29 March 2022
Scheme of Arrangement Information Sheet
Acacia Pharma Group PLC (“Acacia” or the “Company”) announced on 28 March 2022 the proposed transfer of the entire issued and to be issued share capital of Acacia to Eagle Pharmaceuticals, Inc. (“Eagle”) by way of a scheme of arrangement (the “Scheme”) under Part 26 of the Companies Act 2006 (the “Proposed Transaction”). The announcement of the Proposed Transaction on 28 March 2022 (the “Announcement”) is available on the Company’s website at www.acaciapharma.com/news/category/press-releases.
Full details of the Proposed Transaction, including the full terms and conditions of the Scheme and an expected timetable of principal events, will be included in a scheme document that will be sent to (among others) Acacia shareholders (the “Scheme Document”). Nonetheless, further to the Announcement, the Company thought it helpful to highlight to its shareholders the key aspects of the Scheme process, as set forth in the Announcement.
Please note that this information sheet has been prepared for information purposes only. For the details of the Proposed Transaction, reference is made to the full text of the Announcement, including its appendices. Any vote in respect of the Scheme or other response in relation to the Proposed Transaction should be made only on the basis of the information contained in the Scheme Document.
Terms used but not defined in this information sheet shall have the meanings given to them in the Announcement.
1. How will shares be acquired under the Proposed Transaction?
Under the Proposed Transaction, the entire issued and to be issued share capital of Acacia will be transferred to Eagle by means of a Court-sanctioned Scheme under Part 26 of the UK Companies Act 2006. In order to achieve this, the Scheme requires, among other things, approval by shareholders of the Company at the Court Meeting and the General Meeting, and the sanction of the Scheme by the Court. To that end, the following events, among other things, will need to occur on or before 30 June 2022:
- a resolution to approve the Scheme is passed by a majority in number of the Scheme Shareholders present and voting (and entitled to vote) at the Court Meeting (and any separate class meeting which may be required by the Court (or at any adjournment thereof)), either in person or by proxy, representing not less than 75 per cent. in value of the Scheme Shares held by such Scheme Shareholders (or the relevant class or classes thereof); and
- each of the Resolutions necessary to implement the Scheme are passed by the requisite majority of Acacia Shareholders at the General Meeting (which will require the approval of Acacia Shareholders representing at least 75 per cent. of the votes cast at the General Meeting, either in person or by proxy).
For further details, reference is made to point 12 (“Structure of the Proposed Transaction”) on pages 16-18 of the Announcement.
2. How can Acacia shareholders express their views on the Proposed Transaction?
Acacia shareholders will be invited to vote at the Court Meeting and the General Meeting in respect of the Proposed Transaction as described in point 1 above.
For more details of these and the other conditions, reference is made to point 12 (“Structure of the Proposed Transaction”) on pages 16-18 of the Announcement and to Appendix 1 (“Terms of the Scheme and the Proposed Transaction”) on pages A-1 – A-3 of the Announcement. The full terms and conditions of the Scheme will also be included in the Scheme Document which will be sent to the Acacia Shareholders in due course.
It is noted that Acacia directors (in respect of the 217,543 Acacia shares which they hold and control) and the three largest Acacia shareholders (in respect of the 49,012,875 Acacia shares which they hold and control) have given irrevocable undertakings to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting. The undertakings will cease to be binding in certain circumstances, including if: (i) the Scheme does not become effective, lapses or is withdrawn without becoming or being declared unconditional in accordance with its terms, or (ii) the Scheme lapses or is withdrawn or otherwise becomes incapable of becoming effective or has not become effective on or before the date falling six months after the date the irrevocable undertakings were entered into (or such later date as Eagle and Acacia agree in writing and that the Court, if required, approves). For further information on these irrevocable undertakings, reference is made to points 5 (“Recommendation, irrevocable undertakings and shareholder support for the Proposed Transaction”) and 6 (“Irrevocable undertakings”) on pages 14-15 of the Announcement and to Appendix 3 (“Details of Irrevocable Undertakings”) on page A-5 of the Announcement.
3. How can I tender my shares?
Within the framework of the Court-sanctioned Scheme, Acacia Shareholders will not be able to or be required to tender their shares as would be the case in a public takeover. Instead, the Scheme will require, among other things, approval by shareholders of Acacia at the Court Meeting and the General Meeting, and the sanction of the Scheme by the Court. If the Scheme were to be approved by the relevant majority as stated above and sanctioned by the Court, the ensuing transfer of the shares in Acacia would occur by operation of law, subject to other requirements having been met. Individual shareholders are only invited to exercise their voting rights with respect to the approval (or disapproval) of the Scheme at the Court Meeting and reference is made to point 12 (“Structure of the Proposed Transaction”) on pages 16-18 of the Announcement and Appendix 1 (“Terms of the Scheme and the Proposed Transaction”) on pages A-1 – A-3 of the Announcement for further details. The full terms and conditions of the Scheme will also be included in the Scheme Document which will be sent to the Acacia Shareholders in due course.
4. What happens if the Scheme is approved?
Upon the Scheme becoming effective, it will be binding on all Acacia shareholders, irrespective of whether or not they attended or voted at the Court Meeting and/or the General Meeting (and if they attended and voted, whether or not they voted in favour) and all Acacia shares will be transferred to Eagle, in consideration for which the Acacia shareholders will receive cash and new shares in Eagle.
Following the Scheme becoming effective, it is intended that an application will be made to the market operator of Euronext Brussels for the cancellation of the listing and trading of the Acacia shares on Euronext Brussels, with effect as of or shortly following the Effective Date.
For further details, reference is made to points 12 (“Structure of the Proposed Transaction”), 14 (“Listing and delisting”) and 17 (“Fractional entitlements”) on pages 16-19 of the Announcement.
Enquiries
Acacia Pharma Group plc - Tel: +1 317 505 1280
Mike Bolinder
Greenhill (Financial Adviser to Acacia) - Tel: +44 20 7198 7400
Kevin Costantino, Rupert Hill, Dean Rodrigues, James Warr
MEDiSTRAVA Consulting (PR Adviser to Acacia) - Tel: +44 20 7638 9571
Frazer Hall, Mark Swallow, David Dible
Further information
This announcement is for information purposes only and is not intended to and does not constitute, or form part of, an offer, invitation or the solicitation of an offer to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of any securities, or the solicitation of any vote or approval in any jurisdiction, pursuant to the Proposed Transaction or otherwise, nor the announcement of a forthcoming solicitation of any offer to acquire or dispose of securities or of any vote or approval, nor shall there be any sale, issuance or transfer of securities of Acacia or Eagle in any jurisdiction. The information contained in this announcement should not be construed to constitute any form of advice or recommendation, including but not limited to investment, tax, legal or other advice, and should not be relied upon as the basis for any decision or action.
The Proposed Transaction will be implemented solely pursuant to the terms of the Scheme Document, which will contain the full terms and conditions of the Proposed Transaction, including details of how to vote in respect of the Proposed Transaction. Any vote in respect of the Scheme or other response in relation to the Proposed Transaction should be made only on the basis of the information contained in the Scheme Document.
This announcement does not constitute a prospectus or a prospectus-equivalent document.
Please be aware that addresses, electronic addresses and certain other information provided by Acacia Shareholders, persons with information rights and other relevant persons for the receipt of communications from Acacia may be provided to Eagle in relation to the Scheme.
William Blair is acting as financial adviser exclusively for Eagle and no one else in connection with the Proposed Transaction; will not regard any other person as a client in relation to the Proposed Transaction and will not be responsible to anyone other than Eagle for providing the protections afforded to clients of William Blair or its affiliates, nor for providing advice in relation to the Proposed Transaction or any other matters referred to in this announcement. Neither William Blair nor any of its affiliates, directors or employees owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, consequential, whether in contract, in tort, in delict, under statute or otherwise) to any person who is not a client of William Blair in connection with this announcement, any statement contained herein, the Proposed Transaction or otherwise.
Greenhill and Jefferies are acting as joint financial advisers exclusively for Acacia and no-one else in connection with the Proposed Transaction; will not regard any other person as a client in relation to the Proposed Transaction and will not be responsible to anyone other than Acacia for providing the protections afforded to clients of Greenhill, Jefferies or their respective affiliates, nor for providing advice in relation to the Proposed Transaction or any other matters referred to in this announcement.
Overseas jurisdictions
The release, publication or distribution of this announcement, or any copy thereof, in or into jurisdictions other than the UK and Belgium may be restricted by law and therefore any persons who are resident in, or who are subject to the law of, any jurisdiction other than the UK and Belgium should inform themselves about, and observe, any applicable legal or regulatory requirements. In particular, the ability of persons who are not resident in the UK or Belgium to vote their Acacia Shares with respect to the Scheme at the Court Meeting, or to appoint another person as proxy to vote at the Court Meeting on their behalf, may be affected by the laws of the relevant jurisdictions in which they are located. Any failure to comply with the applicable restrictions may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Proposed Transaction disclaim any responsibility or liability for the violation of such restrictions by any person.
Copies of this announcement and formal documentation relating to the Scheme and the Proposed Transaction will not be, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in, into or from any Restricted Jurisdiction or any jurisdiction where to do so would violate the laws of that jurisdiction, and persons receiving such documents (including custodians, nominees and trustees) must not mail or otherwise forward, distribute or send such documents in or into or from any Restricted Jurisdiction. Doing so may render invalid any related purported vote in respect of the Proposed Transaction.
Further details in relation to Overseas Shareholders will be contained in the Scheme Document.
Additional information for United States investors
The Proposed Transaction relates to the securities of an English company and is proposed to be effected by means of a scheme of arrangement provided for under English law and which will be subject to procedural and disclosure requirements and practices applicable in the UK to schemes of arrangement, which are different from those that may be applicable in the United States. The financial information included in this announcement and the Scheme documentation, if any, has been or will have been prepared in accordance with International Financial Reporting Standards and thus may not be comparable to financial information of United States companies or companies whose financial statements are prepared in accordance with generally accepted accounting principles in the United States.
The New Eagle Shares are being offered pursuant to the Scheme and will be issued in reliance on the exemption from the registration requirements of the United Stated Securities Act of 1933, as amended, provided by Section 3(a)(10) thereof.
Each Acacia Shareholder is urged to consult his or her tax adviser regarding the tax consequences of the Proposed Transaction applicable to him or her.
It may be difficult for United States holders to enforce their rights and any claims they may have arising under the United States federal securities laws.
Forward looking statements
This announcement (including information incorporated by reference in this announcement), oral statements made regarding the Proposed Transaction, and other information published by Eagle and/or Acacia contain statements which are, or may be deemed to be, “forward-looking statements”. Forward-looking statements are prospective in nature and are not based on historical facts, but rather on current expectations and projections of the management of Eagle and Acacia about future events, and are therefore subject to risks and uncertainties which could cause actual results to differ materially from the future results expressed or implied by the forward-looking statements. The forward-looking statements contained in this announcement may include statements relating to the expected effects of the Proposed Transaction on Eagle and Acacia, the expected timing and scope of the Proposed Transaction and other statements other than historical facts. Often, but not always, forward-looking statements can be identified by the use of forward-looking words such as “plans”, “expects” or “does not expect”, “is expected”, “is subject to”, “budget”, “scheduled”, “estimates”, “forecasts”, “intends”, “anticipates” or “does not anticipate”, or “believes”, or variations of such words and phrases or statements that certain actions, events or results “may”, “could”, “should”, “would”, “might” or “will” be taken, occur or be achieved. These statements include, but are not limited to, statements regarding future events such as: the strategic fit of Barhemsys® and Byfavo® with Eagle’s specialised hospital-based salesforce; statements regarding the addressable market size and commercial potential for Barhemsys® and Byfavo® and other products or product candidates; the expected structure, anticipated synergies, terms, timing and closing of the Proposed Transaction; Eagle’s marketing, product development, partnering and growth strategy, including relating to the commercialisation of Barhemsys® and Byfavo®, and the ability of Acacia’s technology and know-how to help Eagle achieve its strategy; the expectation that the addition of Barhemsys® and Byfavo® will be accretive to Eagle, and the timing thereof; the expected sources of financing for the Proposed Transaction; the ability of Eagle to expand the application of the Acacia products; the timing, scope or likelihood and timing of regulatory filings and approvals from the FDA for Eagle’s product candidates, including landiolol; the ability of Barhemsys® and Byfavo® to address unmet clinical needs; the ability of Barhemsys® to offer significant economic savings to hospitals and ambulatory centres; the ability of Byfavo® to offer potential health economic benefits and enable shorter procedure times and greater patient throughput; the ability of the Proposed Transaction to create value for Eagle’s shareholders; and the ability of Eagle’s executive team to execute on Eagle’s strategy and build stockholder value.
Although Eagle and Acacia believe that the expectations reflected in such forward-looking statements are reasonable, Eagle and Acacia can give no assurance that such expectations will prove to be correct. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on circumstances that will occur in the future. There are a number of factors that could cause actual results and developments to differ materially from those expressed or implied by such forward-looking statements. These factors include, but are not limited to, changes in the global political, economic, business and competitive environments (including, but not limited to, the impacts of the COVID-19 pandemic and geopolitical events such as the conflict in Ukraine); inability to obtain, or meet conditions imposed for, required governmental and regulatory approvals; interruptions or other adverse effects to clinical trials; legal or regulatory developments and changes, including, but not limited to, changes in environmental and health and safety regulations; government actions; foreign exchange rate and interest rate fluctuations; changes in tax rates; weak, volatile or illiquid capital and/or credit markets; market position of the companies comprising the Acacia Group; earnings; financial position; cash flows; return on capital and operating margins; anticipated investments; the ability of Eagle or the Acacia Group to obtain capital/additional finance; an unexpected decline in revenue or profitability; retention of senior management; the maintenance of labour relations; fluctuations in commodity prices and other input costs; operating and financial restrictions as a result of financing arrangements; changes in consumer habits and preferences including a reduction in demand by customers; competitive product and pricing pressures; future business combinations or disposals; success of business and operating initiatives; changes in the level of capital investment; manufacturing and supply chain interruptions, adverse effects on healthcare systems, disruption in the operations of third party partners and disruption of the global economy, and the overall impact of the COVID-19 pandemic or other events on Eagle or Acacia’s business, financial condition and results of operations; whether Eagle will successfully implement its development plan for, and successfully market and commercialise, its product candidates; the success of relationships with partners; the availability and pricing of third party sourced products and materials; the outcome of litigation involving any products or that may have an impact on any of Eagle or Acacia’s products; successful compliance with the FDA and other governmental regulations applicable to product approvals, manufacturing facilities, products and/or businesses; the strength and enforceability of Eagle or Acacia’s intellectual property rights or the rights of third parties; competition from other pharmaceutical and biotechnology companies and the potential for competition from generic entrants into the market; the risks inherent in the early stages of drug development and in conducting clinical trials; the outcome of Acacia’s shareholder vote, the Court and other closing conditions; and factors in addition to the foregoing that may impact Eagle or Acacia’s expectations, including, among other things, any potential business development transactions, acquisitions, restructurings or legal settlements, in addition to any unanticipated factors, that may cause actual results and outcomes to materially differ.
Other unknown or unpredictable factors could cause actual results to differ materially from those in the forward-looking statements. Such forward-looking statements should therefore be construed in the light of such factors. Neither Eagle nor Acacia, nor any of their respective associates or directors, officers or advisers, provides any representation, assurance or guarantee that the occurrence of the events expressed or implied in any forward-looking statements in this announcement will actually occur. You are cautioned not to place undue reliance on these forward-looking statements. Other than in accordance with their legal or regulatory obligations, neither Eagle or Acacia is under any obligation, and Eagle and Acacia expressly disclaim any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
No profit forecasts or estimates
No statement in this announcement is intended as a profit forecast, profit estimate or quantified benefits statement for any period, and no statement in this announcement should be interpreted to mean that earnings or earnings per share for Eagle or Acacia, as appropriate, for the current or future financial years would necessarily match or exceed the historical published earnings or earnings per share for Eagle or Acacia, as appropriate.
Hard copies
Acacia Shareholders may request a hard copy of this announcement and any information incorporated into it by reference to another source in hard copy form by writing to Acacia Pharma Group PLC, The Officers’ Mess Royston Road, Duxford, Cambridge, England, CB22 4QH or by calling Anne-Marie Elsley, Company Secretary on +441223919760, during normal business hours. A hard copy of this announcement will not be sent unless so requested. Acacia Shareholders may also request that all future documents, announcements and information sent in relation to the Proposed Transaction should be sent in hard copy form, again by writing to the address set out above or by calling the telephone number above.