | Menelas Pangalos has served as Executive Vice-President, BioPharmaceuticals R&D of AstraZeneca from 2019 to present, previously serving in other roles at AstraZeneca after joining in 2010, including as Executive Vice-President, Innovative Medicines and Early Development Biotech Unit and Global Business Development. | |
Name
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Citizenship
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Principal Occupation or Employment and 5-Year Employment History
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Jeff Pott | | | United States | | | Jeff Pott has served as General Counsel of AstraZeneca since 2009, and was also appointed Chief Human Resources Officer of AstraZeneca in 2021 and Chief Compliance Officer of AstraZeneca in 2023. | |
Iskra Reic | | | United States | | | Iskra Reic has served as Executive Vice President, Vaccines and Immune Therapies of AstraZeneca since 2021. Prior to that, she held various roles at AstraZeneca, including as Executive Vice-President, Europe in 2017 and the later expansion of that role to Europe and Canada in 2019. | |
Leon Wang | | | China | | | Leon Wang has served as Executive Vice President, International and China President from 2017 to present. | |
Name
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Principal Occupation or Employment and 5-Year Employment History
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David E. White*
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| | David E. White joined a predecessor company of AstraZeneca in 1974 and has Treasury oversight responsibilities for AstraZeneca’s operating companies in North America. He serves as Treasurer of AstraZeneca Pharmaceuticals LP, Alexion Pharmaceuticals, Inc. and AstraZeneca Canada Inc. | |
Keith Burns | | | Keith Burns has served as Director of U.S. Tax Operations at AstraZeneca Pharmaceuticals LP from 2015 to present. | |
Kevin Durning*
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| | Kevin Durning has served as U.S. Chief Financial Officer and Vice President, Finance (Interim) of AstraZeneca Pharmaceuticals LP from 2022 to present, and previously served in various roles at AstraZeneca Pharmaceuticals LP, including as Head of Business Planning and Analysis from 2021 to 2022 and U.S. Controller, Head of North America Finance Services, from 2018 to 2021. | |
Richard Kenny
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| | Richard Kenny has served as Senior Director, Corporate Legal at AstraZeneca Pharmaceuticals LP since 2019. Mr. Kenny previously served as Assistant General Counsel of AstraZeneca Pharmaceuticals LP, and joined its predecessor company in 1993. | |
Theresa Rogler | | | Theresa Rogler has served as Senior Tax Manager, U.S. Tax Operations of AstraZeneca Pharmaceuticals LP from 2019 to present, and in various manager roles from 2009 to 2019. | |
Name
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Principal Occupation or Employment and 5-Year Employment History
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David E. White*
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| | David E. White joined a predecessor company of AstraZeneca in 1974 and has Treasury oversight responsibilities for AstraZeneca’s operating companies in North America. He serves as Treasurer of AstraZeneca Pharmaceuticals LP, Alexion Pharmaceuticals, Inc. and AstraZeneca Canada Inc. | |
Keith Burns | | | Keith Burns has served as Director of U.S. Tax Operations at AstraZeneca Pharmaceuticals LP from 2015 to present. | |
Kevin Durning*
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| | Kevin Durning has served as U.S. Chief Financial Officer and Vice President, Finance (Interim) of AstraZeneca Pharmaceuticals LP from 2022 to present, and previously served in various roles at AstraZeneca Pharmaceuticals LP, including as Head of Business Planning and Analysis from 2021 to 2022 and U.S. Controller, Head of North America Finance Services, from 2018 to 2021. | |
Richard Kenny
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| | Richard Kenny has served as Senior Director, Corporate Legal at AstraZeneca Pharmaceuticals LP since 2019. Mr. Kenny previously served as Assistant General Counsel of AstraZeneca Pharmaceuticals LP, and joined its predecessor company in 1993. | |
Theresa Rogler | | | Theresa Rogler has served as Senior Tax Manager, U.S. Tax Operations of AstraZeneca Pharmaceuticals LP from 2019 to present, and in various manager roles from 2009 to 2019. | |
Michael Elloian
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| | Michael Elloian has served as Vice President, Taxes of Alexion Pharmaceuticals Inc. since 2018 and its Executive Director and Head of Tax from 2017 to 2018. | |
Stephen LaRosa
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| | Stephen LaRosa has served as Executive Director, U.S. State and Local Tax of Alexion Pharmaceuticals Inc. since 2020, and as its Senior Director, Global Indirect and U.S. State Tax prior to 2020. | |
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If delivering by mail:
American Stock Transfer & Trust Company, LLC
Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
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If delivering by express mail
or other expedited mail service:
American Stock Transfer & Trust Company, LLC
Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
EASTERN TIME, ON FEBRUARY 23, 2023, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
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If delivering by mail:
American Stock Transfer & Trust Company, LLC
Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
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If delivering by express mail
or other expedited mail service:
American Stock Transfer & Trust Company, LLC
Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
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DESCRIPTION OF SHARES TENDERED
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Name(s) and Address(es) of Registered Owner(s)
(If blank, please fill in exactly as name(s) appear(s) on share certificate(s)) |
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Shares Tendered (attach additional list if necessary)
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Certificated Shares*
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Book Entry Shares**
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Certificate
Number(s) |
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Total Number
of Shares Represented by Certificates |
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Number of Shares
Represented by Certificate(s) Tendered |
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Number of Shares
Held in Book-Entry Form Tendered |
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Total Shares
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*
Unless otherwise indicated, it will be assumed that all shares of common stock represented by certificates described above are being tendered hereby. See Instruction 4.
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**
Unless otherwise indicated, it will be assumed that all shares of common stock held in book-entry form are being tendered hereby.
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| Name of Tendering Institution: | | |
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| DTC Participant Number: | | |
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| Transaction Code Number: | | |
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NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY. |
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SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 4, 5, and 7) |
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| | To be completed ONLY if Share Certificate(s) not validly tendered or not accepted for payment and/or the check for the Offer Price in consideration of Shares validly tendered and accepted for payment are to be issued in the name of someone other than the undersigned or if Shares validly tendered by book-entry transfer which are not accepted for payment are to be returned by credit to an account maintained at DTC other than that designated above. | | | |||
| | Issue: | | | | | |
| | ☐ Check and/or | | | |||
| | ☐ Shares to: | | | |||
| | Name | | | | | |
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(Please Print)
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| | Address | | | | | |
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(Include Zip Code)
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(Tax Identification or Social Security Number) (Please additionally complete IRS Form W-9
(attached) or the applicable IRS Form W-8, available at irs.gov) |
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SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 4, 5, and 7) |
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| | To be completed ONLY if Share Certificate(s) not validly tendered or not accepted for payment and/or the check for the Offer Price in consideration of Shares validly tendered and accepted for payment are to be sent to someone other than the undersigned or to the undersigned at an address other than that shown in the box titled “Description of Shares Tendered” above. | | | ||||||
| | Deliver: | | | | | | |||
| | ☐ Check and/or | | | ||||||
| | ☐ Shares to: | | | | | | |||
| | Name | | | | | | |||
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(Please Print)
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(Include Zip Code)
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IMPORTANT — SIGN HERE
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Signature(s) of Stockholder(s):
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Dated: , 2023
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| (Must be signed by registered owner(s) exactly as name(s) appear(s) on Share Certificate(s) or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, officers of a corporation or others acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5. For information concerning signature guarantees, see Instruction 1.) | | |||
| Name(s): | | | | |
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(Please Print)
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| Capacity (Full Title): | | | | |
| Address: | | | | |
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(Include Zip Code)
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| Area Code and Telephone Number: | | | | |
| Tax Identification or Social Security No.: | | | | |
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(Please additionally complete IRS Form W-9 (attached) or the applicable IRS Form W-8, available at irs.gov)
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GUARANTEE OF SIGNATURE(S)
(For use by Eligible Institutions only; see Instructions 1 and 5) |
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| Name of Firm: | | | | |
| Address: | | | | |
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(Include Zip Code)
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| Authorized Signature: | | | | |
| Name: | | | | |
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(Please Print)
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| Area Code and Telephone Number | | | | |
| Dated: , 2023 | | | | |
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Place medallion guarantee in space below:
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If delivering by mail:
American Stock Transfer & Trust Company, LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
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If delivering by express mail
or other expedited mail service: American Stock Transfer & Trust Company, LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
EASTERN TIME, ON FEBRUARY 23, 2023, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M.,
EASTERN TIME, ON FEBRUARY 23, 2023, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
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| NUMBER OF SHARES TO BE TENDERED: | | | | | |
SIGN HERE
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Shares*
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(Signature(s))
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Please Type or Print Name(s)
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Address(es)
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Area Code and Telephone Number
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Tax Identification Number or Social Security Number
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| * Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered. | | | |||||
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Exhibit (a)(1)(E)
This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below). The Offer (as defined below) is made only by the Offer to Purchase dated January 23, 2023, and the related Letter of Transmittal and any amendments, supplements or other modifications thereto, and is being made to all holders of Shares. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, “blue sky” or other laws of such jurisdiction. In jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of Purchaser (as defined below) by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.
Notice
of Offer to Purchase
All Outstanding Shares of Common Stock
of
CINCOR PHARMA, INC.
at
$26.00 per share in cash, plus one contingent value right per share representing the right to receive a contingent payment of $10.00
in cash if a specified milestone is achieved
by
CINNAMON ACQUISITION, INC.
a wholly owned subsidiary of
ASTRAZENECA FINANCE AND HOLDINGS INC.
a wholly owned subsidiary of
ASTRAZENECA PLC
Cinnamon Acquisition, Inc., a Delaware corporation (“Purchaser”) and direct wholly owned subsidiary of AstraZeneca Finance and Holdings Inc., a Delaware corporation (“Parent”), is offering to purchase all of the outstanding shares of common stock, par value $0.00001 per share (the “Shares”), of CinCor Pharma, Inc., a Delaware corporation (“CinCor”), in exchange for (i) $26.00 per Share in cash (the “Closing Amount”), plus (ii) one contingent value right (each, a “CVR”) per Share representing the right to receive a contingent payment of $10.00 in cash (the “Milestone Payment”) if a specified milestone is achieved on or prior to December 31, 2033 (the Closing Amount plus one CVR, collectively, or any higher amount per Share that may be paid pursuant to the Offer, the “Offer Price”), in each case, without interest, subject to any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated January 23, 2023 (as it may be amended, supplemented or otherwise modified from time to time, the “Offer to Purchase”), and in the related Letter of Transmittal (as it may be amended, supplemented or otherwise modified from time to time, the “Letter of Transmittal,” which, together with the Offer to Purchase, as they may be amended, supplemented or otherwise modified from time to time, collectively constitute the “Offer”). Stockholders of record who tender directly to American Stock Transfer & Trust Company, LLC (the “Depositary”) will not be obligated to pay brokerage fees or commissions or, except as may be set forth in the Letter of Transmittal, transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker, dealer, commercial bank, trust company or other nominee should consult such institution as to whether it charges any service fees or commissions.
THE
OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M., |
The Offer is being made pursuant to an Agreement and Plan of Merger dated as of January 8, 2023 (as it may be amended, supplemented or otherwise modified from time to time, the “Merger Agreement”), among CinCor, Parent and Purchaser. The Merger Agreement provides, among other things, that, following the consummation of the Offer and subject to certain conditions, Purchaser will be merged with and into CinCor pursuant to Section 251(h) of the General Corporation Law of the State of Delaware, as amended (the “DGCL”), with CinCor continuing as the surviving corporation and becoming a direct wholly owned subsidiary of Parent (the “Merger”). In the Merger, each outstanding Share (other than Shares held immediately prior to the effective time of the Merger (being such date and at such time as the certificate of merger in respect of the Merger has been duly filed with the Secretary of State of the State of Delaware or at such later time and date as may be agreed upon by the parties to the Merger Agreement in writing and specified in the certificate of merger in accordance with the DGCL, the “Effective Time”) by CinCor, including in its treasury, Parent, Purchaser, any other direct or indirect wholly owned subsidiary of Parent or CinCor, or stockholders who are entitled to, and properly exercised and perfected, demands for appraisal of such Shares under Section 262 of the DGCL) will be cancelled and converted into the right to receive an amount in cash equal to the Offer Price, without interest (the “Merger Consideration”), less any applicable tax withholding.
All options to purchase Shares (“Options”) outstanding as of immediately prior to the Effective Time, except as specified in the Merger Agreement, will accelerate and become fully vested and exercisable effective immediately prior to, and contingent upon, the Effective Time. At the Effective Time, each vested Option that has a per share exercise price that is less than the Closing Amount (each, an “In-the-Money Option”) that is outstanding and unexercised as of immediately prior to the Effective Time will be canceled and converted into the right to receive, without interest and less any applicable tax withholding, (i) cash in an amount equal to the product of (A) the total number of Shares subject to such fully vested In-the-Money Option, multiplied by (B) the excess of (1) the Closing Amount over (2) the exercise price payable per Share under such In-the-Money Option and (ii) one CVR with respect to each Share subject to such In-the-Money Option. At the Effective Time, each vested Option that has an exercise price per Share that is equal to or greater than the Closing Amount (each, an “Underwater Option”) that is outstanding as of immediately prior to the Effective Time will be canceled and converted into the right to receive one CVR with respect to each Share subject to such Underwater Option, and therefore may become entitled to receive, without interest and less any applicable tax withholding, cash in an amount equal to the product of (i) the total number of Shares subject to such Underwater Option, multiplied by (ii) the amount, if any, by which (A) the Closing Amount plus the Milestone Payment exceeds (B) the exercise price payable per Share under such Underwater Option.
At the Effective Time, all CinCor restricted stock unit awards granted (“RSUs”) that are outstanding immediately prior to the Effective Time, except as specified in the Merger Agreement, will accelerate and become fully vested effective immediately prior to, and contingent upon, the Effective Time. As of the Effective Time, each vested RSU will be canceled and converted into the right to receive, without interest and less any applicable tax withholding, (i) cash in an amount equal to (A) the total number of Shares issuable in settlement of such RSU immediately prior to the Effective Time multiplied by (B) the Closing Amount, and (ii) one CVR with respect to each Share issuable in settlement of such RSU.
Each Share issued upon early exercise of an Option that is subject to vesting, repurchase or other lapse restrictions (each, a “Restricted Share”) that is outstanding as of immediately prior to the Effective Time will accelerate and become fully vested effective immediately prior to, and contingent upon, the Effective Time, and the Restricted Shares will be treated as Shares and receive the Merger Consideration, less any applicable tax withholding.
At the Effective Time, each warrant to purchase Shares (“Warrant”) that is outstanding and unexercised as of immediately prior to the Effective Time (other than any Warrant to the extent the holder thereof has elected a cashless exercise of such Warrant prior to the Effective Time) will cease to represent a right to acquire Shares, and will entitle each holder of Warrants to receive (i) cash in an amount equal to the product of (A) the total number of Shares subject to such Warrant immediately prior to the Effective Time, multiplied by (B) the excess of (1) the Closing Amount over (2) the exercise price payable per Share under such Warrant, and (ii) one CVR with respect to each Share subject to such Warrant, less any applicable tax withholding.
The Offer is subject to the conditions set forth in Section 15 of the Offer to Purchase (collectively, the “Offer Conditions”), including (i) there having been validly tendered and not validly withdrawn that number of Shares that, when added to all other Shares beneficially owned by Parent or its subsidiaries (but excluding Shares tendered that have not yet been received, as defined in Section 251(h)(6) of the DGCL), would represent at least one more than 50% of the total number of Shares outstanding at the Expiration Time (as defined below) (the “Minimum Condition”), (ii) the expiration or termination of any waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) (and any extension thereof, including under any agreement entered into in accordance with the Merger Agreement between a party and a governmental authority, if consented to by the other party in accordance with the Merger Agreement, agreeing not to consummate the Merger prior to a certain date) applicable to the Offer, and (iii) there not (A) having been issued by any court of competent jurisdiction and remain in effect any temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Offer and the Merger, (B) having been any legal requirement or order promulgated, entered, enforced, enacted, issued or deemed applicable to the Offer and the Merger by any governmental authority which directly or indirectly prohibits, or makes illegal, the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Merger or (C) be pending any legal proceeding by any governmental authority seeking certain remedies or restrictions on the ability of Parent to own or operate CinCor, its businesses or assets (each of (ii) and (iii), as (iii) relates to the HSR Act, the “Regulatory Condition”).
The term “Expiration Time” means one minute after 11:59 p.m., Eastern Time, on February 23, 2023, unless the expiration of the Offer is extended to a subsequent date and time in accordance with the terms of the Merger Agreement, in which event the term “Expiration Time” means such subsequent date and time.
The board of directors of CinCor (the “CinCor Board”) has unanimously: (i) determined that the Merger Agreement and the Transactions (as defined in the Offer to Purchase) are advisable and fair to, and in the best interest of, CinCor and its stockholders; (ii) determined that the Merger will be governed and effected in accordance with Section 251(h) of the DGCL; (iii) authorized and approved the execution, delivery and performance by CinCor of the Merger Agreement and the consummation of the Transactions; and (iv) resolved to recommend that the holders of Shares accept the Offer and tender their Shares to Purchaser pursuant to the Offer. The CinCor Board unanimously recommends that CinCor stockholders accept the Offer and tender their Shares pursuant to the Offer.
The Merger Agreement contains provisions that govern the circumstances under which Purchaser is required to extend the Offer. Specifically, the Merger Agreement provides that:
· | if, at the scheduled Expiration Time, any Offer Condition is not satisfied and has not been waived, and if permitted under applicable law, Purchaser may (without the consent of CinCor or any other person), extend the Offer for additional periods of up to ten business days per extension (or such longer period as Parent and CinCor may agree) to permit such Offer Condition to be satisfied, except that without CinCor’s prior written consent, Purchaser will not be permitted to extend the Offer on more than two occasions, not to exceed an aggregate of twenty business days, if all of the Offer Conditions have been satisfied or waived (other than the Minimum Condition and any conditions that by their nature would be satisfied at the Offer Acceptance Time (as defined in the Offer to Purchase)); |
· | Purchaser must extend the Offer for (i) any period required by any applicable law or any interpretation or position of the SEC or its staff or Nasdaq or its staff applicable to the Offer; and (ii) periods of up to ten business days per extension (or such fewer business days as agreed by Parent and CinCor) until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act has expired or been terminated; and |
· | if, at the scheduled Expiration Time, any Offer Condition is not satisfied and has not been waived, at CinCor’s request, Purchaser must extend the Offer for additional periods of up to ten business days per extension (or such other period as Parent and CinCor may agree) to permit such Offer Condition to be satisfied, except that Purchaser will not be required to extend the Offer on more than two occasions, not to exceed an aggregate of twenty business days, if all of the Offer Conditions have been satisfied or waived (other than the Minimum Condition and any conditions that by their nature would be satisfied at the Offer Acceptance Time). |
The Merger Agreement provides that Purchaser will not be required to, and may not without CinCor’s prior written consent, extend the Offer beyond the earlier of the termination of the Merger Agreement and the Termination Date. The “Termination Date” means July 10, 2023, unless otherwise extended to October 9, 2023 pursuant to the terms of the Merger Agreement.
If the Offer is consummated, Purchaser will not seek the approval of CinCor’s remaining stockholders before effecting the Merger. Parent, Purchaser and CinCor have elected to have the Merger Agreement and the transactions contemplated thereby governed by Section 251(h) of the DGCL and agreed that the Merger will be effected as soon as practicable following the consummation of the Offer. Under Section 251(h) of the DGCL, the consummation of the Merger does not require a vote or action by written consent of CinCor stockholders.
Purchaser expressly reserves the right to increase the Offer Price, waive any Offer Condition and make any other changes in the terms of or conditions to the Offer, except that CinCor’s prior written consent is required for Purchaser to: (i) decrease the Closing Amount, Offer Price or the number of CVRs to be paid per Share; (ii) change the form of consideration payable in the Offer; (iii) decrease the maximum number of Shares sought to be purchased in the Offer; (iv) impose conditions or requirements to the Offer in addition to the Offer Conditions; (v) amend or modify any of the Offer Conditions in a manner that adversely affects, or would reasonably be expected to adversely affect, the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer; (vi) change or waive the Minimum Condition or the Regulatory Condition; (vii) accelerate, extend or otherwise change the Expiration Time other than as required or permitted by the Merger Agreement; (viii) amend any term of any CVR or the CVR Agreement (as defined in the Offer to Purchase) in any manner that is adverse to any holder of Shares; or (iv) provide any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act.
The Offer may not be terminated prior to the Expiration Time (or any rescheduled Expiration Time) without the prior written consent of CinCor, unless the Merger Agreement is validly terminated in accordance with its terms.
Any extension, delay, termination or amendment of the Offer will be followed as promptly as practicable by a public announcement thereof, and such announcement in the case of an extension will be made no later than 9:00 a.m., Eastern time, on the business day after the previously scheduled Expiration Time.
Purchaser is not providing for guaranteed delivery procedures. Therefore, CinCor stockholders must allow sufficient time for the necessary tender procedures to be completed prior to the Expiration Time. In addition, for CinCor stockholders who are registered holders, the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees and any other documents required by the Letter of Transmittal (or in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal and such other documents) must be received by the Depositary prior to the Expiration Time.
For purposes of the Offer, Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not properly withdrawn as, if and when it gives oral or written notice to the Depositary of its acceptance for payment of such Shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for such Shares with the Depositary, which will act as agent for tendering stockholders for the purpose of receiving payments from Parent and Purchaser and transmitting such payments to tendering stockholders. Under no circumstances will Parent or Purchaser pay interest on the Offer Price, regardless of any extension of the Offer or any delay in making such payment.
In all cases, Purchaser will pay for Shares validly tendered and accepted for payment pursuant to the Offer only after timely receipt by the Depositary of (i) the certificates evidencing such Shares (the “Share Certificates”) or timely confirmation of a book-entry transfer of such Shares into the Depositary’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in Section 3 of the Offer to Purchase, (ii) the Letter of Transmittal, properly completed and duly executed, with all required signature guarantees and (iii) any other documents required by the Letter of Transmittal or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal and such other documents.
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Time. Thereafter, tenders are irrevocable, except that if Purchaser has not accepted your Shares for payment within 60 days after commencement of the Offer, you may withdraw them at any time after March 24, 2023, the 60th day after commencement of the Offer, until Purchaser accepts your Shares for payment.
For a withdrawal of Shares to be effective, the Depositary must timely receive a written or facsimile transmission notice of withdrawal at one of its addresses set forth on the back cover of the Offer to Purchase. Any notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the names in which the Share Certificates are registered, if different from that of the person who tendered such Shares. The signature(s) on the notice of withdrawal must be guaranteed by an “eligible institution,” unless such Shares have been tendered for the account of an “eligible institution.” If Shares have been tendered pursuant to the procedures for book-entry transfer as set forth in Section 3 of the Offer to Purchase, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Shares. If Share Certificates representing the Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such Share Certificates, the name of the registered owners and the serial numbers shown on such Share Certificates must also be furnished to the Depositary.
Withdrawals of tenders of Shares may not be rescinded and any Shares properly withdrawn will be deemed not validly tendered for purposes of the Offer. Withdrawn Shares may, however, be retendered by following one of the procedures for tendering Shares described in Section 3 of the Offer to Purchase at any time prior to the scheduled expiration of the Offer.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, is contained in the Offer to Purchase and is incorporated herein by reference.
CinCor has provided Purchaser with CinCor’s stockholder list and security position listings for the purpose of disseminating the Offer to Purchase, the related Letter of Transmittal and related documents to holders of Shares. The Offer to Purchase and related Letter of Transmittal will be mailed to record holders of Shares whose names appear on CinCor’s stockholder list and will be furnished for subsequent transmittal to beneficial owners of Shares to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing.
The receipt of cash by a holder of Shares pursuant to the Offer or the Merger will be a taxable transaction for U.S. federal income tax purposes. See Section 5 of the Offer to Purchase for a more detailed discussion of the material U.S. federal income tax consequences of the Offer and the Merger. You are urged to consult with your own tax advisor as to the particular tax consequences to you of the Offer and the Merger in light of your particular circumstances (including the application and effect of any U.S. federal, state, local or non-U.S. income and other tax laws).
The Offer to Purchase and the related Letter of Transmittal contain important information. Stockholders should carefully read both documents in their entirety before any decision is made with respect to the Offer.
Questions or requests for assistance may be directed to Innisfree M&A Incorporated (the “Information Agent”) at the address and telephone numbers set forth below. Requests for copies of the Offer to Purchase and the related Letter of Transmittal may be directed to the Information Agent or to brokers, dealers, commercial banks or trust companies. Such copies will be furnished promptly at Purchaser’s expense. Purchaser will not pay any fees or commissions to any broker or dealer or any other person (other than the Information Agent or the Depositary) for soliciting tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
Innisfree M&A Incorporated
501 Madison Avenue, 20th floor
New York, New York 10022
Stockholders may call toll free: (888) 750-5835
Banks and Brokers may call collect: (212) 750-5833
January 23, 2023
Exhibit (a)(1)(F)
23 January 2023 07:00 GMT
AstraZeneca begins tender offer to acquire CinCor Pharma, Inc.
AstraZeneca is commencing today, through a subsidiary, a tender offer to purchase all outstanding shares of CinCor Pharma, Inc. (CinCor), for $26 per share in cash at closing, plus a non-tradable contingent value right of $10 per share in cash payable upon a specified regulatory submission for a baxdrostat product. On 9 January 2023, AstraZeneca announced that it had entered into a definitive agreement to acquire CinCor. Following the successful closing of the tender offer, CinCor will become a subsidiary of AstraZeneca.
AstraZeneca will file today with the U.S. Securities and Exchange Commission (the SEC) a tender offer statement on Schedule TO, which provides the terms of the tender offer. Additionally, CinCor will file with the SEC a solicitation/recommendation statement on Schedule 14D-9 that includes the recommendation of the CinCor board of directors that CinCor stockholders accept the tender offer and tender their shares.
The tender offer will expire at one minute past 11:59 p.m. Eastern Time, on 23 February 2023, unless extended or earlier terminated in accordance with the merger agreement and the applicable rules and regulations of the SEC. The closing of the tender offer is subject to certain conditions, including the tender of shares representing at least one more than 50% of the total number of CinCor’s outstanding shares, receipt of applicable regulatory approvals, and other customary conditions. The transaction is expected to close in the first quarter of 2023.
Important information about the tender offer
This press release is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell any shares of the common stock of CinCor or any other securities, nor is it a substitute for the tender offer materials described herein. A tender offer statement on Schedule TO, including an offer to purchase, a letter of transmittal and related documents, will be filed today by AstraZeneca PLC (AstraZeneca), AstraZeneca Finance and Holdings Inc. and Cinnamon Acquisition, Inc., a wholly-owned indirect subsidiary of AstraZeneca, with the Securities and Exchange Commission (the SEC), and a solicitation/recommendation statement on Schedule 14D-9 will be filed by CinCor with the SEC.
INVESTORS AND SECURITY HOLDERS ARE URGED TO CAREFULLY READ BOTH THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 REGARDING THE OFFER, AS THEY MAY BE AMENDED FROM TIME TO TIME, WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT INVESTORS AND SECURITY HOLDERS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SECURITIES.
Investors and security holders may obtain a free copy of the Offer to Purchase, the related Letter of Transmittal, certain other tender offer documents and the Solicitation/Recommendation Statement (when available) and other documents filed with the SEC at the website maintained by the SEC at www.sec.gov or by directing such requests to the information agent for the tender offer, which will be named in the tender offer statement. In addition, CinCor files annual, quarterly and current reports and other information, and AstraZeneca files annual reports and other information with the SEC, which are available to the public from commercial document-retrieval services and at the SEC’s website at www.sec.gov. Copies of the documents filed with the SEC by AstraZeneca may be obtained at no charge on the investor relations page of AstraZeneca’s internet website at www.astrazeneca.com. Copies of the documents filed with the SEC by CinCor may be obtained at no charge under the “Investors” section of CinCor’s internet website at www.cincor.com.
Forward-looking statements
This announcement may include statements that are not statements of historical fact, or “forward-looking statements,” including with respect to AstraZeneca’s proposed acquisition of CinCor. Such forward-looking statements include, but are not limited to, the ability of AstraZeneca and CinCor to complete the transactions contemplated by the acquisition agreement, including the parties’ ability to satisfy the conditions to the consummation of the offer contemplated thereby and the other conditions set forth in the merger agreement, statements about the expected timetable for completing the transaction, AstraZeneca’s and CinCor’s beliefs and expectations and statements about the benefits sought to be achieved in AstraZeneca’s proposed acquisition of CinCor, the potential effects of the acquisition on both AstraZeneca and CinCor, the possibility of any termination of the acquisition agreement, as well as the expected benefits and success of baxdrostat and any combination product. These statements are based upon the current beliefs and expectations of AstraZeneca’s and CinCor’s management and are subject to significant risks and uncertainties. There can be no guarantees that the conditions to the closing of the proposed transaction will be satisfied on the expected timetable or at all or that baxdrostat or any combination product will receive the necessary regulatory approvals or prove to be commercially successful if approved. If underlying assumptions prove inaccurate or risks or uncertainties materialise, actual results may differ materially from those set forth in the forward-looking statements.
Risks and uncertainties include but are not limited to, uncertainties as to the timing of the offer and the subsequent merger; uncertainties as to how many of CinCor’s stockholders will tender their shares in the offer; the risk that competing offers or acquisition proposals will be made; the possibility that various conditions to the consummation of the offer and the merger contemplated by the acquisition agreement may not be satisfied or waived; the ability to obtain necessary regulatory approvals or to obtain them on acceptable terms or within expected timing; the effects of disruption from the transactions contemplated by the acquisition agreement and the impact of the announcement and pendency of the transactions on CinCor’s business; the risk that stockholder litigation in connection with the offer or the merger may result in significant costs of defense, indemnification and liability; the possibility that the milestone related to the contingent value right will not be achieved; general industry conditions and competition; general economic factors, including interest rate and currency exchange rate fluctuations; the impact of COVID-19; the impact of pharmaceutical industry regulation and health care legislation in the United States and internationally; competition from other products; and challenges inherent in new product development, including obtaining regulatory approval.
Neither AstraZeneca nor CinCor undertakes any obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise, except to the extent required by law. Additional factors that could cause results to differ materially from those described in the forward-looking statements can be found in AstraZeneca’s Annual Report on Form 20-F for the year ended 31 December 2021, CinCor’s Annual Report on Form 10-K for the year ended 31 December 2021 and CinCor’s Quarterly Reports on Form 10-Q for the three months ended 31 March 2022, 30 June 2022 and 30 September 2022, in each case as amended by any subsequent filings made with the SEC. These and other filings made by AstraZeneca and CinCor with the SEC are available at the SEC’s Internet site (www.sec.gov).
AstraZeneca in CVRM
Cardiovascular, Renal and Metabolism (CVRM), part of BioPharmaceuticals, forms one of AstraZeneca’s main disease areas and is a key growth driver for the Company. By following the science to understand more clearly the underlying links between the heart, kidneys and pancreas, AstraZeneca is investing in a portfolio of medicines for organ protection and improve outcomes by slowing disease progression, reducing risks and tackling co-morbidities. The Company’s ambition is to modify or halt the natural course of CVRM diseases and potentially regenerate organs and restore function, by continuing to deliver transformative science that improves treatment practices and CV health for millions of patients worldwide.
AstraZeneca
AstraZeneca (LSE/STO/Nasdaq: AZN) is a global, science-led biopharmaceutical company that focuses on the discovery, development, and commercialisation of prescription medicines in Oncology, Rare Diseases, and BioPharmaceuticals, including Cardiovascular, Renal & Metabolism, and Respiratory & Immunology. Based in Cambridge, UK, AstraZeneca operates in over 100 countries and its innovative medicines are used by millions of patients worldwide. Please visit astrazeneca.com and follow the Company on Twitter @AstraZeneca.
Contacts
For details on how to contact the Investor Relations Team, please click here. For Media contacts, click here.
Adrian Kemp
Company Secretary
AstraZeneca PLC
Exhibit (d)(4)
RECIPROCAL CONFIDENTIALITY AGREEMENT
This Reciprocal Confidentiality Agreement (this “Agreement”) is made effective as of May 10, 2021 (the “Effective Date”), by and between AstraZeneca Pharmaceuticals LP, a Delaware limited partnership with offices at 1800 Concord Pike, Wilmington, Delaware 19803 (“AstraZeneca”) and CinCor Pharma, Inc, a corporation with offices at 5375 Medpace Way, Cincinnati OH 45227 (the “Company”), (each a “Party”) (collectively, the “Parties”)
The Parties have had discussions, and contemplate further discussions and negotiations, concerning one or more proposed business arrangements involving AstraZeneca or one or more of its Affiliates (as defined below) on the one hand and the Company or one or more of its Affiliates on the other related to exploration of treatment resistant hypertension therapy using the compound referred as CIN-107 (the “Proposed Transaction”). In connection therewith, each Party desires to disclose to the other Party certain confidential and proprietary information for the sole purpose of enabling the receiving Party to evaluate or enter into the Proposed Transaction (the “Purpose”).
Agreement
In consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. | Definitions. Unless otherwise specifically provided in this Agreement, the following terms shall have the following meanings: |
1.1 | “Affiliate” means, with respect to a Person, any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such first Person. “Control” and, with correlative meanings, the terms “controlled by” and “under common control with” mean (a) the power to direct the management or policies of a Person, whether through ownership of voting securities or by contract relating to voting rights or corporate governance, resolution, regulation or otherwise, or (b) to own more than 50% of the outstanding voting securities or other ownership interest of such Person. |
1.2 | “Agreement” has the meaning set forth in the preamble hereto. |
1.3 | “AstraZeneca” has the meaning set forth in the preamble hereto. |
1.4 | “Company” has the meaning set forth in the preamble hereto. |
1.5 | “Confidential Information” means any and all (a) information or material, including any documents, notes, analyses, studies, financial summaries, samples, drawings, diagrams, designs, flowcharts, databases, models, plans and software (including source and object codes), that at any time on or after the Effective Date has been or is provided or communicated by or on behalf of one Party (such Party in such capacity, the “Disclosing Party”) or any of its Representatives to the other Party (such Party in such capacity, the “Receiving Party”) or any of its Representatives in connection with the Proposed Transaction, including any discussions or negotiations with respect thereto and any data, ideas, concepts or techniques contained therein and (b) any modifications thereof or derivations therefrom, including documents, memoranda, notes, studies and analyses prepared by the Receiving Party or its Representatives that contain, incorporate or are derived from the Disclosing Party’s Confidential Information, in each case, to the extent containing any information or material described in clause (a). Confidential Information may be disclosed either orally, visually, electronically, in writing, by delivery of materials containing Confidential Information or in any other form now known or hereafter invented. |
1.6 | “Disclosing Party” has the meaning set forth in the definition of “Confidential Information”. |
1.7 | “Effective Date” has the meaning set forth in the preamble hereto. |
1.8 | “Person” means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, incorporated association, joint venture or similar entity or organization, including a government or political subdivision, department or agency of a government. |
1.9 | “Proposed Transaction” has the meaning set forth in the recitals hereto. |
1.10 | “Purpose” has the meaning set forth in the recitals hereto. |
1.11 | “Receiving Party” has the meaning set forth in the definition of “Confidential Information”. |
1.12 | “Representative” means, with respect to a Party, its Affiliates and its and their respective directors, officers, and employees, agents, contractors, consultants, advisors and representatives. |
2. | Obligations of the Receiving Party. Subject to Sections 3 and 4, from the Effective Date and for five years thereafter, the Receiving Party |
(a) shall use the Confidential Information of the Disclosing Party solely for the Purpose and shall not use such Confidential Information for any other purpose,
(b) shall keep confidential and not publish, make available or otherwise disclose any Confidential Information, except to its Representatives who reasonably require access to such Confidential Information in connection with the Purpose and who are bound by confidentiality and non-use obligations with respect to such Confidential Information that are no less onerous than those set forth in this Agreement, and
(c) shall not disclose (including by issuing a press release or otherwise making any public statement) to any other Person the fact that Confidential Information has been made available to the Receiving Party, the fact that discussions or negotiations with respect to the Proposed Transaction are taking place between the Parties, or any of the terms, conditions or other facts with respect to such discussions or negotiations (including the status thereof). For purposes of this Agreement, the information described in the foregoing clause (c) shall be deemed to be Confidential Information of each Party.
The Receiving Party shall be jointly and severally liable for any breach by any of its Representatives of the restrictions set forth in this Agreement. The Receiving Party shall notify the Disclosing Party promptly upon the Receiving Party’s discovery of any disclosure or use of Confidential Information of the Disclosing Party by the Receiving Party or any of its Representatives in breach of the terms hereof, and the Receiving Party, at its expense, shall cooperate with the Disclosing Party at the Disclosing Party’s reasonable request to mitigate such breach and prevent any further breach hereof.
3. | Exceptions. The Receiving Party’s obligations under this Agreement shall not extend to any Confidential Information to the extent that the Receiving Party can demonstrate that such Confidential Information (a) is or hereafter becomes generally available to the public by use, publication, general knowledge or the like other than by breach by the Receiving Party or any of its Representatives of the terms hereof, (b) is received from a third party, other than a Representative of, or any other Person that disclosed Confidential Information on behalf of, the Disclosing Party, that is lawfully in possession of such information and is not in violation of any contractual or legal obligation of confidentiality between such third party and the Disclosing Party or any of its Representatives with respect to such information, (c) was already in the possession of the Receiving Party or any of its Affiliates prior to receipt from the Disclosing Party or any of its Representatives as shown in the written records of the Receiving Party or its Affiliates or by other competent evidence, (d) is or was independently developed by the Receiving Party or any of its Affiliates without use or reference to Confidential Information of the Disclosing Party, as shown in the written records of the Receiving Party or its Affiliates or by other competent evidence, or (e) is or was generally made available to third parties by or on behalf of the Disclosing Party, or its Affiliates, without restriction on disclosure. Confidential Information disclosed to the Receiving Party hereunder shall not be deemed to fall within the foregoing exceptions merely because it is embraced by more general information that falls within such exceptions. |
4. | Compliance with Law. This Agreement shall not be deemed to restrict either Party or its Representatives from complying with a lawfully issued governmental order or other legal requirement, including by reason of filings with securities regulators, to produce or disclose Confidential Information; provided, however, that the Receiving Party shall, to the extent permitted by law, promptly notify the Disclosing Party upon learning of such requirement, to enable the Disclosing Party to oppose such requirement or obtain a protective order, and the Receiving Party shall, and shall cause any of its Representatives (as applicable) to, reasonably cooperate with the Disclosing Party in objecting to such requirement and in any related proceedings. |
5. | Return of Confidential Information. |
Upon the Disclosing Party’s written request, the Receiving Party shall (a) at the Receiving Party’s discretion, either destroy or return to the Disclosing Party or its designee any and all tangible embodiments of the Disclosing Party’s Confidential Information described in clause (a) of the definition of Confidential Information (including all copies and reproductions thereof), (b) destroy any and all tangible embodiments of the Disclosing Party’s Confidential Information described in clause (b) of the definition of Confidential Information, and (c) immediately cease, and cause its Representatives to cease, use of the Disclosing Party’s Confidential Information. Notwithstanding the destruction or return of Confidential Information, the Receiving Party will continue to be bound by its obligations under this Agreement.
Notwithstanding the foregoing, (x) the Receiving Party may retain one copy of the Disclosing Party’s Confidential Information for archival purposes and as reasonably necessary to demonstrate compliance with the terms and conditions of this Agreement, including in connection with legal proceedings and (y) neither the Receiving Party nor any of its Representatives shall be required to delete or destroy any electronic back-up tapes or other electronic back-up files that have been created solely by the automatic or routine archiving and back-up procedures of the Receiving Party or its Representatives, to the extent created and retained in a manner consistent with its or their standard archiving and back-up procedures.
6. | No Representation or Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” AND EACH PARTY HEREBY DISCLAIMS AND EXCLUDES ANY AND ALL REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESSED OR IMPLIED, WITH RESPECT TO CONFIDENTIAL INFORMATION PROVIDED BY OR ON BEHALF OF IT HEREUNDER, INCLUDING ANY REPRESENTATION OR WARRANTY OF ACCURACY, COMPLETENESS, QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE OR NON-INFRINGEMENT. The Disclosing Party shall not have any liability, direct or indirect, to the Receiving Party for any damages that may arise as a result of the Receiving Party’s use of Confidential Information or any errors therein or omissions therefrom, except to the extent expressly set forth in any definitive agreement with respect to the Proposed Transaction. Nothing in this Section is intended to limit or exclude the Disclosing Party’s liability for fraud. |
7. | Ownership of Confidential Information/No License. The Receiving Party agrees that, as between the Parties, the Disclosing Party is and shall remain the exclusive owner of the Confidential Information disclosed by or on behalf of the Disclosing Party and all patent, copyright, trade secret, trademark and other intellectual property rights therein. No license or conveyance of any such rights to the Receiving Party or any of its Representatives is granted or implied under this Agreement. |
8. | Miscellaneous. |
8.1 | No Obligation Regarding Proposed Transaction. Neither Party shall have any obligation to disclose any Confidential Information to the other Party. Either Party may, at any time, cease disclosing Confidential Information to the other Party without any liability. This Agreement is not intended, and shall not be construed, to obligate either Party to enter into any further agreement with the other Party or to refrain from entering into an agreement or negotiation with any third party. Neither this Agreement nor any course of conduct by either AstraZeneca (or any of its Representatives) or Company (or any of its Representatives) before or after the Effective Date, other than the execution and delivery of a definitive agreement with respect to the Proposed Transaction, shall give rise to any obligation on the part of AstraZeneca (or any of its Representatives) or Company (or any of its Representatives) to (a) continue discussions or negotiations related to, or consummate any transaction related to, the Proposed Transaction or (b) execute and deliver a definitive agreement with respect to the Proposed Transaction. Each of AstraZeneca and Company has the right to terminate negotiations relating to the Proposed Transaction at any time prior to the execution of a definitive agreement with respect thereto without any liability to the other Party (or any of its Representatives). |
8.2 | Governing Law. The interpretation and construction of this Agreement shall be governed by the law of the State of Delaware, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. |
8.3 | Exclusive Jurisdiction. Subject to Section 8.8, the Parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the state and federal courts for the State of Delaware for any action, suit or proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or proceeding (other than appeals therefrom) related thereto except in such courts. The Parties irrevocably and unconditionally waive their right to a jury trial. |
8.4 | Notice. Any notice, request, or other communication permitted or required under this Agreement shall be in writing, shall refer specifically to this Agreement and shall be deemed given only if hand delivered or sent by an internationally recognized overnight delivery service, costs prepaid, addressed to the applicable Party at its address first set forth above (or to such other address as the Party to whom notice is to be given may have provided to the other Party in accordance with this Section), and sent to the attention of [***] (with respect to AstraZeneca), or to Business Development (with respect to the Company). A copy of the communication shall also be emailed to AstraZeneca at [***], or to the Company at [***]. Such notice shall be deemed to have been given as of the date delivered by hand, or on the second business day (at the place of delivery) after deposit with an internationally recognized overnight delivery service, whichever is the earlier. |
8.5 | Amendment. Any amendment or modification of this Agreement must be in writing and signed by authorized representatives of both Parties. |
8.6 | Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign its rights, or delegate its obligations, under this Agreement, whether by operation of law or otherwise, in whole or in part without the prior written consent of the other Party, except that each Party without such consent may assign its rights under this Agreement with respect to its own Confidential Information to any of its Affiliates or any successor in interest to all or substantially all of the business to which its Confidential Information relates. Nothing in this Section is intended or shall be construed to permit the assigning Party to publish, make available or otherwise disclose any Confidential Information of the other Party to its assignee or any other Person except as otherwise permitted by this Agreement. |
8.7 | Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. This Agreement supersedes all prior agreements, whether written or oral, with respect to the subject matter of this Agreement and the terms of this Agreement shall control over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar repository of Confidential Information to which the Receiving Party or any of its Representatives is granted access in connection with the Proposed Transaction, notwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional confidentiality conditions, it being understood and agreed that the Receiving Party’s confidentiality and non-use obligations with respect to the Disclosing Party’s Confidential Information are exclusively governed by this Agreement and may not be reduced or expanded except by a written agreement that is hereafter executed by each Party. Each Party confirms that, with respect to the subject matter of this Agreement, it is not relying on any representations, warranties, or covenants of the other Party except as specifically set out in this Agreement. |
8.8 | Equitable Relief. A breach by either Party of this Agreement will cause irreparable damage for which the non-breaching Party will not be adequately compensated by monetary damages. In the event of a breach, or threatened breach, of this Agreement, the non-breaching Party shall be entitled to obtain equitable relief from any court of competent jurisdiction, whether preliminary or permanent, without the need to show irreparable harm or the inadequacy of monetary damages as a remedy and without the requirement of having to post bond or other security. Nothing in this Section 8.8 is intended, or shall be construed, to limit the Parties’ rights to any other remedy for a breach of any provision of this Agreement. |
8.9 | Severability. To the fullest extent permitted by applicable law, the Parties waive any provision of law that would render any provision in this Agreement invalid, illegal, or unenforceable in any respect. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, in any respect, then such provision shall be given no effect by the Parties and shall not form part of this Agreement. To the fullest extent permitted by applicable law and if the rights or obligations of either Party will not be materially and adversely affected, all other provisions of this Agreement shall remain in full force and effect and the Parties shall use their reasonable best efforts to negotiate a provision in replacement of the provision held invalid, illegal, or unenforceable that is consistent with applicable law and achieves, as nearly as possible, the original intention of the Parties. |
8.10 | Waiver. A Party’s failure to enforce, at any time or for any period of time, any provision of this Agreement, or to exercise any right or remedy shall not constitute a waiver of that provision, right or remedy or prevent such Party from enforcing any or all provisions of this Agreement and exercising any rights or remedies. To be effective any waiver must be in writing. The rights and remedies provided herein are cumulative and do not exclude any other right or remedy provided by law or otherwise available except as expressly set forth herein. |
8.11 | Construction. Except where the context requires otherwise, whenever used the singular includes the plural, the plural includes the singular, the use of any gender is applicable to all genders and the word “or” has the inclusive meaning represented by the phrase “and/or.” The headings of this Agreement are for convenience of reference only and do not define, describe, extend or limit the scope or intent of this Agreement or the scope or intent of any provision contained in this Agreement. The term “including” or “includes” as used in this Agreement means including, without limiting the generality of any description preceding such term. The wording of this Agreement shall be deemed to be the wording mutually chosen by the Parties and no rule of strict construction shall be applied against either Party. |
8.12 | Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall be deemed to constitute one and the same agreement. The Parties agree that execution of this Agreement by industry standard electronic signature software and/or by exchanging executed signature pages in ..pdf format via e-mail shall have the same legal force and effect as the exchange of original signatures, and that in any proceeding arising under or related to this Agreement, each Party hereby waives any right to raise any defense or waiver based upon execution of this Agreement by means of such electronic signatures or maintenance of the executed agreement electronically. |
[Signatures to follow]
Execution
THIS AGREEMENT IS EXECUTED by the authorized representatives of the Parties as of the Effective Date.
ASTRAZENECA PHARMACEUTICALS LP | CinCor Pharma, Inc | |||
By: | /s/ Kumar Srinivasan | By: | /s/ Marc de Garidel | |
Name: | Kumar Srinivasan | Name: | Marc de Garidel | |
Title: | Vice President | Title: | CEO |
Exhibit (d)(5)
Confidential
AMENDMENT NO. 1 TO
RECIPROCAL CONFIDENTIALITY AGREEMENT
This Amendment No. 1 to Reciprocal Confidentiality Agreement (this “Amendment”) is being entered into as of September 27, 2022, between CinCor Pharma, Inc., a corporation with offices at 230 Third Avenue, 6th floor, Waltham, Massachusetts 02451 (the “Company”), and AstraZeneca Pharmaceuticals LP, a Delaware limited partnership with offices at 1800 Concord Pike, Wilmington, Delaware 19803 (“AstraZeneca”), and is hereby incorporated into the Reciprocal Confidentiality Agreement between the Parties, effective as of May 10, 2021 (the “Confidentiality Agreement”). All capitalized terms used but not expressly defined in this Amendment shall have the meanings given to them in the Confidentiality Agreement.
A. The Company and AstraZeneca previously entered into the Confidentiality Agreement to allow for the disclosure by the Parties of certain confidential and proprietary information for the sole purpose of evaluating or entering into one or more potential business arrangements with respect to the mutual exploration of treatment resistant hypertension therapy using the compound referred as CIN-107 (baxdrostat).
B. In order to facilitate the consideration and negotiation of a possible transaction between the Parties, each of the Company and AstraZeneca has either requested or may request access to certain additional Confidential Information regarding the other Party or its Affiliates, and the Company and AstraZeneca now desire to amend the Confidentiality Agreement as set forth herein pursuant to Section 8.5 thereof.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and AstraZeneca hereby agree to amend the Confidentiality Agreement as follows:
Agreement
1. Amendment to Recitals. The second sentence of the recitals to the Confidentiality Agreement shall be amended and restated to read, in its entirety, as follows:
“In connection with a Proposed Transaction, each Party desires to disclose to the other Party certain confidential and proprietary information for the sole purpose of enabling the receiving Party to evaluate or enter into a Proposed Transaction (the “Purpose”).”
2. Amendments to Definitions.
(a) Section 1.5 of the Confidentiality Agreement is hereby amended to add the following sentence:
“For the avoidance of doubt, any result of an in vitro study conducted by or on behalf of the Company with the Company’s compound referred to as CIN-107 (baxdrostat) shall be deemed the Company’s Confidential Information.”
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(b) Section 1.9 of the Confidentiality Agreement is hereby amended and restated in its entirety as follows:
““Proposed Transaction” means a possible transaction involving the Company and AstraZeneca or its Affiliates.”
(c) Section 1.12 of the Confidentiality Agreement is hereby amended and restated in its entirety as follows:
““Representative” means each Person that is, or during the term of this Agreement may become, (i) a controlled Affiliate of such Party, (ii) an officer, director, managing member, manager, executive or general partner, employee, advisor (including without limitation accountants, attorneys, financial advisors, and consultants), agent or other representative of such Party or of such Party’s controlled Affiliates or (iii) upon prompt prior notice to the other Party, a potential debt financing source to be used by such Party in connection with the Transaction; provided that any debt financing source enters into a confidentiality agreement with the other Party that includes obligations relating to the other Party’s Confidential Information, securities and employees that are at least as restrictive as the obligations in this Agreement. Representatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund managed by AstraZeneca, any proposed joint buyer in the Proposed Transaction or a debt financing source that is not pre-approved in writing by the Company.”
3. Exceptions. Section 3 of the Confidentiality Agreement is hereby amended by the insertion of the following paragraph immediately following the paragraph under Section 3 in the Confidentiality Agreement.
“If the Receiving Party or any of its Representatives is required by law or required or requested by any applicable governmental authority (including in any legal proceeding) to disclose any of the Disclosing Party’s Confidential Information to any Person, then, to the extent permitted and practicable, the Receiving Party will promptly provide the Disclosing Party with written notice of such required or requested disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party Representatives (at the Disclosing Party’s sole cost and expense) in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any such requirement or request that the Receiving Party or any of its Representatives, as applicable, disclose Confidential Information of the Disclosing Party, and if the Receiving Party obtains advice of legal counsel confirming that the disclosure of such Confidential Information is legally required, then the Receiving Party or any of such Representatives, as applicable, may disclose such Confidential Information; provided, however, that the Receiving Party and its Representatives will use their reasonable best efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.”
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4. No Representations or Warranty. Section 6 of the Confidentiality Agreement is hereby deleted and restated in its entirety as follows:
“6. No Representations or Warranty. Neither the Disclosing Party nor any of the Disclosing Party’s Representatives will be under any obligation to supplement or update any Confidential Information of the Disclosing Party previously furnished. Neither the Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Disclosing Party’s Confidential Information, and, except as set forth in any final definitive written agreement that provides for the consummation of a Proposed Transaction, neither the Disclosing Party nor any of its Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a Proposed Transaction between the Parties and is validly executed on behalf of the Parties will have legal effect.”
5. Standstill Provision. The following Section 9 is hereby added to the Confidentiality Agreement:
“9. Standstill Provision. During the twelve-month period commencing on the date of this Agreement (the “Standstill Period”), neither AstraZeneca nor any of Astrazeneca’s controlled affiliates will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of the Company or any securities (including derivatives thereof) of any subsidiary or other controlled affiliate of the Company, (ii) any acquisition of more than 5% of the assets of the Company and its subsidiaries and other controlled affiliates, on a consolidated basis, except in the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any subsidiary or other controlled affiliate of the Company or involving any securities of the Company or any subsidiary or other controlled affiliate of the Company or more than 5% of the assets of the Company and its subsidiaries and other controlled affiliates, on a consolidated basis, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission (“SEC”)) or consents with respect to any securities of the Company;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder (the “Exchange Act”)) with respect to the beneficial ownership of any securities of the Company or any subsidiary of the Company;
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(c) act, alone or in concert with others, to seek control (as defined under Rule 405 promulgated under the Securities Act of 1933, as amended, and the rules promulgated thereunder) of the management, board of directors or policies of the Company;
(d) take any action that would reasonably be expected to require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this Section 9;
(e) agree or offer to take, or knowingly encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)” or “(d)” of this Section 9;
(f) knowingly assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)” or “(d)” or of this Section 9;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose (either directly or indirectly) that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 9 (including this sub-paragraph).
Notwithstanding any other provision of this Agreement to the contrary, nothing in this Agreement will be deemed to prohibit (x) AstraZeneca from confidentially communicating to the Company’s board of directors or chief executive officer or external financial advisors any non-public proposals regarding a possible transaction of any kind (including, without limitation, submitting confidential proposals to acquire the Company) in such a manner as would not reasonably be expected to require public disclosure thereof under applicable Law or listing standards of any securities exchange applicable to the Company or its Representatives or to AstraZeneca or its Representatives, (y) AstraZeneca or any of its controlled affiliates, in the ordinary course of business, making any proposal or offer or entering into any mutually agreed commercial transaction with respect to, or otherwise consummating, any mutually agreed commercial transaction with, the Company or any of its subsidiaries or other controlled affiliates or (z) any acquisition by AstraZeneca or any of its controlled affiliates of a company or business unit thereof that “beneficially owns” (as such term is used in Rule 13d-3 of the Exchange Act) any securities of the Company or any of its subsidiaries so long as the purchase of such securities was not made on behalf of AstraZeneca or any of its controlled affiliates. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
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Notwithstanding the foregoing provisions of this Section 9, if, at any time during the Standstill Period: (i) the Company (or its board of directors) approves and enters into a definitive agreement for a Major Transaction with a third party that is not a controlled affiliate of AstraZeneca (an “Unaffiliated Third Party”); or (ii) if any Unaffiliated Third Party makes a tender or exchange offer for securities of the Company which, if effected, would result in a Major Transaction, and the Company’s board of directors either recommends such offer or fails to recommend that the Company’s stockholders reject such offer within ten business days from the date of commencement of such offer, then this Section 9 shall terminate in its entirety and all other provisions of this Agreement shall continue to be in full force and effect in accordance with the terms hereof; provided, however, that no other provision of this Agreement will be interpreted to prevent AstraZeneca or any of its controlled affiliates from using the Company’s Confidential Information to formulate a proposal for a Proposed Transaction that would constitute a Major Transaction or to prevent either Party from publicly disclosing the history of negotiations between the parties for a Proposed Transaction to the extent necessary to comply with federal securities law disclosure obligations. For these purposes, a “Major Transaction” shall mean a transaction in which: (x) a person or “group” (within the meaning of Section 13(d) of the Exchange Act) acquires, directly or indirectly, securities representing more than 50% of the voting power of the Company or more than 50% of the consolidated assets of the Company and its subsidiaries (taken as a whole) as reflected on its most recent balance sheet, or (y) the Company engages in a merger or other business combination such that the holders of voting securities of the Company immediately prior to the transaction owns less than 50% of the voting power of securities of the resulting entity. Any breach of, noncompliance with, the provisions of this Section 9 applicable to the Affiliates of AstraZeneca shall be deemed a breach or noncompliance by AstraZeneca.”
6. Trading in Securities. The following Section 10 is hereby added to the Confidentiality Agreement:
“10. Trading in Securities. The Receiving Party acknowledges and agrees that it is aware (and that the Receiving Party’s Representatives are aware or will be advised by the Receiving Party) that Confidential Information being furnished by the Disclosing Party may contain material, non-public information regarding the Disclosing Party and that the United States federal or state securities laws prohibit any Person who has such material, non-public information from purchasing or selling securities of the Disclosing Party on the basis of such information or from communicating such information to any Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.”
7. Joint Defense Doctrine. The following Section 11 is hereby added to the Confidentiality Agreement:
“11. Joint Defense Doctrine. To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.”
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8. Miscellaneous.
(a) This Amendment, together with the Confidentiality Agreement, constitutes the entire agreement of the Parties and supersedes all prior agreements, communications and understandings, whether oral or in writing between the Parties with respect to the subject. Except as expressly set forth in this Amendment, the terms and conditions of the Confidentiality Agreement shall remain unchanged and in full force and effect.
(b) This Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall be deemed to constitute one and the same agreement. The Parties agree that execution of this Amendment by industry standard electronic signature software and/or by exchanging executed signature pages in .pdf format via email shall have the same legal force and effect as the exchange of original signatures, and that in any proceeding arising under or related to this Amendment, each Party hereby waives any right to raise any defense or waiver based upon execution of this Amendment by means of such electronic signatures or maintenance of the executed agreement electronically.
* * * * *
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The Parties have caused this Amendment to be executed as of the date first set forth above.
CinCor Pharma, Inc. | AstraZeneca Pharmaceuticals LP | |||
By: | /s/ Marc de Garidel | By: | /s/ Richard Kenny | |
Name: | Marc de Garidel | Name: | Richard Kenny | |
Title: | Chief Executive Officer | Title: | Assistant Secretary |
[Signature Page – Amendment No. 1 to Reciprocal Confidentiality Agreement]
Exhibit 107
Calculation of Filing Fee Table
Schedule TO-T
(Rule 14d-100)
CINCOR PHARMA, INC.
(Name of Subject Company (Issuer))
CINNAMON ACQUISITION, INC.
ASTRAZENECA FINANCE AND HOLDINGS INC.
ASTRAZENECA PLC
(Names of Filing Persons — Offerors)
Table 1 - Transaction Valuation
Transaction Valuation* | Fee Rate | Amount of Filing Fee** | ||||||||||
Fees to be Paid | $ | 158,137 | 0.00011020 | $ | 158,137 | |||||||
Fees Previously Paid | $ | 0 | $ | 0 | ||||||||
Total Transaction Valuation | $ | 1,434,992,857 | ||||||||||
Total Fees Due for Filing | $ | 158,137 | ||||||||||
Total Fees Previously Paid | $ | 0 | ||||||||||
Total Fee Offsets | $ | 0 | ||||||||||
Net Fee Due | $ | 158,137 |
*Estimated solely for purposes of calculating the filing fee. The transaction valuation was calculated by multiplying 49,270,141 shares of common stock, par value $0.00001 per share, of CinCor Pharma, Inc. (“CinCor”), by $29.125, which is the average of the high and low prices reported by the Nasdaq Global Market on January 17, 2023. CinCor has advised AstraZeneca, Parent and Purchaser that, as of January 17, 2023: (i) 43,783,800 shares of CinCor common stock were issued and outstanding (including 19,607 restricted shares of CinCor common stock), (ii) 2,845,829 shares of CinCor common stock were subject to outstanding CinCor stock options, (iii) 40,512 shares of CinCor common stock were subject to outstanding CinCor restricted stock unit awards, and (iv) warrants exercisable for up to 2,600,000 shares of CinCor common stock were outstanding.
**The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2023, issued August 26, 2022, by multiplying the transaction value by 0.00011020.
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