Patheon N.V. (NYSE:PTHN) Files An 8-K Entry into a Material Definitive Agreement

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Patheon N.V. (NYSE:PTHN) Files An 8-K Entry into a Material Definitive Agreement

ITEM 1.01

Entry into a Material Definitive Agreement.
Purchase Agreement
On May 15, 2017, Patheon N.V., a public limited liability company
(naamloze vennootschap) organized under the laws of The
Netherlands (Patheon), entered into a Purchase Agreement (the
Purchase Agreement) with Thermo Fisher Scientific Inc., a
Delaware corporation (Parent), and Thermo Fisher (CN) Luxembourg
S. r.l., a private limited liability company (socit responsabilit
limite) organized under the laws of the Grand Duchy of Luxembourg
and wholly owned subsidiary of Parent (Buyer).
to the Purchase Agreement, and upon the terms and subject to the
conditions thereof, Buyer will commence a tender offer (the
Offer) to purchase all of the outstanding ordinary shares, par
value 0.01 per share, of Patheon (the Shares) at a price of
$35.00 per Share in cash, without interest (the Offer Price). The
Offer will initially remain open until 9.00 a.m. (New York City
time) on the day that is the later of (a) 21 business days
following the commencement date of the Offer and (b) six business
days after the date of the extraordinary general meeting
discussed below (the EGM), and may be extended in accordance with
the terms of the Purchase Agreement (the Expiration Time).
Affiliates of JLL Partners LLC (JLL) and Koninklijke DSM N.V.
(DSM), as well as Patheon Holdco Coperatief U.A., which holds
certain Shares for the benefit of employees of Patheon, and which
together with JLL and DSM collectively control approximately 75%
of the Shares, have entered into tender and support agreements
with Parent to which they have agreed, among other things, to
tender their respective Shares in the Offer, vote in favor of the
adoption of certain shareholders resolutions at the EGM and vote
against any Alternative Acquisition Proposal (as defined in the
Purchase Agreement) and certain related matters. The tender and
support agreements also contain certain transfer restrictions.
The tender and support agreements will terminate upon a
termination of the Purchase Agreement; provided, that if the
Purchase Agreement is terminated by Patheons board of directors
(the Patheon Board) in order to enter into a definitive agreement
with respect to a Superior Proposal (as defined below), Buyer has
the option, exercisable within 30 days of the termination of the
Purchase Agreement, to acquire all (but not less than all) of the
Shares held by such parties for the Offer Price per share.
Parent has obtained committed debt financing from Goldman Sachs
Bank USA and Goldman Sachs Lending Partners LLC. The Offer is not
subject to any financing condition.
Buyers obligation to purchase Shares validly tendered and not
properly withdrawn to the Offer is subject to the satisfaction or
waiver of various closing conditions, including (a) Shares having
been validly tendered and not properly withdrawn that represent,
together with the Shares then owned by Parent and its affiliates,
at least 95% of Patheons issued and outstanding capital (the
Minimum Condition); provided that if, prior to the Expiration
Time, Patheons shareholders have adopted certain resolutions
related to the Asset Sale and Liquidation (each as described
below) at the EGM, or any subsequent EGM to be held prior to the
closing of the Offer (the Offer Closing), the Minimum Condition
will be reduced to 80%; and provided further, that if Buyer has
extended the Offer on two occasions in consecutive periods of ten
business days each in accordance with the Purchase Agreement, and
the Minimum Condition is the sole unsatisfied and unwaived
condition, Buyer may in its sole discretion reduce the Minimum
Condition to 75% for purposes of closing the Offer (but not the
Asset Sale described below); (b) the expiration or termination of
any waiting period (and extensions thereof) applicable to the
Offer and the other transactions contemplated by the Purchase
Agreement under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and Council Regulation (EC) No. 139/2004 of
the European Union, as amended, and the receipt of certain other
required clearances or approvals under applicable antitrust laws
(collectively, the Required Antitrust Approvals); (c) the absence
of any applicable law or order of a governmental authority
prohibiting, rendering illegal or enjoining the consummation of
the Offer or the other transactions contemplated by the Purchase
Agreement; (d) the accuracy of the representations and warranties
of Patheon contained in the Purchase Agreement (subject to
certain materiality standards); (e) Patheons material compliance
with its covenants contained in the Purchase Agreement; (f) there
not having been a material adverse effect on Patheon following
the execution of the Purchase Agreement; (g) the resignation of
certain existing members of the Patheon Board and (h) the
adoption of resolutions at the EGM providing for, among other
things, the appointment of Buyer designees to the Patheon Board
effective upon the Offer Closing.
The Purchase Agreement provides, among other things, that
following the Offer Closing and expiration of the subsequent
offering periods provided in the Purchase Agreement, Parent or
Buyer may, at their election, effectuate a corporate
reorganization of Patheon and its subsidiaries (a Post-Offer
Reorganization). If Parent, Buyer and their affiliates own less
than 95% (but at least 80%) of Patheons issued and outstanding
capital, the Post-Offer Reorganization may be undertaken by means
of a sale of the assets of Patheon to Buyer (the Asset Sale),
followed promptly by a liquidation of Patheon (the Liquidation).
If Parent, Buyer and their affiliates acquire 95% or more of
Patheons issued and outstanding capital, the Post-Offer
Reorganization may be undertaken by the commencement of a
compulsory acquisition by Buyer of Shares from any remaining
minority Patheon shareholders in accordance with Section 2:92a of
the Dutch Civil Code (the DCC) or, if applicable, Section 2:201a
of the DCC (the Compulsory Acquisition). The Asset Sale and the
Liquidation are subject to approval by Patheons shareholders at
the EGM. As discussed above, to the tender and support agreements
certain shareholders of Patheon have committed to vote their
respective Shares in favor of the Asset Sale and certain other
matters, including the election of five (5) director designees of
Parent to the Patheon Board effective as of the Offer Closing.
The Shares subject to the tender and support agreements are
sufficient to approve the Asset Sale and such other matters. If
Buyer commences the Liquidation, Patheon will be dissolved in
accordance with Sections 2:19 2:23b of the Dutch Civil Code and
all minority shareholders who did not tender their Shares in the
Offer will ultimately receive, for each Share then held, cash in
an amount equal to the Offer Price (without interest and less any
applicable withholding taxes). If Buyer commences the Compulsory
Acquisition, all holders of Shares who did not tender their
Shares in the Offer will receive, for each Share then held, cash
in an amount determined by the Enterprise Chamber of the
Amsterdam Court of Appeals. It is expected that, following the
completion of the Offer and expiration of the subsequent offering
periods provided in the Purchase Agreement, Patheon will no
longer be a publicly traded company, the listing of the Shares on
the New York Stock Exchange (NYSE) will be terminated and the
Shares will be deregistered under the Exchange Act of 1934, as
amended (the Exchange Act), resulting in the cessation of
Patheons reporting obligations with respect to the Shares
thereunder.
If, at the scheduled Expiration Time, any of the Offer conditions
have not been satisfied or waived by Buyer, Buyer must extend the
Offer on one or more occasions in consecutive periods of up to 10
business days each (or such other duration as may be agreed to by
Buyer and Patheon) in order to permit the satisfaction of such
offer conditions; provided, that Buyer may extend the Offer for
20 business days if regulatory approval is not reasonably likely
to be obtained and/or a legal restraint is not expected to be
removed within a 10 business day period; provided further, that
Buyer is not required to extend the Offer on more than two
occasions in consecutive periods of up to 10 business days each
if the sole unsatisfied condition is the Minimum Condition and
that Buyer is not required to extend the Offer beyond February
15, 2018.
As of the Offer Closing, the Patheon Board will consist of at
least 7 directors, (i) at least 5 of whom may be designated in
writing by Parent and (ii) 2 independent non-executive directors
designated by Patheon and Parent by mutual written agreement.
The Purchase Agreement provides for the following treatment of
the equity awards of Patheon upon the payment by Buyer for all
Shares tendered as of the Offer Closing:
At the Offer Closing, each outstanding restricted stock
unit in respect of Shares that is subject to only
time-based vesting (each, a Patheon RSU) that is vested
as of immediately prior to the Offer Closing or that is
held by a non-employee director of Patheon and each
outstanding restricted stock unit in respect of Shares
that is subject, in whole or in part, to vesting based on
the achievement of one or more performance goals (each, a
Patheon PSU) (whether vested or unvested), will be
canceled and converted into the right to receive an
amount in cash (without interest and subject to required
withholding) equal to (x) the Offer Price multiplied by
(y) the total number of Shares subject to such Patheon
RSU or Patheon PSU, as applicable (which, in the case of
Patheon PSUs, shall be determined based on achievement of
actual performance conditions in accordance with the
terms of the award). Patheon PSUs are one-time grants of
restricted stock units issued in respect of the
management equity incentive plan which was in effect
prior to Patheons initial public offering.
At the Offer Closing, each outstanding Patheon RSU that
is unvested as of immediately prior to the Offer Closing
and that is not held by a non-employee director of
Patheon (whether vested or unvested) will, unless agreed
otherwise between Parent and the holder of such Patheon
RSU, be canceled and converted into a restricted stock
unit award, with substantially the same terms and
conditions (including with respect to vesting) as were
applicable to such Patheon RSU immediately prior to the
Offer Closing, with respect to the number of shares of
Parent common stock that is equal to (x) a specified
exchange ratio multiplied by (y) the total number of
Shares subject to such Patheon RSU as of immediately
prior to the Offer Closing.
At the Offer Closing, each outstanding option granted by
Patheon to acquire Shares (each, a Patheon Option) that
is vested as of immediately prior to the Offer Closing
will be canceled in exchange for an amount in cash
(without interest, but subject to any applicable
withholding taxes) equal to (x) the excess, if any, of
the Offer Price over the applicable per share exercise
price of such Patheon Option multiplied by (y) the number
of Shares subject to such Patheon Option.
At the Offer Closing, each outstanding Patheon Option
that is unvested as of immediately prior to the Offer
Closing will, unless agreed otherwise between Parent and
the holder of such Patheon Option, be canceled and
converted into a stock option award, with substantially
the same terms and conditions (including with respect to
vesting) as were applicable to such Patheon Option
immediately prior to the Offer Closing, (i) with respect
to a number of shares of Parent common stock that is
equal to (x) a specified exchange ratio multiplied by (y)
the total number of Shares subject to such Patheon Option
as of immediately prior to the Closing and (ii) at an
exercise price per share that is equal to (x) the
exercise price per share of such Patheon Option divided
by (y) a specified exchange ratio.
The Purchase Agreement includes customary representations,
warranties and covenants of Parent, Buyer and Patheon. Until the
earlier of the termination of the Purchase Agreement and the
closing of the Offer, Patheon has agreed to operate its and its
subsidiaries businesses in the ordinary course consistent with
past practice and has agreed to certain other operating
covenants, as set forth more fully in the Purchase Agreement.
Patheon has also agreed, among other things, to cease all
existing, and to not solicit or initiate, discussions with third
parties regarding Alternative Acquisition Proposals or
participate in any discussions or negotiations with any third
party regarding such proposals, subject to certain customary
exceptions.
Subject to certain exceptions, the Patheon Board is not permitted
to (a) withhold, withdraw, qualify or modify its recommendation
to its shareholders to accept the Offer and approve and adopt
certain matters, including the Asset Sale (the Company
Recommendation), (b) recommend, adopt or approve any Alternative
Acquisition Proposal, (c) publicly make any recommendation in
connection with an Alternative Acquisition Proposal other than a
recommendation against such proposal; (d) fail to publicly,
definitively and without qualification recommend against any
Alternative Acquisition Proposal or fail to reaffirm the Company
Recommendation within certain specified time periods (any such
action an Adverse Recommendation Change), or (e) approve or
recommend or allow Patheon or any affiliates to execute or enter
into, any agreement relating to any Alternative Acquisition
Proposal.
Solely in response to a Superior Proposal (as defined in the
Purchase Agreement) received by the Patheon Board, Patheon may at
any time prior to the Expiration Time make an Adverse
Recommendation Change, or terminate the Purchase Agreement and
enter into a definitive agreement with respect to a Superior
Proposal if, (a) Patheon has provided to Parent and Buyer four
(4) business days prior written notice of the existence of and
material terms and conditions of the Superior Proposal; (b)
Patheon has engaged in good faith negotiations with Parent and
Buyer to amend the Purchase Agreement so that any alternative
ceases to constitute a Superior Proposal; and (c) the Patheon
Board has determined that, in light of such Superior Proposal and
taking into account any revised terms proposed by Parent and
Buyer, such Superior Proposal continues to constitute a Superior
Proposal and that the failure to effect an Adverse Recommendation
Change and/or terminate the Purchase Agreement would be
inconsistent with the directors fiduciary duties under the laws
of The Netherlands. In the event of any such termination, Patheon
will be obligated to pay to Parent termination compensation
described below and Parent may exercise its right to purchase the
Shares held by the parties to the tender and support agreements
in accordance with the tender and support agreements described
above.
Parent and Patheon have agreed to use their respective reasonable
best efforts to obtain the Required Antitrust Approvals.
The Purchase Agreement contains certain termination rights,
including, but not limited to, (i) the right of either party to
terminate the Purchase Agreement if the Offer is not consummated
on or before February 15, 2018, (ii) the right of Patheon to
terminate the Purchase Agreement to enter into a definitive
agreement with respect to a Superior Proposal (provided that
Patheon complies with certain notice and other requirements
described above, including the concurrent payment of the
termination compensation discussed below) and (iii) the right of
Parent to terminate due to an Adverse Recommendation Change of by
the Patheon Board.
If the Purchase Agreement is terminated under certain
circumstances, including termination by Patheon to enter into a
definitive agreement with respect to a Superior Proposal or a
termination following an Adverse Recommendation Change by the
Patheon Board, Patheon will be obligated to pay to Parent
termination compensation equal to $203,000,000 in cash.
The foregoing description of the Purchase Agreement is only a
summary of certain material provisions thereof, does not purport
to be complete, and is qualified in its entirety by reference to
the full text of the Purchase Agreement, which is attached hereto
as Exhibit 2.1 and is incorporated herein by reference.
The Purchase Agreement has been included to provide investors
with information regarding its terms. It is not intended to
provide any other factual information about Parent, Buyer or
Patheon. The representations, warranties and covenants contained
in the Purchase Agreement were made only for purposes of the
Purchase Agreement as of the specific dates therein, are solely
for the benefit of the parties to the Purchase Agreement, may be
subject to limitations agreed upon by the contracting parties,
including being qualified by confidential disclosures made for
the purposes of allocating contractual risk between the parties
to the Purchase Agreement instead of establishing these matters
as facts, and may be subject to standards of materiality
applicable to the contracting parties that differ from those
applicable to investors. Investors should not rely on the
representations, warranties and covenants or any descriptions
thereof as characterizations of the actual state of facts or
condition of the parties thereto or any of their respective
subsidiaries or affiliates. Moreover, information concerning the
subject matter of representations and warranties may change after
the date of the Purchase Agreement, which subsequent information
may or may not be fully reflected in Patheons or Parents public
disclosures.
ITEM 9.01
Financial Statements and Exhibits.
(d) Exhibits
The following exhibits are filed as part of this report:
Exhibit No.
Description
2.1
Purchase Agreement, dated as of May 15, 2017, by and
between Thermo Fisher Scientific Inc., Thermo Fisher (CN)
Luxembourg S. r.l. and Patheon N.V.*
*
Schedules and exhibits have been omitted to Item
601(b)(2) of Regulation S-K. A copy of any omitted
schedule or exhibit will be furnished supplementally to
the Securities and Exchange Commission upon request;
provided, that Patheon N.V. may request confidential
treatment to Rule 24b-2 of the Securities Exchange Act of
1934, as amended, for any schedules or exhibits so
furnished.
Forward-Looking Statements
This communication contains forward-looking statements that
involve a number of risks and uncertainties. Words such as
believes, anticipates, plans, expects, seeks, estimates, and
similar expressions are intended to identify forward-looking
statements, but other statements that are not historical facts
may also be deemed to be forward-looking statements. Important
factors that could cause actual results to differ materially from
those indicated by forward-looking statements include risks and
uncertainties relating to: the need to develop new products and
adapt to significant technological change; implementation of
strategies for improving growth; general economic conditions and
related uncertainties; dependence on customers capital spending
policies and government funding policies; the effect of exchange
rate fluctuations on international operations; use and protection
of intellectual property; the effect of changes in governmental
regulations; and the effect of laws and regulations governing
government contracts, as well as the possibility that expected
benefits related to recent and pending acquisitions, including
the proposed transaction, may not materialize as expected; the
proposed transaction not being timely completed, if completed at
all; prior to the completion of the transaction, Patheons
business experiencing disruptions due to transaction-related
uncertainty or other factors making it more difficult to maintain
relationships with employees, customers, licensees, other
business partners or governmental entities; difficulty retaining
key employees; the outcome of any legal proceedings related to
the proposed transaction; and the parties being unable to
successfully implement integration strategies or to achieve
expected synergies and operating efficiencies within the expected
time-frames or at all. Additional important factors that could
cause actual results to differ materially from those indicated by
such forward-looking statements are set forth in Thermo Fishers
Annual Report on Form 10-K for the year ended December 31, 2016,
which is on file with the U.S. Securities and Exchange Commission
(SEC) and available in the Investors section of Thermo Fishers
website, ir.thermofisher.com, under the heading SEC Filings, and
in any subsequent Quarterly Reports on Form 10-Q and other
documents Thermo Fisher files with the SEC, and in Patheons
Annual Report on Form 10-K for the year ended October 31, 2016
and its subsequent Quarterly Reports on Form 10-Q, including its
Quarterly Report on Form 10-Q for the quarter ended January 31,
2017, each of which is on file with the SEC and available in the
Investor Relations section of Patheons website, ir.patheon.com,
under the heading SEC Filings, and in other documents Patheon
files with the SEC. While Thermo Fisher or Patheon may elect to
update forward-looking statements at some point in the future,
Thermo Fisher and Patheon specifically disclaim any obligation to
do so, even if estimates change and, therefore, you should not
rely on these forward-looking statements as representing either
Thermo Fishers or Patheons views as of any date subsequent to
today.
Additional Information and Where to Find It
The tender offer referenced herein has not yet commenced. This
communication is for informational purposes only and is neither
an offer to purchase nor a solicitation of an offer to sell any
ordinary shares of Patheon or any other securities, nor is it a
substitute for the tender offer materials that Thermo Fisher and
its acquisition subsidiary will file with the SEC. On the
commencement date of the tender offer, a tender offer statement
on Schedule TO, including an offer to purchase, a letter of
transmittal and related documents, will be filed with the SEC by
Thermo Fisher and/or its acquisition subsidiary and a
solicitation/recommendation statement on Schedule 14D-9 will be
filed with the SEC by Patheon with respect to the tender offer.
The offer to purchase all of the outstanding ordinary shares of
Patheon will only be made to the offer to purchase, the letter of
transmittal and related documents filed as a part of the Schedule
TO. Patheon will also file a proxy statement with the SEC in
connection with the extraordinary general meeting of shareholders
of Patheon at which the Patheon shareholders will vote on certain
proposed resolutions in connection with the transaction (the EGM
Proposals).
THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A
RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER
DOCUMENTS), THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE
14D-9 AND THE PROXY STATEMENT WILL CONTAIN IMPORTANT INFORMATION.
INVESTORS AND SHAREHOLDERS OF PATHEON ARE URGED TO READ THESE
DOCUMENTS CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION THAT SUCH PERSONS SHOULD CONSIDER
BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR ORDINARY
SHARES OR MAKING ANY VOTING DECISION.
The tender offer materials (including the offer to purchase and
the related letter of transmittal and certain other tender offer
documents), the solicitation/recommendation statement and the
proxy statement (when they become available) and other documents
filed with the SEC by Thermo Fisher or Patheon, may be obtained
free of charge at the SECs website at www.sec.gov or at Patheons
website at www.patheon.com or by contacting Patheons investor
relations department at 919-226-3165 or at Thermo Fishers website
at www.thermofisher.com or by contacting Thermo Fishers investor
relations department at 781-622-1111. In addition, investors and
shareholders of Patheon may obtain free copies of the tender
offer materials by contacting the information agent for the
tender offer that will be named in the tender offer statement on
Schedule TO.
Participants in the Solicitation
Patheon, its directors and executive officers and other members
of its management and employees, as well as Thermo Fisher and its
directors and executive officers, may be deemed to be
participants in the solicitation of proxies from Patheons
shareholders in connection with the EGM Proposals. Information
about Patheons directors and executive officers and their
ownership of Patheon ordinary shares is set forth in the proxy
statement for Patheons 2017 annual general meeting of
shareholders, which was filed with the SEC on January 26, 2017.
Information about Thermo Fishers directors and executive officers
is set forth in the proxy statement for Thermo Fishers 2017
annual meeting of stockholders, which was filed with the SEC on
April 4, 2017. Shareholders may obtain additional information
regarding the direct and indirect interests of the participants
in the solicitation of proxies in connection with the EGM
Proposals, including the interests of Patheons directors and
executive officers in the transaction, which may be different
than those of Patheons shareholders generally, by reading the
proxy statement and other relevant documents regarding the
transaction which will be filed with the SEC.
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.
PATHEON N.V.
By:
/s/ Eric Sherbet
Name:
Eric Sherbet
Title:
General Counsel and Secretary
Date: May 19, 2017
Exhibit Index
Exhibit No.
Description
2.1
Purchase Agreement, dated as of May 15, 2017, by and
between Thermo Fisher Scientific Inc., Thermo Fisher (CN)
Luxembourg S. r.l. and Patheon N.V.*
*
Schedules and exhibits have been omitted to Item
601(b)(2) of Regulation S-K. A copy of any omitted
schedule or exhibit will be furnished supplementally to
the Securities and Exchange Commission upon request;
provided, that Patheon N.V. may request confidential
treatment


About Patheon N.V. (NYSE:PTHN)

Patheon N.V. is a provider of outsourced pharmaceutical development and manufacturing services. The Company’s segments include Drug Product Services (DPS), Pharmaceutical Development Services (PDS) and Drug Substance Services (DSS). The DPS segment is engaged in manufacturing and packaging for approved prescription, over-the-counter (OTC) and nutritional products. The PDS segment provides a range of formulation, production and technical services from the early stages of a product’s development to regulatory approval, as well as for new formulations of approved products for lifecycle extension. The DSS segment provides small molecule active pharmaceutical ingredient (API) and outsourced manufacturing solutions for large molecule biological API from early development through commercial scale production. It provides an integrated range of API and finished drug product services to its customers, from formulation development to clinical and commercial-scale manufacturing.

Patheon N.V. (NYSE:PTHN) Recent Trading Information

Patheon N.V. (NYSE:PTHN) closed its last trading session down -0.06 at 34.61 with 1,132,334 shares trading hands.

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