SIENTRA, INC. (NASDAQ:SIEN) Files An 8-K Entry into a Material Definitive Agreement
Item1.01.
| Entry into a Material Definitive Agreement. |
Agreement and Plan of Merger and Related
Transactions
On June11, 2017, Sientra, Inc. (the Company) entered into an
Agreement and Plan of Merger (the Merger Agreement) by and among
the Company, Desert Acquisition Corporation, a wholly-owned
subsidiary of the Company (Purchaser), and Miramar Labs, Inc.
(Miramar). to the Merger Agreement, and upon the terms and
subject to the conditions thereof, Purchaser has agreed to
commence a cash tender offer to acquire all of the outstanding
shares of Miramars common stock (the Offer) for a purchase price
of (i) $0.3149 per share, in cash, without interest (the Cash
Portion) and (ii)the contractual right (a CVR), to the Contingent
Value Rights Agreement in the form attached as Annex II to the
Merger Agreement (as it may be amended from time to time, the CVR
Agreement), to receive one or more contingent payments upon the
achievement of certain milestones as set forth in the CVR
Agreement, without interest (the CVR Portion, and together with
the Cash Portion, the Offer Price), subject to any applicable
withholding and upon the terms and subject to the conditions of
the Merger Agreement.
The consummation of the Offer will be conditioned on (i)a
majority of all shares of Miramars outstanding common stock
having been validly tendered into and not validly withdrawn from
the Offer and (ii)other customary conditions. The Offer is not
subject to a financing condition.
Following the consummation of the Offer, subject to customary
conditions, Purchaser will be merged with and into Miramar (the
Merger) and Miramar will become a wholly-owned subsidiary of the
Company, to the procedure provided for under Section251(h) of the
Delaware General Corporation Law (the DGCL). In the Merger, each
outstanding share of Miramars common stock (other than shares
held by Miramar (or held in Miramars treasury), the Company,
Purchaser, any of other wholly-owned subsidiary of the Company,
or any wholly owned subsidiary of Miramar, or shares with respect
to which appraisal rights are properly exercised under the DGCL)
will be converted into the right to receive the Offer Price,
subject to any applicable withholding.
The Merger Agreement contains representations, warranties and
covenants of the Company, Miramar and Purchaser that are
customary for a transaction of this nature, including, among
others, covenants by Miramar concerning the conduct of its
business during the pendency of the transactions contemplated by
the Merger Agreement, restrictions on solicitation of competing
acquisition proposals, public disclosures and other matters. The
Merger Agreement contains certain termination rights of the
Company and Miramar and provides that, upon the termination of
the Merger Agreement under specified circumstances, Miramar will
be required to pay the Company a termination fee of $100,000.
Tender and Support Agreements
Concurrently with the execution of the Merger Agreement, the
majority of the members of Miramars board of directors who hold
shares of Miramar common stock, stockholders who are affiliated
with such members, and other stockholders, in their respective
capacities as stockholders of Miramar, entered into Tender and
Support Agreements with the Company and Purchaser (the Support
Agreements), to which the signatories have agreed, among other
things, to tender their respective shares of Miramar common stock
into the Offer and, during the period from the date of such
Support Agreements through the earlier of the date upon which
(i)the Merger Agreement is validly terminated, (ii)the Merger
becomes effective, or (iii)any amendment or change to the Merger
Agreement or the Offer is effected without the signatorys consent
that decreases the amount, or changes the form, timing (except
with respect to extensions of the Offer in accordance with the
terms of the Merger Agreement), or likelihood of payment of
consideration payable to all of the stockholders of Miramar to
the terms of the Merger Agreement or the CVR Agreement (the
Support Period), to vote their Subject Securities (as defined in
the Support Agreements) in favor of the Merger, against any
action or action that to the signatorys knowledge would
reasonably cause a failure of a condition to the Offer to be
satisfied, and against any competing acquisition proposals.
Shares held by the signatories to the Support Agreements that are
eligible to be tendered into the Offer represent, in the
aggregate, approximately 73% of Miramars common stock outstanding
on the date of the Merger Agreement (excluding common stock
issuable upon exercise of options or warrants). Each of the
Support Agreements will terminate upon the termination or
expiration of the Support Period, or will terminate automatically
upon the termination of the Merger Agreement, including if
Miramar terminates the agreement in favor of a Superior Offer (as
defined in the Merger Agreement).
Contingent Value Rights Agreement
At or prior to the time that Purchaser accepts for payment all
shares validly tendered and not properly withdrawn to the Offer,
the Company and a trustee mutually acceptable to the Company and
Miramar will enter into the CVR Agreement to govern the terms of
the CVRs.
Each share of Miramar common stock held by such shareholder that
(i)the Purchaser accepts for payment from such holder to the
Offer or (ii)is owned by or has been issued to such holder as of
immediately prior to the Effective Time and is converted into the
right to receive the Offer Price to the terms of the Merger
Agreement, will be entitled to receive the CVR Portion. The CVRs
are not transferable except under certain limited circumstances,
will not be evidenced by a certificate or other instrument and
will not be registered or listed for trading. The CVRs will not
have any voting or dividend rights and will not represent any
equity or ownership interest in the Company, Purchaser or Miramar
or any of their affiliates.
Each CVR represents the right to receive the following cash
payments, without interest and less any applicable withholding
taxes, with each payment conditioned upon the achievement of
certain milestones as follows:
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Milestone #1: The Company will be obligated to pay $0.0147 per CVR if cumulative Net Sales (as defined in the CVR Agreement) of the Product (as defined in the CVR Agreement) worldwide following the closing of the Merger (the Closing) exceed $50,000,000. |
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Milestone #2: The Company will be obligated to pay $0.6911 per CVR if cumulative Net Sales of the Product worldwide following the Closing exceed $80,000,000 (which calculation, for the avoidance of doubt, shall be inclusive of any Net Sales counted in the determination of Milestone #1). |
If none of the milestones are met, the CVRs will have no value.
The minimum payment under the CVRs is zero and, assuming the
satisfaction of all milestones, the maximum aggregate cash
payment represented by one CVR is $0.7058.
Note Amendment
Concurrently with the execution of the Merger Agreement, the
Company entered into an Omnibus Amendment to Subordinated Secured
Convertible Promissory Notes (the Note Amendment) with the other
parties signatory thereto, to which certain secured convertible
promissory notes previously issued by Miramar (the Notes) will be
amended and restated to effect the cancellation of the Notes,
subject to the consummation of the Merger, in exchange for and
upon receipt from the Company of (a)certain payments at the
Closing and (b)contingent payments that are payable only upon the
achievement of Milestone #1; provided that a portion of each of
the amounts described in the preceding clauses (a)and (b) shall
not be immediately payable by the Company but rather withheld as
a source of recovery in respect of certain indemnification
obligations to which the holders of the Notes have agreed in
favor of the Company, Miramar and their affiliates following the
Closing, the terms of which are set forth in more detail in the
Note Amendment.
Foundry Amendment
Concurrently with the execution of the Merger Agreement, the
Company entered into an Amendment No.1 to Assignment and License
Agreement and Assignment Agreement with the other parties
signatory thereto (the Foundry Amendment, and together with the
Merger Agreement and the Note Amendment, the Transaction
Documents), to which the Company, Miramar and The Foundry, LLC
(the Foundry) and certain individuals related to the Foundry (the
Foundry Assignees) agreed that all payments which may be payable
to the Foundry will be payable to the Foundry Assignees and
Foundry Assignees will each instead be paid, subject to and
contingent upon the occurrence of the Merger and the achievement
of Milestone #1, their respective pro rata portions of (a)an
amount equal to $2,235,821.53 in full satisfaction of the amount
of accrued royalty payments that may be owed by Miramar to the
Foundry Assignees as of the Closing; provided that a portion of
such amount shall not be immediately payable by the Company upon
the achievement of Milestone #1 but rather may be withheld by the
Company as a source of recovery in respect of certain
indemnification obligations to which the Foundry Assignees have
agreed in favor of the Company, Miramar and their affiliates
following the Closing, the terms of which are set forth in more
detail in the Foundry Amendment, and (b)certain Contingent
Royalty Payments based on Miramars Contingent Net Sales of
Covered Products after the date of the Foundry Amendment (each as
defined in the Foundry Amendment).
Additional Information
The foregoing descriptions of the Transaction Documents and the
Support Agreements do not purport to be complete and are
qualified in their entirety by reference to the Merger Agreement,
which is attached as Exhibit 2.1 to this Current Report on Form
8-K, the Support Agreements, the form of which is attached as
Exhibit 99.1 to this Current Report on Form 8-K, the CVR
Agreement, the form of which is attached as Exhibit 99.2 to this
Current Report on Form 8-K, the Note Amendment, which is attached
as Exhibit 99.3 to this Current Report on Form 8-K, and the
Foundry Amendment, which is attached as Exhibit 99.4 to this
Current Report on Form 8-K, and in each case is incorporated
herein by reference. The Merger Agreement is not intended to
provide any other factual information about the Company, Miramar
or Purchaser. The Transaction Documents and the Support
Agreements contain representations and warranties by each of the
Company, Miramar and Purchaser and the signatories thereto, as
applicable. These representations and warranties were made solely
for the benefit of the parties to such agreements and:
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should not be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; |
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may have been modified, qualified or excepted in the applicable agreement by information in confidential disclosure letter provided by the party in connection with the signing of such agreement; |
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may apply contractual standards of materiality that are different from materiality under applicable securities laws; and |
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were made only as of the date of the applicable agreement or such other date or dates as may be specified in such agreement. |
Accordingly, the representations and warranties in the
Transaction Documents and the Support Agreements may not
constitute the actual state of facts about the Company, Miramar,
Purchaser or any other signatory thereto.
| Item8.01 | Other Events. |
On June12, 2017, the Company and Miramar issued a joint press
release announcing the execution of the Merger Agreement. A copy
of the press release is attached hereto as Exhibit 99.5 to this
report.
Important Additional Information and Where to Find
It
In connection with the Companys proposed acquisition of Miramar,
Purchaser will commence a tender offer for all of the outstanding
shares of Miramar. Such tender offer 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
shares of Miramar, nor is it a substitute for the tender offer
materials that the Company and Purchaser will file with the
United States Securities and Exchange Commission (the SEC) upon
commencement of the tender offer. At the time that the tender
offer is commenced, the Company and Purchaser will file tender
offer materials on Schedule TO with the SEC, and Miramar will
file a Solicitation/Recommendation Statement on Schedule 14D-9
with the SEC with respect to the offer. 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 WILL CONTAIN IMPORTANT
INFORMATION THAT SHOULD BE READ CAREFULLY AND CONSIDERED BY
MIRAMARS STOCKHOLDERS BEFORE ANY DECISION IS MADE WITH RESPECT TO
THE TENDER OFFER. Both the tender offer statement and the
solicitation/recommendation statement will be made available to
Miramars stockholders free of charge. A free copy of the tender
offer statement and the solicitation/recommendation statement
will also be made available to all stockholders of Miramar by
contacting Miramar at 2790 Walsh Avenue, Santa Clara, California
95051, by phone at (408) 579-8700, or by visiting Miramars
website (miramarlabs.com). In addition, the tender offer
statement and the solicitation/recommendation statement (and all
other documents filed with the SEC) will be available at no
charge on the SECs website (www.sec.gov) upon filing with the
SEC. MIRAMARS STOCKHOLDERS ARE ADVISED TO READ THE TENDER OFFER
STATEMENT AND THE SOLICITATION/RECOMMENDATION STATEMENT, AS EACH
MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER
RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE
BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE TENDER OFFER
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE
PROPOSED TRANSACTION AND THE PARTIES TO THE TRANSACTION.
Forward Looking Statements
This document contains certain statements that constitute
forward-looking statements. These forward-looking statements
include, but are not limited to, statements regarding the
satisfaction of conditions to the completion of the proposed
transaction and the expected completion of the proposed
transaction, as well as other statements that are not historical
fact. These forward-looking statements are based on currently
available information, as well as the Companys views and
assumptions regarding future events as of the time such
statements are being made. Such forward looking statements are
subject to inherent risks and uncertainties. Accordingly, actual
results may differ materially and adversely from those expressed
or implied in such forward-looking statements. Such risks and
uncertainties include, but are not limited to, the potential
failure to satisfy conditions to the completion of the proposed
transaction due to the failure to receive a sufficient number of
tendered shares in the tender offer, as well as those described
in cautionary statements contained elsewhere herein and in the
Companys periodic reports filed with the SEC including the
statements set forth under Risk Factors set forth in the Companys
most recent annual report on Form 10-K and the Companys most
recent quarterly report on Form 10-Q, the Tender Offer Statement
on Schedule TO (including the offer to purchase, the letter of
transmittal and other documents relating to the tender offer) to
be filed by the Company and Purchaser, and the
Solicitation/Recommendation Statement on Schedule 14D-9 to be
filed by Miramar. As a result of these and other risks, the
proposed transaction may not be completed on the timeframe
expected or at all. These forward-looking statements reflect the
Companys expectations as of the date of this report. While the
Company may elect to update any such forward-looking statements
at some point in the future, the Company specifically disclaims
any obligation to do so, even if our expectations change, except
as required by law.
| Item9.01. | Financial Statements and Exhibits. |
(d)Exhibits
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ExhibitNo. |
Description |
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| 2.1 |
Agreement and Plan of Merger by and among Sientra, Inc., Desert Acquisition Corporation and Miramar Labs, Inc. dated as of June11, 2017. (Certain schedules and annexes referenced in the Agreement and Plan of Merger have been omitted in accordance with Item601(b)(2) of RegulationS-K. A copy of any omitted schedule and/or annex will be furnished as a supplement to the U.S. Securities and Exchange Commission upon request.) |
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| 99.1 |
Form of Tender and Support Agreement, by and among Sientra, Inc., Desert Acquisition Corporation and certain stockholders of Miramar Labs, Inc., dated as of June11, 2017. |
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| 99.2 | Form of Contingent Value Rights Agreement. |
| 99.3 |
Omnibus Amendment to Subordinated Secured Convertible Promissory Notes, by and among Miramar Labs, Inc., Sientra, Inc. and certain other parties thereto, dated as of June11, 2017. |
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| 99.4 |
Amendment No.1 to Assignment and License Agreement and Assignment Agreement by and between Miramar Labs, Inc., Sientra, Inc. and The Foundry, LLC and certain other parties thereto, dated as of June11, 2017. |
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| 99.5 |
Joint Press Release, dated June12, 2017 by Sientra, Inc. and Miramar Labs, Inc. |
About SIENTRA, INC. (NASDAQ:SIEN)
Sientra, Inc. is a medical aesthetics company. The Company’s primary products are silicone gel breast implants for use in breast augmentation and breast reconstruction procedures, which it offers in over 190 variations of shapes, sizes and textures. The Company sells its breast implants and breast tissue expanders, or breast products to plastic surgeons. Its breast implants are primarily used in elective procedures, which are generally performed on a cash-pay basis. The Company’s breast implants incorporate one or more differentiated technologies, including a cohesive silicone gel and texturing branded TRUE Texture. TRUE Texture provides texturing on the implant shell that is designed to reduce the incidence of malposition, rotation and capsular contracture. The Company also offers breast tissue expanders and a range of other aesthetic and specialty products. The Company offers a range of HSC+ breast implants, including anatomically shaped textured, round textured and round smooth.