UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 26, 2015
PHARMACYCLICS, INC.
(n/k/a Pharmacyclics LLC)
(Exact name of registrant as specified in its charter)
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Delaware |
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000-26658 |
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94-3148201 |
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(State or other jurisdiction of
incorporation) |
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(Commission File Number) |
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(IRS Employer
Identification No.) |
995 E. Arques Avenue
Sunnyvale, California 94085-4521
(Address of principal executive offices, including zip code)
(408) 774-0330
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
INTRODUCTORY NOTE
As previously disclosed, on March 4, 2015, Pharmacyclics, Inc. (“Pharmacyclics “), AbbVie Inc., a Delaware corporation (“AbbVie”), Oxford Amherst Corporation, a Delaware corporation and a direct wholly owned subsidiary of AbbVie (“Offeror”) and Oxford Amherst LLC, a Delaware limited liability company and a direct wholly owned subsidiary of AbbVie (“Merger Sub 2”) entered into an Agreement and Plan of Reorganization (the “Merger Agreement”), as amended on March 22, 2015. Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, on March 23, 2015 Offeror commenced a tender offer to acquire all of the outstanding shares of Pharmacyclics common stock (such shares, the “Pharmacyclics shares” and the offer, the “Offer”). In the Offer, subject to the terms and subject to the conditions and limitations set forth in the Merger Agreement, each of the Pharmacyclics shares accepted by Offeror was exchanged for the right to receive:
· $152.25 in cash; and
· a number of shares of AbbVie common stock equal to $109.00 divided by the volume weighted average sale price per share of AbbVie common stock as reported on the New York Stock Exchange for the ten consecutive trading days ending on and including the second trading day prior to the final expiration date of the offer, as calculated by Bloomberg Financial LP under the function “ABBV UN Equity AQR.” (such volume weighted average sale price, the “AbbVie Trading Price”).
In lieu of receiving the mixed consideration described above (the “mixed consideration”), Pharmacyclics stockholders were entitled to elect to receive, for each Pharmacyclics share validly tendered and not withdrawn in the Offer, (1) $261.25 in cash (the “all-cash consideration”) or (2) a number of shares of AbbVie common stock equal to $261.25 divided by the AbbVie Trading Price (the “all-stock consideration”), subject in each case to the election procedures and, in the case of elections of the all-stock consideration, to the proration procedures described in the Merger Agreement.
Item 2.01 COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS
The Offer and withdrawal rights expired as scheduled at 5:00PM, New York City time, on May 22, 2015 (the “Expiration Time”). 67,408,824 Pharmacyclics shares were validly tendered and not withdrawn in accordance with the terms of the Offer, representing approximately 87% of the Pharmacyclics shares outstanding at such time. All Pharmacyclics shares that were validly tendered and not withdrawn in accordance with the terms of the Offer have been accepted for payment by Offeror.
On May 26, 2015, following acceptance by Offeror of the Pharmacyclics shares that were validly tendered and not withdrawn in the Offer, Offeror merged with and into Pharmacyclics (the “First Merger”), with Pharmacyclics continuing as the surviving corporation and a wholly owned subsidiary of AbbVie, pursuant to the terms of the Merger Agreement and in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”). At the effective time of the First Merger (the “Effective Time”), each Pharmacyclics share that was outstanding immediately prior to the Effective Time and not tendered pursuant to the Offer (other than (A) Pharmacyclics shares owned by AbbVie, Offeror, Pharmacyclics or any other direct or indirect wholly owned subsidiary of AbbVie, Offeror or Pharmacyclics, and (B) Pharmacyclics shares owned by stockholders who properly exercised appraisal rights with respect thereto in accordance with Section 262 of the DGCL (such Pharmacyclics shares described in clauses (A) and (B), “Cancelled Shares”)) was cancelled and extinguished and automatically converted into the right to receive (i) the all-cash consideration, (ii) the all-stock consideration or (iii) the mixed consideration, subject in each case to the election procedures and, in the case of elections of the all-cash consideration or the all-stock consideration, to the proration procedures described in the Merger Agreement.
Immediately after the Effective Time, the surviving corporation from the First Merger merged with and into Merger Sub 2 (the “Second Merger” and together with the First Merger, the “Mergers”), with Merger Sub 2 surviving the Second Merger. In connection with the Second Merger, Merger Sub 2 was renamed “Pharmacyclics LLC” (the “Surviving Company”).
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The foregoing summary of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to Pharmacyclics’ Current Report on Form 8-K, dated March 6, 2015, which is incorporated by reference herein and the full text of the Amendment No. 1 to the Merger Agreement, a copy of which was filed as Exhibit 2.1 to Pharmacyclics’ Current Report on Form 8-K, dated March 23, 2015, which is incorporated by reference herein.
Item 3.01 NOTICE OF DELISTING OR FAILURE TO SATISFY A CONTINUED LISTING RULE OR STANDARD; TRANSFER OF LISTING
On May 26, 2015, as a result of the transactions described in Item 2.01 of this Current Report on Form 8-K, which are incorporated by reference herein, Pharmacyclics requested that the NASDAQ Global Market (“NASDAQ”) remove the Pharmacyclics shares from listing on NASDAQ and requested that NASDAQ file with the Securities and Exchange Commission (the “SEC”) a Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on Form 25 to delist and deregister the Pharmacyclics shares. Pharmacyclics intends to file with the SEC a certification on Form 15 under the Exchange Act, requesting the deregistration of the Pharmacyclics shares and suspending Pharmacyclics’ reporting obligations under Sections 13 and 15(d) of the Exchange Act.
Item 3.03 MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS
As a result of the consummation of the First Merger and at the Effective Time, each Pharmacyclics share that was outstanding immediately prior to the Effective Time and not validly tendered and not withdrawn pursuant to the Offer (other than Cancelled Shares) was cancelled and extinguished and automatically converted into the right to receive (i) the all-cash consideration, (ii) the all-stock consideration or (iii) the mixed consideration, subject in each case to the election procedures and, in the case of elections of the all-cash consideration or the all-stock consideration, to the proration procedures described in the Merger Agreement. At the Effective Time, the holders of such Pharmacyclics shares ceased to have any rights as stockholders of Pharmacyclics (other than their right to receive (i) the all-cash consideration, (ii) the all-stock consideration or (iii) the mixed consideration, subject in each case to the election procedures and, in the case of elections of the all-cash consideration or the all-stock consideration, to the proration procedures described in the Merger Agreement).
The information disclosed under Item 2.01, Item 3.01 and Item 5.01 of this Current Report on Form 8-K is incorporated by reference herein.
Item 5.01 CHANGES IN CONTROL OF REGISTRANT
As a result of Offeror’s acceptance for payment of all Pharmacyclics shares that were validly tendered and not withdrawn in accordance with the terms of the Offer, a change in control of Pharmacyclics occurred. Upon the Effective Time, Pharmacyclics became a wholly owned subsidiary of AbbVie. Offeror and AbbVie paid approximately $11.7 billion in cash consideration and issued approximately 128 million shares of AbbVie common stock in connection with the Offer and the Merger. The funds used by Offeror and AbbVie to purchase the Pharmacyclics shares came from cash-on-hand and the issuance of debt securities by AbbVie. The information disclosed under Item 2.01, Item 3.01, Item 3.03, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference herein.
Item 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR
On May 26, 2015, pursuant to the Merger Agreement and as a result of the Mergers, Pharmacyclics became a limited liability company organized under the laws of the State of Delaware. The certificate of formation and limited liability company agreement of Merger Sub 2 became the certificate of formation and limited liability company
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operating agreement of the Surviving Company, were amended to reflect the Surviving Company’s name change to “Pharmacyclics LLC,” are attached hereto as Exhibits 3.1, 3.2 and 3.3 respectively, and are incorporated herein by reference.
Item 8.01 OTHER EVENTS
On May 26, 2015, AbbVie issued a press release announcing the expiration and results of the Offer and the consummation of the Merger. A copy of this press release is attached as Exhibit 99.1 hereto and is incorporated by reference herein.
Item 9.01 EXHIBITS
(d) The following exhibits are furnished as part of this Current Report on Form 8-K.
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Exhibit
No. |
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Description |
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2.1 |
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Agreement and Plan of Reorganization by and among AbbVie Inc., Oxford Amherst Corporation, Oxford Amherst LLC and Pharmacyclics, Inc. dated as of March 4, 2015 (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Pharmacyclics, Inc. on March 6, 2015). |
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2.2 |
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Amendment No. 1 to Agreement and Plan of Reorganization by and among AbbVie Inc., Oxford Amherst Corporation, Oxford Amherst LLC and Pharmacyclics, Inc. dated as of March 22, 2015 (incorporated by reference to the Current Report on Form 8-K filed by Pharmacyclics, Inc. on March 23, 2015). |
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3.1 |
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Certificate of Formation of Pharmacyclics LLC (as amended on May 26, 2015). |
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3.2 |
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Limited Liability Company Operating Agreement of Oxford Amherst LLC. |
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3.3 |
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Amendment No. 1 to Limited Liability Company Operating Agreement of Oxford Amherst LLC. |
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99.1 |
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Press Release issued by AbbVie Inc., dated May 26, 2015 (incorporated by reference to Exhibit (a)(5)(I) to Amendment No. 10 to the Tender Offer Statement on Schedule TO of Oxford Amherst Corporation and AbbVie Inc. filed on May 26, 2015). |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
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PHARMACYCLICS LLC |
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By: |
/s/ William J. Chase |
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Name: William J. Chase |
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Title: Sole Manager |
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Dated: May 26, 2015 |
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EXHIBIT INDEX
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Exhibit
No. |
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Description |
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2.1 |
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Agreement and Plan of Reorganization by and among AbbVie Inc., Oxford Amherst Corporation, Oxford Amherst LLC and Pharmacyclics, Inc. dated as of March 4, 2015 (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Pharmacyclics, Inc. on March 6, 2015). |
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2.2 |
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Amendment No. 1 to Agreement and Plan of Reorganization by and among AbbVie Inc., Oxford Amherst Corporation, Oxford Amherst LLC and Pharmacyclics, Inc. dated as of March 22, 2015 (incorporated by reference to the Current Report on Form 8-K filed by Pharmacyclics, Inc. on March 23, 2015). |
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3.1 |
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Certificate of Formation of Pharmacyclics LLC (as amended on May 26, 2015). |
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3.2 |
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Limited Liability Company Operating Agreement of Oxford Amherst LLC. |
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3.3 |
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Amendment No. 1 to Limited Liability Company Operating Agreement of Oxford Amherst LLC. |
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99.1 |
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Press Release issued by AbbVie Inc., dated May 26, 2015 (incorporated by reference to Exhibit (a)(5)(I) to Amendment No. 10 to the Tender Offer Statement on Schedule TO of Oxford Amherst Corporation and AbbVie Inc. filed with the Securities and Exchange Commission on May 26, 2015). |
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Exhibit 3.1
Certificate of Formation
of
Pharmacyclics LLC
This Certificate of Formation of Oxford Amherst LLC (the “Company”), dated March 3, 2015, is being duly executed and filed by Lauren C. Thomas, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act 96 Del.C. § 18-101, et seq.
FIRST. The name of the limited liability company formed hereby is:
Pharmacyclics LLC
SECOND. The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801.
THIRD. The name and address of the registered agent for service of process on the Company in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date first written above.
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/s/ Lauren C. Thomas |
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Lauren C. Thomas |
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Authorized Person |
Exhibit 3.2
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
OXFORD AMHERST LLC
This Limited Liability Company Operating Agreement (the “Agreement”) of Oxford Amherst LLC (the “LLC”), is entered into by the sole member listed on Annex A hereto (the “Member”) effective as of the 3rd day of March, 2015.
The Member has formed a limited liability company under the Delaware Limited Liability Company Act (96 Del. C. §18-101, et seq.), as amended from time to time (the “Act”), pursuant to this agreement and the Certificate of Formation which has been filed with the Secretary of State of the State of Delaware in connection with the execution of this agreement, and hereby agrees as follows:
1. Name.
a. The name of the limited liability company is Oxford Amherst LLC (the “LLC”). The business of the LLC may be conducted under any other name deemed necessary or desirable by the Member in order to comply with local law.
b. The Member has formed the LLC as a limited liability company pursuant to the provisions of the Act and of this Agreement and agrees that the rights and liabilities of the Member and any future Members shall be as provided in the Act for members and managers except as provided herein.
2. Purpose. The LLC is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the LLC is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.
3. Registered Office; Registered Agent. The address of the registered office of the LLC in the State of Delaware is 1209 Orange Street, New Castle County, Wilmington, Delaware 19801. The name and address of the registered agent of the LLC for service of process on the LLC in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, New Castle County, Wilmington, Delaware 19801.
4. Member. The name and the mailing address of the Member is as set forth in Annex A hereto as it may be amended from time to time. The Member is hereby admitted as a member of the LLC and such Member, as well as any person who later becomes a Member as a condition to becoming such Member, agrees to be bound by the terms of this Agreement.
5. Authorized Person. Lauren C. Thomas is hereby designated as an authorized person, within the meaning of the Act, to execute, deliver and file the Certificate of Formation of the LLC (and any amendments and/or restatements thereof). This authorization shall terminate on the filing of the Certificate.
6. Management.
a. Management of the LLC shall be vested exclusively in a Manager designated by the Member, subject to the delegation of rights and powers provided for herein. Such Manager shall be authorized to act on behalf of and to bind the LLC, including the completion, execution and delivery of any and all agreements, deeds, instruments, receipts, certificates and other documents, and to take all such other action as they may consider necessary or advisable in connection with the management of the LLC. The Member may remove or replace the Manager at any time for any reason. William J. Chase is hereby designated as the Manager of the LLC.
b. The Manager may, from time to time, appoint officers of the LLC (each, an “Officer”) and assign in writing titles (including, without limitation, Chief Executive Officer, President, Executive, Group or Senior Vice President, Vice President, Treasurer, Secretary, Controller, General Counsel, Assistant Treasurer and Assistant Secretary) to any such person. Unless the Manager decides otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title will constitute the delegation to such person of the authorities and duties that are normally associated with that office. In addition, the Manager may, from time to time, designate any other individuals as authorized persons (“Authorized Persons”) and delegate to such Authorized Persons such authorities (including the right to sub-delegate) and duties as the Manager may deem appropriate. The Manager may, in writing at any time, revoke any assignment, designation, delegation and authorization granted by it pursuant to this Section 6(b).
c. All contracts, agreements, endorsements, assignments, transfers, stock powers or other instruments shall be signed by a Manager of the LLC or such Officer or Authorized Person as may be designated by the Manager. Persons dealing with the LLC are entitled to rely conclusively upon the power and authority of the Manager or such Officer or Authorized Person as may be designated by the Manager, as herein set forth.
7. Offices. The LLC shall have such offices as stated in the Certificate of Formation, or as the Manager may determine from time to time.
8. Capital Contributions. The Member has made or will make contributions to capital of the LLC in the proportions set forth in Annex A hereto.
9. Additional Contributions. The Member shall make such additional capital contributions to the LLC as the Member may deem necessary or advisable in connection with the business of the LLC.
10. Profits/Losses. Profits and losses of the LLC shall be allocated to the Member.
11. Fiscal Year; Tax Matters.
a. The fiscal year of the LLC for accounting and tax purposes shall begin on January 1 and end on December 31 of each year, except for the short taxable years in the years of the LLC’s formation and termination and as otherwise required by the law (tax or otherwise).
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b. Proper and complete records and books of account of the business of the LLC, including Annex A, shall be maintained at the LLC’s principal place of business. The Member acknowledges and agrees that the LLC is intended to be classified and treated as a disregarded entity for United States income tax purposes. In the event there is more than one Member, such Members agree that the LLC is intended to be classified and treated as a partnership for United States income tax purposes. The LLC’s books of account shall be maintained on a basis consistent with such treatment and on the same basis utilized in preparing the LLC’s United States federal income tax return (if required). Each Member and its duly authorized representatives may, for any reason reasonably related to its interest as a Member of the LLC, examine the LLC’s books of account and make copies and extracts therefrom at its own expense. The Member shall maintain or delegate the maintenance of the records of the LLC for three years following the termination of the LLC.
12. Liability of Member. The Member shall not have any liability for the obligations or liabilities of the LLC except to the extent provided in the Act.
13. Dissolution.
a. Subject to the occurrence of an event of dissolution pursuant to Section 13(b), the LLC shall have perpetual existence.
b. The LLC shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (i) the written consent of the Member; (ii) the written consent of the Manager, or (iii) the entry of a decree of judicial dissolution under Delaware law.
14. Indemnification. To the full extent permitted by law, the LLC shall (a) indemnify any person or such person’s heirs, distributees, next of kin, successors, appointees, executors, administrators, legal representatives or assigns who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that such person is or was a Member, Manager, attorney-in-fact, officer, employee or agent of the LLC or is or was serving at the request of the LLC or its Member as a manager, attorney-in-fact, officer, employee or agent of another corporation, limited liability corporation, partnership, joint venture, trust or other enterprise, domestic or foreign, against expenses, attorneys’ fees, court costs, judgments, fines, amounts paid in settlement and other losses actually and reasonably incurred by such person in connection with such action, suit or proceeding and (b) pay the expenses incurred by such person in defending such civil or criminal action, suit or proceeding to the full extent authorized or permitted by the laws of the State of Delaware. An attorney-in-fact shall have no personal liability to the LLC or its Member for monetary damages for breach of fiduciary duty as an attorney-in-fact; provided, however, that the foregoing provision shall not eliminate the liability of an attorney-in-fact for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or for any transaction from which the attorney-in-fact derived an improper personal benefit.
15. Counterpart and Facsimile Signatures. Actions taken by the Member and/or the Manager by written consent, pursuant to the Act, may be executed in one or more
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counterparts, all of which together shall constitute one and the same document and facsimile signatures shall have the same effect as original signatures.
16. Amendments. Any amendments to this Agreement shall be in writing signed by the sole Member.
17. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. The Member intends the provisions of the Act to be controlling as to any matters not set forth in this Agreement.
18. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective successors, executors, administrators, legal representatives, heirs and legal assigns and shall inure to the benefit of the parties hereto and, except as otherwise provided herein, their respective successors, executors, administrators, legal representatives, heirs and legal assigns.
19. No Benefit of Creditors. The provisions of this Agreement are intended only for the regulation of relations between the Member and any former or prospective Members and the LLC. This Agreement is not intended for the benefit of non-Member creditors and no rights are granted to non-Member creditors under this Agreement.
20. Severability. If any provision of this Agreement shall be determined to be illegal or unenforceable by any court of law, the remaining provisions shall be severable and enforceable in accordance with their terms.
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Exhibit 3.3
AMENDMENT NO. 1 TO
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
OXFORD AMHERST LLC
This Amendment No. 1 to the Limited Liability Company Operating Agreement (the “Agreement”) of Oxford Amherst LLC (the “LLC”) is entered into effective the 26th day of May, 2015 (“Effective Date”) by AbbVie Inc., a Delaware corporation, the sole member (“Member”) of the LLC.
RECITALS:
A. Effective March 3, 2015, the LLC was formed under the provisions of the Delaware Limited Liability Company Act (96 Del.C. § 18-101, et. seq.), as amended from time to time, and the Agreement was executed by the Member.
B. As of the Effective Date, the LLC merged with Pharmacyclics, Inc., a Delaware corporation, with the LLC being the surviving entity under the name Pharmacyclics LLC.
C. In connection with the aforementioned actions, and pursuant to Section 16 of the Agreement, AbbVie Inc. desires to amend the Agreement to reflect the new name of the LLC.
AMENDMENT:
1. As of the Effective Date, all references to the name of the Oxford Amherst LLC shall be amended to be “Pharmacyclics LLC”.
2. The remaining terms and provisions of the Agreement remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has duly executed this Amendment No. 1 to the Limited Liability Operating Agreement as of the Effective Date.
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/s/ William J. Chase |
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AbbVie Inc., sole Member |
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By: |
William J. Chase |
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Executive Vice President, |
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Chief Financial Officer |
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