Recommended Acquisition of Nightstar Therapeutics plc by Tungsten Bidco Limited, a Wholly-Owned Subsidiary of Biogen Switzerland Holdings GmbH; Posting of Scheme Document
April 9, 2019
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN PART IN, INTO OR FROM ANY RESTRICTED JURISDICTION OR ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT JURISDICTION
Nightstar is pleased to announce that the Scheme Document is being sent, or made available, to Nightstar Shareholders today. The Scheme Document contains, amongst other things, a letter from the Chairman of Nightstar, the full terms and conditions of the Scheme and the Acquisition, an explanatory statement pursuant to section 897 of the Companies Act 2006, an expected timetable of principal events and details of the actions to be taken by Nightstar Shareholders, together with the Forms of Proxy for the Court Meeting and the General Meeting. The Scheme Document is available on Nightstar's website at www.nightstartx.com.
Award holders in the Nightstar Share Schemes will be contacted as soon as reasonably practicable regarding the effect of the Scheme on their Awards and with details of Bidder's proposals about their rights.
Nightstar Shareholder Meetings
As described in the Scheme Document, to become Effective the Scheme will require, among other things, the approval of the Nightstar Scheme Shareholders at the Court Meeting and the passing of the Resolutions by the Nightstar Shareholders at the General Meeting. Both the Court Meeting and the General Meeting will be held at the offices of Nightstar's solicitor,
Completion of the Acquisition also remains conditional on the satisfaction or waiver of the other Conditions set out in the Scheme Document and the approval of the Court.
It is important that, for the Court Meeting, as many votes as possible are cast so that the Court may be satisfied that there is a fair representation of Nightstar Scheme Shareholder opinion. You are, therefore, strongly urged to complete, sign and return your Forms of Proxy, appoint a proxy electronically or submit a proxy vote via CREST as soon as possible.
The Scheme Document contains an expected timetable of principal events relating to the Scheme, which is also set out in the Appendix to this announcement. The Acquisition is expected to become Effective during the middle of 2019.
Information for Nightstar Shareholders
For information purposes only, the Scheme Document will also be made available to participants in the Nightstar Share Schemes and persons with information rights.
A Nightstar Shareholder Helpline is available for Nightstar Shareholders on +44 370 703 6033. Lines are open from
ADS Holders may contact the Nightstar Depositary’s ADS shareholder services at +1 877 248 4237 or
Please note that the Nightstar Shareholder Helpline operators cannot provide advice on the merits of the Scheme nor give financial, tax, investment or legal advice.
All references to time in this announcement are to
Unless otherwise defined herein, capitalised terms and expressions used in this announcement shall have the meanings given to them in the Scheme Document.
|Alan Hartman||+1 212 380 2665|
|Andrew Rymer||+1 212 429 2349|
|James Hartop||+44 (0)20 7409 9730|
Finsbury (PR adviser to Nightstar)
|Kal Goldberg||+1 646 805 2005|
|Chris Ryall||+1 646 306 0747|
|Nicholas Leasure||+1 646 805 2814|
Important notices relating to financial advisers
The City Code on Takeovers and Mergers
The City Code on Takeovers and Mergers does not apply to the Acquisition.
This announcement is for information purposes only and is not intended to and does not constitute, or form any part of, an offer to sell or an invitation to purchase or subscribe for any securities or the solicitation of any vote or approval in any jurisdiction pursuant to the Acquisition or otherwise. The Acquisition will be made solely in accordance with the Scheme Document, which contains the full terms and conditions of the Acquisition, including details of how to vote in respect of the Scheme. INVESTORS ARE ADVISED TO READ THE SCHEME DOCUMENT, AS IT MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, CAREFULLY AND IN ITS ENTIRETY PRIOR TO MAKING ANY DECISIONS WITH RESPECT TO THE ACQUISITION BECAUSE IT CONTAINS IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors may obtain a free copy of the Scheme Document at the SEC’s website at www.sec.gov, or free of charge from Nightstar at https://www.nightstartx.com or by directing a request to Nightstar at firstname.lastname@example.org. Any voting decision or response in relation to the Acquisition should be made solely on the basis of the Scheme Document.
This announcement does not constitute a prospectus or a prospectus equivalent document.
The release, publication or distribution of this announcement in jurisdictions other than the
Copies of this announcement and any formal documentation relating to the Acquisition are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in or into or from any Restricted Jurisdiction or any jurisdiction where to do so would constitute a violation of the laws of such jurisdiction and persons receiving such documents (including custodians, nominees and trustees) must not mail or otherwise forward, distribute or send them in or into or from any Restricted Jurisdiction. Doing so may render invalid any related purported vote in respect of acceptance of the Acquisition.
If the Acquisition is implemented by way of an Offer, the Offer may not (unless otherwise permitted by applicable law and regulation) be made, directly or indirectly, in or into or by use of the mails or any other means or instrumentality (including, without limitation, facsimile, e-mail or other electronic transmission, telex or telephone) of interstate or foreign commerce of, or any facility of a national, state or other securities exchange of any Restricted Jurisdiction and the Acquisition will not be capable of acceptance by any such use, means, instrumentality or facilities or from within any Restricted Jurisdiction.
Further details in relation to Nightstar Shareholders in overseas jurisdictions are contained in the Scheme Document.
Notice to U.S. investors in Nightstar
The Acquisition relates to the shares of a
It may be difficult for U.S. Nightstar Shareholders and Nightstar ADS Holders to enforce their rights and any claim arising out of the U.S. federal securities laws, because Nightstar is located in a non-U.S. country, and some or all of its officers and directors are residents of a non-U.S. country. U.S. Nightstar Shareholders and Nightstar ADS Holders may not be able to sue a non-U.S. company or its officers or directors in a non-U.S. court for violations of the U.S. securities laws. Further, it may be difficult to compel a non-U.S. company and its affiliates to subject themselves to a U.S. court's judgment.
U.S. Nightstar Shareholders and Nightstar ADS Holders are urged to consult with legal, tax and financial advisers in connection with making a decision regarding the Acquisition.
Warning Concerning Forward-Looking Statements
All statements included in this Announcement, other than statements or characterizations of historical fact, are forward-looking statements within the meaning of the federal securities laws, including Section 21E of the U.S. Exchange Act, and other securities laws. Whenever Nightstar uses words such as "believe", "expect", "anticipate", "intend", "plan", "estimate", "will", "may", "predict", "could", "seek", "forecast" and negatives or derivatives of these or similar expressions, they are making forward-looking statements. Examples of such forward-looking statements include, but are not limited to, references to the anticipated benefits of the Acquisition and the expected time of effectiveness of the Acquisition. These forward-looking statements are based upon Nightstar's present intent, beliefs or expectations, but forward-looking statements are not guaranteed to occur and may not occur.
Nightstar Shareholders are cautioned that any forward-looking statements are not guarantees of future performance and may involve significant risks and uncertainties, and that actual results may vary materially from those in the forward-looking statements. Important risk factors that may cause Nightstar's actual results to differ materially from their forward-looking statements include, but are not limited to: (1) the Acquisition is subject to the satisfaction or waiver of certain conditions, including the receipt of requisite approvals by Nightstar Shareholders, the sanction of the Scheme by the
The information contained in Nightstar's filings with
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
|Nightstar ADS Voting Record Time||5.00 p.m. (New York time) on 4 April2019|
|Publication of the Scheme Document||9 April 2019|
|Latest time for receipt of ADS Voting Instruction Cards for the Nightstar Shareholder Meetings||10.00 a.m. (New York time) on 30 April2019|
|Latest Time for Nightstar ADS Holders to cancel out of the Nightstar ADS Programme and receive Nightstar Shares ahead of the Scheme Voting Record Time||5.00 p.m. (New York time) on 25 April2019|
|Latest time for lodging Forms of Proxy for use at the General Meeting (WHITE Form of Proxy)||10.30 a.m. on 3 May 2019(2)|
|Latest time for lodging Forms of Proxy for use at the Court Meeting (BLUE Form of Proxy)||10.40 a.m. on 3 May2019(3)|
|Scheme Voting Record Time||6.00 p.m. on 3 May 2019 (4)|
|General Meeting||10.30 a.m. on 8 May 2019|
|Court Meeting||10.40 a.m. on 8 May 2019(5)|
The expected date of the Court Hearing to sanction the Scheme and each of the other dates and times set out below will depend, among other things, on the date on which the conditions to the Scheme and the Acquisition are satisfied or, if capable of waiver, waived. They are accordingly presented as indicative and referable to the date on which those conditions are satisfied or waived (as the case may be). Further details of the conditions are set out in Part III (Conditions to and Further Terms of the Scheme and the Acquisition) of the Scheme Document.
Nightstar will give notice of each of the below dates and times, when known, by issuing an announcement through GlobeNewswire or another national news wire service and by making such announcement available on Nightstar’s website https://ir.nightstartx.com. Further updates or changes to other times or dates indicated below shall be notified in the same manner.
|Latest Time for Nightstar ADS Holders to cancel out of the Nightstar ADS Programme and receive Nightstar Shares ahead of the Scheme Record Time||5.00 p.m. (New York time) on D – 4 Business Days|
|Last day of trading in Nightstar ADSs on Nasdaq||D(6)|
|Court Hearing to sanction the Scheme||D|
|Scheme Record Time||6.00 p.m. on D|
|Effective Date of the Scheme||D+1 Business Day(7)|
|Suspension of trading in Nightstar ADSs on Nasdaq||by 8.00 a.m. (New York time) on D+2 Business Days(7)|
|Cancellation of listing of Nightstar ADSs on Nasdaq||D+11 days|
|Despatch of cheques and crediting of CREST for Consideration due under the Scheme||as soon as practicable after the Effective Date and in any event within 14 days of the Effective Date|
|Long Stop Date||4 September 2019(8)|
The General Meeting and the Court Meeting will each be held at the offices of Nightstar’s solicitors, Skadden, at
(1) These times and dates are indicative only and will depend, amongst other things, on the dates upon which: (i) the Conditions are satisfied or (where applicable) waived; (ii) the Court sanctions the Scheme; and (iii) a copy of the Court Order is delivered to the Registrar of Companies. Nightstar will give notice of any change(s) by issuing an announcement through GlobeNewswire or other national news wire service.
(2) White Forms of Proxy for the General Meeting must be lodged not later than
(3) It is requested that blue Forms of Proxy for the Court Meeting be lodged not later than
(4) If either of the Nightstar Shareholder Meetings is adjourned, the Scheme Voting Record Time for the relevant adjourned meeting will be
(5) To commence at
(6) A date expected to be mid-year 2019, and no earlier than
(7) These dates depend, among other things, on the date upon which the Court sanctions the Scheme and the date which the Court Order sanctioning the Scheme is delivered to and, if ordered by the Court, registered by, the Registrar of Companies.
(8) This date may be extended to such date as Nightstar, Bidco and Bidder may agree and the Court (if required) may allow.
All references in this timetable to times are to times in
Source: Nightstar Therapeutics